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What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Robert PUGH and Nathaniel Henderson et al., Plaintiffs-Appellants, v. James RAINWATER et al., Defendants-Appellees. No. 72-1223. United States Court of Appeals, Fifth Circuit. Aug. 22, 1977. Rehearing En Banc Granted Oct. 18, 1977. .See 562 F.2d 362. Phillip A. Hubbart, Public Defender, Bennett H. Brummer, Asst. Public Defender, Eleventh Judicial Circuit of Fla., Bruce S. Rogow, Miami, Fla., for plaintiffs-appellants. Peter Nimkoff, Pearson & Josefsberg, Lewis M. Jepeway, Jr., Miami, Fla., amicus curiae, for Dade County Bar Assn. Duke Winsor, Legal Unit, Public Safety Dept., James R. Jorgenson, Stuart Simon, County Atty., Alan T. Dimond, Asst. County Atty., Miami, Fla., for Purdy. Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, Fla., for Sutton, Rainwater, Ferguson, Adair, Snowden, and Berkman. Frank Miles, City Atty., Hialeah, Fla., for Maynard. Aaron Foosaner, Miami Beach, Fla., for Perry. Joseph Pardo, Miami, Fla., for Segall. Jack Blumenfeld, Milton Robbins, Asst. State’s Atty., Miami, Fla., for Gerstein. Joseph A. Wanick, City Atty., and Henry Edgar, Asst. City Atty., Miami Beach, Fla., for Pomerance. Alan H. Rothstein, Larry J. Hirsch, Asst. City Atty., Montague Rosenberg, Asst. City Atty., Miami, Fla., for Bernard Garmire. Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, Fla., for defendants-appellees. Before GEWIN and SIMPSON, Circuit Judges. Judge Bell was a member of the original panel at the time of oral argument, but resigned from the court prior to decision of this case, which is decided by a quorum. Title 28, U.S.C. § 46(d). SIMPSON, Circuit Judge: Since Florida’s admission to the Union persons charged in the courts of that state with bailable offenses were entitled to obtain pretrial freedom by paying or having a surety pay to the court a sum of money refundable upon appearance at trial. Plaintiffs in the instant case, indigent pretrial detainees suing on behalf of themselves and others similarly situated, maintain that this traditional practice denies them equal protection of the law by conditioning their right to pretrial freedom on wealth-based criteria. We agree and hold that equal protection is not satisfied unless a judge is required to consider less financially onerous forms of pretrial release before he imposes money bail. I. INTRODUCTION We preface our opinion by noting that we are asked to resolve a small part of a much larger problem. The practice of incarcerating indigent defendants prior to trial has sparked a flood of litigation in recent years. At first, advocates of bail reform brought their case before the state legislatures and Congress. Despite initial success, the movement became stalled. Perhaps as a result, vindication of the rights of pretrial detainees was increasingly sought in the federal courts. Almost without exception, the cases challenged the conditions, not the fact of pretrial detention. The guiding principle in each case has been that prior to trial a defendant is presumed innocent; his incarceration during that period is permissible only to assure his appearance at trial, not to inflict punishment. See e.g. Miller v. Carson, 401 F.Supp. 835, 865-67 (S.D.Fla. 1975). On this basis the courts have ordered sweeping changes in the character and administration of state prisons to assure that pretrial detainees, most often those with little or no resources, are not punished before they are found guilty. Today we decide a narrow issue: whether the imprisonment of an indigent prior to trial solely because he cannot afford to pay money bail violates his right to equal protection under the Fourteenth Amendment. At least therefore we do not face the unpleasant task of considering the number of roaches and rats, the extent of disease, lack of sanitary facilities and overcrowding tolerable under minimal constitutional safeguards. But we cannot escape awareness that conditions in many pretrial detention centers have shocked the conscience of courts across the nation. Without unlimited state funds it is questionable whether any number of federal court orders can transform such pestholes into proper accommodations which do not punish those presumed to be innocent. The issue before us boils down to whether an indigent, already denied the material comforts many of us take for granted, may be condemned to pretrial imprisonment under barbaric conditions for no other reason than his poverty. II. PROCEDURAL HISTORY This case comes to us after a complex procedural history. In 1971, the plaintiffs brought a class action against eight judges and other state officials including the State Attorney, Richard Gerstein, of Dade County, Florida, asking the federal district court to declare unconstitutional and to enjoin two practices of the defendants; (1) pretrial detention of arrestees without a judicial determination of probable cause, and (2) pretrial detention of indigent defendants solely because they were unable to post money bail as a condition of release. The trial court held for the plaintiffs on the first charge and for the defendants on the second. Pugh v. Rainwater, 332 F.Supp. 1107 (S.D.Fla.1971). The State Attorney, Richard Gerstein, appealed on the probable cause question and the plaintiffs appealed on the bail question by separate appeals to this court. After oral argument, we remanded (by an unpublished order) for further findings on the probable cause issue and the district court reaffirmed its original ruling. Pugh v. Rainwater, 355 F.Supp. 1286 (S.D.Fla.1973). We then affirmed on the probable cause issue with modifications. Pugh v. Rainwater, 483 F.2d 778 (5th Cir. 1973). After defendant Ger-stein petitioned the Supreme Court for certiorari, we issued an order holding the bail issue in abeyance pending the Supreme Court’s decision. The Court affirmed with modifications our holding on the probable cause issue. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). On November 11,1975, we held oral arguments on the bail aspect of this case. At that time we suggested that counsel give the Supreme Court of Florida an opportunity to revise its rule of criminal procedure regarding pretrial release, thus obviating the need for action by this Court. The Florida Supreme Court had earlier rejected an amendment to its criminal rules that would have accommodated the plaintiffs’ wishes. In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1972). On several occasions after the 1975 oral argument, plaintiffs’ attorneys presented their case to the Florida Supreme Court and to appropriate committees of the integrated Florida Bar. Finally, the Florida Supreme Court promulgated a new rule concerning bail, The Florida Bar re Florida Rules of Criminal Procedure, 343 So.2d 1247 (Fla.1977) (Fla.R.Crim.P. 3.130), Note 11, supra, but declined to adopt the specific revisions requested by the plaintiffs. III. THE ISSUE It makes for clarity to delineate exactly what we are called upon to decide. First, this case does not involve the right to bail per se. Regardless of whether there is a federal constitutional right to bail, cf. Carlson v. Landon, 342 U.S. 542, 72 S.Ct. 525, 96 L.Ed. 547 (1952), the plaintiffs here were entitled to bail by virtue of the Florida Constitution, Art. I, § 14, Note 11, supra. The State of Florida has chosen to guarantee bail to its citizens except in the case of crimes of the most serious nature. The issue before us is whether the state is invidiously discriminating in administering the right it has conferred. Similarly, we are not called upon to decide whether any person is denied equal protection if he can make bail in some amount, but is unable to post the amount of bail set. We are confronted only with the question of the rights of indigents. As the Supreme Court has suggested in a different context, this distinction is not without constitutional significance: The individuals, or groups of individuals, who constituted the class • discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit . [Earlier cases] do not touch on the question whether equal protection is denied to persons with relatively less money on whom designated fines impose heavier burdens. Sentencing judges may, and often do, consider the defendant’s ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate. San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 20-22, 93 S.Ct. 1278, 1290-91, 36 L.Ed.2d 16, 35-36 (1973). Clearly, all but the most trifling money bail would be meaningless to the indigent who lacks funds even to pay a bail bondsman. “[I]n the case of an indigent defendant, the fixing of bail in even a modest amount may have the practical effect of denying him release”. Bandy v. United States, 81 S.Ct. 197, 198, 5 L.Ed.2d 218, 219 (1960) Douglas, J., sitting as Circuit Justice, ruling upon an application by a federal prisoner for release on personal recognizance pending appeal. The issue before us was framed concisely by Mr. Justice Douglas in Bandy: [The] traditional right to freedom during trial and pending judicial review has to be squared with the possibility that the defendant may flee or hide himself. Bail is the device which we have borrowed to reconcile these conflicting interests. . It is assumed that the threat of forfeiture of one’s goods will be an effective deterrent to the temptation to break the conditions of one’s release. But this theory is based on the assumption that a defendant has property. To continue to demand a substantial bond which the defendant is unable to secure raises considerable problems for the equal administration of the law . . . Can an indigent be denied freedom, where a wealthy man would not, because he does not happen to have enough property to pledge for his freedom? Bandy v. United States, supra, 81 S.Ct. at 198. IV. FRAMEWORK OF ANALYSIS Traditional equal protection analysis grants great deference to legislative classifications. If “the distinctions drawn have some basis in practical experience”, South Carolina v. Katzenbach, 383 U.S. 301, 331, 86 S.Ct. 803, 820, 16 L.Ed.2d 769, 788 (1966), or if “any state of facts reasonably may be conceived to justify” them, McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399 (1961), and they are not drawn “on the basis of criteria wholly unrelated to the objective of [the] statute,” Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225, 229 (1971), then the statute will withstand an equal protection challenge. “But the [Supreme] Court also has refined this traditional test and has said that a statutory classification based upon suspect criteria or affecting ‘fundamental rights’ will encounter equal protection difficulties unless justified by a ‘compelling governmental interest.’ ” Schilb v. Kuebel, 404 U.S. 357, 365, 92 S.Ct. 479, 484, 30 L.Ed.2d 502, 511 (1971). The Court has stressed that in such cases the State must demonstrate that the classification is “necessary to promote a compelling governmental interest”. Dunn v. Blumstein, 405 U.S. 330, 342, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274, 284 (1972). Thus, under the strict scrutiny test, “if there are other, reasonable ways to achieve [the State’s goals] with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic means.’ ” Id. Accordingly, our analysis must focus on four questions: (1) Does Florida’s bail system create a classification? (2) If so, is that classification “suspect” or does it affect “fundamental rights”? (3) Is the State of Florida attempting to promote a compelling governmental interest by making the classification? and (4) Are less restrictive means available to effectuate the desired end? A. Does Florida’s Bail System Create a Classification? The plaintiffs do not allege that their bail was set solely on the basis of .their lack of wealth. The record reveals that factors in addition to an accused’s wealth were weighed by the defendants in determining the amount of bail. This finding strongly influenced the district judge’s ruling on the equal protection question: In contending that they are denied release solely because of their poverty, plaintiffs ignore other factors distinguishing them from released persons. The record shows that plaintiffs’ confinement is not the result of a classification based solely upon wealth, consequently they have not been deprived of their right to equal protection of the law. 332 F.Supp. at 1115. We think, however, that the district judge misconstrued the nature of the plaintiff’s complaint. The point is not whether the judge considers factors other than wealth in deciding whether money bail is necessary and, if so, the amount; rather, our concern is with the effect of the judge’s decision. A judge may weigh all factors and decide, for example, that $5000 bail each is necessary to assure the appearance at trial of two defendants. One has a $10,-000 savings account; the other is an indigent. Even though both have been assessed as presenting the same risk, the man of means can secure his pretrial freedom while the indigent has no choice but to remain in jail. A basic principle of equal protection is that “a law nondiscriminatory on its face may be grossly discriminatory in its operation”. Williams v. Illinois, 399 U.S. 235, 242, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586, 593 (1970). Thus, the lack of deliberate discrimination on the basis of poverty is not dispositive of plaintiffs’ claim. Since the ruling of the district court in 1971, the Florida Supreme Court has promulgated new rules governing pretrial release and bail. See note 11 supra. Under the latest system, “bail” is defined as six alternative forms of release. The judge is required to “consider all available relevant factors to determine what form of release is necessary to assure the defendant’s appearance. If monetary bail is required, then the judge shall determine the amount.” Fla.R. Crim.P. 3.130(b)(4)(ii). Money bail is not listed as a last resort and the judge has broad discretion in deciding whether such bail is “necessary to assure the defendant’s appearance”. Thus, the new rules neither do away with money bail nor create a presumption in favor of release conditioned on non-financial factors. The result is that whenever a judge sets monetary bail he creates a de facto classification based on the defendant’s ability to pay. A 1964 study on bail in the United States minced no words in describing this situation: “In a system which grants pretrial liberty for money, those who can afford a bondsman go free; those who cannot, stay in jail”. B. Does the Classification Involve “Suspect Criteria” or “Fundamental Rights”? Although the Supreme Court has cautioned that “lines drawn on the basis of property like those of race are traditionally disfavored,” Harper v. Virginia Board of Electors, 383 U.S. 663, 668, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169, 173 (1966), it has never held that wealth per se is a suspect criterion. Nevertheless, the Court has been extremely sensitive to classifications based on wealth in the context of criminal prosecutions. “In criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color”. Griffin v. Illinois, 351 U.S. 12, 17, 76 S.Ct. 585, 590, 100 L.Ed. 891, 898 (1956). Griffin opened the door to equal protection attacks on procedures which, although nondiscriminatory on their face, in effect confront the indigent defendant with the “illusory choice” of paying a fee he cannot afford or forfeiting an opportunity available to those who can pay: “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has”. Id. at 19, 76 S.Ct. at 591, 100 L.Ed. at 899. The Court has extended this principle to include a situation where the amount of money a man has determines whether he is imprisoned for an offense: [T]he Constitution prohibits a State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full. Tate v. Short, 401 U.S. 395, 398, 91 S.Ct. 668, 671, 28 L.Ed.2d 130, 133 (1971). Moreover, as Chief Justice Burger noted in Williams, “the passage of time has heightened rather than weakened the attempts to mitigate the disparate treatment of indigents in the criminal process”. 399 U.S. at 241, 90 S.Ct. at 2022, 26 L.Ed.2d at 593. We conclude from these authorities that the wealth classification in the instant case warrants close judicial scrutiny. Strict scrutiny is appropriate also because the inability to raise money bail necessarily affects fundamental rights of the indigent defendant. Foremost among these rights is the presumption of innocence. In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970). The Supreme Court observed in Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3, 6 (1951): “From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), 18 U.S.C.A., federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 1895, 156 U.S. 277, 285, 15 S.Ct. 450, 453, 39 L.Ed. 424. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” Because they have been convicted of no crime, pretrial detainees may not be punished. The sole permissible interest of the State is to assure their presence at trial. Duran v. Elrod, 542 F.2d 998, 999 (7th Cir. 1976). In Anderson v. Nosser, 438 F.2d 183, 190 (5th Cir. 1971), aff’d in pert, part, 456 F.2d 835 (en banc), cert. denied, 409 U.S. 848, 93 S.Ct. 53, 34 L.Ed.2d 89 (1972), we concluded that “[pjunitive measures in such a context are out of harmony with the presumption of innocence”. Although Duran v. Elrod and Anderson v. Nosser addressed the conditions of pretrial detention, pretrial detention itself, unless justified by overwhelming necessity, cannot realistically be viewed as other than a form of punishment. The conditions under which many pretrial detainees are imprisoned are so squalid that federal court orders mandating vast improvements have been necessary to alleviate the more grievous “punishment” aspects. Furthermore, in a system that prides itself on a devotion to “equal justice under the law”, it is difficult to maintain that conditions common in pretrial detention centers do not punish defendants presumed innocent but that the more wholesome conditions of minimum security prisons do punish convicted criminals. Pretrial detention may also infringe upon an accused’s right to a fair trial. Courts have long recognized that the “right to freedom before conviction permits the unhampered preparation of a defense”. Stack v. Boyle, supra, 342 U.S. at 4, 72 S.Ct. at 3, 96 L.Ed. at 6. As Mr. Justice Powell noted in Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101, 118 (1972), a leading speedy trial case, “if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense”. The factors of a wealth-based classification in the context of a criminal prosecution, combined with its effect on the fundamental right to be presumed innocent and to prepare an adequate defense, persuade us that the challenged bail practices require strict judicial scrutiny. C. Does the Classification Serve a Compelling Governmental Interest? The sole governmental interest served by bail is to assure the presence of the accused at trial. Stack v. Boyle, supra, 342 U.S. at 5, 72 S.Ct. at 4, 96 L.Ed. at 6; Duran v. Elrod, supra, 542 F.2d at 999. Fla.R.Crim.P. 3.130(b)(4)(i) properly identifies “insurfing] the defendant’s appearance” as the only purpose of bail. This is clearly a compelling interest. The State also has an interest in denying pretrial release to a defendant who presents an unreasonable danger to the community. United States v. Gilbert, 138 U.S.App.D.C. 59, 425 F.2d 490 (1969); Nail v. Slayton, 353 F.Supp. 1013 (E.D.Va.1972). However, the State may not use bail to serve this end. “Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant”. Stack v. Boyle, supra, 342 U.S. at 4, 72 S.Ct. at 3, 96 L.Ed. at 5. Other means are available to Florida to secure pretrial detention of dangerous persons. Indeed, the Florida Constitution expressly withholds the right to bail in the case of certain serious crimes. Fla.Const.Art. I, § 14. We are not here asked to deprive the State of its power to protect the community from dangerous persons. Our inquiry is limited to those occasions where the State has set bail and has declared, in effect, that a person is free to reenter the community if he is willing to put up a sum of money. D. Is Money Bail Necessary to Promote the State’s Interest in Assuring Appearance? In 1951, the Supreme Court observed: “Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused”. Stack v. Boyle, supra, 342 U.S. at 5, 72 S.Ct. at 4, 96 L.Ed. at 6. This assumption has not withstood the test of time. Judicial condemnation of the modern system of commercial bail bondsmen has transcended political and ideological lines in emphasizing that monetary bail set by a judge has very little to do with assuring appearance at trial. The theory behind money bail is simple: “It is assumed that the threat of forfeiture of one’s goods will be an effective deterrent to the temptation to break the conditions of one’s release”. Bandy v. United States, supra, 81 S.Ct. at 197. However, “under the professional bondsman system the only one who loses money for non-appearance is the professional bondsman, the money paid to obtain the bond being lost to the defendant in any event”. Pannell v. United States, 115 U.S.App.D.C. 379, 320 F.2d 698, 699 (1963) (Wright, J., concurring). In this connection, “[t]he extent to which the accused is financially committed to appear is determined by the amount of collateral the bail bondsman requires for writing the bond, not how high the bail is set.” The ultimate effect of such a system, as Judge Wright has noted, “is that the professional bondsmen hold the keys to the jail in their pockets. They determine for whom they will act as surety—who in their judgment is a good risk. The bad risks, in the bondsmen’s judgment, and the ones who are unable to pay the bondsmen’s fees, remain in jail. The court and the commissioner are relegated to the relatively unimportant chore of fixing the amount of bail.” Id. at 699. (Emphasis in original). Mr. Justice Blackmun makes a similar assessment of the professional bondsman system. In Schilb v. Kuebel, 404 U.S. 357, 359-60, 92 S.Ct. 479, 481-82, 30 L.Ed.2d 502, 508 (1971), he wrote: “Prior to 1964 the professional bail bondsman system with all its abuses was in full and odorous bloom in Illinois. Under that system the bail bondsman customarily collected the maximum fee (10% of the amount of the bond) permitted by statute, and retained that entire amount even though the accused fully satisfied the conditions of the bond. Payment of this substantial ‘premium’ was required of the good risk as well as of the bad. The results were that a heavy and irretrievable burden fell upon the accused, to the excellent profit of the bondsman, and that professional bondsmen, and not the courts, exercised significant control over the actual workings of the bail system.” [citations omitted.] These valid criticisms of the professional bondsman system persuade us to the view that, in the case of indigents, money bail is irrelevant in promoting the state’s interest in assuring appearance. The indigent cannot on his own pay the amount of bail upon which his release has been conditioned. Unless a friend or relative qualifies as surety under Fla.Stat. § 903.08 and is willing to post bond, the indigent must resort to the professional bondsman. Even if the bondsman deems him an acceptable risk, he is unable to pay the bondsman’s fee. Cf.Fla. Stat. § 648.33. The incongruity of a bail system premised on the risk of forfeiting property is apparent: Those who can afford to pay a bondsman do so and thus avoid risking forfeiture of their property; indigents, who cannot afford to pay a bondsman, have no property to forfeit in the first place. The real assurance of appearance under the present system is the risk of forfeiture assumed by the bondsman. Because the bondsman does not want to lose money, he has a powerful incentive to make sure that the defendant for whom he is surety appears at trial. Thus, the bondsman has long enjoyed legal protection as a modern day bounty hunter, entitled to arrest his principal “even under extreme circumstances”. In this sense, the accused pays the bondsman to perform a police function—apprehension of a person who has jumped bail. An indigent defendant released on his own recognizance would face similar consequences. Cf. Fla.Stat. § 843.15. Presumably, then, the deterrence factor is comparable regardless of whether money bail has been posted. Even though it is manifest to us that money bail is not always necessary to assure a defendant’s appearance, it is necessary to consider whether other “less drastic” alternatives are available to the State. The Supreme Court of Florida, in amending its rule regarding pretrial release, has in effect conceded that many alternatives to money bail are available. It has adopted five additional forms of release, none of which is conditioned on a defendant’s ability to pay. Fla.R.Crim.P. 3.130(b)(4)(i). Because the new rule appears to be a significant departure from the former heavy emphasis on money bail, see note 11 supra, we must determine whether it vitiates plaintiffs’ constitutional objections. The new Florida rule is patterned after the Federal Bail Reform Act of 1966, 18 U.S.C. § 3146 (1970), which provides that a person charged with a bailable offense “shall ... be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearanee bond . . . unless the officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required”. In that event, five alternative forms of release are prescribed in order of priority, with money bail third on the list. The statute thus creates a presumption in favor of release on recognizance, United States v. Leathers, 134 U.S.App.D.C. 38, 412 F.2d 169, 171 (1969), and requires consideration of three other forms of release before money bail. By contrast, while the Florida rule makes available the same release options as does the Federal Act, it omits both the presumption and the order of priority contained in its federal counterpart. Instead, it instructs the judge to “consider all available relevant factors to determine what form of release is necessary . .” We find nothing in the rule that requires a judge to give priority to forms of release that do not impose a financial burden on a defendant. In fact, the Florida Supreme Court has twice rejected a presumption favoring release on recognizance. While the new Florida rule expands the options available for pretrial release, it does not provide that indigent defendants will be required to pay money bail only in the event that no other form of release will reasonably assure their appearance at trial. Because it gives the judge essentially unreviewable discretion to impose money bail, the rule retains the discriminatory vice of the former system: When a judge decides to set money bail, the indigent will be forced to remain in jail. We hold that equal protection standards are not satisfied unless the judge is required to consider less financially onerous forms of release before he imposes money bail. Requiring a presumption in favor of non-money bail accommodates the State’s interest in assuring the defendant’s appearance at trial as well as the defendant’s right to be free pending trial, regardless of his financial status. As a federal court we do not sit to write the rules of procedure of state courts. Plaintiffs in the instant case have not come to us with generalized complaints that the Florida rule concerning bail is unwise or not to their liking. Rather, they have presented a specific constitutional objection to the rule, that it violates an indigent’s right to equal protection under the Fourteenth Amendment. We withheld decision of this issue for nearly two years on considerations of comity and out of respect for the responsibility of the Florida Supreme Court to prescribe rules for Florida courts to follow. That court has now promulgated a new rule on pretrial release which, for the reasons stated, has not in our judgment mooted the constitutional point raised by the plaintiffs. We therefore remand with instructions to the district court to fashion a remedy not inconsistent with this opinion, either on the basis of the present or an augmented record, as that court shall determine. “[W]e yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication . . .” Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444, 450 (1967). V. CONCLUSION We have been called upon to decide whether indigent pretrial detainees are deprived of Fourteenth Amendment equal protection of the law when they are imprisoned solely because they cannot afford money bail set under a system that does not require' the judge first to consider less financially onerous conditions of release. In evaluating this problem, we have reached several conclusions: (1) When a judge sets money bail in Florida, he creates two de facto classes: non-indigents who presumptively can pay for their pretrial freedom and indigents who surely cannot; (2) This classification must be strictly scrutinized under the equal protection clause because it discriminates against indigent criminal defendants and directly affects their fundamental right to be presumed innocent and to prepare an adequate defense; (3) Although Florida has a compelling interest in assuring a defendant’s appearance at trial, (4) money bail is not necessary to promote that interest because the bail bondsman system eliminates the basic premise behind such bail; (5) Florida may promote its compelling interest through alternative forms of release that do not discriminate on the basis of wealth. These factors lead inexorably to the conclusion that Florida’s current bail system discriminates invidiously against indigents charged with crime. We hold that it violates the equal protection rights of such indigents. Our holding is not that money bail may never be imposed on an indigent defendant. The record before us does not justify our telling the State of Florida that in no case will money bail be necessary to assure a defendant’s appearance. We hold only that equal protection standards require a presumption against money bail and in favor of those forms of release which do not condition pretrial freedom on an ability to pay. The judgment appealed from is reversed, and this cause is remanded with instructions to the district court to fashion a remedy consistent with this opinion. REVERSED and REMANDED. . The district court granted plaintiffs’ motion to proceed in forma pauperis. Plaintiff Robert W. Pugh’s last employment paid him only room and board and his total assets at the time of filing this suit were $11.18. He was charged with robbery, a crime punishable by life imprisonment. He would have been entitled to bail unless a judge found that “the proof of guilt is evident or the presumption is great”. Fla. Const., Art. I § 14. Plaintiff Nathaniel Henderson had been earning $320 per month prior to his arrest and pretrial detention. He had no assets and had been supporting two daughters. R. 24-25. Although all the named plaintiffs have been convicted and are no longer pretrial detainees, the claims of the unnamed members of the class are not mooted. Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S.Ct. 854, 861 n. 11, 43 L.Ed.2d 54, 63 n. 11 (1975). . So far as we can determine, no other appellate court has ever decided this precise issue. In Rigney v. Hendrick, 355 F.2d 710 (3d Cir. 1965), cert. denied, 384 U.S. 975, 86 S.Ct. 1868, 16 L.Ed.2d 685, the Third Circuit held that an indigent pretrial detainee who was compelled to appear at a lineup was not deprived of equal protection. The Court stated: “Admittedly, there is a classification between those who can and those who cannot make bail. The Constitution, however, permits such a classification, and any differences here, arise solely because of the inherent characteristics of confinement and cannot constitute invidious discrimination.” Id. at 715. Rigney, however, did not involve a claim that the pretrial incarceration itself was a violation of equal protection. The Eighth Circuit has explained the rationale of Rigney as follows: “Since defendants who are free on bail can be compelled to submit to lineups, defendant was not denied due process of law or deprived of equal protection of law by being required to participate in a lineup while he was incarcerated because he was unable to post bail.” United States v. Scarpellino, 431 F.2d 475, 479-80 (8th Cir. 1970). In United States v. Gaines, 449 F.2d 143 (2d Cir. 1971), on facts more analogous to the instant case, the Second Circuit found an equal protection violation. See note 14 infra. Also, the use of a “master bond list” has been held to violate equal protection. Ackies v. Purdy, 322 F.Supp. 38 (S.D.Fla.1970). . Available statistics indicate that large numbers of people are imprisoned before trial, often because they cannot afford bail. One commentator estimated that “each day, about one hundred thousand people in the United States are being detained pending trial.” Note, The Conditions of Pre-Trial Detention, 79 Yale L.J. 941, 942 (1970). A federal census of city and county jails by the Census Bureau for the Law Enforcement Assistance Administration found that as of March 15, 1970, 160, 863 people were incarcerated in 4,073 jails used for periods of detention greater than 48 hours. Of those, 52 percent had not been convicted; 35 percent had been arraigned and were awaiting trial, 17 percent awaited arraignment. New York Times, January 7, 1971, p. 1. During the first 11 months of 1974, the pretrial holding cells of the Duval County Jail in Jacksonville, Florida, held 17,806 inmates for periods ranging from one to eight days. Miller v. Carson, 401 F.Supp. 835, 869 (M.D.Fla.1975). The Director of the Corrections and Rehabilitation Department of Dade County, Florida, testified that on June 3, 1971, approximately 500 pretrial detainees were housed in the Dade County Jail (where the instant plaintiffs were incarcerated) and the Dade County Stockade, and that the majority of those were imprisoned because they could not afford bail. R. 308-10. In January 1976, a United States District Judge in Miami found that 28 percent of the pretrial detainees at the Dade County Jail were there solely because they could not afford bail. Bridges v. Sandstrom, No. 74-994-Civ-JE (S.D. Fla. Jan. 14, 1976). . Most notably the Federal Bail Reform Act of 1966, 18 U.S.C. § 3146 (1970). See Ares, Rankin & Sturz, The Manhattan Bail Project, 38 N.Y.U.L.Rev. 67 (1963); Note, Preventive Detention Before Trial, 79 Harv.L.Rev. 1489, 1493 (1966). . Wice, Bill Reform in American Cities, 9 Crim. L.Bull. 770. (1973). . The cases are legion. Some samples are: Taylor v. Sterrett, 499 F.2d 367 (5th Cir. 1974), and 532 F.2d 462 (5th Cir. 1976); Anderson v. Nosser, 438 F.2d 183 (5th Cir. 1971), aff'd in part, rev’d in part, 456 F.2d 835 (1972) (en banc); Duran v. Elrod, 542 F.2d 998 (7th Cir. 1976); Detainees of Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392 (2d Cir. 1975); Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974) and 527 F.2d 1041 (2d Cir. 1975); Bridges v. Sandstrom, No. 74-994-Civ-JE (S.D.Fla. Jan. 14, 1976); Mitchell v. Untreiner, 421 F.Supp. 886 (N.D.Fla. 1976); Miller v Carson, 401 F.Supp. 835 (M.D.Fla.1975); Dillard v. Pitchess, 399 F.Supp. 1225 (C.D. Cal. 1975); Wilson v. Beame, 380 F.Supp. 1232 (E.D.N.Y. 1974); Inmates of Suffolk Cty. Jail v. Eisenstadt, 360 F.Supp. 676 (D.Mass.1973), aff'd 494 F.2d 1196 (1st Cir.), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 189 (1974); Inmates of Milwaukee Cty. Jail v. Peterson, 353 F.Supp. 1157 (E.D.Wis.1973); Hamilton v. Landrieu, 351 F.Supp. 549 (E.D.La.1972); Smith v. Sampson, 349 F.Supp. 268 (D.N.H.1972); Collins v. Schoonfield, 344 F.Supp. 257 (D.Md.1972); Brenneman v. Madigan, 343 F.Supp. 128 (N.D. Cal. 1972); Hamilton v. Love, 328 F.Supp. 1182 (E.D.Ark.1971); Jones v. Wittenberg, 323 F.Supp. 93 (N.D.Ohio 1971), aff'd sub nom., Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972). . One Court enjoined the mayor of New York City from confining any persons in that city’s famous “Tombs” after a certain date. Rhem v. Malcolm, 377 F.Supp. 995, 1000 (S.D.N.Y. 1974), remanded, 507 F.2d 333 (2d Cir.), on remand, 389 F.Supp. 964 (1975), aff'd, 527 F.2d 1041. . A federal district court found the following conditions to exist in the Duval County, Florida Jail: All inmates, if kept overnight, were required to sleep in their own clothes, without benefit of a mattress, blanket, sheet, pillow or towel . . Inmates were kept under these conditions from one to eight days. There were no means for brushing their teeth or showering. . . There were drunks, mental cases, homosexuals, first offenders, and recidivists. There was sometimes vomitus, urine and feces on the floor. Attempts were made to clean and mop regularly, but conditions were so bad that acceptable sanitation was impossible. Syphilis, gonorrhea, body lice, hepatitis, and broken bones were admitted in the holding cell mix. Lighting in the cells was and is still very poor. Meals were served at regular times, but conditions were so bad that food had to be eaten while standing because of lack of sitting space. . . . [T]he whole situation could only be classified ... as “depraved”, and . . as “animal-like.” Cockroaches, mice and rats were in abundance, and despite some attempt through the use of a contract pest control company to eradicate these nuisances, they are still present. The problem was found by the Court to be so severe that inmates sometimes passed their idle time trapping mice and rats. There was evidence of rat and cockroach excreta in the kitchen and officer dining room areas. . ****** In summary, the overall environment of the inmate housing areas of the Duval County Jail gave one the psychological feeling of being trapped in a dungeon. Miller v. Carson, 401 F.Supp. 835, 869, 871-72 (S.D.Fla. 1975). A Florida Circuit Judge made the following findings of fact regarding the place in which the instant plaintiffs were detained: The Dade County Jail is greatly overcrowded. . . Inmates, who have not yet been tried or convicted of any offense are burned, sexually assaulted, beaten, abused and mistreated by fellow inmates. . . . The rule of the jungle exists in the cells where might is right, resulting in many prisoners being denied the food necessary to sustain life. Lowery v. Metropolitan Dade County, 43 Fla.Supp. 84 (Fla. 11th Jud. Cir. 1971). . The Second Circuit, after conceding that New York City was beset by “financial difficulties”, noted that conditions of pretrial detention “cannot be extended to justify the denial of other unrelated rights for budgetary reasons”. Rhem v. Malcolm, 527 F.2d 1041, 1043 (2d Cir. 1975). The abstract correctness of this assertion granted, we recognize that it is simpler to order prison reform than to pay for it. The New York Times recently noted that “[ljegislators dislike allocating the money, because expenditures on prisons are unpopular with voters”. Crime Pays—A Prison Boom, New York Times, July 7, 1977, Sec. 3, p. 1. . Pursuant to 42 U.S.C. § 1983 (1970). . In 1971, when this action was instituted, the Florida Rules of Criminal Procedure promulgated by the Florida Supreme Court pursuant to its rule-making power, Fla.Const. (1968), Art. V § 2(a), contained no provision to guide the judge in setting bail. The 1968 Constitution (still in effect) provided for bail but set' no guidelines: Until adjudged guilty, every person charged with a crime or violation of municipal or county ordinance shall be entitled to release on reasonable bail with sufficient surety unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great. Fla.Const., Art. I § 14. A statute (also still in effect today), granted power to the Florida Parole and Probation Commission, upon request of the court, to make an investigation and report to the court regarding factors relevant to setting bail, including “[ojther facts that may be needed to assist the court in its determination of the indigency of the accused and whether he should be released on his own recognizance”; however, “[t]he court shall not be bound by the recommendations”. Fla.Stat. § 903.03(2)(a)(3) and (2)(b). In December 1972, the Florida Supreme Court adopted a comprehensive revision of its Rules of Criminal Procedure, effective February 1, 1973. In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1972). The 1972 revision contained the following rule governing the setting of bail: (4) Hearing at First Appearance. The purpose of bail is to insure the defendant’s appearance. The judge shall, therefore, at the defendant’s first appearance, consider all available relevant factors to determine whether bail is necessary to assure the defendant’s appearance and, if so, the amount of bail. The judge may, in his discretion, release a defendant on his own recognizance. Fla.R.Crim.P. 1.130(b)(4) (1973). This rule has since been amended, effective July 1, 1977, and now reads as follows: Rule 3.130. Pre-trial Release (a) Offenses Less Than Capital. All persons in custody for the commission of an offense unless it is a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great shall be entitled as of right to be admitted to bail before conviction. After conviction bail may be granted by either the trial or appellate court. (b) First Appearance (4) Hearing at First Appearance. (i) The purpose of bail is to insure the defendant’s appearance. For the purpose of this rule, bail is defined as any of the following forms of release: (1) Personal recognizance of the defendant; (2) Execution of an unsecured appearance bond in an amount specified by the judge; (3) Placing the defendant in the custody of a designated person or organization agreeing to supervise him; (4) Placing restrictions on the travel, association, or place of abode of the defendant during the period of release; (5) Requiring the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; or (6) Imposing any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the defendant return to custody after specified hours. (ii) The judge shall at the defendant’s first appearance consider all available relevant factors to determine what form of release is necessary to assure the defendant’s appearance. If a monetary bail is required, then the judge shall determine the amount. (iii) In determining which form of release will reasonably assure appearance, the judge shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the defendant’s family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings. (iv) Information stated in, or offered in connection with, any order entered pursuant to this rule need not strictly conform to the rules of evidence. Florida Bar re Florida Rules of Criminal Procedure, 343 So.2d 1247 (Fla.1977). . We think that the discretion granted the judge is apparent on the face of the rule. A committee note stated that the new rule “leaves it to the sound discretion of the judge to determine the least onerous form of release,” but in adopting the 1977 amendments to its Rules of Criminal Procedure, the Florida Supreme Court expressly declined to adopt any committee notes. The Florida Bar re Florida Rules of Criminal Procedure, 343 So.2d 1247 (Fla. 1977). See our discussion of the operation of the new rule, infra, pages 1200-1201. . D. Freed & P. Wald, Bail in the United States: 1964, at 21. Another study noted that the most “glaring weakness” of a money-based bail system “is that it discriminates against poor defendants, thus running directly counter to the law’s avowed purpose of treating all defendants equally”. Report of the President’s Commission on Law Enforcement and the Administration of Justice, The Challenge of Crime in a Free Society 131 (1967). The inequity of this system was apparent even to one of the earliest observers of the American scene: “It is evident that such [a procedure] is hostile to the poor and favorable only to the rich. The poor man has not always a security to pledge . .” 1 de Tocqueville, Democracy in America 55-56 (Bradley ed. 1963). . Williams v. Illinois, 399 U.S. 235, 242, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586, 593 (1970). Mr. Justice Frankfurter was more blunt: To sanction such a ruthless consequence, inevitably resulting from a money hurdle erected by a State, would justify a latter-day Anatole France to add one more item to his ironic comments on the “majestic equality” of the law. “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” Griffin v. Illinois, supra, 351 U.S. at 23, 76 S.Ct. at 593, 100 L.Ed. at 901 (Frankfurter, J., concurring). . Applying the principles of Williams and Tate, the Second Circuit found an equal protection violation under facts analogous to those in the instant case. An indigent defendant had been unable to begin serving time on a federal sentence because he was incarcerated in state prison for lack of funds to pay bail set in connection with state charges which were eventually dropped. At first the Second Circuit rejected his claim that, under the Equal Protection Clause, he was entitled to credit against his federal sentence for time spent in state jail. United States v. Gaines, 436 F.2d 1069 (2d Cir. 1971). The Supreme Court vacated and remanded for reconsideration in light of the Solicitor General’s suggestion that Williams and Tate demanded a contrary result. 402 U.S. 1006, 91 S.Ct. 2195, 29 L.Ed.2d 428 (1971). On remand, the Second Circuit reversed its earlier holding, explaining: The Supreme Court’s decisions in [Tate and Williams ] indicate that a man should not be kept imprisoned solely because of his lack of wealth. If Gaines had had the money to post the state bond . . . and had then entered federal custody, he would now be eligible for his unconditional release. Gaines’ lack of wealth resulted in his having to serve a sentence that a richer man would not have had to serve, an impermissible discrimination according to Tate and Williams. United States v. Gaines, 449 F.2d 143, 144 (2d Cir. 1971). We impliedly accepted Gaines in Lebosky v. Saxbe, 508 F.2d 1047 (5th Cir. 1975). Although Gaines is instructive, it does not control our decision today. . See, e. g., Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961). . “For instance, now,” [the Queen] went on . “There’s the King’s Messenger. He’s in prison now, being punished; and the trial doesn’t even begin till next Wednesday; and of course the crime comes last of all.” “Suppose he never commits the crime?” said Alice. “That would be all the better, wouldn’t it?” the Queen said . . . Carroll, Through the Looking Glass 226-27 (Modem Library Ed.) . See notes 6 and 8 supra. The jail in which the instant plaintiffs were kept prior to trial has been the subject of state and federal court orders attempting to remedy its deplorable conditions. Bridges v. Sandstrom, No. 74-994-Civ-JE (S.D.Fla. Jan. 14, 1976) (two injunctions); Lowery v. Metropolitan Dade County, 43 Fla.Supp. 84 (Fla. 11th Jud.Cir. 1971). . See Note, Bail and Its Discrimination Against the Poor: A Civil Rights Action as a Vehicle of Reform, 9 Val.U.L.Rev. 167, 179-80 (1974). Many studies have attempted to show a high statistical correlation between pretrial detention and subsequent conviction, suggesting that the mere fact of such incarceration prejudices a defendant by increasing the likelihood that he will be found guilty. See, e. g., Rankin, The Effect of Pretrial Detention, 39 N.Y.U.L.Rev. 641 (1964). A New York Court discounted one such study, observing that the correlation may be attributable to factors other than pretrial incarceration. Bellamy v. Judges and Justices, 41 A.D.2d 196, 342 N.Y.S.2d 137 (1973). See 8 Crim.L.Bull. 459 (1972), reprinting the plaintiffs memorandum in Bellamy. We express no view as to the validity of these studies for we have independently found that sufficient fundamental rights are infringed by pretrial detention. . See Note, Preventive Detention Before Trial, 79 Harv.L.Rev. 1489, 1491-93 (1966). Although there is no evidence in the record that the defendants routinely set bail in large amounts to assure that accused persons would remain incarcerated before trial, one defendant admitted that she was occasionally motivated by such considerations in setting bail: Q: And in these types of cases, to assure that they don’t get out, you set the bond high enough so that they can’t get out? A: That’s right. * * * * * * Q: When you set a high bond on a serious offense, your primary consideration is keeping that person from getting out of jail, or insuring that they will appear at trial? A: I would say both. (R. 418, 420) (Deposition of Hon. Ruth Sutton). . See, e. g., D.C.Code App. § 23-1332, upheld in Blunt v. United States, 322 A.2d 579 (D.C. App. 1974). . National Advisory Commission on Criminal Justice Standards and Goals, Proceedings of the National Conference on Criminal Justice, Commentary on Corrections Standard 4.4, Alternatives to Pretrial Detention, at 121. In Florida, bail bondsmen are not required to demand collateral. Cf. Fla.Stat. § 903.14. . Because the professional bondsman system in effect shifts the decision regarding pretrial release from the courts to private groups, it presents additional equal protection problems. In Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), the Supreme Court invalidated an Indiana statute which granted the Public Defender discretion to deny the transcript required for an appeal from a denial of a writ of coram nobis. The Court explained: “The provision before us confers upon a state officer outside the judicial system power to take from an indigent all hope of any appeal . . . ” Id. at 485, 83 S.Ct. at 773, 9 L.Ed.2d at 897-98. By analogy, the bail bondsman system confers upon the bondsman the power to deny an indigent any hope of pretrial release. See Note, Bail: An Ancient Practice Reexamined, 70 Yale L.J. 966, 971 (1961). . “One under bail is in the vicarious custody of his bondsman whose ‘dominion is a continuance of the original imprisonment,’ and the principal may be apprehended by his bondsman even under extreme circumstances”. Register v. Barton, 75 So.2d 187, 188 (Fla. 1954). . “The principle deterrent against flight is the danger of being caught and suffering added detriment as a result”. Foote, The Coming Constitutional Crisis in Bail, 113 U.Pa.L.Rev. 1125, 1163 (1965). . A Committee Note to the 1977 amendment states: “This proposal leaves it to the sound discretion of the judge to determine the least onerous form of release which will still insure the defendant’s appearance”. In adopting the amendments, however, the Florida Supreme Court expressly declined to adopt the committee notes. Florida Bar re Florida Rules of Criminal Procedure, 343 So.2d 1247 (Fla.1977). See note 12 supra. . In 1972, the Florida Supreme Court, over the strong dissent of one Justice, rejected a proposed amendment that would have created a presumption in favor of release without money bail and would have required the judge to impose the least onerous condition reasonably likely to assure the defendant’s appearance. In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla. 1972). After the Florida court adopted the new rule in February 1977, counsel for the plaintiffs in this case filed a petition for rehearing urging an amendment making money bail a last resort. The petition for rehearing was denied over the dissent of two Justices. Florida Bar re Florida Rules of Criminal Procedure, 343 So.2d 1247, 1266 (Fla.1977). . In a similar context, the Supreme Court in Tate v. Short, supra, 401 U.S. at 401, 91 S.Ct. at 672, 28 L.Ed.2d at 133, noted that its decision did not preclude “imprisonment as an enforcement method when alternative means are unsuccessful despite the defendant’s reasonable efforts to satisfy the fines by those means; the determination of the constitutionality of imprisonment in that circumstance must await the presentation of a concrete case”. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:

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. Jesse L. BARNES, Appellant, v. UNITED STATES of America, Appellee. James F. SMITH, Appellant, v. UNITED STATES of America, Appellee. Nos. 20373, 20374. United States Court of Appeals District of Columbia Circuit. Argued April 20, 1967. Decided June 15, 1967. Petition for Rehearing En Banc in No. 20373 Denied Sept. 15, 1967. Mr. Ben Ivan Melnicoff, Washington, D. C. (appointed by this court), for appellant in No. 20,373. Mr. Marvin J. Sonosky, Washington, D. C. (appointed by this court), for appellant in No. 20,374. Mr. John A. Terry, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee. Before Bazelon, Chief Judge, Wilbur K. Miller, Senior Circuit Judge, and Burger, Circuit Judge. PER CURIAM: . This is an appeal from conviction of Smith for rape and Barnes for rape and aiding and abetting rape. The details brought out by the long trial are too .unspeakable to recite except to the extent required. It is sufficient to say that the Government’s case showed that the complaining witness, a 16 year old girl, was forcibly seized at 9:30 at night, taken to a garage, then to an apartment, then back to the garage, then to a car, and finally back to the garage. She was forcibly detained from 9:30 p. m. until 7:30 a. m. and during that interval she was beaten, tortured and sexually assaulted repeatedly by an unknown number of males, and unknown number of times. She testified she was conscious during most of this period but at times feigned otherwise. She testified that it was Barnes who first seized and took her to the garage and that he assaulted her various times in the ensuing 10 hours. She further testified that Smith and three defendants who were acquitted, Harrington, Jackson and Williams, also assaulted her. On appeal Appellants contend the District Court erred (a) in permitting joinder of the defendants in one indictment; (b) in failing to sever the cases; and (c) in allowing the conviction against Barnes for aiding and abetting Smith to stand, absent evidence that Barnes was present when Smith committed the rape. The trial covered a period of approximately one month and many witnesses were called; the jury deliberated 3% days. The nightmarish and shocking episodes described in the record represent a continuous sequence covering the entire night and a concert of activity by multiple participants. Verdicts of not guilty as to three defendants after prolonged deliberation suggest both care and a discriminating evaluation of the evidence. Joinder of the defendants in the same indictment was clearly proper under Fed.R.CRIM.P. 8. The decision to deny severance was one calling for the sound judicial discretion of the Trial Judge, Fed.R.CRIM.P. 14, and on this record there is no basis for holding that discretion was abused. Inevitably, an alleged mob-like action exposes the participants to the likelihood of a common trial. That the careful instructions of the Trial Judge to view the evidence separately as to each defendant were heeded by the jury is indicated in the acquittal of three defendants in the face of very strong evidence against them. The jury was plainly able to separate the evidence against Barnes and Smith from that against the other defendants in order to conclude that the Government’s case did not persuade them beyond reasonable doubt that these three were also guilty. It was not essential that Barnes be physically present in order to make him an aider and abettor of Smith; there was evidence that Barnes had forcibly abducted the girl from a public street in the early evening and his conduct from 9:30 onward was such that the jury could reasonably conclude it was in aid of Smith and others. Moreover, Barnes’ sentences on the two counts are concurrent. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). If any miscarriage of justice or error can be gleaned from this record, it is surely not in the judgments against these Appellants. Affirmed. BAZELON, Chief Judge, concurs in the result. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_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". The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a corporation, Appellant, v. BANK OF ALTENBURG, Appellee. No. 15052. United States Court of Appeals Eighth Circuit. Oct. 27, 1954. Gerald B. Rowan and Allen L. Oliver, Cape Girardeau, Mo. (Oliver & Oliver, Cape Girardeau, Mo., with them on the brief), for appellant. Rush H. Limbaugh, Cape Girardeau, Mo. (Limbaugh & Limbaugh, Cape Girardeau, Mo., on the brief), for appellee. Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges. COLLET, Circuit Judge. This action is brought by the plaintiff, a small bank, to recover on a bond executed by defendant insuring it against losses caused by “false pretenses”. The loss resulted from a “check kiting” scheme conceived and carried out by one William J. Schneier. Usually there are two banking institutions involved in such a scheme. In this instance they were the plaintiff and the Brazeau Bank. Both were small banks in rural communities only a few miles apart. Both incurred losses in substantial amounts. The Brazeau Bank closed as a result. It was taken over by the Federal Deposit Insurance Corporation, which instituted an action on a bond substantially similar to the one involved herein for its loss. That case was determined by this court on appeal in Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933. The factual details in this case are amply stated in the trial court’s memorandum opinion, Bank of Altenburg v. Fidelity & Casualty Co., D.C., 118 F.Supp. 529, 530: “This case is a sequel to Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933. “William J. Schneier obtained money by false pretenses, from the Brazeau Bank, by depositing checks in his personal account in the Brazeau Bank, drawn on his partnership account in the name of H & F Truck Service in the plaintiff bank. Schneier, as an integral part of the fraud perpetrated on the Brazeau Bank, was drawing checks on his personal account in the Brazeau Bank and depositing them in the H & F Truck Service account in plaintiff bank, to cover checks deposited in the Brazeau Bank. Schneier was engaged in ‘check kiting’ and on a large scale. “The plaintiff bank apparently first broke the chain when it refused payment on a check, drawn on it and deposited in the Brazeau Bank, for ‘insufficient funds.’ Thereafter, and within a period of days, each of the banks named returned all outstanding checks drawn by Schneier. “Schneier’s relations with plaintiff bank extend from February to late December, 1950. The Brazeau Bank lost $18,490 and the loss forced it to close. Suit was brought and recovery had by the Brazeau Bank on a bond of the Hartford Accident & Indemnity Co., v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933, protecting against loss resulting from false pretense. In this case the Bank of Altenburg seeks recovery of $15,338.71, plus interest, damages and attorney’s fees, on the same basis. Jury was waived. We now have the case for ruling on its merits. “The principal issue now turns on defendant’s claim that plaintiff did not rely on Sehneier’s representation that checks deposited in it would be paid on presentation and Schneier did not deceive the plaintiff, and that the transactions between plaintiff and Schneier were in fact granting of loans and plaintiff’s loss results from nonpayment of the loans. “The terms in the policy relied on for recovery are: “‘(B) Any loss of Property through robbery, larceny (whether common-law or statutory), burglary, theft, false pretenses, hold-up, misplacement, mysterious unexplainable disappearance, damage thereto or destruction thereof, whether effected with or without violence or with or without negligence on the part of any of the Employees, * * *.’ “The record shows that at the very time Schneier opened his account with plaintiff in February, 1950, he initiated his check kiting scheme and that it continued regularly thereafter until December 30, 1950. On December 26th Schneier deposited in the H & F Truck Service account in plaintiff bank a check in the sum of $6,963.14 drawn on the Brazeau Bank. On December 28th he made a deposit of a like check for $6,894.70. On December 30th he made a deposit of a like check for $6,930.42. On December 30, 1950, a check was presented to plaintiff bank drawn by Schneier on the H & F Truck Service account which had been deposited in the Brazeau Bank. There were not sufficient funds in the account to pay it and the check was returned to the Brazeau Bank. In due course (three, four or five days), clearing through a St. Louis bank, the three checks drawn on the Brazeau Bank described above were returned to plaintiff marked ‘insufficient funds’ by the Brazeau Bank. Prior to the return of these three checks plaintiff had permitted Schneier to check out most of the money purported to be represented by the three checks. Plaintiff was able to reduce its loss from a balance in the account and by other means, from $20,788.26 to $15,338.-71. After notice to defendant of such loss, payment on the bond was refused. This suit followed. There is no controversy as to the physical manner in which Schneier operated to obtain the funds from the two banks, or the amount of plaintiff’s loss on the three checks. “Defendant charges, and plaintiff concedes, before recovery can be had in this suit, plaintiff must establish that the essential elements of obtaining money by false pretenses existed at the time it paid out funds on the three checks which caused its loss. One essential element of a case based on false pretense, and which is brought into issue, is that ‘the representation must be believed by the person allegedly defrauded and must be relied on and be the effective cause in inducing the party to whom it was made, to part with his property.’ (Defendant’s brief.) By brief, defendant reduces its defense to a charge that plaintiff ‘was in fact simply loaning Schneier the money represented by the checks for the three, four or five days it took them to clear through the St. Louis Clearing House.’ “The details of Schneier’s fraudulent operations are more fully developed in this case than in the Brazeau Bank case. To reach a conclusion as to whether plaintiff did or did not believe and rely upon Schneier’s representations that the three checks involved would be paid on presentation to the Brazeau Bank, we must view the case as the situation was presented to those in charge of plaintiff bank on the occasions and at the time under inquiry. Objectively, the issue before the court is not a simple one. This results in part from a record that reveals at once all the facts of Schneier’s transactions with the plaintiff, from the inception of his account until the fraud was stripped of all pretense, rather than as Schneier’s operations were presented from day to day to those in charge of plaintiff bank’s operations. “The deposit slips and the records of the H & F Truck Service account in plaintiff bank shed light on the question as to how the situation developed to those in charge of plaintiff bank, at the time the deposits were made. From the inception of the account on February 14th until December 30th, the deposit slips are uniform in some particulars. Excepting one on April 20, 1950, for $22.50, all deposits are for large sums. They vary from $6,000 to $8,000. With the exception of two deposits they were always made up of one large check and a number of small items, and in some cases currency was included. The large check in each deposit was, according to the undisputed testimony, drawn on the Brazeau Bank. The large check in each deposit did not change significantly in the account throughout the whole period. They were for odd sums and varied between $6,000 and $7,000. The one included in the initial deposit was for $6,361.69, in a total deposit of $6,431.43. The last one was for $6,930.42, included in a total deposit of $7,064.11. The deposit slips show deposits made with substantial regularity, generally from two to three to four days apart. “The ledger sheets are also material on the issue. They show the account, opening on February 14, 1950, was first overdrawn on April 14th in the sum of $4,026.80. This overdraft was taken up the following day by a deposit of $6,546.33, including a check on the Brazeau Bank for $6,352.25. Thereafter the overdrafts were as follows: On May 24, $122.34; May 26, $4.78; May 29, $97.76; June 12, $766.62; June 16, $1,101.95; June 19, $926.50; June 23, $1,140.02. There were no more overdrafts until October 13 when there was one for $5,398.32. On October 30 there was an overdraft of $103.07; November 3,, $521.93; November 6, $10.28; November 10, $264.19; November 13, $232.40; November 29, $46.88; December 15, $313.09; December 16, $827.55; December 18, $919.88. In every instance of overdraft it was taken up the day following by a substantial deposit which always included a check drawn by defendant on his personal account in the Brazeau Bank. The average daily balance was in excess of $3,400. “The large checks included in Schneier’s deposits drawn on the Brazeau Bank eventually gave concern to the employees in charge of plaintiff bank. After the November board meeting Mr. Poppitz, the cashier, told Mr. Mueller, a member of the Board of Directors, of the large cheeks being deposited by Schneier. Mueller lived in the same village as Schneier and was acquainted with him. Poppitz asked Mueller to see Schneier ‘and find out why he was writing such big checks.’ Mueller talked to Schneier with the result: “ ‘Mr. Schneier told me that he was buying a lot of poultry and eggs and livestock, that he was selling that here in St. Louis, collecting the money in his name, taking it to Brazeau and depositing it in his account, and then he would write a check to the H. & F. Truck Line to settle it, trucking and all/ “The regularity of the inclusion by Schneier in his deposits in plaintiff bank of large checks drawn by him on the Brazeau Bank raised a question, among those who were in charge of plaintiff bank, as to Schneier’s method of financial operations. The subject was discussed among the employees. Mr. Preusser, assistant cashier of plaintiff bank, testified to this. He summed up the conversations among the employees as follows: “ ‘We discussed the matter, and whenever we discussed it, we always ended in the same conclusion, that the H. & F. Truck Service met their obligations, and just a few times it happened that they did not have enough there, and we called them by telephone and they brought a deposit so we could pay their checks.’ “On cross-examination he gave the following testimony: “‘Q. * * * if you had not permitted the drawing against an account until a check had time to clear and be collected, then Mr. - the H. & F. Truck Service account in that sense, during all the period of 1950, would never have had a balance in it, would it? A. Could be. ****** “ ‘Q. It was obvious to you during your conversations with Mr. Poppitz and Mr. Meyr that what Mr. Schneier was doing was covering a check drawn against the H. & F. Truck Service account by a check drawn against his personal account in the Bank of Brazeau? A. That is the way it seemed. “ ‘Q. Yes. And that is what you discussed with each other, is it not? A. Yes.’ “Under examination by the Court the witness testified: “ ‘Q. You never did think he had enough money to cover those checks? A. No, mostly likely not. “ ‘Q. Did you think then that he was using the funds of the two banks to finance his business with? A. Well, that is the way it seemed.' “The above testimony was qualified on re-examination as follows: “ <q_ * * * Now, did you say that that was obvious to you then or that it is obvious to you now? A. No, toward the last. It wasn’t about every one of the checks.’ “This testimony reflects the attitude and reasoning with respect to care and judgment of those in charge of plaintiff bank at the time the transactions were taking place that eventually led to plaintiff’s loss. We quote further: “ ‘Q. * * * when you were discussing the matter with the other employes of the bank, did you ever take the account and compare the deposits of checks on the Bank of Brazeau with checks drawn on your bank and deposited with the Bank of Brazeau, how they seemed to correspond, did you ever do that? A. No, we did not do that. ****** “ ‘A. We noticed the big checks. “ ‘Q. You noticed they were substantial, in like amounts ? A. That is right. “ ‘Q. What conclusion did you draw from that? A. Well, we just did not know what he was doing. “ ‘Q. * * * did you have any question whether he was transacting a legitimate business or not, so far as the two banks were concerned ? ****** “ ‘A. Well, we discussed that, too, and the conclusion we always got or the point we always arrived at was that he did meet his obligations. “ ‘Q. That he did? A. That he did meet his obligations at the bank and did not overdraw. “ ‘Q. As long as that was the situation, you would let the matter ride, is that right? A. That is right.’ “On October 28, 1950, the cashier of the Brazeau Bank wrote to plaintiff bank regarding the activities of Schneier. In this letter it was indicated that the Brazeau Bank was suspicious about the large checks which were coming through for deposit drawn on the H & F Truck Service and the large checks being drawn on Schneier’s personal account in the Brazeau Bank. This letter mentioned that these transactions happened about three times a week. The letter of the Brazeau Bank was not answered. Several weeks later a member of the board and another officer from plaintiff bank visited the Brazeau Bank. Only generalities were discussed. No examination was made of the personal account of Schneier. “About December 15th Mr. Vogel, who was the partner of Schneier in the H & F Truck Service, showed Mueller the H & F Truck Service bank statement. The partner was without knowledge why Schneier was writing the large checks. “Mr. Mueller again saw Schneier about December 15th. This time Schneier volunteered a statement about getting working capital in St. Louis. Again the discussion was general, surrounded with uncertainty. “ ‘Questions by the Court: “ ‘Q. * * * You say when you went to see Mr. Schneier, about December 15, 1950, is that correct? A. Yes. “ ‘Q. That he said after the first of January he was going to get some working capital from St. Louis? A. Yes. “ ‘Q. And he said he would not write any more big checks? A. That is right. “ ‘Q. How did you associate the getting of capital with ceasing to write big checks? A. I just did not understand it. I did not know how he really was operating. “ ‘Q. You did not put any significance in the connection of those two? A. No.’ “Mueller was asked if he had ever heard of the term ‘check kiting.’ It was a new word to him. T always figured the bank account, there is enough money there to cover it, alt your checks, and there is a balance over, there couldn’t be anything wrong with the bank account.’ “The assistant cashier’s lack of knowledge of kiting checks is typical of the other employees of the bank. He had never had any experience with the fraudulent process. It had never happened before in the experience of the Bank of Altenburg. “A Judge, over the years, hears detailed various schemes used by cunning and resourceful criminals to defraud. This does not aid in understanding the viewpoint of the operators of small banks in isolated communities, such as the plaintiff bank and the Brazeau Bank. It will not do to use the norm of urban bankers, lawyers or businessmen. We must not forget the customers of these two banks are the neighbors of the directors and employees of the banks. Small town and isolated residents are just as inclined to suspect strangers as they are prone to trust their neighbors. There is. very little in the life of the individual, business or otherwise, that is not common knowledge in the small community. Belief in the integrity of their neighbors is seldom disappointed. How long plaintiff bank has operated we do not know, but until Schneier disrupted the quiet complacency of the community, apparently no one in it had ever heard of check kiting. The record reveals the employees of plaintiff bank first had a question about Schneier’s account and eventually the question became a suspicion, but to reach a conclusion that Schneier was engaged in a fraudulent enterprise was a thought they resisted as though it were the plague. That this attitude is real we think is evidenced by the bank’s action when at last they were compelled to face the reality of Schneier’s fraud. A number of checks given by Schneier for small sums, but in their total several hundred dollars, came to the bank for payment. Apparently they were in payment to small farmers for livestock that Schneier had purchased. These checks were paid with full knowledge on the part of the bank that the act of paying them was increasing the bank’s loss. When the Court asked the official, while on the stand, why the bank would do such a thing, his face took on a pained expression and without any hesitancy or apparent feeling of lack of business judgment, he replied that the bank did not want to disappoint the holders of the checks, or words to that effect. The naiveness of the operators of plaintiff bank, in their belief in the common honesty of a man they knew, would be refreshing did it not at the same time represent, in its use, such utter incompetence for the work of handling other people’s money. But defendant wrote the bond in issue with full knowledge of the bank’s location. “There is direct evidence that the employees in charge of plaintiff bank, believed Schneier’s checks, constituting the loss in suit, would be honored on presentation to the Bank of Brazeau. There is circum-; stantial evidence of such belief in the payment of the amount of the checks, excepting a small sum, out of the bank’s funds before the checks cleared. Additional facts presented by this record support the contention of plaintiff that they relied upon Schneier’s representation that the checks would be paid on presentation to the Brazeau Bank. Plaintiff was dealing with Schneier as a resident of the community of long standing, a man of supposed honor and good reputation. Schneier was in a business of large operations involving substantial sums of money for the purchase of livestock and its transportation- to St. Louis. The plaintiff bank and the Brazeau Bank were competitors. Schneier’s account on paper was a valuable account with its daily balance in excess of $3,400 and neither bank was willing to reveal its records to the other bank or do anything to lose Schneier’s account except as a last resort. Schneier had always taken care of overdrafts promptly. The Brazeau Bank, with as much knowledge apparently as plaintiff bank, permitted itself to be used by Schneier with the same apparent lack of grasp of the true situation as did plaintiff, to its loss and destruction. “We find plaintiff has carried the burden of proof by showing, by the greater weight of the credible evidence, that the losses sued for come within the provisions of the bond. “The plaintiff bank was negligent in handling the Schneier account in that it failed to use that degree of care to protect itself from loss which an ordinarily prudent person would use under the same or like circumstances. Loss by false representation, incurred as the result of negligence, is not a defense. “The deposit of the three checks sued on did not constitute a loan by the plaintiff bank to Schneier. When the loan theory of defense is rejected, we must find that the plaintiff either was the victim of Schneier’s false pretenses, or hold that plaintiff bank deliberately gave away' its funds in an amount equal to almost one-third of its capital. To hold plaintiff did not rely on Schneier’s representations, and did not believe the checks would be paid on presentation can lead to no other conclusion. The latter conclusion we cannot accept. It would be an act of such character as to be dishonest. We think plaintiff bank’s officers and employees were grossly negligent, but not dishonest. “Other issues raised by the answer are determined by the law as declared by the Court of Appeals in the Brazeau Bank case.” The defenses relied upon, which are preserved on this appeal are (1) “that the evidence does not establish the essential elements to make a case of obtaining money or property by false pretenses,” (2) that the case is controlled by the law of Missouri, that the offense of false pretense has been defined by Missouri Statute, and under that law the facts do not make out the Missouri statutory crime of obtaining money by false pretenses, (3) that the loss sustained by plaintiff was not covered by the bond because it was not a loss from plaintiff’s premises, and (4) that the loss resulted from a transaction in the nature of a loan which was specifically excluded from coverage in the bond. Concerning the first assignment, it is asserted that two essential elements of the offense of obtaining money by false pretense are lacking — that there must be a representation of a past or existing (but not future) fact, and the representation must be believed by the person defrauded and must be relied upon and be the effective cause in inducing the party to whom it was made to part with his property. (We have stated those elements in the language used by defendant in its brief.) Defendant says that Schneier’s representation to plaintiff bank was in effect that the checks he deposited with it drawn on the Brazeau Bank would be paid when presented to that bank. It says that was a representation of a promissory nature of a future, not an existing fact. But that is not the manner in which the plaintiff’s officials construed Schneier’s conduct in presenting the checks to it for deposit. The representation implied was that sufficient funds were on deposit to meet the checks. That was a representation of a present existing fact. The second element said to be lacking, that the bank officers must have believed the implied representation of Schneier that the checks were good, either existed or was absent, dependent upon the facts developed at the trial. The charge that this element was not established amounts to an assertion that the evidence did not sustain the trial court’s conclusion to the contrary. The case was tried without a jury. The trial court developed this question in some detail in the memorandum opinion heretofore quoted. Our examination of the record discloses no justification for rejecting that finding. The further contention made in connection with the foregoing argument, that if plaintiff’s officials did not actually know the implied representation was false they should have known, was properly answered by the trial court that negligence of those officials is not, under the bond, a defense to a loss from false representations. The second assignment that under the law of Missouri the established facts did not make out a case of false pretenses but at most only constituted the misdemeanor of uttering a check with knowledge that there were insufficient funds in the bank upon which it was drawn for its payment, is based upon the premise that the term “false pretenses” used in the bond must be given the same technical meaning in which the term is used in the Missouri statute defining that criminal offense. We do not explore that question further than the authorities cited by both parties. Those authorities are not decisive of the question either way. For present purposes we will assume that defendant’s statement of the law of Missouri is correct. We do not recommend that assumption when the correctness thereof is decisive. It is not decisive here, because the scheme practiced did fall within the Missouri statutory definition of false pretenses. Defendant assumes that all that was involved in the false pretenses practiced was the presentation of a check and obtaining money or something of value therefor, knowing at the time that there were insufficient funds in the bank upon which it was drawn. Such conduct is characterized by § 561.460, RSMo 1949, V.A.M.S., as a misdemeanor and does not use the term false pretense in defining the offense. In that respect the definition of the misdemeanor differs from the definition of other offenses which do include in their definition the term false pretenses. Statutes defining offenses in which the term false pretenses is used are § 561.370 and § 561.-450 RSMo 1949, V.A.M.S. Section 561.-370 uses the following language: “561.370. Obtaining money, goods, by false pretenses. — Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing or by any other false pretense, * * * obtain from any person any money, personal property, right in action or other valuable thing or effects whatsoever, * * * shall upon conviction thereof be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained.” The pertinent language of § 561.450 is: “561.450. Confidence game or fraudulent checks — penalties.—Every person who, with the intent to cheat and defraud, shall obtain or attempt to obtain, from any other person, or persons, any money, property or valuable thing whatever by means or by use of any trick or deception, or false and fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly called ‘the confidence game,’ or by means or by use, of any false or bogus check or by means of a cheek drawn, with intent to cheat and defraud, on a bank in which the drawer of the check knows he has no funds or by means or by use, of any corporation stock or bonds or by any other written or printed or engraved instrument or spurious coin or metal, shall be deemed guilty of a felony and upon conviction thereof be punished by imprisonment in the state penitentiary for a term not exceeding seven years.” (Italics supplied.) Check kiting, as practiced here, involves more than the mere use of a check with insufficient funds in the bank to meet it. It involves a series of acts which together constitute a scheme, a studied device, false pretenses built upon a series of false representations designed to lull the banks involved into a feeling of confidence and security. The bad check is given. Money or credit is received from a bank other than the one on which the check is drawn. If credit is taken, that credit is usually drawn on immediately. The check kiter then deposits a check in the bank upon which the first check is drawn before the first check arrives there. The second check is drawn on the bank from which the first money or credit is received. Credit is taken for it and that credit covers the first check when it comes in and possibly additional credit. Then the process is carried on, back and forth, until the scheme is discovered. In this instance it went on from February, 1950, until late in December, 1950. The practice is a false pretense under § 561.370, if not a “trick” or “deception” involving a false and fradulent representation, or a “confidence game” under § 561.450. See State v. Whitledge, Mo., 269 S.W.2d 748, 751 The mere fact that the giving of a check with insufficient funds in the bank to meet it is one of the series of acts constituting the false pretense or the trick, device, or game, does not take the practice of “check kiting” out of the definition of the offenses defined by § 561.370 or § 561.450. Neither State v. Richman, 347 Mo. 595, 148 S.W.2d 796, nor State v. Griggs, Mo., 236 S.W.2d 588, relied on by the defendant, so holds. In each of those cases (which were criminal prosecutions) the act constituting the offense charged was the giving of a worthless check, in the Richman case a check with insufficient funds in the bank to meet it, in the Griggs case with no funds in the bank upon which it was drawn. No such scheme, device, game or false pretenses involved in check kiting was involved in those cases. We held in the Brazeau Bank case, Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933, 937: “We think the District Court correctly concluded that the loss sustained by the Brazeau Bank was directly caused by false pretenses and was within the coverage of the bond.” (See also Federal Deposit Ins. Corp. v. Hartford Ace. & Indem. Co., D.C., 106 F.Supp. 602.) While the question was not presented in the Brazeau Bank case in the way it is now presented, we adhere to the opinion there expressed and supplement our former expression by now further holding that the conduct practiced on plaintiff herein not only constituted false pretenses under the ordinary meaning of the term but also constituted false pretenses under the Missouri statutory definition of the criminal offense. The third assignment is based upon the following premises. It is said that “Property”, as defined in the bond, refers to tangible property, that the insuring clause requires that a loss of such tangible property must occur through false pretenses and that the loss must be of tangible property from defendant’s premises as a result of false pretenses practiced on defendant’s premises. From those premises it is argued that the loss in this instance was not covered by the bond. The argument is both resourceful and ingenious. It was presented to the trial court in the Brazeau Bank case, Federal Deposit Ins. Corp. v. Hartford Acc. & Indem. Co., supra, and overruled, it was not presented to us on the appeal of that case. See Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933. We are unable to agree with the argument that the bond contemplated reimbursement only in the event tangible or physical property was taken from the bank by means of false pretenses. The bond was to cover banking operations. The losses covered were very broad. The term “Property” was defined to include a multitude of types of assets of the bank, including “money, currency, coin * * * securities, evidences of debt, * * * certificates of deposit * * * rights, transfers, coupons, drafts, bills of exchange, acceptances, promissory notes, checks, money orders, * * * and all other instruments similar to or in the nature of the foregoing * * * and chattels which are not hereinbefore enumerated and for which the Insured is legally liable.” Applying the language used in the Brazeau Bank case, Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., supra, in construing another provision of a similar bond, “it is not conceivable to us that any disinterested banker, insurance underwriter, or lawyer would construe” this bond as not covering assets of the bank lost through a “check kiting” scheme practiced upon it. The fourth and last assignment that the loss resulted from a transaction in the nature of a loan is based upon an exclusion clause of the bond that it did not cover: “Any loss the result of the complete or partial nonpayment of or default upon any loan made by or obtained frpm the Insured, whether procured in good faith or through trick, artifice, fraud or false pretenses, except * The facts were developed in more detail in this case than in the Brazeau Bank case, but the essential elements of the scheme practiced in both cases were the same. In fact, as heretofore shown, the series of events and practices which resulted in the loss by the Brazeau Bank constituted the identical scheme, device and false pretenses which brought about the loss in this case. In the former case we said: “ ‘Contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary, and popular sense.’ Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 492, 52 S.Ct. 230, 231, 76 L.Ed. 416 ; State ex rel. Prudential Ins. Co. of America v. Shain, 344 Mo. 623, 627, 127 S.W.2d 675, 677. “It is not conceivable to us that any disinterested banker, insurance underwriter, or lawyer would construe the word ‘loan’, as used in the exclusion clause of this indemnity bond, to cover the obligation [of Schneier] imposed by law to reimburse a bank for money or credit obtained through the use of worthless checks.” The same reasoning applies here. Finding no reversible error, the judgment appealed from is affirmed. . From the insuring clause: “ ‘Any loss of property * * * whether effected with or without violence or with or without negligence on the part of any of the Employees * * ” . “561.460. Checks or drafts drawn when funds insufficient. Any person who, to procure any article or thing of value or for the payment of any past due debt or other obligation of whatsoever form or nature or who, for any other purpose shall make or draw or utter or deliver, with intent to defraud any check, draft or order, for the payment of money, upon any bank or other depositary, knowing at the time of such making, drawing, uttering or delivering, that the maker or drawer, has not sufficient funds in or credit with, such bank or other depositary, for the payment of such check, draft, or order, in full, upon its presentation, shall be guilty of misdemeanor, and punishable by imprisonment for not more than one year, or a fine of not more than one thousand dollars, or by both fine and imprisonment.” . Decided July 12, 1954, reported August 24, 1954, subsequent to the filing of briefs in this case. . It is interesting to note that in State v. Evelyn Hartman, Mo., 272 S.W.2d 276, the Griggs case was overruled in certain important respects. The Hartman case was transferred from Division Two to the Missouri Supreme Court en banc and there argued and submitted on October 7, 1954. The opinion in the Hartman case by Division Two has not, of course, under these circumstances, been reported. Having examined the Division opinion in the Hartman case, and reaching the conclusion that its outcome in the court en banc will not be decisive in this case, we do not await the final determination of the Hartman case. 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_appsubst

99

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Henry B. AYERS et al., Plaintiffs, v. WESTERN LINE CONSOLIDATED SCHOOL DISTRICT et al., Defendants-Appellants, v. Ms. Bessie B. GIVHAN et al., Plaintiffs-Intervenors Appellees. No. 75-3485. United States Court of Appeals, Fifth Circuit. July 18, 1977. J. Robertshaw, Greenville, Miss., for Western, etc. James L. Robertson, Greenville, Miss., for Washington, etc. Fred Banks, Jr., Nausead Stewart, Phillip J. Brookins, Jackson, Miss, for plaintiffs-in-tervenors appellees. Before GEWIN, RONEY and HILL, Circuit Judges. GEWIN, Circuit Judge. Mary Butler, Bessie Givhan, and Dolleye Hodges filed suit in district court on their own behalf and on behalf of three classes of black teachers and employees who were discharged or not rehired by the Board of Education of the Western Line Consolidated School District (“school district”), allegedly in violation of the First and Fourteenth Amendments and in violation of the district court order issued pursuant to Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1969) (en banc), rev’d and remanded sub nom. Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970), on remand, 5 Cir., 425 F.2d 1211. The district court dismissed the action without prejudice and granted leave to intervene in the instant school desegregation case. After the court granted the defendants’ motion to strike the class allegations and dismissed Ms. Butler’s action with prejudice on her own motion, the case proceeded to a two-day bench trial. The court concluded that the school district failed to rehire Givhan because of her First Amendment expressions and failed to rehire Hodges in violation of the Singleton order, and it ordered their reinstatement. Defendants appeal under 28 U.S.C. § 1292(a)(1). We reverse and remand. The school district is a-rural district encompassing most of Washington County and some of Issaquena County, Mississippi. Prior to desegregation proceedings in the district court it operated three black schools (O’Bannon, Avon, and Moore) and two white schools (Riverside and Glen Allan). Pursuant to Singleton, accelerated by West Feliciana Parish School Board, supra, the district court on January 12 and January 21,1970, ordered the operation of the school district on a unitary basis after February 9, 1970. Accordingly, the district was reconstituted into one high school and two elementary schools for the second semester of the 1969-70 school year. In the summer of 1970 the desegregation plan was amended to establish attendance centers with grades 1-12 at O’Bannon, Riverside, and Glen Allan. Blacks constituted a majority of the faculty and student body in the district both before and after desegregation. It is undisputed that the school district failed to develop nonracial objective criteria to be used in selecting staff members for dismissal or demotion, as required by the district court’s Singleton order in note 4 supra. Appellee Givhan taught English in the junior high grades at O’Bannon from 1963 until her transfer to Riverside for the second semester of 1969-70. She then taught junior high English at Glen Allan during the 1970-71 school year. Appellee Hodges taught fifth grade for nearly four years at Glen Allan until January, 1970. At that time she became certified as a guidance counselor under an “eighteen hour permit,” and thereafter she held the position of guidance counselor at Glen Allan. Having received her Master of Education degree in the spring of 1971, Hodges held a “double A” certificate as a guidance counselor during the 1971-72 school year. Beyond these facts, the cases of Givhan and Hodges are best treated separately. I. Givhan Givhan was not rehired by the school district for the 1971-72 school year. By letter dated May 1, 1971, Glen Allan principal James Leach notified Superintendent C. L. Morris that Ms. Givhan was not being recommended for re-employment, stating in part: Ms. Givhan is a competent teacher, however, on many occasions she has taken an insulting and hostile attitude towards me and other administrators. She hampers my job greatly by making petty and unreasonable demands. She is overly critical for a reasonable working relationship to exist between us. She also refused to give achievement tests to her homeroom students. Leach testified at trial as to the bases for his recommendation. Leach taught in the district for three years before becoming principal of Glen Allan on October 6, 1970. That school was without a principal for the first several weeks of the 1970-71 school year, and when Leach took the position the school’s problems included racial hostility, lack of discipline among the students, and lack of cooperation among the teachers. Shortly after his arrival as principal, Leach solicited greater cooperation at a teachers’ meeting. Givhan implied at the meeting that she did not intend to cooperate very much, and Leach later held a private conference with her. Leach testified that at the conference Givhan told him that “she didn’t like Western Line District. She didn’t like Morris, who was the Superintendent, or anything connected with the system.” Givhan denied making these statements. Leach and Givhan had several other encounters during the 1970-71 school year. Leach sent out a memorandum to all teachers reminding them of “six-weeks’ tests” to be given on the Thursday and Friday before report cards were to be issued on the following Wednesday. Givhan apparently thought the memorandum was insufficient advance warning; while students were changing classes she discussed (or perhaps argued) with Leach about the inadequate notice and whether she was to give a “pop test.” Leach interpreted this challenge to him in front of students as reflecting her antagonism. Givhan in effect admitted the incident, but explained that her concern for timely notice was generated by the memorandum’s subject relating to the more comprehensive semester, not six-weeks’, tests. Another incident involved administration of a standardized achievement test. According to Leach, Givhan announced at a faculty meeting that she would not give the test, as she thought it was part of Ms. Hodges’ job. Leach was later twice informed by Hodges that Givhan still refused to give the test, and he testified that Hodges administered the test. Givhan testified that she may have expressed an intent not to give the test and that she told Leach it was a duty of the guidance counselor. She further testified that on the morning of the test she told Leach she would administer it and that she in fact did so. The latter testimony was corroborated by Hodges and Arcell Jacobs, another Glen Allan teacher at the time. Finally, there was substantial testimony about “demands” made upon Leach by Givhan. Relatively early in Leach’s tenure as principal Givhan gave him a list or lists of what he termed “demands” and she termed “requests.” These requests all reflect Givhan’s concern as to the impressions on black students of the respective roles of whites and blacks in the school environment. She “requested,” among other things: (1) that black people be placed in the cafeteria to take up tickets, jobs Givhan considered “choice”; (2) that the administrative staff be better integrated; and (3) that black Neighborhood Youth Corps (“NYC”) workers be assigned semi-clerical office tasks instead of only janitorial-type work. Leach felt that these requests were unreasonable and that they therefore manifested, along with the other incidents noted above, Givhan’s antagonistic and hostile attitude toward the administration at Glen Allan and the district. According to Leach, the lunchroom ticket-takers were assigned by the district’s overall cafeteria supervisor (a white) at the request of the Glen Allan lunchroom manager (a black). Thus, Leach apparently thought that the assignment of lunchroom personnel was not within his power. Givhan’s NYC complaint arose from her concern about the impression on black children of a virtually all-white office staff and discrimination she sensed in the assignment of NYC workers. As she explained it, “when I was at Riverside, when we had white NYC workers and black, and whites worked in the office and the blacks washed the windows ... I was pointing out to Mr. Leach the discrepancies there in the duties.” Leach testified that he was ignorant about assignment of NYC workers at other schools, but thought Givhan’s request unreasonable because there was no discrimination in his assignments, as the Glen Allan NYC workers were all black, and because NYC workers there were not qualified to do office work and in fact were hired to do janitorial work. In sum, Leach testified that he recommended not rehiring Givhan because of her “arrogance and antagonistic and hostile relationship,” manifested in the incidents described above, particularly her “unreasonable demands.” Under Mississippi law in effect when the decision was made not to rehire Givhan, teachers had no tenure and teachers had no right to be tendered another contract. Miss.Code Ann. § 37-9-17 (1972); Henry v. Coahoma County Board of Education, 246 F.Supp. 517, 521 (N.D.Miss.1963), aff’d, 353 F.2d 648, 650 (5th Cir. 1965), cert, denied, 384 U.S. 962, 86 S.Ct. 1586, 16 L.Ed.2d 674 (1966). Accordingly, as stated by Judge Roney in Megili v. Board of Regents, 541 F,2d 1073, 1077 (5th Cir. 1976), the school district was entitled not to rehire Givhan for any reason, as long as the decision did not implicate a constitutional right. Thompson v. Madison County Board of Education, 476 F.2d 676, 679 (5th Cir. 1973). Further, because Givhan had no property interest in continued employment into the 1971-72 school year, she had no due process right to a hearing. Robinson v. Jefferson County Board of Education, 485 F.2d 1381-82 (5th Cir. 1973), cert, denied, 419 U.S. 862, 95 S.Ct. 115, 42 L.Ed.2d 97 (1974). As a consequence, appellee does not assert a procedural due process claim, but rather claims of discriminatory treatment, violation of the court’s Singleton order, and violation of her right to freedom of speech. The district court ignored the first ground and avoided the second. This avoidance was due to “the court’s disinclination to allow its decision on the merits to turn upon the tenuous distinction between the modest expansion of Western Line’s teacher staff as defendants maintain was the case, or the very slight reduction for which plaintiffs argue.” The district court’s principal finding as to Givhan is as follows: [T]he primary reason for the school district’s failure to renew Givhan’s contract was her criticism of the policies and practices of the school district, especially the school to which she was assigned to teach. In Leach’s words, Givhan was not rehired because she was constantly “making petty and unreasonable demands.” The court finds that Givhan’s “demands” were not constant; Leach being able to testify specifically as to but two occasions. The court finds that those of Givhan’s “demands” as were specifically brought to the court’s attention were neither “petty” nor “unreasonable”, insomuch as all the complaints in question involved employment policies and practices at Glen Allan school which Givhan conceived to be racially discriminatory in purpose or effect. [T]he school district’s motivation in failing to renew Givhan’s contract was almost entirely a desire to rid themselves of a vocal critic of the district’s policies and practices which were capable of interpretation as embodying racial discrimination. The court conceives this to be a violation of Givhan’s rights under the First Amendment to the Constitution of the United States. Perry v. Sinder-mann, 408 U.S. 593, 33 L.Ed.2d 570, 92 S.Ct. 2694 (1972); Pickering v. Board of Education, 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731 (1968). The proper framework for our analysis was established by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). According to Doyle, a plaintiff in a case such as this has the initial burden to show (1) that his conduct was constitutionally protected, and (2) that this conduct was a “substantial factor” or a “motivating factor” in the school board’s decision. Id. at 287, 97 S.Ct. at 576, 50 L.Ed.2d at 484. If the plaintiff meets that burden, the board can avoid liability only through proof by a preponderance of the evidence that it would have reached the same decision without regard to the" protected conduct. Id. Although not made in terms of Doyle, appellants’ argument seems to touch all three bases. Thus, they argue that Givhan’s expressions were not constitutionally protected, that her expressions were not a motivating factor in the school board’s or Leach’s decision, and that the school district had ample reason not to rehire her anyway. As to the district court’s findings of fact which conform to the Doyle framework, this court cannot reject them unless they are clearly erroneous. Federal Rule of Civil Procedure 52(a). As to legal conclusions reached by the district court, we are not bound by the “clearly erroneous” rule and we can make independent determinations. United States v. Mississippi Valley Generating Co., 364 U.S. 520, 526, 81 S.Ct. 294, 297, 5 L.Ed.2d 268, 275 (1961). Often this distinction is termed one of questions of fact versus questions of law or versus mixed questions of law and fact. See generally 9 C. Wright & A. Miller, Federal Practice & Procedure § 2588 (1971). This court sometimes has termed the distinction one between questions of subsidiary fact and questions of ultimate fact, best described by Judge Bell in Causey v. Ford Motor Company, 516 F.2d 416, 420-21 (5th Cir. 1975). Applying this distinction to Doyle, the second and third elements — whether the teacher’s conduct or expression was a motivating factor in the Board’s decision and whether the Board would have reached the same decision anyway — are primarily questions of subsidiary fact to which the clearly erroneous rule applies. It is hard to conceive of issues that usually involve more credibility and other evaluative choices than what motivated someone and what the person would have done absent that motivation. The district court found that Leach and the Board were motivated primarily by Givhan’s “demands” in deciding not to rehire her. That finding is not clearly erroneous. The court did not make an express finding as to whether the same decision would have been made, but on this record the appellants do not, and seriously cannot, argue that the same decision would have been made without regard to the “demands.” Appellants seem to argue that the preponderance of the evidence shows that the same decision would have been justified, but that is not the same as proving that the same decision would have been made. In support of this argument appellants rely, inter alia, on several incidents from the 1969-70 school year. See n. 7 supra. There is no evidence that Leach or the Board relied on these incidents or were concerned about them in 1971. Reliance on these incidents becomes even more attenuated when it is noted that Givhan’s principal at Riverside and the Board were aware of them yet rehired her for the 1970-71 school year. Therefore appellants failed to make a successful “same decision anyway” defense. The first element of the Doyle standard, whether the plaintiff has proved that her conduct was constitutionally protected, is an “ultimate fact” based on subsidiary facts such as who communicated what to whom, when, and in what manner. The district court’s findings of these subsidiary facts are not clearly erroneous. Although the testimony is conflicting as to what authority Givhan and Leach each thought Leach had with regard to cafeteria personnel and NYC workers, there is no dispute that she gave him a list of “demands,” “requests,” or complaints, among which were the references to these two subjects. The question, then, is whether those expressions were constitutionally protected. That is a question of ultimate fact, which we can determine independently. E. g., Causey, supra. Not all expression by a government employee is constitutionally protected. The determination of constitutional protection entails striking “a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State as employer, in promoting the efficiency of the public services it performs through its employees.” Doyle, supra at 284, 97 S.Ct. at 574, 50 L.Ed.2d at 481-82; Pickering v. Board of Education, 891 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817 (1968). We often have been called upon to strike that balance. But before doing so we must determine whether on the facts of this case the teacher had a First Amendment interest as a citizen in making complaints to the principal. We have been cited to and have found no cases precisely in point. Here, in effect, a public employee privately voiced complaints and expressed opinions to her immediate superior. There is no allegation or evidence that the decision not to rehire her was due to information communicated in these expressions as to her religion, her associations with others, or her plans to bring her complaints and opinions to public attention. Indeed, the record does not indicate that Givhan ever made public complaints or suggestions through letters to newspapers or periodicals, letters or remarks to the school Board, remarks at public meetings, telephone calls to radio talk shows, distribution of pamphlets, or the like. Without authority precisely in point, we turn to general freedom of speech principles. The free speech clause is designed “to remove governmental restraints from the arena of public discussion.” Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284, 293 (1971). It is a guarantee to individuals of their personal right “to make their thoughts public and put them before the community.” Curtis Publishing Company v. Butts, 388 U.S. 130, 149, 87 S.Ct. 1975, 1988, 18 L.Ed.2d 1094, 1107 (1967). The result is a “marketplace of ideas,” in which debate is “uninhibited, robust, and wide open.” Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 759, 96 S.Ct. 1817, 1824, 48 L.Ed.2d 346, 357 (1976); Bond v. Floyd, 385 U.S. 116, 136, 87 S.Ct. 339, 349, 17 L.Ed.2d 235, 247 (1966). A school and the area around it can be a forum for public discussion. Grayned v. City of Rockford, 408 U.S. 104, 118, 92 S.Ct. 2294, 2304, 33 L.Ed.2d 222, 233 (1972); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731, 737 (1969). Citizens would be deterred from contributing to this public marketplace of ideas if their opportunities for public employment or other public benefits might be adversely affected by their expressions. Consequently, public employment can be denied or terminated on account of the employee’s constitutionally protected expression only when the interest of the state as employer and provider of services outweighs the First Amendment interest. Pickering, supra, 391 U.S. at 568, 88 S.Ct. at 1734, 20 L.Ed.2d at 817; see n. 13 supra. The three leading Supreme Court cases on teacher dismissals and freedom of speech illustrate the impórtance of protecting the right of public expression. In Pickering a teacher was dismissed for sending a letter to a local newspaper that was critical of the way in which the Board and superintendent had handled past proposals to raise new revenues for the schools. The Court, speaking through Justice Marshall, concluded that on the facts of Pickering the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public. 391 U.S. at 573, 88 S.Ct. at 1737, 20 L.Ed.2d at 820 (emphasis added). Likewise, in Perry v. Sindermann, 408 U.S. 593, 92 S,Ct. 2694, 83 L.Ed.2d 570 (1972), a teacher alleged, inter alia, that he was not rehired in retaliation for his public criticism of the college’s Board of Regents. This public criticism appeared in the form of a newspaper advertisement over Sinder-mann’s name and his testimony before committees of the Texas legislature. The district court granted summary judgment, on virtually the pleadings alone, for the defendants, and this court reversed. 430 F.2d 939 (5th Cir. 1970). The Supreme Court affirmed, saying in part: The respondent has alleged that his non-retention was based on his testimony before legislative committees and his other public statements critical of the Regents’ policies. And he has alleged that this public criticism was within the First and Fourteenth Amendments’ protection of freedom of speech. Plainly, these allegations present a bona fide constitutional claim. For this Court has held that a teacher’s public criticism of his superiors on matters of public concern may be constitutionally protected and may, therefore, be an impermissible basis for termination of his employment. Id. at 598, 92 S.Ct. at 2698, 33 L.Ed.2d at 578 (emphasis added). Doyle completes the trilogy. The crucial incident giving rise to Doyle’s First Amendment claim was a telephone call he made to a disc jockey at a local radio station conveying the substance of a memorandum relating to teacher dress and appearance circulated by a school principal. The Court accepted the district court’s conclusion that this communication was protected by the First Amendment because the Board’s “reaction to his communications to the radio station was [nothing] more than an ad hoc response to Doyle’s action in making the memorandum public.” 429 U.S. at 284, 97 S.Ct. at 574, 50 L.Ed.2d at 482 (emphasis added). The strong implication of these eases is that private expression by a public employee is not constitutionally protected. Recent cases add support to this dichotomy. This Term the Court has held that a state may not, through its public employment relations scheme, restrict the right of teachers to express themselves at a school board meeting open to the public. City of Madison, Joint School District v. Wisconsin Employment Relations Commission, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976). The state commission found the school district guilty of engaging in negotiations with a member of a bargaining unit other than the exclusive representative by allowing a teacher to speak on an issue related to contract negotiations at a public Board meeting. The Court held this decision to violate the First Amendment: Regardless of the extent to which true contract negotiations between a public body and its employees may be regulated- — an issue we need not consider at this time- — the participation in public discussion of public business cannot be confined to one category of interested individuals. Id. at 175, 97 S.Ct. at 426, 50 L.Ed.2d at 385. (Emphasis added). In his concurrence, in which Justice Marshall joined, Justice Brennan expressed the view that “the First Amendment plainly does not forbid Wisconsin from limiting attendance” at a private bargaining session “and denying [teachers] the right to attend and speak at the session.” 429 U.S. at 178, 97 S.Ct. at 428, 50 L.Ed.2d at 386. But, he continued: . [T]he First Amendment plays a crucially different role when, as here, a government body has either by its own decision or under statutory command, determined to open its decisionmaking processes to public view and participation. [footnote omitted]. In such case, the state body has created a public forum dedicated to the expression of views by the general public. . . . The State could no more prevent [the teacher] from speaking at this public forum than it could prevent him from publishing the same views in a newspaper or proclaiming them from a soapbox; Id. at 178, 97 S.Ct. at 428, 50 L.Ed.2d at 387. (Emphasis added). Finally, it should be noted that no one has a right to press even “good” ideas on an unwilling recipient. Rowan v. United States Post Office Department, 397 U.S. 728, 737, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736, 743 (1970) (to hold unconstitutional a statute authorizing addressee to stop mailings of pandering advertisements to him “would hardly make more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication”). See also Lehman v. City of Shaker Heights, 418 U.S. 298, 305, 307, 94 S.Ct. 2714, 2719, 41 L.Ed.2d 770, 778, 779 (1974) (Douglas, J., concurring) (“While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it.”). These general principles lead us to conclude that teacher Givhan did not engage in constitutionally protected speech in her expressions to principal Leach. Neither a teacher nor a citizen has a constitutional right to single out a public employee to serve as the audience for his or her privately expressed views, at least in the absence of evidence that the public employee was given that task by law, custom, or school Board decision. There is no evidence here that Givhan sought to disseminate her views publicly, to anyone willing to listen. Rather, she brought her complaints to Leach alone. Neither is there evidence that the Board or Mississippi law delegated to Leach the task of entertaining complaints from all comers and that he discriminated in choosing to reject her complaints and not to rehire her because she impressed him into such service. It is often said that hard cases make bad law. This could be such a case. Many, if not most people would consider Givhan’s expressions laudable. Protection of the First Amendment, however, does not turn on the social worth of ideas. Police Department of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212, 217 (1972); Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542, 549 (1969); Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131, 1134 (1949). If we held Givhan’s expressions constitutionally protected, we would in effect force school principals to be ombudsmen, for damnable as well as laudable expressions. Perhaps it would be wise in terms of education and public employment to encourage anyone interested in public education to express their views and complaints to school principals. That policy, however, is a matter for Mississippi educators, school boards, state courts, and legislative bodies, for in the absence of constitutionally protected rights, federal courts are loathe to intrude into internal school affairs. Bishop v. Wood, 426 U.S. 341, 347-350, 96 S.Ct. 2074, 2079-80, 48 L.Ed.2d 684, 691-693 (1976); Megill v. Board of Regents, supra, at 1077; Blunt v. Marion County School Board, 515 F.2d 951, 956 (5th Cir. 1975). Since Givhan has not prevailed on her First Amendment claim, her case is reversed and remanded for further district court proceedings, including determination of her Singleton claim. II. Hodges As noted earlier, appellee Hodges served as guidance counselor at Glen Allan during the second semester of the 1969-70 school year and during the 1970-71 and 1971-72 school years. During the second semester of 1970 and the 1970-71 school year Hodges was one of three guidance counselors employed by the school district. Each was assigned to one of the district’s three integrated schools. Ora Kelly (black), the counselor at O’Bannon, was reassigned as an elementary teacher for the 1971-72 school year because she did not qualify for license renewal. James Pollard (white), with the title of the school district’s “head counselor” and the counselor assigned to Riverside, resigned at the end of the 1970-71 school year. Neither Pollard nor Kelly was replaced for the 1971-72 school year, leaving Hodges at Glen Allan as the school district’s only guidance counselor. District Superintendent Morris in March or April, 1972, decided to abandon the concept of a counselor for each school and instead to hire one counselor for the whole district for 1972-73. Tony Cintgran, a white, eventually was hired for this position. Around March 8, 1972, Hodges learned that Leach was recommending that she not be rehired. Leach and Harold Adams, assistant superintendent, told her that the reasons for the decision included parental opposition and her inability to get along with students. In September, 1972, Hodges was informed of a vacancy in the district and applied to Superintendent Morris for the position. He refused her application, citing (1) her refusal to accept a fourth grade position for 1971-72 and (2) the “letter-[Hodges] sent to Atlanta.” The latter reference was to Hodges’ application to Atlanta University in the spring of 1972. The application had to be accompanied by the written recommendations of the principal and assistant principal. Hodges was not sure how long she had had the necessary forms for the recommendation and rating, but it suddenly dawned on her on Thursday, April 6, that the application was due on Monday, April 10. Since she was leaving on Friday the 7th for a meeting in Jackson, she decided it was imperative that the application be completed promptly. She looked for principal Leach but could not find him. She approached Assistant Principal Givhan, who without knowledge of exactly what she wanted, told her that he was busy and to “get someone else to sign it for you.” Hodges did exactly that. She wrote a recommendation, displaying “a lively appreciation of her own worth and abilities,” signed Leach’s name to it, filled out the rating blank, and got someone else to sign Ms. Givhan’s name to it. Although Hodges was quite contrite about this episode at trial, district officials learned of it only inadvertently. After completing and signing the forms, Hodges got a girl in the library to type the address on the envelope. The envelope was addressed inadequately, and the letter was returned to Leach. Leach apparently sent the letter to Superintendent Morris, who put it in Hodges’ file. When Morris brought up the incident at the time she applied for a position in September, 1972, Hodges had difficulty remembering it. Morris refreshed her memory by showing her the letter. She admitted writing it, and Morris rejected her application. The district court again avoided deciding whether there was an overall reduction in faculty positions making the Singleton order applicable. Instead the court thought that the counselor positions themselves were an appropriate group upon which to determine applicability of Singleton. It then concluded that there had occurred a reduction from three to one counselor positions between the 1971-72 and 1972-73 school years. The court acknowledged that Hodges had been the only counselor employed by the school district in 1971-72. However, the court observed that there had in fact been three counselor positions that year, with the district apparently either unable or unwilling to replace Kelly and Pollard. The court found that the district’s scheme of employing counselors resulted in there being one instead of three positions in 1972-73, that Singleton therefore applied, and that since the school district did not apply “objective and reasonable non-discriminatory standards” in effecting the reduction, only “just cause” would excuse Hodges’ nonretention. The court found no just cause. That finding is not clearly erroneous. Appellants contend that the court erred in applying Singleton. We agree with the district court that the school district was still in the process of becoming a unitary system in 1972, that is, it was still in a Singleton situation. See, e. g., United States v. Coffeeville Consolidated School District, 513 F.2d 244, 247 (5th Cir. 1975); United States v. Texas, 509 F.2d 192, 193 (5th Cir. 1975). By its own terms, however, Singleton applies only “[i]f there is to be a reduction in the number of principals, teachers, teacher-aides, or other professional staff.” Our recent cases establish that not only an arithmetic reduction is required, but a reduction related to desegregation. Hardy v. Porter, 546 F.2d 1165, 1167-68 (5th Cir. 1977) (former principal lost his Singleton protection when he left the system for “reasons unrelated to the desegregation process”); Lee v. Chambers County Board of Education, 533 F.2d 132, 135 (5th Cir. 1976); Pickens v. Okolona Municipal Separate School District, 527 F.2d 358, 361, 362 & n. 3 (5th Cir. 1976). As we said in Lee, supra: Singleton was designed to ensure that the transition from a dual to a unitary system, with all the concomitant logistical problems, would not occasion unfair treatment of black teachers and staff members. Oliver’s demotion from the position of Assistant Attendance Supervisor to that of classroom teacher was not a result of the desegregation of Chambers County schools, but rather was necessitated by termination of the Title I funds that paid his salary. A plaintiff seeking Singleton protection has the burden of proving the applicability of its terms. Cf. Hardy v. Porter, supra; Lee v. Chambers County Board of Education, supra. There is no evidence in this record that the reduction in counselor positions was related to desegregation, and the court made no such finding. Since the “desegregation-relatedness” aspect of Singleton may not have been entirely clear when the case was tried, it is appropriate to reverse and remand for further consideration of why the district changed its counsel- or employment scheme. If that change was not related to desegregation, Singleton would not apply to Hodges regardless of any reduction in the overall faculty related to desegregation, because elimination of her position would not have been so related. Hardy v. Porter, supra. If the district court finds that Hodges was protected by Singleton, reinstatement in this case would be an inappropriate remedy for its violation. Reinstatement is a usual remedy for Singleton violations. See, e. g., McLaurin v. Columbia Municipal Separate School District, 530 F.2d 661, 665-66 (5th Cir. 1976); Ward v. Kelly, 515 F.2d 908, 912 (5th Cir. 1975); Cornist v. Richland Parish School Board, 495 F.2d 189, 191 (5th Cir. 1974). As Judge Godbold noted in Hardy v. Porter, supra, at 1168, the requirements of Singleton are equitable remedies designed to fashion relief for constitutional violations “in accordance with principles of fairness.” Consequently, our reinstatement cases have been predicated on the plaintiffs’ qualifications as school teachers and administrators. E. g., Kelly v. West Baton Rouge Parish School Board, 517 F.2d 194, 199 (5th Cir. 1975). Also with a view toward equity, “just cause” is a good defense to school district action in violation of Singleton. Thompson v. Madison County Board of Education, 476 F.2d 676, 678-79 (5th Cir. 1973). As we said there, “Just cause” in a Singleton situation means types of conduct that are repulsive to the minimum standards of decency— such as honesty and integrity — required by virtually all employers of their employees, and especially required of public servants such as school teachers. For example, if a teacher came to school drunk, or was found stealing from the school treasury, or sexually assaulted a student . Although such conduct sometimes may not negate an employer’s violation of an employee’s rights, for example, because it was not relied upon by the employer in making a decision to discharge or not to rehire, it may preclude reinstatement as a remedy. That is the case here. There is no evidence that Leach or the Board relied on the incident relating to the unauthorized signatures in deciding not to rehire Hodges. After they learned of the incident, however, they rejected her application for a different position in September, 1972. Hodges wrote her own recommendation, signed Leach’s name to it, and procured another teacher to sign Mr. Givhan’s name on the rating blank, all with knowledge that these actions were not authorized and that the university would rely on the authenticity of the signatures. Such conduct was a type “repulsive to the minimum standards of decency . required by virtually all employers of their employees.” Thompson v. Madison County Board of Education, supra. Her conduct particularly disqualified Hodges for the sensitive position of guidance counselor to young students. Accordingly, we reverse and remand Hodges’ case for further district court consideration of her Singleton claim. We leave to the district court the determination of Hodges' entitlement to attorneys’ fees and to damages for the interim between the decision not to rehire her as a counselor and the decision not to consider her future employment because of her conduct in using unauthorized signatures on recommendations in her own behalf. REVERSED and REMANDED. . In addition to the school district itself, the school board members, the district superintendent, and principal James Leach were named as defendants. . 61 F.R.D. 414, 416 (N.D.Miss.1973). . The court also ordered the parties to confer about appellees’ claims for back pay and attorneys’ fees. After staying its reinstatement order pending appeal, the court entered a final judgment fixing the amount of back pay and attorneys’ fees. 404 F.Supp. 1225 (N.D.Miss. 1975). ' . Those orders included, inter alia, the following Singleton provisions: (a) Effective not later than February 1, 1970, the principals, teachers, teacher-aides and other staff who work directly with children at a school shall be so assigned that in no case will the racial composition of a staff indicate that a school is intended for Negro students or white students. For the remainder of the 1969-70 school year the district shall assign the staff described above so that the ratio of Negro to white teachers in each school, and the ratio of other staff in each, are substantially the same as each such ratio is to the teachers and other staff, respectively, in the entire school system. The school district shall, to the extent necessary to carry out this desegregation plan, direct members of its staff as a condition of continued employment to accept new assignments. (b) Staff members who work directly with children, and professional staff who work on the administrative level will be hired,' assigned, promoted, paid, demoted, dismissed, and otherwise treated without regard to race, color, or national origin. (c) If there is to be a reduction in the number of principals, teachers, teacher-aides, or other professional staff employed by the school district which will result in a dismissal or demotion or [sic] any such staff members, the staff member to be dismissed or demoted must be selected on the basis of objective and reasonable non-discriminatory standards from among all the staff of the school district. In addition if there is any such dismissal or demotion, no staff vacancy may be filled through recruitment of a person of a race, color, or national origin different from that of the individual dismissed or demoted, until each displaced staff member who is qualified has had an opportunity to fill the vacancy and has failed to accept an offer to do so. Prior to such a reduction, the school board will develop or require the development of nonracial objective priteria to be used in selecting the staff member who is to be dismissed or demoted. These criteria shall be available for public inspection and shall be retained by the school district. The school district also shall record and preserve the evaluation of staff members under the criteria. Such evaluation shall be made available upon request to the dismissed or demoted employee. . The teacher who replaced Givhan was black. . Superintendent Morris gave his reasons for not rehiring Givhan in a letter to her dated July 23, 1971: (1) a flat refusal to administer standardized National tests to the pupils in your charge; (2) an announced intention not to cooperate with the administration of the Glen Allan Attendance Center; (3) and an antagonistic and hostile attitude to the administration of the Glen Allan Attendance Center demonstrated throughout the school year. . Appellants also sought to establish these other bases for the decision not to rehire: (1) that Givhan "downgraded” the papers of white students; (2) that she was one of a number of teachers who walked out of a meeting about desegregation in the fall of 1969 and attempted to disrupt it by blowing automobile horns outside the gymnasium; (3) that the school district had received a threat by Givhan and other teachers not to return to work when schools reopened on a unitary basis in February, 1970; and (4) that Givhan had protected a student during a weapons shakedown at Riverside in March, 1970, by concealing a student’s knife until completion of a search. The evidence on the first three of these points was inconclusive and the district judge did not clearly err in rejecting or ignoring it. Givhan admitted the fourth incident, but the district judge properly rejected that as a justification for her not being rehired, as there was no evidence that Leach relied on it in making his recommendation. . Apparently all of the Glen Allan administrative and office personnel were white except for Ms. Hodges, the guidance counselor, Givhan’s husband, who became assistant principal around Thanksgiving, 1970, and a Mr. Jackson. Ms. Givhan did not consider the roles of Hodges, Mr. Givhan, and Mr. Jackson very significant in the overall context of Glen Allan’s administration. It should be noted that Mr. Givhan was rehired as assistant principal after Leach’s recommendation not to rehire Ms. Givhan. . Givhan’s complaint apparently was triggered by the replacement of two black teachers’ aides with a white student as ticket-taker. Givhan admitted that the lunchroom manager was black, but was unaware who had authority to assign lunchroom personnel. . There was testimony, however, that the District Board of Education ordinarily granted requests for a hearing by teachers not rehired. Givhan made no such request, and no hearing was held. . There exists, however, a significant distinction for the purpose of applying the clearly erroneous test between findings of subsidiary fact and findings of ultimate fact. See Galena Oaks Corp. v. Scofield, 5 Cir. 1954, 218 F.2d 217, 219-20. Finding a subsidiary fact involves the determination of an evidenti-ary or primary fact; finding an ultimate fact, on the other hand, “may involve the very basis on which judgment of fallible evidence is to be made.” Baumgartner v. United States, 1944, 322 U.S. 665, 671, 64 S.Ct. 1240, 1244, 88 L.Ed. 1525, 1529. Thus, for example, a finding of infringement of a patent is a finding of ultimate fact [citation omitted]; as is a finding that a gain should be treated as capital rather than ordinary for income tax purposes [citation omitted]. With respect to ultimate findings of fact, furthermore, we noted in Industrial Instrument Corp. v. Fox-boro Co. [5 Cir.], supra, 307 F.2d [783] at 786 n. 2: We may reverse free of the clearly erroneous rule where . . .the issue revolves around an ultimate fact as distinguished from subsidiary fact questions .... Although discrimination vei non is essentially a question of fact it is, at the same time, the ultimate issue for resolution in this case . . . . As such, a finding of discrimination is a finding of ultimate fact. See also Wade v. Mississippi Cooperative Extension Service, 528 F.2d 508, 516 (5th Cir. 1976) (racial discrimination); Stepp v. Estelle, 524 F.2d 447, 453 (5th Cir. 1975) (intelligent waiver of counsel); East v. Romine, Incorporated, 518 F.2d 332, 338-39 (5th Cir. 1975) (sex discrimination). . There is some evidence that Givhan subsequently orally reminded Leach of her complaints in private conversation. This reminder and the list constituted the “unreasonable demands” which the court found primarily motivated Leach in his recommendation. This finding seems somewhat inconsistent with the court’s characterization of Givhan as a “vocal critic of the district’s policies and practices.” Perhaps “active” would be a more appropriate adjective than “vocal.” . See, e. g., Abbott v. Thetford, 5 Cir., 534 F.2d 1101, (en banc), rev'g and adopting dissenting opinion, 529 F.2d 695 (5th Cir. 1976), cert, denied,- U.S. -, 97 S.Ct. 1598, 51 L.Ed.2d 804 (1977), (interference of Chief Probation Officer’s expression in the form of a lawsuit with his work relationship with agencies sued justified dismissal by Juvenile Court Judge); Smith v. United States, 502 F.2d 512, 516, 518-19 (5th Cir. 1974) (the possibility of effect on patients of symbolic speech in form of wearing a peace pin constituted substantial interference with duties of wearer as staff psychologist at a Veterans Administration hospital). Appellants did not expressly defend on the ground that Givhan’s expression substantially interfered with her work or with her relationship with Leach, and the district court made no express finding as to substantial interference. The district court’s finding that Givhan’s complaints were neither constant nor unreasonable might be taken as a finding that there was no substantial interference with her work. As to the finding of reasonableness, the testimony was conflicting, as noted above. There is no real dispute, however, as to whether the complaints were “constant.” Although Leach referred to lists of demands, he could cite only Givhan’s occasional complaints about NYC workers, integration of the office staff and administration, and cafeteria personnel. In view of our disposition of the case we need not reach the issue of substantial interference. . The loyalty oath and other cases make clear that requirements for public employment or public office cannot infringe on First Amendment rights to freedom of religion, association, and speech. See, e. g., United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967) (prohibition of defense employment due to membership in the Communist Party); Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228 (1967) (overbroad loyalty oath deters advocacy and associations protected by the First Amendment); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (seditious utterances, advocacy of forceful overthrow of government, and membership in the Communist Party); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966) (freedom of association deterred by overbroad loyalty oath); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) tame); Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) (freedom of religion infringed by requirement that public officials declare belief in the existence of God). . This implication also can be found in our teacher dismissal and freedom of speech cases. See, e. g., Megill v. Board of Regents, supra (context of remarks justified Board action; remarks, however, were clearly public, and included expressions in a press conference, in a newspaper interview, in a panel discussion attended by 50 people, at a public meeting on campus, and at a meeting of the Board); Kaprelian v. Texas Woman’s Univ., 509 F.2d 133, 139 (5th Cir. 1975) (teacher protected in voicing and applying in his teaching academic views relevant to assignments); Lewis v. Spencer, 490 F.2d 93 (5th Cir. 1974), aff’g, 369 F.Supp. 1219 (S.D.Tex.1973) (appearance before state legislature and participation in organizing a local chapter of a teachers’ association are protected); Duke v. North Texas State Univ., 469 F.2d 829, 832 (5th Cir. 1972), cert, denied, 412 U.S. 932, 93 S.Ct. 2760, 37 L.Ed.2d 160 (1973) (teacher protected in her remarks to students and prospective students at a meeting in a campus park); Moore v. Winfield City Bd. of Educ., 452 F.2d 726, 111 (5th Cir. 1971) (Board action not motivated by teacher’s expressions, which included criticism of school administration in speech at a local Classroom Teachers Association dinner); Pred v. Board of Pub. Instruction, 415 F.2d 851, 853-54 (5th Cir. 1969) (participation in an organization and advocacy in classroom instruction of “demands” for campus freedom protected). See also Abbott v. Thetford, supra (substantial interference of expression with job justified dismissal; expression in the form of a lawsuit); Smith v. United States, supra, at 516 (substantial interference of expression with job justified dismissal; expression made by wearing of a peace pin). . Rowan is arguably distinguishable because of the citizen’s compelling interest in privacy within his or her own residence. E. g., Organization for a Better Austin v. Keefe, 402 U.S. 415, 420, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1, 6 (1971). The rationale of Rowan, however, is not limited to the home. It applies whenever “the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 & n. 5, 95 S.Ct. 2268, 2272 & n. 5, 45 L.Ed.2d 124, 131 & n. 5 (1975) (Powell, J.). While an intrusion on privacy in the home may be of greater significance than an intrusion on privacy in the workplace, one’s “degree of captivity” in the workplace may be much greater. In the normal course of his job, principal Leach could hardly avoid exposure to teacher Givhan and her demands, requests, and complaints. Indeed, as a practical matter Leach was a very captive audience for Givhan as long as they both worked in the same school. . Leach testified that he sent her lists of demands to the school superintendent. Apparently they were ignored. That does not alter the fact that Givhan chose Leach as the only recipient of her expressions. . E. g., In re Southwestern Bell Telephone Co., 542 F.2d 297, 298 (5th Cir. 1976) (en banc) (Hill, J., dissenting), rev’d, - U.S. -, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977). . If on remand appellee succeeds on her Singleton claim, it will be for the district court in the first instance to determine the propriety of reinstatement as a remedy in accordance with our discussion of reinstatement as to Hodges, infra. . Kaprelian v. Texas Woman’s Univ., supra, at 135 (Gee, J.). . She testified that when she wrote and signed the recommendation she had little time and was otherwise “under pressure.” She explained that she had signed other documents for Leach before, at his request, but she admitted that he did not authorize her to complete and sign in his name her own recommendation. It is also well established that when she had difficulty “finding” Leach for his recommendation she knew he had recommended that she not be rehired for the next school year. . E.g., Moore v. School Board, 364 F.Supp. 355, 361 (N.D.Fla. 1973) (reinstatement inappropriate where teacher had abused authority by relating to students his personal experiences with prostitutes and other illegitimate topics). See also Florida Steel Corp. v. NLRB, 529 F.2d 1225, 1234 (5th Cir. 1976) (employee raised fist and cursed supervisor); Trailmobile Division, Pullman Incorporated v. NLRB, 407 F.2d 1006, 1018 (5th Cir. 1969) (reinstatement denied to striking employees who intimidated and assaulted nonstriking employee); NLRB v. Big Three Welding Equipment Co., 359 F.2d 77, 83 (5th Cir. 1966) (reinstatement denied to employees who pilfered company property); NLRB v. Bin-Dicator Company, 356 F.2d 210, 215-16 (6th Cir. 1966) (reinstatement denied to employee who made “fearsome threats and gestures” to supervisors); NLRB v. R.C. Can Company, 340 F.2d 433, 435-36 (5th Cir. 1965) (reinstatement denied to employee who threatened to harm the plant manager); NLRB v. Coca-Cola Bottling Co., 333 F.2d 181, 185 (7th Cir. 1964) (employee disqualified from reemployment by “his pattern of falsification and deceit during his employment”); NLRB v. National Furniture Mfg. Co., 315 F.2d 280, 286 (7th Cir. 1963) (reinstatement denied because of “basic antagonism” between employee and employer). Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. Answer:

songer_two_issues

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. John N. DUNHAM, Administrator of the Estate of Dorothy Louise Sipling, deceased, Appellant, v. Frederick W. WRIGHT and Frederick M. Wright. No. 18077. United States Court of Appeals, Third Circuit. Argued Jan. 20, 1970. Decided March 19, 1970. Lewis H. Markowitz, Markowitz, Kagen & Griffith, York, Pa., for appellant. John C. Dowling, Huette F. Dowling, Dowling & Dowling, Harrisburg, Pa., for appellees, (Dowling & Dowling, Harrisburg, Pa., on the brief). Before FORMAN, SEITZ and ADAMS, Circuit Judges. OPINION OF THE COURT ADAMS, Circuit Judge. Legal-medico jurisprudence requires that a physician obtain the consent of a patient before performing surgery unless the need for such consent is obviated by an emergency which places the patient in immediate danger and makes it impractical to secure such consent. This blackletter rule, clear and simple on its face, has occasioned courts in many jurisdictions to grapple with defining the elusive concepts of “consent” and “emergency.” These concepts require courts to develop a delicate balance between the right of the patient to choose the treatment he wishes to undergo and the freedom of the physician to practice responsible and progressive medicine without fear of frequent litigation. In this suit, brought after the unfortunate death of Mrs. Dorothy Louise Sip-ling following surgery, we are called upon to explore the necessary elements of these concepts which have evolved from attempts to understand the proper relationship between physician and patient and to protect the right of the patient to decide whether “he will take his chances with [an] operation, or take his chances of living without it.” The action here, instituted by decedent’s administrator pursuant to diversity jurisdiction, seeks to hold defendant physicians, Dr. Frederick W. Wright and his son, Dr. Frederick M. Wright, responsible for Mrs. Sipling’s death which occurred after a thyroidectomy operation performed by the elder Wright. Plaintiff alleged at trial that the operation was performed negligently, and without a valid consent by the decedent or her husband. Although defendants obtained two signed form consents, plaintiff contended that these forms were ineffective because the defendants failed to alert Mrs. Sipling or her husband to the dangers inherent in the operation and failed to advise them of the alternative methods of treating Mrs. Sipling’s condition. The case was tried by the Honorable William J. Nealon and a jury. After five days of testimony the jury was requested to determine whether defendants were negligent in preparing the decedent for the operation, whether defendants obtained consent to the operation, or whether an emergency existed thus eliminating the need for consent. The jury returned a verdict for the defendants. Plaintiff filed motions for judgment n. o. v. or in the alternative for a new trial. They were denied. In those motions, and on this appeal, plaintiff asserts that there was as a matter of law insufficient evidence to permit the jury to conclude that defendants obtained an “informed” consent, or that an emergency existed so as to permit defendants to operate without such consent. Plaintiff also contends that the charge to the jury was incorrect on the issues of consent and emergency. Since plaintiff is appealing primarily from the dismissal of a motion for judgment n. o. v., we are required to consider the facts surrounding Mrs. Sipling’s operation in the light most favorable to the defendants. Mrs. Sipling, who was suffering from an “extremely toxic goiter”, was referred to the defendants by her family physician in order “to have thyroid surgery performed.” The first consultation with Dr. F. W. Wright was on December 12, 1963. In his opinion, “she was one of the most extremely seriously ill women due to her goiter that [he had] ever seen”. Indeed, he “felt that she was an emergency”, and had her admitted immediately to the Hanover Hospital. Dr. F. W. Wright stated that the first time he saw her, he told her and Mr. Sipling that the only possible way she could recover was to have surgery performed, and that thyroid surgery was “serious”. Mr. Sipling conceded that the first time he and Mrs. Sipling met with Dr. F. W. Wright, the doctor advised there would be an operation. When Mrs. Sipling was admitted to the hospital, both she and her husband signed an authorization for medical and surgical treatment. In the hospital she was given drugs to get her thyroid gland in an “euthyroid” state before the operation. Although seriously ill, she was permitted to go home for the Christmas holidays. The defendants saw her in their office on January 16, 1964. Her condition had deteriorated, and she was again admitted as an emergency patient. At the time of the second admission, another authorization was signed by Mrs. Sipling. Mr. Sipling testified that whenever he asked Dr. F. W. Wright when he was going to operate, Dr. Wright told him that Mrs. Sipling would be operated on “as soon as her pulse was down and her nerves calmed down.” Dr. F. W. Wright testified that he “talked to Mr. Sipling frequently and told him that [he] would operate on [his wife] as soon as [he] felt that she was in good enough condition to be operated on.” He said he “couldn’t tell the exact day, but [he] told him at one stage that it would be done on either of the following two days.” Dr. F. W. Wright testified that on February 6, 1964, the point was reached where the drugs had begun to lose their effectiveness, and if she were not operated on at that particular time she might never have been able to have an operation. Dr. F. W. Wright performed the operation that day. Mrs. Sipling died on February 7th at 1:30 a.m. Since jurisdiction here is predicated on diversity and inasmuch as the decedent and her husband are citizens of Pennsylvania and the operation was performed in that state, it is clear that Pennsylvania law is controlling. The parties do not contest the general principle that in the absence of an emergency the patient’s consent is a prerequisite to a surgical operation. They do differ, however, in their interpretation of the more recently promulgated rule in Pennsylvania that a consent is operative only if it is an “informed” or “knowledgeable” consent. Gray v. Grunnagle, 423 Pa. 144, 155, 223 A.2d 663 (1966). In Gray v. Grunnagle, the Pennsylvania Supreme Court adopted the approach of jurisdictions that have tried to give substance to a patient’s right to decide for himself what surgical procedures he wishes to undergo. These jurisdictions consider an effective consent one which is made after the patient has been advised of the possible consequences and risks inherent in the particular operation, and therefore impose upon a physician the duty to disclose to his patient the possible adverse results of an operation. Although it is not clearly articulated, a careful analysis of the rationale of the applicable citations, including Gray v. Grunnagle, indicates that before a patient will be deemed to give an informed consent, it may be necessary that he know the alternative methods of treatment available to him and the inherent dangers and possibilities of success of such alternatives. The philosophy behind such theory of informed consent is that the patient has the right and responsibility to determine whether he wants to risk the suggested corrective surgery. If a patient’s decision is to be a knowing and intelligent one, he must understand in addition to the risks of the suggested surgery, the possible results of the failure to chance it. A complete understanding of the consequences of foregoing the operation would seem necessarily to include a consideration of the alternative treatment for the patient’s disease or condition. Some jurisdictions considering the duty of a physician to disclose to a patient the hazards of surgery have given the physician broad discretion by saying that a physician does not have to alarm a patient by explaining all such possibilities. Grunnagle, however, makes it clear that in Pennsylvania a consent is “informed” only if the patient knows what is apt to happen to him and the possible adverse results and dangers of the operation. The logical inference from this formulation may be that it is not the prerogative of the physician to keep secret and screen out any of the possible complications of surgery. Gray v. Grunnagle was an action in trespass by a plaintiff alleging he suffered disability and damages as a result of surgery performed by the defendant physician without consent and in a negligent manner. The judge withdrew the issue of negligence and submitted the ease to the jury solely on the question of informed consent. The jury returned a verdict of $80,000. The court en banc, however, granted the defendant’s motion for judgment n. o. v. On appeal the Pennsylvania Supreme Court reversed saying “whether or not plaintiff had consented to the operation or substantially the operation” was an issue for the jury. 423 Pa. at 166, 223 A.2d at 674. In a lengthy opinion, the Court set forth the reasons and criteria for an informed consent. It followed the rationale of informed consent in other jurisdictions which have expressed the view that there is a contractual relationship between patient and physician in which the physician must conform his behavior to the decision of the patient. The Court quoted with approval from Robert E. Powell’s article, Consent to Operative Procedures, 21 Md.L.Rev. 189, 191 (1961): “ ‘In order to understand the nature of consent it is necessary at the outset to have some understanding of the legal relationship between the physician and his patient. This relationship is essentially contractual in nature. * * * More often than not the contract is raised by implication from the dealings between the parties, and in a like manner the acts to be performed by the parties are impliedly defined. * * jn short, the surgeon must operate in accordance with the agreement made between the parties. Consent for the operation or treatment arises from the contract and is given only in connection with what the parties understood was to be done * * * ’ ” 423 Pa. at 156-157, 223 A.2d 669. The Pennsylvania Supreme Court indicated that a patient can make a decision only if he is told all of the consequences. Quoting again from the Powell article, the Court stated; “ ‘* * * [I]t will be no defense for a surgeon to prove that the patient had given his consent, if the consent was not given with a true understanding of the nature of the operation to be performed, the seriousness of it, and organs of the body involved, the disease or incapacity sought to be cured, and the possible results.’ ” 423 Pa. at 166, 223 A.2d at 674: Once the patient has the information, he is the one to decide which of the possible consequences he wants to risk. The wisdom and fairness of the rule requiring a physician to disclose the possible adverse effects of surgery were explained in a more recent article, Informed Consent in Medical Malpractice, 55 Cal.L.Rev. at 1409, as follows: “Since the patient bears the entire risk of non-negligent injury and is concerned with his own interest as no other person can be, it is only fair to allow him to choose between accepting or rejecting the hazards of a proposed treatment even if his choice is irrational.” In Grunnagle, the plaintiff testified that he understood the operation was to be an exploratory one and he would thereafter decide if he wished to undergo corrective surgery. The defendant physician testified that although he advised Mr. Gray that the operation was “serious”, he was not positive whether he explained the operation and its potential risks. 423 Pa. at 162, 223 A.2d 673. The Court said that the burden of proof was on the plaintiff to show that the operation was unauthorized, and that it was for a jury to decide whether under all the circumstances the plaintiff had sustained this burden and proved by a preponderance of the evidence that the consent was not informed. The charge on informed consent in the present case conformed to the Pennsylvania rule set forth in Gray v. Grunnagle. Judge Nealon’s instructions indicated that a consent is valid only if it is “informed and knowledgeable”. He said the physicians should have advised the decedent of the consequences of the operation as well as the alternative possibilities. The charge thus accurately reflected Pennsylvania law and was fair to the plaintiff. We are also satisfied that there was sufficient evidence on the question of consent to warrant the submission of this issue to the jury. Mrs. Sipling had suffered from an enlarged thyroid for some time. She was sent to the defendants, specialists in thyroid surgery, specifically for surgery and was admitted to the hospital for that purpose. The physicians testified that they told her the operation was serious. They did not, however, according to their testimony, inform her of the percentage risk of death. Although this omission can be a serious one, in the setting of this case it does not require us to hold as a matter of law that the defendants failed to discharge their burden of disclosure. In Grunnagle, the Court did not direct a verdict for the plaintiff although the record indicates that the defendant physician may have failed to inform the patient of a 10 to 15% risk that he would be worse after the operation; instead the Court said whether there was an informed consent was a question for the jury. Plaintiff also urges the position that because Drs. Wright did not advise the decedent of the alternative methods of treatment for thyroid the consent was not informed. Dr. F. W. Wright testified that in his opinion “surgery was the only method applicable to [Mrs. Sip-ling’s] case.” From this testimony the jury could well infer that there was no alternative. Dr. Carl E. Ervin, qualified as a medical expert, testified that Mrs. Sipling “had only one alternative and that was surgery. * * * If she had not been operated on, she would have died with mathematical certainty * * *.” Disclosure of alternative treatment means disclosure of alternatives for the particular patient and not a recital of medical casebook theory. Mrs. Sipling had previously been treated with medication, and although the evidence is far from overwhelming it may properly be inferred that she was aware of this treatment and had found it unsatisfactory. This brings us to plaintiff’s second point on this appeal — the charge to the jury on the question of emergency was erroneous and the record is devoid of evidence from which the jury could conclude that any emergency did, in fact, exist. It is well established that consent is not required for surgery if an emergency exists and an immediate operation is needed to save the patient’s life. Plaintiff, however, contends that the trial judge did not properly define an emergency as “a sudden or unexpected event which creates a temporarily dangerous condition usually necessitating immediate or quick action” — a definition plaintiff takes from a case on an entirely different subject. Although the trial judge did not define emergency, he explained the general principle of the emergency exception and told the jury that they would have to conclude that an immediate operation was necessary to save Mrs. Sipling’s life or health, before this exception would be applicable. The testimony in this case is meager on the existence of an emergency. Nonetheless, the trial judge was not required to rule as a matter of law that no emergency existed. This is particularly so in view of the affirmative reply by Dr. F. W. Wright to a question on cross-examination asking whether there was an emergency at the time he performed surgery. On direct examination, Dr. F. W. Wright had explained that on February 6th, he concluded that the medication was losing its effectiveness on Mrs. Sipling and that if he did not operate then he might never have the chance again. Dr. F. M. Wright agreed with his father’s diagnosis that Mrs. Sipling was undergoing a change in response to medication. He also said it was his opinion that “if she hadn’t been operated on she would have died.” Dr. W. Emory Burnett, Professor of Surgery and Emeritus Chairman at Temple University Hospital, indicated after reviewing the medical charts that Mrs. Sipling “was getting into [the] state where the drugs [could] not control her and she [would] slip further back into the severity of her disease”. Dr. Burnett added, “it was the time to proceed now to interrupt this process by removal of an adequate amount of the thyroid gland.” Accordingly, the order of the District Court denying plaintiff’s motions for judgment n. o. v. or a new trial will be affirmed. . See e. g., Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); Moos v. United States, 225 F.2d 705 (8th Cir. 1955); Wall v. Brim, 138 F.2d 478, 481 (5th Cir. 1943); Bonner v. Moran, 75 U.S.App.D.C. 156, 126 F.2d 121, 122 (1941); Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905); McCoid, A Reappraisal of Liability for Unauthorized Medical Treatment, 41 Minn.L.Rev. 381 (1957); Anno. “Consent as a Condition of Right to Perform Surgical Operation.” 76 A.L.R. 562, 139 A.L.R. 1370. As Judge Cardozo stated in Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914): “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages”. . Mohr v. Williams, 95 Minn. 261, 104 N. W. 12, 15 (1905). . Dr. Carl E. Ervin testified that “euthyroid” is a medical term to describe a state in which the jjatient’s thyroid is brought as close as possible to a normal situation. . In Pennsylvania, a surgeon who performs an unauthorized operation is charged with assault. Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 063 (1900); Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963); Dicenzo v. Berg, 340 Pa. 305, 307, 16 A.2d 15, 16 (1940); Moscicki v. Shor, 107 Pa.Super. 192, 195, 163 A. 341, 342 (1932). Here the plaintiffs framed their complaint in terms of negligence and the judge so charged the jury. Some jurisdictions consider an action against a physician who operates without an informed consent as one sounding in negligence. See e. g., Wilson v. Scott, 412 S.W.2d 299 (Texas 1967); Di Fillipo v. Preston. 53 Del. 539, 173 A.2d 333 (1961); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, rehearing denied, 187 Kan. 186, 354 P.2d 670 (1960); eases cited at 21 Southwest L. Rev. 843, 845 n. 22 (1967). In a case note on Di Fillipo v. Preston in 76 Harv.L.Rev. 1445, this position was considered “Justifiable, though not inevitable,” since the element of intent is obscure where the physician operates believing he has an effective consent, but it is later determined such consent was not “informed.” The treatment of such action as sounding in negligence is approved in an extensive law review article by Marcus L. Plante, infra note 6, discussing the major cases in the field. . Gray v. Grunnagle is discussed in Informed Consent to Surgery — Substitution of Patient’s Subjective Understanding of Notice and Risks of Procedure for Objective Reasonable Man Test, 41 Dick.L.Rev. 675 (1967). . E. g., Wilson v. Scott, 412 S.W.2d 299 (Texas, 1967) ; Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, rehearing denied, 187 Kan. 186, 354 P.2d 670 (1960); Salgo v. Leland Stanford Jr. University Board of Trustees, 154 Cal.App.2d 560, 317 P.2d 170 (1957); Bang v. Charles T. Miller Hospital, 251 Minn. 427, 88 N.W.2d 186 (1958). See also, Anno. “Malpractice: Physician’s Duty to Inform Patient of Nature and Hazards of Disease or Treatment,” 70 A.L.R.2d 1028 (1961). For a discussion of informed consent, see the following law review material: Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.L.Rev. 628 (1969); Campbell, Civil Liability For Investigational Drugs: Part I, 42 Temple L.Q. 99, 139-143 Part II, 42 Temple L.Q. 289, 297-307 (1969); Plante, An Analysis of “Informed Consent,” 36 Ford.L.Rev. 639 (1968); Comment, Informed Consent in Medical Malpractice, 55 Cal.L.Rev. 1396 (1967); Comment, 79 Harv.L.Rev. 1445 (1961); Powell, Consent to Operative Procedures, 21 Md.L.Rev. 189 (1961). Although the concept of an “informed” consent is a development of the last decade, it was foreshadowed in older eases which conceived of the relationship of a physician-patient as contractual. Such cases considered that the contract authorizing surgical procedure did not authorize operations “involving risks and results not contemplated.” Wall v. Brim, 138 F.2d at 481 (5th Cir. 1943). . Russell v. Harwick, 166 So.2d 904 (Fla.App.1964) cert. discharged, 182 So.2d 241 (Fla.1966) and Bang v. Charles T. Miller Hospital, 251 Minn. 427, 88 N.W.2d 186 (1958) hint at a recognition of the duty of a physician to disclose to the patient the alternatives to surgery. These cases were cited by the Pennsylvania Supreme Court in Gray v. Grunnagle as indicating the relevance of explaining alternative treatment to a patient before obtaining consent. . E. g., Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617, 621 (1964); Roberts v. Wood, 206 F.Supp. 579, 583 (S.D.Ala.1962). These cases are concerned with disclosures to patients where such would be harmful to the patients’ emotional state. Suggestions to avoid this problem have been made in law review comments. A patient could delegate his choice to the physician if he does not want to know the details of surgery. 55 Cal.L.Rev. at 1409. Disclosure could be made to a relative. 76 Harv.L.Rev. at 1448. These exceptional cases should not negate the physician’s duty to disclose information to the great majority of patients. A patient should not be prevented from making a choice to decline treatment even if others consider the choice wrong. 76 Harv.L.Rev. at 1448, 55 Cal.L.Rev. at 1410. . A line of cases has developed which limit a physician’s duty of disclosure to the standards of the medical profession in the community. E. g., Wilson v. Scott, 412 S.W.2d 299 (1967); Di Fillipo v. Preston, 53 Del. 539, 173 A.2d 333, 339 (1961). In Gray v. Grunnagle, there was testimony that the accepted standard of medical care in the area was to advise patients of the particular risks of the surgical procedure Mr. Gray was to undergo. 423 Pa. at 163, 223 A.2d at 672. In the present case, there is no testimony as to the community standard of disclosure; but neither party objects to this omission. . The Court in Grunnagle did not indicate what weight if any should be given to the signed hospital release form. . Fairness impels us to note the following testimony given by Dr. F. W. Wright which was damaging to defendants’ case (N.T. 262): “Q. Did you tell them that death was a possibility? A. I do not accept death as a possibility when I don’t think it’s going to happen. Q. But death is one of the hazards when you operate on a very toxic patient, is it not, Doctor? A. Well, if you consider one percent a hazard, I would say yes it is, but when you don’t have any more than that you don’t usually tell them they’re going to die.” . E. g., Barnett v. Bachrach, 34 A.2d 626 (Mun.Ct.D.C.1943), and cases cited at note 1 supra. In Gravis v. Physicians and Surgeons Hospital of Alice, 427 S.W.2d 310 (Texas, 1968), cited by plaintiff, and Rolater v. Strain, 39 Okl. 572, 137 P. 96 (1913) the respective courts ruled that whether an emergency existed was a question for the jury. . Scaccia v. Old Forge Borough, 373 Pa. 161, 94 A.2d 563 (1953). Plaintiff’s points for charge did not specifically request this definition of emergency. . “Q. There was no immediate emergency that required an operation on February 6th, 1964, was there, Doctor? A. Yes, I just explained that, Mr. Markowitz. Her drugs had seemed to have lost their effectiveness, and if she is not operated on at that point, you delay this more and more and more, and you’re very apt to have a patient that you never will be able to operate on.” (N.T. 244). Question: Are there two issues in the case? A. no B. yes 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. WHITE MOTOR CO. v. UNITED STATES. No. 54. Argued January 14-15, 1963. Decided March 4, 1963. Gerhard. A. Gesell argued the cause for appellant. With him on the briefs were Rufus S. Day, Jr. and Nestor S. Foley. Solicitor General Cox argued the cause for the United States. With him on the brief were Assistant Attorney General Loevinger and Robert B. Hummel. Briefs of amici curiae were filed by Sigmund Timberg for Serta Associates, Inc., et al., and by John Bodner, Jr. for the Sandura Company. Mr. Justice Douglas delivered the opinion of the Court. This is a civil suit under the antitrust laws that was decided below on a motion for summary judgment. Rule 56 of the Rules of Civil Procedure at the time of the hearing below permitted summary judgment to be entered “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Since that time, an amendment to Rule 56, which is included in proposed changes submitted to Congress pursuant to 28 U. S. C. § 2072, would add the following requirement: “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” But no such requirement was present when the present case was decided; and appellant, though strenuously opposing summary judgment and demanding a trial, submitted no such affidavits. It did, however, in its brief in opposition to the motion for summary judgment, make allegations concerning factual matters which the District Court thought were properly raised and which we think were relevant to a decision on the merits. Appellant manufactures trucks and sells them (and parts) to distributors, to dealers, and to various large users. Both the distributors and dealers sell trucks (and parts) to users. Moreover, some distributors resell trucks (and parts) to dealers, selected with appellant’s consent. All of the dealers sell trucks (and parts) only to users. The principal practices charged as violations of §§ 1 and 3 of the Sherman Act, 26 Stat. 209, 15 U. S. C. §§ 1, 3, concern limitations or restrictions on the territories within which distributors or dealers may sell and limitations or restrictions on the persons or classes of persons to whom they may sell. Typical of the territorial clause is the following: “Distributor is hereby granted the exclusive right, except as hereinafter provided, to sell during the life of this agreement, in the territory described below, White and Autocar trucks purchased from Company hereunder. “State of California: Territory to consist of all of Sonoma County, south of a line starting at the western boundary, or Pacific Coast, passing through the City of Bodega, and extending due east to the east boundary line of Sonoma County, with the exception of the sale of fire truck chassis to the State of California and all political subdivisions thereof. “Distributor agrees to develop the aforementioned territory to the satisfaction of Company, and not to sell any trucks purchased hereunder except in accordance with this agreement, and not to sell such trucks except to individuals, firms, or corporations having a place of business and/or purchasing headquarters in said territory.” Typical of the customer clause is the following: “Distributor further agrees not to sell nor to authorize his dealers to sell such trucks to any Federal or State government or any department or political subdivision thereof, unless the right to do so is specifically granted by Company in writing.” These provisions, applicable to distributors and dealers alike, are claimed by appellee to be per se violations of the Sherman Act. The District Court adopted that view and granted summary judgment accordingly. 194 F. Supp. 562. We noted probable jurisdiction. 369 U. S. 858. See 15 U. S. C. § 29. Appellant, in arguing for a trial of the case on the merits, made the following representations to the District Court: the territorial clauses are necessary in order for appellant to compete with those who make other competi-tory kinds of trucks; appellant could theoretically have its own retail outlets throughout the country and sell to users directly; that method, however, is not feasible as it entails a costly and extensive sales organization; the only feasible method is the distributor or dealer system; for that system to be effective against the existing competition of the larger companies, a distributor or dealer must make vigorous and intensive efforts in a restricted territory, and if he is to be held responsible for energetic performance, it is fair, reasonable, and necessary that appellant protect him against invasions of his territory by other distributors or dealers of appellant; that appellant in order to obtain maximum sales in a given area must insist that its distributors and dealers concentrate on trying to take sales away from other competing truck manufacturers rather than from each other. Appellant went on to say: “The plain fact is, as we expect to be able to show to the satisfaction of the Court at a trial of this case on the merits, that the outlawing of exclusive distributorships and dealerships in specified territories would reduce competition in the sale of motor trucks and not foster such competition.” As to the customer clauses, appellant represented to the District Court that one of their purposes was to assure appellant “that ‘national accounts/ ‘fleet accounts' and Federal and State governments and departments and political subdivisions thereof, which are classes of customers with respect to which the defendant is in especially severe competition with the manufacturers of other makes of trucks and which are likely to have a continuing volume of orders to place, shall not be deprived of their appropriate discounts on their purchases of repair parts and accessories from any distributor or dealer, with the result of becoming discontented with The White Motor Company and the treatment they receive with reference to the prices of repair parts and accessories for White trucks.” The agreements fixing prices of parts and accessories to these customers were, according to appellant, only an adjunct to the customer restriction clauses and amounted merely to an agreement to give these classes of customers their proper discounts. “In a way this affects the prices which these classes of customers have to pay for such parts and accessories, but it affects, as a practical matter, only spare and repair parts and accessories and it affects only the discounts to be given to these particular classes of customers. The provisions are necessary if the defendant's future sales to ‘National Accounts/ ‘Fleet Accounts’ and Federal and State governments and departments and political subdivisions thereof, in competition with other truck manufacturers, are not to be seriously jeopardized.” White also argued below: “On principle, there is no reason whatsoever why a manufacturer should not have one distributor who is limited to selling to one class of customers and another distributor who is limited to selling to another class of customers or why a distributor should not be limited to one class of customers and the manufacturer reserve the right to sell to another class of customers. There are many circumstances under which there could be no possible objection to limiting the class of customers to which distributors or dealers resell goods, and there are many reasons why it would be reasonable and for the public interest that distributors or dealers should be limited to reselling to certain classes of customers. “In the instant case, it is both reasonable and necessary that the distributors (except for sales to approved dealers) and direct dealers and dealers be limited to selling to the purchasing public, in order that they may be compelled to develop properly the full potential of sales of White trucks in their respective territories, and to assure The White Motor Company that the persons selling White trucks to the purchasing public shall be fair and honest, to the end of increasing and perpetuating sales of White trucks in competition with other makes of trucks; and it is reasonable and necessary that The White Motor Company reserve to itself the exclusive right-to sell White trucks to Federal and State governments or any department or political subdivision thereof rather than to sell such trucks to such governments or departments or political subdivisions thereof through distributors or dealers, and The White Motor Company should have a perfect right so to do. “Therefore, based both on the decisions of the Federal Courts and on principle, the limitations on the classes of customers to whom distributors or dealers may sell White trucks are not only not illegal per se, as the plaintiff must prove to succeed on its motion for summary judgment, but these limitations have proper purposes and effects and are fair and reasonable and not violative of the antitrust laws as being in unreasonable restraint of competition or trade and commerce.” In this Court appellant defends the customer clauses on the ground that “the only sure way to make certain that something really important is done right, is to do it for oneself. The size of the orders, the technicalities of bidding and delivery, and other factors all play a part in this decision.” Summary judgments have a place in the antitrust field, as elsewhere, though, as we warned in Poller v. Columbia Broadcasting System, 368 U. S. 464, 473, they are not appropriate “where motive and intent play leading roles.” Some of the law in this area is so well developed that where, as here, the gist of the case turns on documentary evidence, the rule at times can be divined without a trial. Where the sale of an unpatented product is tied to a patented article, that is a per se violation since it is a bald effort to enlarge the monopoly of the patent beyond its terms. Mercoid Corp. v. Honeywell Co., 320 U. S. 680, 684; International Salt Co. v. United States, 332 U. S. 392, 395-396. And see Ethyl Gasoline Corp. v. United States, 309 U. S. 436. If competitors agree to divide markets, they run afoul of the antitrust laws. Timken Roller Bearing Co. v. United States, 341 U. S. 593. Group boycotts are another example of a per se violation. Fashion Originators’ Guild v. Federal Trade Comm’n, 312 U. S. 457; Klor’s v. Broadway-Hale Stores, 359 U. S. 207. Price-fixing arrangements, both vertical (United States v. Parke, Davis & Co., 362 U. S. 29; Dr. Miles Medical Co. v. Park & Sons, 220 U. S. 373) and horizontal (United States v. Socony-Vacuum Oil Co., 310 U. S. 150; Kiefer-Stewart Co. v. Seagram & Sons, 340 U. S. 211), have also been held to be per se violations of the antitrust laws; and a trial to show their nature, extent, and degree is no longer necessary. As already stated, there was price fixing here and that part of the injunction issued by the District Court is not now challenged. In any price-fixing case restrictive practices ancillary to the price-fixing scheme are also quite properly restrained. Such was United States v. Bausch & Lomb Co., 321 U. S. 707, where price fixing was “an integral part of the whole distribution system” (id., 720) including customer restrictions. No such finding was made in this case; and whether or not the facts would permit one we do not stop to inquire. Appellant apparently maintained two types of price-fixing agreements. Under the first, a distributor was allowed to appoint dealers under him, but each distributor had to agree with appellant that he would charge the dealers the same price for trucks that appellant charged its direct dealers. The agreement affected only five percent of the trucks sold by appellant. And there were no price-fixing provisions pertaining to truck sales to ultimate purchasers. The other price-fixing arrangement required all distributors and dealers to give “national accounts,” “fleet accounts,” and governmental agencies the same discount on parts and accessories as White gave them. No figures are given, but it was assumed by the District Court that the amount of commerce involved under this agreement was relatively small. Without more detailed findings we therefore cannot say that the case is governed by United States v. Bausch & Lomb Co., supra. We are asked to extend the holding in Timken Roller Bearing Co. v. United States, supra (which banned horizontal arrangements among competitors to divide territory) , to a vertical arrangement by one manufacturer restricting the territory of his distributors or dealers. We intimate no view one way or the other on the legality of such an arrangement, for we believe that the applicable rule of law should be designed after a trial. This is the first case involving a territorial restriction in a vertical arrangement; and we know too little of the actual impact of both that restriction and the one respecting customers to reach a conclusion on the bare bones of the documentary evidence before us. Standard Oil Co. v. United States, 221 U. S. 1, 62, read into the Sherman Act the “rule of reason.” That “rule of reason” normally requires an ascertainment of the facts peculiar to the particular business. As stated in Chicago Board of Trade v. United States, 246 U. S. 231, 238: “Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of their very essence. The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences.” We recently reviewed per se violations of the antitrust laws in Northern Pac. R. Co. v. United States, 356 U. S. 1. That category of antitrust violations is .made up of “agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” Id., p. 5. Tying arrangements or agreements by a party “to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier” (id., pp. 5-6) may fall in that category, though not necessarily so. “They are unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a 'not insubstantial’ amount of interstate commerce is affected. ... Of course where the seller has no control or dominance over the tying product so that it does not represent an effectual weapon to pressure buyers into taking the tied item any restraint of trade attributable to such tying arrangements would obviously be insignificant at most. As a simple example, if one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar it would hardly tend to restrain competition in sugar if its competitors were ready and able to sell flour by itself.” Id., pp. 6-7. We recently noted the importance of the nature of the tying arrangement in its factual setting: “Thus, unless the tying device is employed by a small company in an attempt to break into a market, cf. Harley-Davidson Motor Co., 50 F. T. C. 1047, 1066, the use of a tying device can rarely be harmonized with the strictures of the antitrust laws, which are intended primarily to preserve and stimulate competition.” Brown Shoe Co. v. United States, 370 U. S. 294, 330. Horizontal territorial limitations, like “[g]roup boycotts, or concerted refusals by traders to deal with other traders” (Klor’s v. Broadway-Hale Stores, supra, 212), are naked restraints of trade with no purpose except stifling of competition. A vertical territorial limitation may or may not have that purpose or effect. We do not know enough of the economic and business stuff out of which these arrangements emerge to be certain. They may be too dangerous to sanction or they may be allowable protections against aggressive competitors or the only practicable means a small company has for breaking into or staying in business (cf. Brown Shoe, supra, at 330; United States v. Jerrold Electronics Corp., 187 F. Supp. 545, 560-561, aff’d, 365 U. S. 567) and within the “rule of reason.” We need to know more than we do about the actual impact of these arrangements on competition to decide whether they have such a “pernicious effect on competition and lack . . . any redeeming virtue” (Northern Pac. R. Co. v. United States, supra, p. 5) and therefore should be classified as per se violations of the Sherman Act. There is an analogy from the merger field that leads us to conclude that a trial should be had. A merger that would otherwise offend the antitrust laws because of a substantial lessening of competition has been given immunity where the acquired company was a failing one. See International Shoe Co. v. Commission, 280 U. S. 291, 302-303. But in such a case, as in cases involving the question whether a particular merger will tend “substantially to lessen competition” (Brown Shoe Co. v. United States, supra, pp. 328-329), a trial rather than the use of the summary judgment is normally necessary. United States v. Diebold, Inc., 369 U. S. 654. We conclude that the summary judgment, apart from the price-fixing phase of the case, was improperly employed in this suit. Apart from price fixing, we do not intimate any view on the merits. We only hold that the legality of the territorial and customer limitations should be determined only after a trial. Reversed. Mr. Justice White took no part in the consideration or decision of this case. We are advised by appellant that since the judgment below, White “no longer uses distributors as a separate tier in its system, but sells directly to dealers instead.” Appellant does not appeal from the District Court’s ruling that the provisions of the contracts fixing resale prices were unlawful. See note 2, supra. 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_respond1_3_2

I

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. UNITED STATES of America, Plaintiff-Appellee, v. Richard LACEY, Defendant-Appellant. Nos. 91-3255, 91-3256. United States Court of Appeals, Tenth Circuit. April 16, 1993. Before MOORE, ENGEL and KELLY, Circuit Judges. The Honorable Albert J. Engel, Senior United States Circuit Judge for the United States Court of Appeals, Sixth Circuit, sitting by designation. PAUL KELLY, Jr., Circuit Judge. Defendant-appellant Richard Lacey appealed his convictions for various drug-related offenses as well as for failure to appear. Mr. Lacey had been tried in ab-sentia and convicted of six counts including conspiracy to distribute cocaine, distribution of approximately 500 grams of cocaine, possession with intent to distribute cocaine, and possession with intent to distribute marijuana, violations of 21 U.S.C. §§ 841(a)(1) & 846. On appeal, we noted that certain of Mr. Lacey’s arguments including his objection to being tried in absentia, had been rejected in the appeal of a coconspirator. United States v. Edmonson, 962 F.2d 1535 (10th Cir.1992). Therefore, that particular argument was not discussed in our disposition. United States v. Lacey, 969 F.2d 926 (10th Cir.1992). After Mr. Lacey had filed a petition for certiorari in the United States Supreme Court, Crosby v. United States, — U.S. -, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993) was decided. The Court discussed the propriety of trial in absentia and concluded that “the language, history, and logic of Rule 43 support a straightforward interpretation that prohibits the trial in absentia of a defendant who is not present at the beginning of trial.” Crosby, — U.S. at , 113 S.Ct. at 753. The Court vacated our judgment and remanded Mr. Lacey’s case for further consideration in light of Crosby. Lacey v. United States, — U.S. -, 113 S.Ct. 1233, 122 L.Ed.2d 640 (1993). We, in turn, remand the case to the district court with instructions to vacate its judgment with respect to the narcotics charges and proceed in accordance with Crosby. However, its judgment relating to Mr. Lacey’s failure to appear is affirmed. That sentence and the underlying conviction stand alone now and the double jeopardy issue which troubled us earlier does not exist at the present time. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:

songer_appel1_1_3

J

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. 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. Ann OWENS, Administratrix of the Estate of Maynard S. Owens, Deceased, Plaintiff-Appellee, v. SUN OIL COMPANY, a corporation, Defendant-Appellant. No. 72-1650. United States Court of Appeals, Tenth Circuit. Argued and Submitted March 30, 1973. Decided Aug. 2, 1973. John R. Richards, Tulsa, Okl. (R. M. Dubbs, St. Davids, Pa., and John A. Lad-ner, Tulsa, Old., with him on the brief), for defendant-appellant. Jay C. Baker, of Baker & Baker, Tulsa, Okl., for plaintiff-appellee. Before MURRAH, Circuit Judge, DURFEE, Judge, Court of Claims, and McWilliams, circuit judge. Sitting by designation. MURRAH, Circuit Judge. This case centers around a dispute over the validity of a purported inter vi-vos gift of corporate stock. The appeal is from a judgment on a jury verdict sustaining the validity of the gift. The basic and stipulated facts are that, consistent with her custom of the past several years to make donations of stock to her family, Mrs. Hettie M. Young delivered a stock certificate for 4,237 shares of Sun Oil Company stock to her bank in Fort Smith, Arkansas, to be forwarded to transfer agents for reissuance in specified amounts to designated donees. In due course, and in accordance with her directions, a certificate representing 150 shares was reissued in the name of her nephew, Maynard S. Owens, and returned with the other reissued stock to Mrs. Young’s bank for redelivery to her. The certificate arrived at her bank on August 4, 1970, the same day Maynard Owens was killed in a trucking accident. About ten days later she delivered the Owens certificate to her bank with instructions to cause it to be cancelled and the stock issued in her name. The certificate that had been issued in Maynard Owens’ name was ultimately cancelled, and a new certificate issued to Mrs. Young on October 6, 1970. As administratrix of her husband’s estate Mrs. Owens pleaded that upon the registration and issuance of the stock certificate to Maynard Owens he became the legal and equitable owner of the stock; that Sun Oil, acting through its authorized agent, transferred the stock certificate from his name to Mrs. Young’s name without his consent, thereby wrongfully converting the stock; and that Sun Oil is therefore liable in damages for the stock’s fair market value. Sun Oil answered, denying that Mrs. Young ever made any effective or completed gift of the stock to Owens, or that Owens ever received delivery, had possession, or had any equitable or legal title to the stock, and therefore denied that any consent of Owens was needed for the transfer. As an affirmative defense Sun Oil alleged that at all times it and its transfer agent acted upon the instructions of Hettie M. Young and that custody, possession, and control of the stock were at all times in Mrs. Young; and that the stock was never delivered to Maynard S. Owens. Both parties moved for summary judgment. In its motion Sun Oil took the position that physical delivery of the stock certificate to Maynard Owens was a prerequisite to consummation of the gift. If this is so there was nothing to submit to the jury, and Sun Oil is entitled to judgment as a matter of law, for it is agreed that Owens never came into physical possession of the certificate. Generally, there is a division of authority on the question whether physical or manual delivery is essential to the consummation of a gift, and the case law of course turns on the peculiar facts. See, e. g., Annot., 23 A.L.R.2d 1171 (1952). It has been widely recognized, however, that the transfer of stock on the books of the corporation, and the issuance of a certificate in the transferee’s name, constitutes effective delivery. See, e. g., Lawton v. Commissioner of Internal Revenue, 164 F.2d 380, 384 (6th Cir. 1947); Bardach v. Commissioner of Internal Revenue, 90 F.2d 323, 326 (6th Cir. 1937); Frey v. Wubbena, 26 Ill.2d 62, 185 N.E.2d 850 (1962); Moore v. Van Tassell, 58 Wyo. 121, 126 P.2d 9 (1942); and Chicago Title & Trust Co. v. Ward, 332 Ill. 126, 163 N.E. 319 (1928). It is agreed that Arkansas law controls the substantive issues in this case. And Arkansas has recognized and applied the rule that physical delivery of the certificate is not prerequisite to consummation of the gift. See, e. g., Aycock v. Bottoms, 201 Ark. 104, 144 S.W.2d 43 (1940), citing Stewart v. Collins, 36 Wyo. 210, 254 P.137 (1927). See also Johnson v. Johnson, 115 Ark. 416, 171 S.W. 475 (1914). “Indeed, it has been held quite frequently in many jurisdictions that the assignment of certificates of stock to a doneee by a holder is tantamount to delivery of the stock, although manual delivery may be wanting.” Aycock, supra at 47 of 144 S.W.2d. Sun Oil was not entitled to judgment as a matter of law and the trial court properly submitted the case to the jury. For purposes of trial the parties stipulated that the only issues of fact for the jury were (1) whether at the time of requesting or obtaining transfer of the stock certificate from herself to Maynard Owens on the books of Sun Oil Company, Mrs. Young intended to make a present gift, or a future gift at the time of Owens’ next birthday, in which case it was of course ineffectual and (2) whether there was, in fact, an “actual delivery” of the stock to Mr. Owens. The jury was instructed without objection concerning the essential elements of a valid gift, to the effect that (1) the donor must be of sound mind, (2) must intend to pass the title immediately, (3) must actually deliver the property to the donee and surrender possession and control of the property, and .(4) the donee must accept the gift. The jury was accordingly told, also without objection, that in order to find a valid gift, they must first find from a preponderance of the evidence that Mrs. Young not only intended to make a present gift, but actually delivered the property in question to Maynard Owens; that “actual delivery” does not necessarily mean physical delivery; that “[i]t is enough that the donor has taken all steps necessary to surrender her own dominion and control over the securities and to place them absolutely and irrevocably under the exclusive dominion and control of the donee.” The jury was further instructed that a stock certificate is prima facie, but not conclusive, evidence of ownership in the person to whom issued; that the facts as to true ownership of the stock may be shown by the evidence; and that since the stock certificate was transferred to the name of Maynard S. Owens and appeared on the books of Sun Oil Company in the name of Maynard S. Owens, the burden was upon Sun Oil to prove its affirmative defense that the certificate was not Maynard Owens’ property. In other words that Sun Oil had to prove, “by a preponderance of the evidence, that the gift to Maynard Owens was not valid.” Sun Oil specifically objected to that part of the instruction which told the jury that the stock certificate was prima facie evidence of ownership, on the grounds ■ that the plaintiff, having alleged a valid gift, had the burden of establishing all of the elements thereof. But in its requested instructions and briefing Sun Oil readily concedes the correctness of the court’s instructions on prima facie evidence. Sun Oil also specifically objected to that part of the instruction on the burden of proof, on the ground that the burden was always on Mrs. Owens to prove her allegations of an inter vivos gift of the stock. Although some confusion has arisen over the use, of the phrase “burden of proof” (see, e. g., Kortz v. Guardian Life Ins. Co., 144 F.2d 676 (10th Cir. 1944), and IX Wigmore on Evidence § 2485 (3d ed. 1940)), it is generally understood that while the burden of proof never shifts, the duty of going forward may shift with the ebb and flow of probative evidence. See, e. g., Hill v. Smith, 260 U.S. 592, 43 S.Ct. 219, 67 L.Ed 419 (1923); First Nat. Bank v. Ford, 30 Wyo. 110, 216 P. 691, 31 A.L.R. 1441 (1923); and IX Wigmore on Evidence § 2489 (3d ed. 1940). Also cf. Denning Warehouse Co. v. Widener, 172 F.2d 910 (10th Cir. 1949). The burden of proving the alleged ownership of the stock by a preponderance of the evidence was on Mrs. Owens and never shifted; the burden is always with the proponent of the issue. See, e. g., First Nat. Bank v. Ford, supra; Pacific Portland Cement Co. v. Food Mach. & Chem. Corp., 178 F.2d 541, 547 (9th Cir. 1949); and IX Wigmore, supra §§ 2485 and 2489. But as we have seen the certificate was prima facie evidence of ownership, and such evidence is entirely sufficient to sustain the burden and take the case to the jury. The jury may, but is not required to, return a verdict in the plaintiff’s favor. See, e. g., IX Wigmore, supra §§ 2489 and 2494. Cf., e. g., Beaver v. Fidelity Life Association, 313 F.2d 111 (10th Cir. 1963). In our case Sun Oil not only denied the allegations of the complaint that upon the issuance of the certificate to Owens he became the legal owner of the stock, it also specifically alleged as an affirmative defense that the gift was never consummated because the stock was never delivered to Owens. In this posture, “. . . the burden of proof in the true sense of the term is upon the defendant as to all affirmative defenses which he sets up in answer to the plaintiff’s claim or cause of action .... This rule does not involve a shifting of the burden of proof, but merely means that each party must establish his own case.” See Baumgartner v. Rogers, 233 Ark. 387, 345 S.W.2d 476, 478 (1961), quoting 20 Am.Jur., Evidence § 137. See also First Nat. Bank v. Ford, supra, and Pacific Portland Cement Co. v. Food Mach. & Chem. Corp., supra. While the affirmative pleadings may have added little or nothing to the issues framed by the general denial, and the court might very well have disregarded the form for the substance of the parties’ claims (see, e. g., 30 Yale L.J. 117-122 (1929)), at the same time the instruction with respect to burden of proof followed the form of the pleadings, and we cannot say it was reversibly erroneous. Apparently to bolster the prima facie ease, the administratrix was permitted to testify about overhearing her husband’s end of a conversation with Mrs. Young shortly before his death. Objection was made on the grounds that, since Mrs. Young was not a party to the lawsuit and Sun Oil was not a party to the conversation, any purported conversation between Mrs. Young and her nephew would be the rankest of hearsay and prejudicial. The court sustained the objection to admission of the testimony as a statement against interest, and ruled out anything said between Mr. Owens and Mrs. Owens or Mrs. Young. After an in-chambers conference, however, Mrs. Owens was finally permitted to testify that as a result of what she overheard at the Owens’ end of the conversation she formed a “state of mind” that “[Owens] was going to receive some stock from .his aunt.” On appeal Sun Oil complains of the admission of Mrs. Owens’ testimony as to her state of mind as highly prejudicial. But we are not concerned with Mrs. Owens’ state of mind, and it was totally irrelevant and, we think, equally harmless. That is, see Rule 61 Fed.R.Civ.P. Mrs. Owens was also permitted to testify that Mrs. Young visited her at her home on the evening before the funeral, and that at that time she told Mrs. Owens that the stock “ . . . would have to be called back because it had the wrong social security number on it” ; that after she had received and cashed the dividend check she told Mrs. Young about it while at Mrs. Young’s house, that Mrs. Young indicated that this was “all right” ; and that she did not know that “[Mrs. Young] had taken [it] back” until she was so informed by Sun Oil. Mrs. Young categorically denied any such conversations, but the testimony went to the issue of donative intent, and the credibility of the witnesses was for the jury. To sustain its burden of rebutting the administratrix’ prima facie case and to prove its affirmative defenses, Sun Oil introduced the testimony of Mrs. Young on the issue of intent. On direct examination, Mrs. Young testified that she intended to make a gift to her nephew, and that she accordingly caused the stock to be transferred to him, to be delivered at “some opportune time” as a birthday present. On cross-examination, however, she was more specific. Counsel asked Mrs. Young the salient question whether or not the gift was made when the certificate was returned to her bank on August 4. The answer was, “yes.” “Q: You say as far as you are concerned the gift was made at that time except for giving him the little certificate? A: Well, it was in his name then but it was in my books. “Q. Yes. A: Now the dividend went to him. “Q. Was it your stock or Maynard’s stock at that time, as far as you were concerned ? A: It was his stock after his name is on it.” This testimony was subject to the inference that she not only intended to make a present gift, but that she surrendered control and dominion of the stock. But, however you want to look at it, this testimony cannot as a matter of law prevail against the prima facie case of ownership made out by the transfer of the stock certificate on the books of the corporation. We hold that the issuance of the stock in the name of Maynard S. Owens, along with the evidence of Mrs. Young’s intent, was sufficient to sustain the burden of showing intent to make a present gift and effective delivery. The judgment is affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:

sc_issue_9

33

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. CONE v. WEST VIRGINIA PULP & PAPER CO. No. 184. Argued February 3, 1947. Decided March 3, 1947. H. Wayne Unger and, by special leave of Court, James P. Mozingo, pro hac vice, argued the cause for petitioner. With them on the brief was W. J. McLeod, Jr. Christie Benet and Charles W. Waring argued the cause for respondent. With them on the brief was J.B.S. Lyles. Mr. Justice Black delivered the opinion of the Court. The petitioner brought this action in a South Carolina state court. Upon motion of respondent, it was removed to the Federal District Court because of diversity of citizenship of the parties. The complaint claimed $25,000 damages upon allegations that the respondent’s agents had trespassed upon and cut timber from lands owned by and in the possession of the petitioner. Respondent’s answer denied that the petitioner had title or possession of the lands and timber. Both title and possession became crucial issues in the trial. The burden of proving them rested on the petitioner. When all the evidence of both parties had been introduced, the respondent moved for a directed verdict in its favor on the ground that the petitioner had failed to prove that he either owned or was in possession of the land. This motion was denied. The jury returned a verdict for petitioner for $15,000, and the court entered judgment on the verdict. The respondent moved for a new trial on the ground of newly discovered evidence. This motion was denied. Respondent did not move for judgment notwithstanding the verdict as it might have done under Rule 50 (b) of the Federal Rules of Civil Procedure, which is set out below. The Circuit Court of Appeals decided that the admission of certain evidence offered by the petitioner to prove legal title was prejudicial error. It held that without this improperly admitted evidence petitioner’s proof was not sufficient to submit the question of title to the jury. That court also held that petitioner’s evidence showing possession was insufficient to go to the jury. It therefore reversed the case. But instead of remanding it to the District Court for a new trial, the Circuit Court of Appeals directed that judgment be entered for respondent. 153 F. 2d 576. That court has thus construed Rule 50 (b) as authorizing an appellate court to direct a judgment notwithstanding the verdict, even though no motion for such a judgment had been made in the District Court within ten days after the jury’s discharge. The petition for certiorari challenged the power of an appellate court to direct entry of a judgment notwithstanding the verdict where timely motion for such a judgment had not been made in the District Court. On three previous occasions we have granted certiorari to consider this point but failed to reach it because, upon examination of the evidence, we found it sufficient to justify submission of all three cases to the jury. Conway v. O’Brien, 312 U. S. 492; Berry v. United States, 312 U. S. 450; Halliday v. United States, 315 U. S. 94. In this case we granted certiorari “limited to the questions of federal procedure raised by the petition for the writ.” 329 U. S. 701. The point we had in mind was whether a party’s failure to make a motion in the District Court for judgment notwithstanding the verdict, as permitted in Rule 50 (b), precludes an appellate court from directing entry of such a judgment. Other questions have been discussed here, but we do not consider them. Consequently, we accept, without approving or disapproving, the Circuit Court of Appeals’ holding that there was prejudicial error in the admission of evidence and in the submission of the case to the jury. Rule 50 (b) contains no language which absolutely requires a trial court to enter judgment notwithstanding the verdict even though that court is persuaded that it erred in failing to direct a verdict for the losing party. The rule provides that the trial court “may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.” This “either-or” language means what it seems to mean, namely, that there are circumstances which might lead the trial court to believe that a new trial rather than a final termination of the trial stage of the controversy would better serve the ends of justice. In short, the rule does not compel a trial judge to enter a judgment notwithstanding the verdict instead of ordering a new trial; it permits him to exercise a discretion to choose between the two alternatives. See Berry v. United States, supra, 452-453. And he can exercise this discretion with a fresh personal knowledge of the issues involved, the kind of evidence given, and the impression made by witnesses. His appraisal of the bona fides of the claims asserted by the litigants is of great value in reaching a conclusion as to whether a new trial should be granted. Determination of whether a new trial should be granted or a judgment entered under Rule 50 (b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart. See March v. Philadelphia & West Chester Traction Co., 285 Pa. 413, 418, 132 A. 355, 357; Bunn v. Furstein, 153 Pa. Super. 637, 638, 34 A. 2d 924. See also Yutterman v. Sternberg, 86 F. 2d 321, 324. Exercise of this discretion presents to the trial judge an opportunity, after all his rulings have been made and all the evidence has been evaluated, to view the proceedings in a perspective peculiarly available to him alone. He is thus afforded “a last chance to correct his own errors without the delay, expense or other hardships of an appeal.” See Greer v. Carpenter, 323 Mo. 878, 882, 19 S. W. 2d 1046, 1047. Cf. United States v. Johnson, 327 U. S. 106, 112. There are other practical reasons why a litigant should not have his right to a new trial foreclosed without having had the benefit of the trial court’s judgment on the question. Take the case where a trial court is about to direct a verdict because of failure of proof in a certain aspect of the case. At that time a litigant might know or have reason to believe that he could fill the crucial gap in the evidence. Traditionally, a plaintiff in such a dilemma has had an unqualified right, upon payments of costs, to take a nonsuit in order to file a new action after further preparation, unless the defendant would suffer some plain legal prejudice other than the mere prospect of a second lawsuit. Pleasants v. Fant, 22 Wall. 116, 122; Jones v. S. E. C., 298 U. S. 1, 19-20 and cases cited. Rule 41 (a) (1) preserves this unqualified right of the plaintiff to a dismissal without prejudice prior to the filing of defendant’s answer. And after the filing of an answer, Rule 41 (a) (2) still permits a trial court to grant a dismissal without prejudice “upon such terms and conditions as the court deems proper.” In this case had respondents made a timely motion for judgment notwithstanding the verdict, the petitioner could have either presented reasons to show why he should have a new trial, or at least asked the court for permission to dismiss. If satisfied from the knowledge acquired from the trial and because of the reasons urged that the ends of justice would best be served by allowing petitioner another chance, the judge could have so provided in his discretion. The respondent failed to submit a motion for judgment notwithstanding the verdict to the trial judge in order that he might exercise his discretionary power to determine whether there should be such a judgment, a dismissal or a new trial. In the absence of such a motion, we think the appellate court was without power to direct the District Court to enter judgment contrary to the one it had permitted to stand. It has been suggested that the petitioner could have presented affidavits to the Circuit Court of Appeals to support his claim for a new trial, and that that court could thereupon have remanded the question to the District Court to pass upon it. Such a circuitous method of determining the question cannot be approved. For Rule 50 (b) specifically prescribes a period of ten days for making a motion for judgment notwithstanding the verdict. Yet the method here suggested would enable litigants to extend indefinitely the prescribed ten-day period simply by adoption of the expedient of an appeal. Furthermore, it would present the question initially to the appellate court when the primary discretionary responsibility for its decision rests on the District Court. Reversed. Under governing South Carolina law an action such as this is not one to try title but “to recover damages for trespass to property of which the plaintiff was in possession.” Macedonia Baptist Church v. Columbia, 195 S. C. 59, 70, 10 S. E. 2d 350, 355. But possession may be presumed from proof of legal title. Beaufort Land & Investment Co. v. New River Lumber Co., 86 S. C. 358, 68 S. E. 637; Haithcock v. Haithcock, 123 S. C. 61, 115 S. E. 727; Code of Laws of South Carolina (1942) § 377. Petitioner here undertook to prove possession both by showing that he had legal title and by showing that he had openly and notoriously exercised acts of dominion, possession, and ownership over a long period of years. Respondent first moved to dismiss the case on the same grounds under Rule 41 (b) of the Rules of Civil Procedure. That rule provides for a dismissal, under the circumstances and conditions there set out, where “upon the facts and the law the plaintiff has shown no right to relief.” Since substantially the same disposition of the case on the same grounds was later requested by respondent in the motion for a directed verdict, we shall have no occasion further to discuss the motion to dismiss. 50 (b) “Reservation op Decision on Motion. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict ... A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.” The Advisory Committee on Rules for Civil Procedure in commenting on Rule 50 (b) stated that “A trial court or an appellate court in setting aside a verdict always has discretion, if justice requires it, to order a new trial, instead of directing the entry of judgment. Rule 50 (b) states that the court on a motion for judgment notwithstanding the verdict 'may either order a new trial or direct the entry of judgment’ for the moving party.” Report of Proposed Amendments to Rules of Civil Procedure (1946) 66. See also New York Symposium on Federal Rules (1938) 283-284. Compare March v. Philadelphia & West Chester Traction Co., 285 Pa. 413, 132 A. 355; Nadeau v. Maryland Casualty Co., 170 Minn. 326, 331, 212 N. W. 595, 597; Anderson v. Newsome, 193 Minn. 157, 258 N. W. 157; Porsmer v. Davis, 152 Minn. 181, 188 N. W. 279; Jackson v. Hansard, 45 Wyo. 201, 218, 17 P. 2d 659, 664. Rule 41 (a) (2), Federal Rules of Civil Procedure, has been interpreted as authorizing a plaintiff to dismiss his action “without prejudice where the court believes that although there is a technical failure of proof there is nevertheless a meritorious claim.” Report of Proposed Amendments to Rules of Civil Procedure (1946) 64; see United States v. Lyman, 125 F. 2d 67; 138 F. 2d 509; Home Owners’ Loan Corporation v. Huffman, 134 F. 2d 314, 317. This general suggestion was made by the Advisory Committee on Rules for Civil Procedure in its recent recommendation to us for modification of Rule 50 (b). The Committee said: “Even on appeal, if the appellate court sets aside his verdict, he may present to the appellate court affidavits to support his claim to a new trial, and the appellate court has power to receive the affidavits and remand the case to the trial court with instructions to consider the affidavits and determine whether a new trial should be allowed.” Report of Proposed Amendments, supra, 66. Question: What is the issue of the decision? 01. comity: civil rights 02. comity: criminal procedure 03. comity: First Amendment 04. comity: habeas corpus 05. comity: military 06. comity: obscenity 07. comity: privacy 08. comity: miscellaneous 09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals 10. assessment of costs or damages: as part of a court order 11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules 12. judicial review of administrative agency's or administrative official's actions and procedures 13. mootness (cf. standing to sue: live dispute) 14. venue 15. no merits: writ improvidently granted 16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit 17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals) 18. no merits: adequate non-federal grounds for decision 19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law) 20. no merits: miscellaneous 21. standing to sue: adversary parties 22. standing to sue: direct injury 23. standing to sue: legal injury 24. standing to sue: personal injury 25. standing to sue: justiciable question 26. standing to sue: live dispute 27. standing to sue: parens patriae standing 28. standing to sue: statutory standing 29. standing to sue: private or implied cause of action 30. standing to sue: taxpayer's suit 31. standing to sue: miscellaneous 32. judicial administration: jurisdiction or authority of federal district courts or territorial courts 33. judicial administration: jurisdiction or authority of federal courts of appeals 34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753) 35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court 36. judicial administration: jurisdiction or authority of the Court of Claims 37. judicial administration: Supreme Court's original jurisdiction 38. judicial administration: review of non-final order 39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision) 40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question) 41. judicial administration: ancillary or pendent jurisdiction 42. judicial administration: extraordinary relief (e.g., mandamus, injunction) 43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal) 44. judicial administration: resolution of circuit conflict, or conflict between or among other courts 45. judicial administration: objection to reason for denial of certiorari or appeal 46. judicial administration: collateral estoppel or res judicata 47. judicial administration: interpleader 48. judicial administration: untimely filing 49. judicial administration: Act of State doctrine 50. judicial administration: miscellaneous 51. Supreme Court's certiorari, writ of error, or appeals jurisdiction 52. miscellaneous judicial power, especially diversity jurisdiction Answer:

songer_genresp2

I

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. UNITED STATES v. BERTELSEN & PETERSEN ENGINEERING CO. No. 3243. Circuit Court of Appeals, First Circuit. July 13, 1938. For former opinion, see 95 F.2d 867. Loring W. Post, Sp. Asst, to Atty. Gen. (James W. Morris, Asst. Atty. Gen., Sewall Key, J. Louis Monarch, and F. A. Michels, Sp. Assts. to Atty. Gen., and Francis J. W. Ford, U. S. Atty., and Arthur L. Murray, Sp. Asst, to U. S. Atty., both of Boston, Mass., on the brief), for appellant. O. Walker Taylor and Ray Henry, both of Boston, Mass., for appellee. Before BINGHAM, WILSON, and MORTON, Circuit Judges. WILSON, Circuit Judge. This is a petition for a rehearing in the above entitled cause. The case was heard a second time by this court on appeal from the District Court of Massachusetts, and the judgment of the District Court was affirmed. The issues raised on this appeal by the assignments of error were whether a deficiency assessment of $34,555.68 made by the Commissioner of Internal Revenue for the year 1918 was made within the statutory period of limitation, as extended by certain waivers filed by the taxpayer. The government also for the first time raised the question in its assignments of error as to whether the District Court had jurisdiction of the cause, relying on Sec. 24 (5, 20) of the Judicial Code as amended, 28 U.S.C.A. § 41 (5,20). This court held that a fifth waiver filed in December, 1925, which purported to extend the time for the assessment of the 1918 tax to December 31, 1926, was ineffective, since it was not assented to by the Commissioner in writing, and that the assessment of the deficiency tax for 1918 on July 27, 1926, was therefore void. The petition for rehearing was granted on the sole question of whether the District Court had jurisdiction to hear and decide the case. Some confusion has arisen in the consideration of the case as to whether the taxpayer’s petition was grounded on the Commissioner’s certificate of overassessment in 1917 as an account stated, or on a balance due on an allowed claim. In either case it is urged by the government that the Court of Claims has sole jurisdiction of the cause. Since this is a petition for rehearing, the case is to be heard anew on the question to which the rehearing is limited. If counsel for plaintiff in their brief, or this Court in its opinion, used language which may be construed as indicating that the taxpayer’s petition was based solely on the Commissioner’s certificate of overpayment of the 1917 tax, either as an account stated or as an allowed claim, we think, on rehearing on the question of the jurisdiction of the District Court to hear and determine the case, that the facts on which jurisdiction is based are opened for further consideration. The certificate of overassessment issued by the Commissioner on July 27, 1926, disclosed an overpayment by the taxpayer of the 1917 tax of $91,570.34, of which the Commissioner ordered refunded to the taxpayer approximately $55,000, and on July 27, 1926, credited $34,555.68 to a deficiency tax for 1918. It cannot be said that the certificate of overassessment constituted an account stated between the government and the taxpayer, since the taxpayer refused to assent to the application of any part of the overpayment to a deficiency tax for 1918. To constitute an account stated there must be an agreement as to liability and the amount due. Goodrich, Adm’r, v. Coffin, 83 Me. 324, 22 A. 217. That the taxpayer’s petition was not based on an allowance of an overpayment for 1917, and an implied promise by the government to refund, is equally clear, since the taxpayer refused to assent to the application of $34,555.68 to' a -deficiency tax of 1918. The application by the Commissioner on July 27, 1926, of a part of the overpayment for 1917 to a deficiency tax for 1918, against the protest of the taxpayer, constituted a disallowance of so much of the petitioner’s' original claim for refund. On November 25, 1927, the taxpayer wrote the Commissioner that, inasmuch as its original claim for refund for 1917 as to the part now sued for had been rejected within two years, it was filing a refund claim for that part of the 1917 overpayment erroneously applied to a deficiency tax for 1918 as a protective measure; and on November 28, 1927, the taxpayer renewed its claim for a refund of $34,555.68 as an overpayment of its 1917 tax by filing with the Commissioner of Internal Revenue a specific claim for the amount under Sec. 3226 R.S. as amended by Sec. 1113 of the Revenue Act of 1926, 44 Stat. 116, to which claim the suit of the taxpayer relates, the receipt of which claim was acknowledged by the Commissioner. On February 6, 1928, the Commissioner of Internal Revenue notified the taxpayer by letter that its claim of November 28, 1927, had been examined and would be rejected, which rejection would appear on the next schedule approved by the Commissioner. The chairman of the Special Advisory Committee of the Bureau of Internal Revenue in a memorandum furnished the taxpayer stated relative to its alternative claims for 1917 and 1918 filed November 28, 1927, that: “The claims were considered on 'the merits and in a Bureau letter dated February 6, 1928, they were proposed for rejection.” They were officially rejected on February 28, 1928. Within two years from the final disallowance of said claims on February 28, 1928, the taxpayer on September 19, 1929, filed a petition in the District Court for the District of Massachusetts to recover the sum of $34,555.68 with interest, which it alleged had been erroneously disallowed. In the case of Jones v. United States, 5 F.Supp. 146, 152, the Court of Claims held: “That a reconsideration of a refund claim on the merits constitutes a reopening of the claim is no longer open to doubt. Mobile Drug Co. v. United States (D.C.) 39 F.(2d) 940, and McKesson & Robbins, Inc., v. Edwards (C.C.A.) 57 F.(2d) 147. These cases announce the rule that when the Commissioner, upon application made by a taxpayer within the time in which suit could be instituted on a disallowed claim, enters into a reconsideration of the merits of the claim and later makes a decision thereon rejecting the claim, or adheres to his former decision rejecting it, his decision for the purpose of the statute of limitations is in abeyance until he has reached and announced his final decision, and the taxpayer, under section 3226 of the Revised Statutes, as amended, 26 U.S. C.A. Sec. 156 [now 26 U.S.C.A. §§ 1672-1673], has two years thereafter in which to institute suit. * * * There must be an actual reconsideration of the case, and the final decision must be upon the merits of the claim. Ford Motor Co. v. United States (Ct.Cl.) 3 F.Supp. 423; Hickman v. United States (D.C.) 47 F.(2d) 328. We think this case' clearly illustrates what constitutes the reconsideration of a claim for refund. It meets in every respect the requirement that the claim must be reconsidered and decided upon its merits.” In the case of Southwestern Oil & Gas Company v. United States, D.C., 29 F.2d 404, 406, certiorari denied 280 U.S. 601, 50 S.Ct. 82, 74 L.Ed. 646, the Court said: “The plaintiff * * * further contends that the date of the Commissioner’s final rejection of its claim was not April 28, 1925, but August 31, 1927, as the Commissioner, pursuant to plaintiff’s request made prior to the expiration of two years following the original rejection, had reopened the judgment and reconsidered the claim. We find the last of these contentions to be sustained by the findings of fact, and that the claim was actually reopened and reconsidered, and finally decided on August 31, 1927, and consequently plaintiff’s action is not barred by section 3226, R.S., as re-enacted by section 1113 of the Revenue,Act of 1926, and section 281 (a) and (b) of the Revenue Act of 1924 * $ *» In Pacific Mills v. Nichols, 1 Cir., 72 F.2d 103, 107, the Court said: “In the present case, even if the Commissioner should be held to have decided every claim under the taxpayer’s original petition, on March 26, 1927, when the second claim was filed, two years had not elapsed since the rejection of the first claim; it was still open to the plaintiff to sue on the denial of the first claim and to the Commissioner to reconsider his decision on the first claim and permit it to be amended and reheard.” Also see Pratt & Whitney Co. v. United States, Ct.Cl., 6 F.Supp. 574; United States v. Memphis Cotton Oil Co., 288 U.S. 62, 66, 53 S.Ct. 278, 279, 77 L.Ed. 619. The government having admitted all the jurisdictional facts except those authorizing the District Court to hear such a case, the facts appearing in the record demonstrate that the suit was one which could have been brought against a Collector, if living, but who is now dead or out of office. We think the contention of the taxpayer must be sustained, viz: that the filing of the second claim for refund on November 28, 1927, and its consideration on its merits was a reopening of the original claim of refund which had been timely filed under Sec. 3226 R.'S. (amended by Sec. 1113 of the 1926 Revenue Act, 44 Stat. 116); Jones v. United States, supra, page 152; Southwestern Oil & Gas Company v. United States, supra, page 406; that the Commissioner accepted the claim as such without any objection as to its timeliness or form and considered it on its merits and officially denied it on February 28, 1928, and the suit of the taxpayer was filed within two years, or on September 19, 1929. The case of Lowe Bros. Co. v. United States, 6 Cir., 92 F.2d 905, affirmed by the Supreme Court on May 16, 1938, 58 S.Ct. 896, 82 L.Ed.-, does not militate against the taxpayer’s right of recovery in this case, since 'the tax for the year in question in that case was not collected by a collector who was dead or out of office, as the 1917 tax had been in this case, but was in effect collected by the Commissioner of Internal Revenue by applying an overpayment as a credit on taxes for a prior year, which the Commissioner attempted to do in this case for an alleged deficiency tax for 1918. Upon a reconsideration of the facts and the briefs on rehearing, we think this action was brought to recover that part of a claim for refund of the 1917 overpayment which had been disallowed by improperly applying it to an invalid assessment of a deficiency tax for 1918. On rehearing the judgment of the District Court will stand 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_casesource

028

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. UNITED STATES v. ALBERTINI No. 83-1624. Argued April 15, 1985 Decided June 24, 1985 O’Connoe, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J.,. filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 691. David A. Strauss argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Wallace, John F. De Fue, and Major Robert T. Lee. Charles S. Sims argued the cause for respondent. With him on the brief were Burt Neubome, William A. Harrison, and Yvonne Chotzen. Justice O’Connor delivered the opinion of the Court. The question presented is whether respondent may be convicted for violating 18 U. S. C. § 1382, which makes it unlawful to reenter a military base after having been barred by the commanding officer. Respondent attended an open house at a military base some nine years after the commanding officer ordered him not to reenter without written permission. The Court of Appeals for the Ninth Circuit held that respondent could not be convicted for violating § 1382 because he had a First Amendment right to enter the military base during the open house. 710 F. 2d 1410 (1983). We granted certiorari, 469 U. S. 1071 (1984), and we now reverse. HH The events underlying this case date from 1972, when respondent and a companion entered Hickam Air Force Base (Hickam) in Hawaii ostensibly to present a letter to the commanding officer. Instead, they obtained access to secret Air Force documents and destroyed the documents by pouring animal blood on them. For these acts, respondent was convicted of conspiracy to injure Government property in violation of 18 U. S. C. §§371, 1361. Respondent also received a “bar letter” from the Commander of Hickam informing him that he was forbidden to “reenter the confines of this installation without the written permission of the Commander or an officer designated by him to issue a permit of reentry.” App. 43; cf. Greer v. Spock, 424 U. S. 828, 838 (1976). The bar letter directed respondent to 18 U. S. C. § 1382 and quoted the statute, which provides: “Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard Reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or “Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed therefrom or ordered not to reenter by any officer in command or charge thereof— “Shall be fined not more than $500 or imprisoned not more than six months, or both.” In subsequent years, respondent, according to his own testimony, received bar letters from a number of military bases in Hawaii. App. 30. In March 1981, he and eight companions improperly entered the Nuclear War Policy and Plans Office at Camp Smith in Hawaii and defaced Government property. Ibid. Respondent testified that he was not prosecuted for what he termed his “rather serious clear-cut case” of civil disobedience at Camp Smith, ibid., and that the 1972 bar letter was the only one he had ever received for Hickam. Id., at 28, 30. Respondent entered Hickam again on May 16,1981, during the base’s annual open house for Armed Forces Day. On that day, members of the public, who ordinarily can enter Hickam only with permission, are allowed to enter portions of- the base to view displays of aircraft and other military equipment and to enjoy entertainment provided by military and nonmilitary performers. Press releases issued by the base declared that “[w]hile Hickam is normally a closed base, the gates will be open to the public for this 32nd Annual Armed Forces Day Open House.” Id., at 45. Radio announcements similarly proclaimed that “the public is invited and it’s all free.” Id., at 48. With four friends, respondent attended the open house in order to engage in a peaceful demonstration criticizing the nuclear arms race. Id., at 27-28. His companions gathered in front of a B-52 bomber display, unfurled a banner reading “Carnival of Death,” and passed out leaflets. Respondent took photographs of the displays and did not disrupt the activities of the open house. The Commander of Hickam summoned Major Jones, the Chief of Security Police at the base, and told him to have the individuals cease their demonstration. Id., at 9. Before respondent was approached by military police, the Commander further informed Major Jones that he believed one of the individuals involved in the demonstration had been barred from Hickam. Id., at 9-10, 13-14. Respondent and his companions were apprehended and escorted off the base. An information filed on July 1, 1981, charged respondent with violating § 1382 because on May 16, 1981, he “unlawfully and knowingly” reentered Hickam Air Force Base “after [he] had previously been ordered not to reenter by an officer in command.” Id., at 3. Respondent was convicted after a bench trial and sentenced to three months’ imprisonment. Id., at 1. On appeal, respondent challenged his conviction on three grounds. 710 F. 2d, at 1413. First, he argued that he had written permission to reenter based on the advertisements inviting the public to attend the open house. Second, respondent contended that the 9-year-old bar letter was ineffective because it violated due process. Finally, he argued that his presence at Hickam during the open house was protected by the First Amendment. The Court of Appeals rejected respondent’s first argument and found it unnecessary to consider the due process arguments. Id., at 1413, 1417. The conviction must be reversed, the Court of Appeals held, because Hickam had been transformed into a temporary public forum during the open house, and the military could not exclude respondent from such a forum. Id., at 1417. r — 1 HH In the order granting certiorari, this Court asked the parties to address the additional question “[wjhether the respondent’s attendance at the ‘open house’ at Hickam Air Force Base on May 16, 1981, was the kind of reentry that Congress intended to prohibit in 18 U. S. C. § 1382.” 469 U. S., at 1071. Although this issue was not raised by the parties or passed upon by the Court of Appeals, we address it to “‘ascertain whether a construction of the statute is fairly possible by which the [constititutional] question may be avoided.”’ United States v. Grace, 461 U. S. 171, 175-176 (1983), quoting Crowell v. Benson, 285 U. S. 22, 62 (1932). Courts in applying criminal laws generally must follow the plain and unambiguous meaning of the statutory language. Garcia v. United States, 469 U. S. 70, 75 (1984); United States v. Turkette, 452 U. S. 576, 580 (1981). “[O]nly the most extraordinary showing of contrary intentions” in the legislative history will justify a departure from that language. Garcia, supra, at 75. This proposition is not altered simply because application of a statute is challenged on constitutional grounds. Statutes should be construed to avoid constitutional questions, but this interpretative canon is not a license for the judiciary to rewrite language enacted by the legislature. Heckler v. Mathews, 465 U. S. 728, 741-742 (1984). Any other conclusion, while purporting to be an exercise in judicial restraint, would trench upon the legislative powers vested in Congress by Art. I, §1, of the Constitution. United States v. Locke, 471 U. S. 84, 95-96 (1985). Proper respect for those powers implies that “[statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Park ’N Fly v. Dollar Park and Fly, Inc., 469 U. S. 189, 194 (1985). Turning to the statute involved here, we conclude that § 1382 applies to respondent’s conduct. The relevant portion of the statute makes it unlawful for a person to reenter a military base after having been ordered not to do so by the commanding officer. Unless the statutory language is to be emptied of its ordinary meaning, respondent violated , the terms of § 1382 when he reentered Hickam in 1981 contrary to the bar letter. Respondent, however, argues that § 1382 does not apply to his attendance at the open house for three reasons. First, he contends that § 1382 does not allow indefinite exclusion from a military base, but instead applies only when a person has reentered “within a reasonable period of time after being ejected.” Brief for Respondent 10. Second, respondent maintains that Congress did not intend § 1382 to apply when a military base is opened to the general public for purposes of attending an open house. Respondent finally argues that reentry is unlawful under § 1382 only if a person knows that his conduct violates an extant order not to return. None of these arguments is persuasive. The legislative history of § 1382, although sparse, fully supports application of the statute to respondent. The statute was enacted in virtually its present form as part of a general revision and codification of the federal penal laws. Act of Mar. 4, 1909, ch. 321, §45, 35 Stat. 1097. Both the War Department and the Department of Justice supported the statute as an extension of existing prohibitions on sabotage. The congressional Reports explained: “[I]t... is designed to punish persons who, having been ejected from a fort, reservation, etc., return for the purpose of obtaining information respecting the strength, etc., of the fort, etc., or for the purpose of inducing the men to visit saloons, dives, and similar places. Such persons may now go upon forts and reservations repeatedly for such purposes and there is no law to punish them.” S. Rep. No. 10, 60th Cong., 1st Sess., pt. 1, p. 16 (1908); H. R. Rep. No. 2, 60th Cong., 1st Sess., pt. 1, p. 16 (1908). The congressional Reports, as well as the floor debates, 42 Cong. Rec. 689 (1908) (remarks of Reps. Moon and Williams), indicate that the primary purpose of § 1382 was to punish spies and panderers for repeated entry into military installations. Nonetheless, § 1382 by its terms is not limited to such persons, and such a restrictive reading of the statute would frustrate its more general purpose of “protect[ing] the property of the Government so far as it relates to the national defense.” 42 Cong. Rec. 689 (1908) (remarks of Reps. Moon and Payne). One need hardly strain to conclude that this purpose is furthered by applying § 1382 to respondent, who has repeatedly entered military installations unlawfully and engaged in vandalism against Government property. We find no merit to the reasons respondent offers for concluding he did not violate § 1382. First, nothing in the statute or its history supports the assertion that § 1382 applies only to reentry that occurs within some “reasonable” period of time. Respondent argues that most prosecutions for violating the second paragraph of § 1382 have involved reentry within a year after issuance of a bar order, and further asserts that recent bar letters for Hickam have been limited to a 1- or 2-year period. We agree that prosecution under § 1382 would be impermissible if based on an invalid bar order. But even assuming the accuracy of respondent’s description of prosecutorial and military policy, we do not believe that it justifies engrafting onto §1382 a judicially defined time limit. Although due process or military regulations might limit the effective lifetime of a bar order, § 1382 by its own terms does not limit the period for which a commanding officer may exclude a civilian from a military installation. Section 1382, we further conclude, applies during an open house. Of course, Congress in 1909 very likely gave little thought to open houses on military bases. The pertinent question, however, is whether § 1382 applies to a base that is open to the general public. The language of the statute does not limit § 1382 to military bases where access is restricted. Moreover, the legislative intent to punish panderers and others who repeatedly enter military facilities suggests that Congress was concerned with bases that are to some extent open to nonmilitary personnel. Finally, limiting the prohibition on reentry to closed military bases would make the second paragraph of § 1382 almost superfluous, because the first paragraph of the statute already makes it unlawful for a person to go upon a military installation “for any purpose prohibited by law or lawful regulation.” 18 U. S. C. § 1382. Cf. Heckler v. Chaney, 470 U. S. 821, 829 (1985) (noting common-sense principle that a statute is to be read to give effect to each of its clauses). The final statutory argument advanced by respondent is that he did not violate § 1382 because he did not subjectively believe that his attendance at the open house was contrary to a valid order barring reentry. This argument misper-ceives the knowledge required for a violation of the statute. Cf. United States v. Parrilla Bonilla, 648 F. 2d 1373, 1377 (CA1 1981) (specific intent to violate particular regulation not required for violation of first paragraph of § 1382). The second paragraph of § 1382 does not contain the word “knowingly” or otherwise refer to the defendant’s state of mind, and there is no requirement that the Government prove improper motive or intent. Holdridge v. United States, 282 F. 2d 302, 310-311 (CA8 1960). Respondent does not dispute that he received the bar letter in 1972 and deliberately and knowingly reentered the base to which the letter applied. Nothing in the language of §1382 or in previous judicial decisions supports the rather remarkable proposition that merely because respondent thought the bar order was no longer effective, he was thereby immunized from prosecution. Cf. United States v. International Minerals & Chemical Corp., 402 U. S. 558, 563 (1971). We also reject the suggestion, made in the dissenting opinion, that §1382 does not apply because the circumstances did not reasonably indicate to respondent that his reentry during the open house was prohibited. Post, at 696-697, 701. The assertion that respondent lacked notice that his entry was prohibited is implausible. The bar letter in no way indicated that it applied only when public access to Hickam was restricted. Any uncertainty respondent had in this regard might have been eliminated had he sought, in accord with the bar letter, permission to reenter from the base commander. There is no contention that respondent ever asked to have the bar letter rescinded or otherwise requested permission to reenter the base. Moreover, the dissenting opinion exaggerates the implications of our holding. We have no occasion to decide in what circumstances, if any, § 1382 can be applied where anyone other than the base commander has validly ordered a person not to reenter a military base. Nor do we decide or suggest that the statute can apply where a person unknowingly or unwillingly reenters a military installation. Finally, we note that respondent has not disputed that he entered a portion of Hickam that was a “military reservation, army post, fort, or arsenal” within the meaning of § 1382. Ill The Court of Appeals held that the First Amendment bars respondent’s conviction for violating § 1382. A military base, the court acknowledged, is ordinarily not a public forum for First Amendment purposes even if it is open to the public. See Greer v. Spock, 424 U. S. 828 (1976). Nonetheless, the court relied on Flower v. United States, 407 U. S. 197 (1972) (per curiam), to conclude that portions of Hickam constituted at least a temporary public forum because the military had opened those areas to the public for purposes related to expression. 710 F. 2d, at 1414-1417. Having found that the public had a First Amendment right to hold signs and to distribute leaflets at Hickam on Armed Forces Day, the Court of Appeals then considered whether the military could rely on the bar letter to exclude respondent from the base. Id., at 1417. The court, again relying on Flower, held that the military lacks power to exclude persons from a military base that has become a public forum. 710 F. 2d, at 1417. In holding that § 1382 cannot be applied during an open house, the Court of Appeals misapprehended the significance of Flower. As this Court later observed in Greer, the decision in Flower must be viewed as an application of established First Amendment doctriné concerning expressive activity that takes place in a municipality’s open streets, sidewalks, and parks. 424 U. S., at 835-836. Flower did not adopt any novel First Amendment principles relating to military bases, but instead concluded that the area in question was appropriately considered a public street. There is “no generalized constitutional right to make political speeches or distribute leaflets,” id., at 838, on military bases, even if they are generally open to the public. Id., at 830, 838, and n. 10. Greer clarified that the significance of the per curiam opinion in Flower is limited by the unusual facts underlying the earlier decision. 424 U. S., at 837. The Court in Flower summarily reversed a conviction under § 1382 of a civilian who entered a military reservation after receiving a bar letter. At the time of his arrest, the civilian was “quietly distributing leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston” in San Antonio, Texas. 407 U. S., at 197. No sentry was posted anywhere along the street, which was open to unrestricted civilian traffic 24 hours a day. Id., at 198. The Court determined that New Braunfels Avenue was a public thoroughfare no different than other streets in the city, and that the military had abandoned not only the right to exclude civilian traffic from the avenue, but also any right to exclude leafleteers. Greer v. Spock, supra, at 835. The defendant in Flower received a bar letter because he participated in an attempt to distribute unauthorized publications on the open military base. 407 U. S., at 197; United States v. Flower, 452 F. 2d 80, 82, 87 (CA5 1971). This was the very activity that Flower held protected by the First Amendment. Flower cannot plausibly be read to hold that regardless of the events leading to issuance of a bar letter, a person may not subsequently be excluded from a military facility that is temporarily open to the public. Instead, Flower establishes that where a portion of a military base constitutes a public forum because the military has abandoned any right to ex-elude civilian traffic and any claim of special interest in regulating expression, see Greer v. Spock, supra, at 836-838, a person may not be excluded from that area on the basis of activity that is itself protected by the First Amendment. Properly construed, Flower is simply inapplicable to this case. There is no suggestion that respondent’s acts of vandalism in 1972, which resulted in the issuance of the bar letter, were activities protected by the First Amendment. The observation made by the Court of Appeals, 710 F. 2d, at 1417, that enforcement of the bar letter was precipitated by respondent’s “peaceful expressive activity” misses the point. Respondent was prosecuted not for demonstrating at the open house, but for reentering the base after he had been ordered not to do so. Respondent argues that because Hickam was temporarily transformed into a public forum, the exercise of standardless discretion by the base commander to exclude him from the base violates the First Amendment. Cf. Shuttlesworth v. Birmingham, 394 U. S. 147, 150-151 (1969). The conclusion of the Court of Appeals that Hickam was ever a public forum is dubious. Military bases generally are not public fora, and Greer expressly rejected the suggestion that “whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a ‘public forum’ for purposes of the First Amendment.” 424 U. S., at 836. See also United States v. Grace, 461 U. S., at 177. Nor did Hickam become a public forum merely because the base was used to communicate ideas or information during the open house. United States Postal Service v. Greenburgh Civic Assns., 453 U. S. 114, 130, n. 6 (1981). The District Court did not make express findings on the nature of public access to Hickam during the open house, and the record does not suggest that the military so completely abandoned control that the base became indistinguishable from a public street as in Flower. Whether or not Hickam constituted a public forum on the day of the open house, the exclusion of respondent did not violate the First Amendment. Respondent concedes that the commander of Hickam could exclude him from the closed base, but contends this power was extinguished when the public was invited to enter on Armed Forces Day. We do not agree that “the historically unquestioned power of a commanding officer to exclude civilians from the area of his command,” Cafeteria Workers v. McElroy, 367 U. S. 886, 893 (1961), should be analyzed in the same manner as government regulation of a traditional public forum simply because an open house was held at Hickam. See Greer v. Spock, 424 U. S., at 838, n. 10 (fact that speakers previously allowed on base “did not leave the authorities powrerless thereafter to prevent any civilian from entering ... to speak on any subject whatever”). The fact that respondent had previously received a valid bar letter distinguished him from the general public and provided a reasonable grounds for excluding him from the base. That justification did not become less weighty when other persons were allowed to enter. Indeed, given the large number of people present during an open house, the need to preserve security by excluding those who have previously received bar letters could become even more important, because the military may be unable to monitor closely who comes and goes. Where a bar letter is issued on valid grounds, a person may not claim immunity from its prohibition on entry merely because the military has temporarily opened a military facility to the public. Section 1382 is content-neutral and serves a significant Government interest by barring entry to a military base by persons whose previous conduct demonstrates that they are a threat to security. Application of a facially neutral regulation that incidentally burdens speech satisfies the First Amendment if it “furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O’Brien, 391 U. S. 367, 377 (1968). Respondent argues that even if OBrien applies here, the general exclusion of recipients of bar letters from military open houses fails under the First Amendment because it is greater than is essential to the furtherance of Government interests in the security of military installations. Respondent maintains that enforcing bar letters is not essential to security because reported cases concerning § 1382 have not involved vandalism or other misconduct during open houses. Moreover, respondent asserts that persons holding bar letters have been allowed to attend open houses on bases other than Hickam. Finally, respondent contends that the Government interests were adequately served by the security measures taken during the open house and by statutes that punish any misconduct occurring at such events. Cf. 710 F. 2d, at 1417 (noting that “sensitive areas of Hickam were cordoned off and protected by guards”). Respondent’s arguments in this regard misapprehend the third element of the OBrien standard. We acknowledge that barring respondent from Hickam was not “essential” in any absolute sense to security at the military base. The military presumably could have provided him with a military police chaperone during the open house. This observation, however, provides an answer to the wrong question by focusing on whether there were conceivable alternatives to enforcing the bar letter in this case. The First Amendment does not bar application of a neutral regulation that incidentally burdens speech merely because a party contends that allowing an exception in the particular case will not threaten important government interests. See Clark v. Community for Creative Non-Violence, 468 U. S. 288, 296-297 (1984) (“the validity of this regulation need not be judged solely by reference to the demonstration at hand”). Regulations that burden speech incidentally or control the time, place, and manner of expression, see id., at 298-299, and n. 8, must be evaluated in terms of their general effect. Nor are such regulations invalid simply because there is some imaginable alternative that might be less burdensome on speech. Id., at 299. Instead, an incidental burden on speech is no greater than is essential, and therefore is permissible under O’Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. Cf. 468 U. S., at 297 (“if the parks would be more exposed to harm without the sleeping prohibition than with it, the ban is safe from invalidation under the First Amendment”). The validity of such regulations does not turn on a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests. Id., at 299. We are persuaded that exclusion of holders of bar letters during military open houses will promote an important Government interest in assuring the security of military installations. Nothing in the First Amendment requires military commanders to wait until persons subject to a valid bar order have entered a military base to see if they will conduct themselves properly during an open house. Cf. Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 52, and n. 12 (1983). In Community for Creative Non-Violence, we observed that O’Brien does not “assign to the judiciary the authority to replace the Park Service as the manager of the Nation’s parks or endow the judiciary with the competence to judge how much protection of park lands is wise and how that level of conservation is to be attained.” 468 U. S., at 299 (footnote omitted). We are even less disposed to conclude that O’Brien assigns to the judiciary the authority to manage military facilities throughout the Nation. As a final First Amendment challenge to his conviction, respondent asserts that the Government apprehended and prosecuted him because it opposed the demonstration against nuclear war. This argument lacks evidentiary support. The demonstration did attract the attention of military officials to respondent and his companions, and the base Commander ordered military police to stop them from displaying their banner and distributing leaflets. Nonetheless, Major Jones testified that respondent was not approached or apprehended until he was identified as the possible holder of a bar letter. App. 9-11, 13-14. The trial judge found that this testimony was accurate, Tr. 98, and we see no reason to disturb that finding on appeal. Inasmuch as respondent contends that his prosecution was impermissibly motivated, he did not raise below and the record does not support a claim that he was selectively prosecuted for engaging in activities protected by the First Amendment. Cf. Wayte v. United States, 470 U. S. 598, 608-610 (1985). IV Before the District Court and the Court of Appeals, respondent argued that his prosecution based on the 1972 bar letter violated due process. Respondent has made similar arguments to this Court. Brief for Respondent 19, 20, 26-27, n. 38. Although a commanding officer has broad discretion to exclude civilians from a military base, this power cannot be exercised in a manner that is patently arbitrary or discriminatory. Cafeteria Workers v. McElroy, 367 U. S., at 898. Respondent, however, has not shown that the 1972 bar letter is inconsistent with any statutory or regulatory limits on the power of military officials to exclude civilians from military bases. Nor do we think that it is inherently unreasonable for a commanding officer to issue a bar order of indefinite duration requiring a civilian to obtain written permission before reentering a military base. The Court of Appeals did not address whether, on the facts of this case, application of the 1972 bar letter to respondent was so patently arbitrary as to violate due process, and we therefore do not decide that issue. For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. 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. 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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_district

F

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". BRIGGS v. DETROIT, TOLEDO & IRONTON RAILROAD CO. Circuit Court of Appeals, Sixth Circuit. April 5, 1927. No. 4725. In Error to the District Court of the United States for the Southern District of Ohio, Western Division; Smith Hiekenlooper, Judge. Action at law by Richard D. Briggs against the Detroit, Toledo & Ironton Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed. R. B. Newcomb, of Cleveland, Ohio (Sawyer & Pichel,'of Cincinnati, Ohio, and New-comb, Newcomb & Nord, of Cleveland, Ohio, on the brief), for plaintiff in error. Edward E. Com, of Ironton, Ohio (Clifford B. Longley and O. Z. Ide, both of Detroit, Mich., and Com & Jenkins, of Ironton, Ohio, on the brief), for defendant in error. Before DONAHUE and MOORMAN, Circuit Judges, and WESTENHAYER, District Judge. PER CURIAM. The plaintiff in error brought an action in the District Court to recover damages for injuries sustained by him while in the employ of the Norfolk & Western Railway Company, alleging that such injuries were caused by defendant’s negligence. To the petition of plaintiff the defendant filed an answer, denying negligence on its part, and pleading contributory negligence and assumption of risk. At the close of the plaintiff’s evidence the trial court, on motion of defendant, directed a verdict for defendant on the ground that the plaintiff was guilty of contributory negligence, which was a proximate cause of his injury. The trial court properly sustained the motion for a directed verdict. This ease presents no new questions of law for the consideration of this court. Eor the reasons stated, it is wholly unnecessary to discuss in detail the facts or the law applicable thereto, or to express any opinion in reference to the evidence tending to prove negligence on the part of the defendant. Judgment affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:

songer_circuit

G

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. SARTHER GROCERY CO., Inc., v. COMMISSIONER OF INTERNAL REVENUE. No. 4738. Circuit Court of Appeals, Seventh Circuit. Jan. 27, 1933. Irwin T. Gilruth, of Chicago, Ill., and Lee I. Park, of Washington, D. C., for petitioner. G. A. Youngquist, Asst. Atty. Gen., and J. Louis Monarch and Erwin N. Griswold, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and J. M. Leinenkugel, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for respondent. Before ALSCHULER and SPARKS, Circuit Judges, and WILKERSON, District Judge. ALSCHÜLER, Circuit Judge. Petitioner, an Illinois corporation, under its prior name of Great American Stores Company, owned and conducted a chain of grocery stores in the vicinity of Chicago. It owned also all the capital stock of the Sterling Baking Company, an Illinois corporation conducting a bakery. Of petitioners capital stock of 2,500 shares, John M. Sarther owned 2,473 shares, E. A. Sarther 10, Ramsperger 16, and Wetzell 1. A Cter negotiations with representatives of the National Tea Company, a corporation in similar business, petitioner and the tea company, under date of December 30, 1&27, entered into a written contract whereby petitioner agreed to sell to the tea company substantially all its property and assets, consisting- of grocery stocks, fixtures and appliances, and certain real estate, including also all the property of the Sterling- Ba,king Company, and including also the good will of the business of both corporations (but not including one certain account receivable for $36,500) for the sum of $375,000 in .cash. The agreement provided that the Stores Company should change its name, and upon consummation of the agreement should dissolve and terminate its corporate existence; and that the consideration, as paid, should be distributed to petitioner’s stockholders. The agreement was consummated within the taxable year, and the consideration was paid over to petitioner’s stockholders, after payment of the corporate debts, and the corporations were dissolved accordingly. Respondent determined petitioner’s tax upon the basis of the transaction being a sale of the corporate assets, and that the profit accruing thereon was taxable to petitioner. This view was sustained by the Board of Tax Appeals, which denied petitioner’s demand for redetermination of the tax. Petitioner insists that the proceeds did not pass or inure to petitioner, but to its individual stockholders, and that, in any event, under the applicable sections of the statute the transaction was a reorganization and not a sale, and that no taxable profit to petitioner resulted. ■ The subject-matter of the contract was the property of petitioner in its corporate capacity, and the transaction bore every incident of a sale, including its denomination as such by the parties. If instead of selling its assets petitioner had .sold only a part, say, one store or one piece of real estate, any profit-realized thereon would surely have been income of petitioner; and the fact that petitioner thereafter distributed to its stockholders the avails of such sale would not avoid the conclusion that the profits were income of the corporation. We cannot see how the sale by the corporation of its entire assets, instead of only part, would alter the conclusion in this regard. The case of Shellabarger v. Commissioner, 38 F. (2:d) 566, decided by this court, is relied on as holding that, upon assignment by the beneficiary of a trust of part of the income therefrom, the assigned income is taxable to the assignee and not to the assignor. That case was peculiar in its facts. The assignee there was one of the heirs of the settlor of the trust, and she had taken steps to bring suit to break the will whereby the trust was created, and under which she had been practically disinherited. Jt was in settlement of this threatened litigation, which, had it progressed, might have resulted in the abrogation of the trust, that the assignment to this heir of part of the income was made. We held that under the peculiar terms of the will respecting the manner of payment of the income under the trust the assignor, to whom, the income was required to be originally paid, became but a conduit for passing to the assignee her stipulated part of the income; and that, under those circumstances, that part of the income which went to the assignee did not beeome income of the assignor. In the instant ease there was a voluntary sale of the corporate property, and a voluntary distribution by the corporation to the stockholders of the proceeds of the sale. That the purchaser, for its own purposes, had insisted upon corporate dissolution of the seller and distribution of the proceeds among the shareholders, made the sale and distribution none the less the voluntary acts of the selling corporation. The profit arising therefrom was profit of the selling corporation, and was taxable as such unless the transaction should be regarded as effecting a reorganization under sections 261 to 264 of the Revenue Act of 1926 (26 USCA §§ 932-935). This has been settled by the Supreme Court adversely to petitioner’s contention in Pinellas Ice & Cold Storage Co. v. Commissioner, 53 S. Ct. 257, 77 L. Ed.- (decided January 9; 1933), where, under facts quite parallel to those here, it was held that such a transaction was not a reorganization under the statute, and that the profit arising from sale of the corporate property was properly taxable to the. corporation. The court cited with approval Cortland Specialty Co. v. Commissioner (C. C. A.) 60 F.(2d) 937, where the same conclusion was reached, and in which case the facts were strikingly like those here. Certiorari denied January 16, 1933, 53 S. Ct. 316, 77 L. Ed.-. In view of these eases there is no occasion for our further discussing this proposition. The Board of Tax Appeals properly denied the petition for redetermination, and its order is affirmed. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:

sc_decisiontype

A

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. MELENDEZ v. UNITED STATES No. 95-5661. Argued February 27, 1996 Decided June 17, 1996 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, and Ginsburg, JJ., joined, and in which O’Connor and Breyer, JJ., joined as to Parts I and II. Souter, J., filed a concurring opinion, post, p. 131. Stevens, J., filed an opinion concurring in the judgment, post, p. 132. Breyer, J., filed an opinion concurring in part and dissenting in part, in which O’Connor, J., joined, post, p. 132. Patrick A. Mullin argued the cause for petitioner. With him on the briefs were David Zlotnick and Peter Goldberger. Irving L. Gornstein argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben. Alan I. Horowitz, James R. Lovelace, and Barbara E. Bergman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal. Chester M. Keller filed a brief for the Association of Criminal Defense Lawyers in New Jersey as amicus curiae. Justice Thomas delivered the opinion of the Court. The issue here is whether a Government motion attesting to the defendant’s substantial assistance in a criminal investigation and requesting that the district court depart below the minimum of the applicable sentencing range under the Sentencing Guidelines also permits the district court to depart below any statutory minimum sentence. We hold that it does not. I Petitioner and several others entered into an agreement to buy cocaine from confidential informants of the United States Customs Service. As a result, petitioner was charged with conspiring to distribute and to possess with intent to distribute more than five kilograms of cocaine, see §406, 84 Stat. 1265, as amended, 21 U. S. C. §846, a crime that carries a statutory minimum sentence of 10 years’ imprisonment, see § 841(b)(1)(A). Plea negotiations ensued, and petitioner ultimately signed a cooperating plea agreement. The agreement provided, in pertinent part, that in return for petitioner’s cooperation with the Government’s investigation and his guilty plea, the Government would “move the sentencing court, pursuant to Section 5K1.1 of the Sentencing Guidelines, to depart from the otherwise applicable guideline range.” App. 9. The agreement noted that the offense to which petitioner would plead guilty “carries a statutory mandatory minimum penalty of 10 years’ imprisonment.” Id., at 6. The agreement did not require the Government to authorize the District Court to impose a sentence below the statutory minimum, nor did it specifically state that the Government would oppose departure below the statutory minimum. Petitioner pleaded guilty to the charged conspiracy. The probation officer determined that the Guideline sentencing range applicable to petitioner’s crime was 135 to 168 months’ imprisonment. In a letter to the court, the Government described the assistance rendered by petitioner and moved the court to impose “a sentence lower than what the [c]ourt ha[d] determined to be the otherwise applicable [sic] under the sentencing guidelines.” Id., at 13-14. The letter specifically noted that “[t]his motion is made pursuant to Section 5K1.1.” Id., at 13. The Government did not request a sentence below the statutory minimum, although, again, it did not state that the Government opposed such a departure. The District Court granted the Government’s motion and departed downward from the sentencing range set by the Guidelines. However, because the Government had not also moved the District Court to depart below the statutory minimum pursuant to 18 U. S. C. § 3553(e), the court ruled that it had no authority to so depart; it thus imposed the 10-year minimum sentence required by statute. On appeal, petitioner contended that the District Court had erred in concluding that it had no authority to depart below the statutory minimum. A § 5K1.1 motion, he argued, not only allows the court to depart downward from the sentencing level set by the Guidelines but also permits the court to depart below a lower statutory minimum. See United States Sentencing Commission, Guidelines Manual §5K1.1, p. s. (Nov. 1995) (USSG). A divided panel of the Court of Appeals for the Third Circuit rejected that argument and affirmed the 10-year sentence. 55 F. 3d 130 (1995). A petition for rehearing was denied, with six judges dissenting. As we noted in Wade v. United States, 504 U. S. 181, 185 (1992), the Courts of Appeals disagree as to whether a Government motion attesting to the defendant’s substantial assistance and requesting that the district court depart below the minimum of the applicable sentencing range under the Guidelines also permits the district court to depart below any statutory minimum. We granted certiorari to resolve the conflict. 516 U. S. 963 (1995). We now hold that such a motion does not authorize a departure below a lower statutory minimum. II The question presented involves two subsections of federal statutes and a policy statement of the Guidelines. Title 18 U. S. C. § 3553(e) provides: “Limited authority to impose a sentence below a statutory minimum. — Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.” Title 28 U. S. C. § 994(n), in turn, states: “The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” Finally, the text of § 5K1.1 of the Guidelines provides: “Substantial Assistance to Authorities (Policy Statement) “Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. “(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: [List of five factors for the court’s consideration, including] the government’s evaluation of the assistance rendered.” Petitioner argues that §5K1.1 creates what he calls a “unitary” motion system, in which a motion attesting to the substantial assistance of the defendant and requesting a departure below the Guidelines range also permits a district court to depart below the statutory minimum. The Government views § 5K1.1 as establishing a binary motion system, which permits the Government to authorize a departure below the Guidelines range while withholding from the court the authority to depart below a lower statutory minimum. The parties argue, naturally, that their respective interpretations of the system actually adopted by the Sentencing Commission were permissible ones under §3553(e).and §994(n). We believe that § 3553(e) requires a Government motion requesting or authorizing the district court to “impose a sentence below a level established by statute as minimum sentence” before the court may impose such a sentence. Petitioner and his amici repeatedly characterize the motion required by § 3553(e) as a “motion that substantial assistance has occurred,” Brief for Petitioner 12, a “motion acknowledging the defendant’s ‘substantial assistance,’ ” id., at 8, and the like. But the term “motion” generally means “[a]n application made to a court or judge for purpose of obtaining a rule or order directing some act to be done in favor of the applicant.” Black’s Law Dictionary 1013 (6th ed. 1990). Papers simply “acknowledging” substantial assistance are not sufficient if they do not indicate desire for, or consent to, a sentence below the statutory minimum. Of course, the Government did more than simply “acknowledge” substantial assistance here: It moved the court to impose a sentence below the Guideline range. But we agree with the Government that nothing in § 3553(e) suggests that a district court has power to impose a sentence below the statutory minimum to reflect a defendant’s cooperation when the Government has not authorized such a sentence, but has instead moved for a departure only from the applicable Guidelines range. Nor does anything in § 3553(e) or § 994(n) suggest that the Commission itself may dispense with § 3553(e)’s motion requirement or, alternatively, “deem” a motion requesting or authorizing different action — such as a departure below the Guidelines minimum — to be a motion authorizing the district court to depart below the statutory minimum. Moreover, we do not read § 5K1.1 as attempting to exercise this nonexistent authority. Section 5K1.1 says: “Upon motion of the government stating that the defendant has provided substantial assistance . . . the court may depart from the guidelines,” while its Application Note 1 says: “Under circumstances set forth in 18 U. S. C. § 3553(e) and 28 U. S. C. § 994(n). .. substantial assistance .. . may justify a sentence below a statutorily required minimum sentence,” §5K1.1, comment., n. 1. One of the circumstances set forth in § 3553(e) is, as we have explained previously, that the Government has authorized the court to impose a sentence below the statutory minimum. Petitioner and his amici argue that § 3553(e) requires a sentence below the statutory minimum to be imposed in “accordance” with the Guidelines; that § 994(n) specifically directs the Commission to draft a provision covering substantial assistance cases, including cases in which a sentence below a statutory minimum is warranted; and that if §5K1.1 is not read as creating a unitary motion system, then the Commission has improperly failed to meet its obligation, because no other provision of the Guidelines implements § 3553(e) and § 994(n). They also argue' (1) that the reference to § 3553(e) in §5Kl.Ts Application Note 1 indicates that § 5K1.1 is a “conduit” established by the Commission for “implementation” of § 3553(e); (2) that Application Note 2’s use of the broad term “sentencing reduction,” rather than “departure from the guidelines range,” supports petitioner’s view that §5K1.1 authorizes departures below a statutory minimum; (3) that Application Note 3 makes sense only on the assumption that the district court retains “full discretionary power” over the extent of the sentencing reduction (i. e., the authority to choose any sentence once the Government makes any motion confirming the defendant’s substantial assistance); (4) that the reference to §5K1.1 alone (rather than to § 3553(e)) in USSG §2Dl.l’s Application Note 7 further supports petitioner’s claim that § 5K1.1 is a conduit for implementation of § 3553(e); and (5) that if the factors described in §5Kl.l(a) limiting the district court’s discretion do not apply to sentences imposed after the Government moves to depart below the statutory minimum, then the district court’s discretion will be wholly unlimited in those circumstances. In the Government’s view, § 3553(e) already gives the district court authority to depart below the statutory minimum on motion to do so by the prosecutor. The Government urges us to read the last sentence of § 3553(e), and the inclusion of the phrase “including a sentence that is lower than that established by statute as a minimum sentence” in § 994(n), as merely requiring the Commission to constrain the district court’s discretion in choosing a sentence after the Government moves to depart below the statutory minimum. The Government contends that the first paragraph of § 5K1.1 does not authorize departures below the statutory minimum, but that § 5Kl.l(a) does apply to sentences imposed after the Government moves to depart below the statutory minimum (as well as to sentences imposed after the Government moves to depart below the Guidelines range); §5Kl.l(a) thus implements the requirements of § 3553(e) and §994(n) that relate to sentences below the statutory minimum, by requiring the district court to consider the factors listed in §§5Kl.l(a)(])-(5) in determining the appropriate extent of a departure below the statutory minimum. According to the Government, the difficulties and gaps referred to by petitioner vanish once §5Kl.l(a) is so construed. We agree with the Government that the relevant parts of the statutes merely charge the Commission with constraining the district court’s discretion in choosing a specific sentence after the Government moves for a departure below the statutory minimum. Congress did not charge the Commission with “implementing” §3553(e)’s Government motion requirement, beyond adopting provisions constraining the district court’s discretion regarding the particular sentence selected. Although the various relevant Guidelines provisions invoked by the parties could certainly be clearer, we also believe that the Government’s interpretation of the current provisions is the better one. Section 5Kl.l(a) may guide the district court when it selects a sentence below the statutory minimum, as well as when it selects a sentence below the Guidelines range. The Commission has not, however, improperly attempted to dispense with or modify the requirement for a departure below the statutory minimum spelled out in § 3553(e) — that of a Government motion requesting or authorizing a departure below the statutory minimum. The Government has made no such motion here. Hence, the District Court correctly concluded that it lacked the authority to sentence petitioner to less than 10 years’ imprisonment. Ill What is at stake in the long run is whether the Government can make a motion authorizing the district court to depart below the Guidelines range but withholding from the district court the power to depart below the statutory minimum. Although the Government contends correctly that the Commission does not have authority to “deem” a Government motion that does not authorize a departure below the statutory minimum to be one that does authorize such a departure, the Government apparently reads § 994(n) to permit the Commission to construct a unitary motion system by adjusting the requirements for a departure below the Guidelines minimum — that is, by providing that the district cou,rt may depart below the Guidelines range only when the Government is willing to authorize the court to depart below the statutory minimum, if the court finds that to be appropriate. See Tr. of Oral Arg. 26-31. We need not decide whether the Commission could create this second type of unitary motion system, for two reasons. First, even if the Commission had done so, that would not help petitioner, since the Government has not authorized a departure below the statutory minimum here. Second, we agree with the Government that the Commission has not adopted this type of unitary motion system. Neither the text of §5K1.1 nor its commentary expressly limits the authority of the court to depart below the Guidelines minimum to situations in which the Government has moved to depart below the statutory minimum. The text of §5K1.1 says: “Upon motion of the government stating that the defendant has provided substantial assistance . . . , the court may depart from the guidelines.” We do not read this sentence to say: “Upon motion of the government stating that the defendant has provided substantial assistance ... and authorizing the court to depart below the statutory minimum, if any, the court may depart from the guidelines.” Rather, we read it as permitting the district court to depart below the Guidelines range when the Government states that the defendant has provided substantial assistance and requests or authorizes the district court to depart below the Guidelines range. As we have noted, supra, at 127-130, the Application Notes to §5K1.1 and §2D1.1 do not compel any other reading. The judgment is affirmed. It is so ordered. Compare 55 F. 3d 130 (CA3 1995) and United States v. Rodriguez-Morales, 958 F. 2d 1441 (CA8), cert. denied, 506 U. S. 940 (1992), with United States v. Ah-Kai, 951 F. 2d 490 (CA2 1991), United States v. Beckett, 996 F. 2d 70 (CA5 1993), United States v. Wills, 35 F. 3d 1192 (CA7 1994), and United States v. Keene, 933 F. 2d 711 (CA9 1991). Petitioner also argues for the first time in his reply brief that the plea agreement into which he entered was at least ambiguous with respect to whether it required the Government to move the District Court to depart below the statutory minimum — and thus that the agreement itself permitted the court to depart below the 10-year minimum. See Reply Brief for Petitioner 7-8. We do not view this issue as included within the question upon which we granted certiorari, see Pet. for Cert. 3 (“Did the sentencing court have the discretion to depart below the applicable statutory minimum once the United States moved for departure under USSG §5K1, without the requirement of a second government departure application under 18 U. S. C. 3553(e)?”), and petitioner appears to concede that it is not, see Tr. of Oral Arg. 15. We therefore decline to address the argument. Although it is plain that under § 994(n), the Commission was at least authorized to create a system in which no Government motion of any kind need be filed before the district court may depart below the Guidelines minimum, neither party argues that the Commission has created such a system. See also Random House Dictionary of the English Language 1254 (2d ed. 1987) (defining “motion” in the legal sense as “an application made to a court or judge for an order, ruling, or the like”); Wade v. United States, 504 U. S. 181, 187 (1992) (“[Substantial assistance] is a necessary condition for [a departure, but] it is not a sufficient one. The Government’s decision not to move may have been based not on a failure to acknowledge or appreciate [the defendant’s] help, but simply on its rational assessment of the cost and benefit that would flow from moving”). We do not mean to imply, of course, that specific language (such as that quoted in text) or, on the other hand, an express reference to § 3553(e) is necessarily required before a court may depart below the statutory minimum. Cf. Brief for Petitioner 5-6, 18, 32, 34 (characterizing the opposing argument in this fashion). But the Government must in some way indicate its desire or consent that the court depart below the statutory minimum before the court may do so. Application Note 2 provides in relevant part: “The sentencing reduction for assistance to authorities shall be considered independently of any reduction for acceptance of responsibility.” USSG § 5K1.1, comment., n. 2. Application Note 3 provides: “Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.” USSG §5K1.1, comment., n. 3. Application Note 7 provides in pertinent part: “Where a mandatory (statutory) minimum sentence applies, this mandatory minimum sentence may be ‘waived’ and a lower sentence imposed (including a sentence below the applicable guideline range), as provided in 28 U. S. C. § 994(n), by reason of a defendant’s ‘substantial assistance in the investigation or prosecution of another person who has committed an offense.’ See §5K1.1 (Substantial Assistance to Authorities).” USSG §2D1.1, comment., n. 7. Section 2D1.1 is a Guideline addressed to a variety of drug offenses. Notably, § 3553(e) states that the “sentence” shall be imposed in accordance with the Guidelines and policy statements, not that the “departure” shall occur, or shall be authorized, in accordance with the Guidelines and policy statements. Section §5Kl.l(a) may apply of its own force to sentences below the statutory minimum, see ibid, (providing that the district court shall determine “[tjhe appropriate reduction” by applying a nonexhaustive list of factors), and both the reference to § 3553(e) in §5Kl.l’s Application Note 1 and the reference to §5K1.1 in §2Dl.l’s Application Note 7 may reflect that fact. Or perhaps the phrase “[t]he appropriate reduction” in §5Kl.l(a) encompasses only departures below the Guidelines range, but the Application Notes are meant to suggest that the court should also consider the § 5Kl.l(a) factors in the analogous circumstance of a departure below the statutory minimum. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:

sc_caseoriginstate

45

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state. PENNSYLVANIA v. NELSON. No. 10. Argued November 15-16, 1955. Decided April 2, 1956. Frank F. Truscott, Special Deputy Attorney General of Pennsylvania, and Harry F. Stambaugh argued the cause for petitioner. With them on the brief were Frank P. Lawley, Jr., Deputy Attorney General, and Albert A. Fiok. Herbert S. Thatcher argued the cause for respondent. With him on the brief was Victor Rabinowitz. By special leave of Court, Charles F. Barber argued the cause for the United States, and Louis C. Wyman, Attorney General, for the State of New Hampshire, as amici curiae, urging reversal. On the brief with Mr. Barber were Solicitor General Sobeloff, Assistant Attorney General Tompkins, Harold D. Koffsky and Philip R. Monahan. Mr. Wyman also filed a brief. Briefs of amici curiae urging reversal were filed by George Fingold, Attorney General, and Lowell S. Nicholson, Samuel H. Cohen and Fred L. True, Jr., Assistant Attorneys General, for the State of Massachusetts, and Ralph B. Gregg for the American Legion. Briefs of amici curiae urging affirmance were filed by Osmond K. Fraenkel and Herbert Monte Levy for the American Civil Liberties Union, Walter C. Longstreth, Allen S. Olmsted, 2d and William Allen Rahill for the Civil Liberties Committee of the Philadelphia Yearly Meeting of the Religious Society of Friends, and Frank J. Donner, Royal W. France, Arthur Kinoy and Marshall Perlin for Feldman et al. Mr. Chief Justice Warren delivered the opinion of the Court. The respondent Steve Nelson, an acknowledged member of the Communist Party, was convicted in the Court of Quarter Sessions of Allegheny County, Pennsylvania, of a violation of the Pennsylvania Sedition Act and sentenced to imprisonment for twenty years and to a fine of $10,000 and to costs of prosecution in the sum of $13,000. The Superior Court affirmed the conviction. 172 Pa. Super. 125, 92 A. 2d 431. The Supreme Court of Pennsylvania, recognizing but not reaching many alleged serious trial errors and conduct of the trial court infringing upon respondent’s right to due process of law, decided the case on the narrow issue of supersession of the state law by the Federal Smith Act. In its opinion, the court stated: “And, while the Pennsylvania statute proscribes sedition against either the Government of the United States or the Government of Pennsylvania, it is only alleged sedition against the United States with which the instant case is concerned. Out of all the voluminous testimony, we have not found, nor has anyone pointed to, a single word indicating a seditious act or even utterance directed against the Government of Pennsylvania.” The precise holding of the court, and all that is before us for review, is that the Smith Act of 1940, as amended in 1948, which prohibits the knowing advocacy of the overthrow of the Government of the United States by force and violence, supersedes the enforceability of the Pennsylvania Sedition Act which proscribes the same conduct. Many State Attorneys General and the Solicitor General of the United States appeared as amici curiae for petitioner, and several briefs were filed on behalf of the respondent. Because of the important question of federal-state relationship involved, we granted certiorari. 348 U. S. 814. It should be said at the outset that the decision in this case does not affect the right of States to enforce their sedition laws at times when the Federal Government has not occupied the field and is not protecting the entire country from seditious conduct. The distinction between the two situations was clearly recognized by the court below. Nor does it limit the jurisdiction of the States where the Constitution and Congress have specifically given them concurrent jurisdiction, as was done under the Eighteenth Amendment and the Volstead Act. United States v. Lanza, 260 XL S. 377. Neither does it limit the right of the State to protect itself at any time against sabotage or attempted violence of all kinds. Nor does it prevent the State from prosecuting where the same act constitutes both a federal offense and a state offense under the police power, as was done in Fox v. Ohio, 5 How. 410, and Gilbert v. Minnesota, 254 U. S. 325, relied upon by petitioner as authority herein. In neither of those cases did the state statute impinge on federal jurisdiction. In the Fox case, the federal offense was counterfeiting. The state offense was defrauding the person to whom the spurious money was passed. In the Gilbert case this Court, in upholding the enforcement of a state statute, proscribing conduct which would “interfere with or discourage the enlistment of men in the military or naval forces of the United States or of the State of Minnesota,” treated it not as an act relating to “the raising of armies for the national defense, nor to rules and regulations for the government of those under arms [a constitutionally exclusive federal power]. It [was] simply a local police measure . ...” Where, as in the instant case, Congress has not stated specifically whether a federal statute has occupied a field in which the States are otherwise free to legislate, different criteria have furnished touchstones for decision. Thus, “ [t] his Court, in considering the validity of state laws in the light of . . . federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula.” Hines v. Davidowitz, 312 U. S. 52, 67. And see Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230-231. In this case, we think that each of several tests of supersession is met. First, “[t]he scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Rice v. Santa Fe Elevator Corp., 331 U. S., at 230. The Congress determined in 1940 that it was necessary for it to re-enter the field of antisubversive legislation, which had been abandoned by it in 1921. In that year, it enacted the Smith Act which proscribes advocacy of the overthrow of any government — federal, state or local — by force and violence and organization of and knowing membership in a group which so advocates. Conspiracy to commit any of these acts is punishable under the general criminal conspiracy provisions in 18 U. S. C. § 371. The Internal Security Act of 1950 is aimed more directly at Communist organizations. It distinguishes between “Communist-action organizations” and "Communist-front organizations,” requiring such organizations to register and to file annual reports with the Attorney General giving complete details as to their officers and funds. Members of Communist-action organizations who have not been registered by their organization must register as individuals. Failure to register in accordance with the requirements of Sections 786-787 is punishable by a fine of not more than $10,000 for an offending organization and by a fine of not more than $10,000 or imprisonment for not more than five years or both for an individual offender — each day of failure to register constituting a separate offense. And the Act imposes certain sanctions upon both “action” and “front” organizations and their members. The Communist Control Act of 1954 declares “that the Communist Party of the United States, although purportedly a political party, is in fact an instrumentality of a conspiracy to overthrow the Government of the United States” and that “its role as the agency of a hostile foreign power renders its existence a clear present and continuing danger to the security of the United States.” It also contains a legislative finding that the Communist Party is a “Communist-action organization” within the meaning of the Internal Security Act of 1950 and provides that “knowing” members of the Communist Party are “subject to all the provisions and penalties” of that Act. It furthermore sets up a new classification of “Communist-infiltrated organizations” and provides for the imposition of sanctions against them. We examine these Acts only to determine the congressional plan. Looking to all of them in the aggregate, the conclusion is inescapable that Congress has intended to occupy the field of sedition. Taken as a whole, they evince a congressional plan which makes it reasonable to determine that no room has been left for the States to supplement it. Therefore, a state sedition statute is superseded regardless of whether it purports to supplement the federal law. As was said by Mr. Justice Holmes in Charleston & Western Carolina R. Co. v. Varnville Furniture Co., 237 U. S. 597, 604: “When Congress has taken the particular subject-matter in hand coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.” Second, the federal statutes “touch a field in which the federal interest is so dominant that the federal system [must] be assumed to preclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp., 331 U. S., at 230, citing Hines v. Davidowitz, supra, Congress has devised an all-embracing program for resistance to the various forms of totalitarian aggression. Our external defenses have been strengthened, and a plan to protect against internal subversion has been made by it. It has appropriated vast sums, not only for our own protection, but also to strengthen freedom throughout the world. It has charged the Federal Bureau of Investigation and the Central Intelligence Agency with responsibility for intelligence concerning Communist seditious activities against our Government, and has denominated such activities as part of a world conspiracy. It accordingly proscribed sedition against all government in the nation — national, state and local. Congress declared that these steps were taken “to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guarantee to each State a republican form of government . . . .” Congress having thus treated seditious conduct as a matter of vital national concern, it is in no sense a local enforcement problem. As was said in the court below: “Sedition against the United States is not a local offense. It is a crime against the Nation. As such, it should be prosecuted and punished in the Federal courts where this defendant has in fact been prosecuted and convicted and is now under sentence. It is not only important but vital that such prosecutions should be exclusively within the control of the Federal Government . . . Third, enforcement of state sedition acts presents a serious danger of conflict with the administration of the federal program. Since 1939, in order to avoid a hampering of uniform enforcement of its program by sporadic local prosecutions, the Federal Government has urged local authorities not to intervene in such matters, but to turn over to the federal authorities immediately and unevaluated all information concerning subversive activities. The President made such a request on September 6, 1939, when he placed the Federal Bureau of Investigation in charge of investigation in this field: “The Attorney General has been requested by me to instruct the Federal Bureau of Investigation of the Department of Justice to take charge of investigative work in matters relating to espionage, sabotage, and violations of the neutrality regulations. “This task must be conducted in a comprehensive and effective manner on a national basis, and all information must be carefully sifted out and correlated in order to avoid confusion and irresponsibility. “To this end I request all police officers, sheriffs, and all other law enforcement officers in the United States promptly to turn over to the nearest representative of the Federal Bureau of Investigation any information obtained by them relating to espionage, counterespionage, sabotage, subversive activities and violations of the neutrality laws.” And in addressing the Federal-State Conference on Law Enforcement Problems of National Defense, held on August 5 and 6, 1940, only a few weeks after the passage of the Smith Act, the Director of the Federal Bureau of Investigation said: “The fact must not be overlooked that meeting the spy, the saboteur and the subverter is a problem that must be handled on a nation-wide basis. An isolated incident in the middle west may be of little significance, but when fitted into a national pattern of similar incidents, it may lead to an important revelation of subversive activity. It is for this reason that the President requested all of our citizens and law enforcing agencies to report directly to the Federal Bureau of Investigation any complaints or information dealing with espionage, sabotage or subversive activities. In such matters, time is of the essence. It is unfortunate that in a few States efforts have been made by individuals not fully acquainted with the far-flung ramifications of this problem to interject superstructures of agencies between local law enforcement and the FBI to sift what might be vital information, thus delaying its immediate reference to the FBI. This cannot be, if our internal security is to be best served. This is no time for red tape or amateur handling of such vital matters. There must be a direct and free flow of contact between the local law enforcement agencies and the FBI. The job of meeting the spy or saboteur is one for experienced men of law enforcement.” Moreover, the Pennsylvania Statute presents a peculiar danger of interference with the federal program. For, as the court below observed: “Unlike the Smith Act, which can be administered only by federal officers acting in their official capacities, indictment for sedition under the Pennsylvania statute can be initiated upon an information made by a private individual. The opportunity thus present for the indulgence of personal spite and hatred or for furthering some selfish advantage or ambition need only be mentioned to be appreciated. Defense of the Nation by law, no less than by arms, should be a public and not a private undertaking. It is important that punitive sanctions for sedition against the United States be such as have been promulgated by the central governmental authority and administered under the supervision and review of that authority’s judiciary. If that be done, sedition will be detected and punished, no less, wherever it may be found, and the right of the individual to speak freely and without fear, even in criticism of the government, will at the same time be protected.” In his brief, the Solicitor General states that forty-two States plus Alaska and Hawaii have statutes which in some form prohibit advocacy of the violent overthrow of established government. These statutes are entitled anti-sedition statutes, criminal anarchy laws, criminal syndicalist laws, etc. Although all of them are primarily directed against the overthrow of the United States Government, they are in no sense uniform. And our attention has not been called to any case where the prosecution has been successfully directed against an attempt to destroy state or local government. Some of these Acts are studiously drawn and purport to protect fundamental rights by appropriate definitions, standards of proof and orderly procedures in keeping with the avowed congressional purpose “to protect freedom from those who would destroy it, without infringing upon the freedom of all our people.” Others are vague and are almost wholly without such safeguards. Some even purport to punish mere membership in subversive organizations which the federal statutes do not punish where federal registration requirements have been fulfilled. When we were confronted with a like situation in the field of labor-management relations, Mr. Justice Jackson wrote: "A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.” Should the States be permitted to exercise a concurrent jurisdiction in this area, federal enforcement would encounter not only the difficulties mentioned by Mr. Justice Jackson, but the added conflict engendered by different criteria of substantive offenses. Since we find that Congress has occupied the field to the exclusion of parallel state legislation, that the dominant interest of the Federal Government precludes state intervention, and that administration of state Acts would conflict with the operation of the federal plan, we are convinced that the decision of the Supreme Court of Pennsylvania is unassailable. We are not unmindful of the risk of compounding punishments which would be created by finding concurrent state power. In our view of the case, we do not reach the question whether double or multiple punishment for the same overt acts directed against the United States has constitutional sanction. Without compelling indication to the contrary, we will not assume that Congress intended to permit the possibility of double punishment. Cf. Houston v. Moore, 5 Wheat. 1, 31, 75; Jerome v. United States, 318 U. S. 101, 105. The judgment of the Supreme Court of Pennsylvania is Affirmed. [For dissenting opinion of Mr. Justice Reed, joined by Mr. Justice Burton and Mr. Justice Minton, see post, p. 512.] APPENDIX. Pennsylvania Penal Code § 207. The word “sedition,” as used in this section, shall mean: Any writing, publication, printing, cut, cartoon, utterance, or conduct, either individually or in connection or combination with any other person, the intent of which is: (a) To make or cause to be made any outbreak or demonstration of violence against this State or against the United States. (b) To encourage any person to take any measures or engage in any conduct with a view of overthrowing or destroying or attempting to overthrow or destroy, by any force or show or threat of force, the Government of this State or of the United States. (c) To incite or encourage any person to commit any overt act with a view to bringing the Government of this State or of the United States into hatred or contempt. (d) To incite any person or persons to do or attempt to do personal injury or harm to any officer of this State or of the United States, or to damage or destroy any public property or the property of any public official because of his official position. The word “sedition” shall also include: (e) The actual damage to, or destruction of, any public property or the property of any public official, perpetrated because the owner or occupant is in official position. (f) Any writing, publication, printing, cut, cartoon, or utterance which advocates or teaches the duty, necessity, or propriety of engaging in crime, violence, or any form of terrorism, as a means of accomplishing political reform or change in government. (g) The sale, gift or distribution of any prints, publications, books, papers, documents, or written matter in any form, which advocates, furthers or teaches sedition as hereinbefore defined. (h) Organizing or helping to organize or becoming a member of any assembly, society, or group, where any of the policies or purposes thereof are seditious as hereinbefore defined. Sedition shall be a felony. Whoever is guilty of sedition shall, upon conviction thereof, be sentenced to pay a fine not exceeding ten thousand dollars ($10,000), or to undergo imprisonment not exceeding twenty (20) years, or both. 18 U. S. C. § 2385. Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof— Shall be fined not more than $10,000 or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. Pa. Penal Code § 207, 18 Purdon’s Pa. Stat. Ann. § 4207. The text of the statute is set out in an Appendix to this opinion, post, p. 510. The Supreme Court also did not have to reach the question of the constitutionality of subdivision (c) of the Pennsylvania Act, the basis of four counts of the twelve-count indictment, which punishes utterances “or conduct [intended to] incite or encourage any person to commit any overt act with a view to bringing the Government of this State or of the United States into hatred or contempt.” Cf. Winters v. New York, 333 U. S. 507. This provision is strangely reminiscent of the Sedition Act of 1798, 1 Stat. 596, which punished utterances made “with intent to defame the . . . government, or either house of the . . . Congress, or the . . . President, or to bring them . . . into contempt or disrepute; or to excite against them . . . the hatred of the good people of the United States . . . .” 377 Pa. 58,104 A. 2d 133. 377 Pa., at 69,104 A. 2d, at 139. 54 Stat. 670. 18 U. S. C. § 2385. The text of the statute is set out in an Appendix to this opinion, post, p. 511. (Another part of the Smith Act, punishing the advocacy of mutiny, is now 18 U. S. C. § 2387.) “No question of federal supersession of a state statute was in issue . . . when the Supreme Court upheld the- validity of the state statutes in Gitlow v. New York, 268 U. S. 652 (1925), and Whitney v. California, 274 U. S. 357 (1927)." 377 Pa., at 73-74, 104 A. 2d, at 141. Although the judgments of conviction in both Gitlow and Whitney were rendered in 1920, before repeal of the federal wartime sedition statute of 1918, 41 Stat. 1359, the question of supersession was not raised in either case and, of course, not considered in this Court’s opinions. “Nor is a State stripped of its means of self-defense by the suspension of its sedition statute through the entry of the Federal Government upon the field. There are many valid laws on Pennsylvania’s statute books adequate for coping effectively with actual or threatened internal civil disturbances. As to the nationwide threat to all citizens, imbedded in the type of conduct interdicted by a sedition act, we are — all of us — protected by the Smith Act and in a manner more efficient and more consistent with the service of our national welfare in all respects.” 377 Pa., at 70, 104 A. 2d, at 139. 254 U. S., at 331. The Court went on to observe: “. . . the State knew the conditions which existed and could have a solicitude for the public peace, and this record justifies it. Gilbert's remarks were made in a public meeting. They were resented by his auditors. There were protesting interruptions, also accusations and threats against him, disorder and intimations of violence. And such is not an uncommon experience. On such occasions feeling usually runs high and is impetuous; there is a prompting to violence and when violence is once yielded to, before it can be quelled, tragedies may be enacted. To preclude such result or a danger of it is a proper exercise of the power of the State.” Id., at 331-332. Petitioner makes the subsidiary argument that 18 U. S. C. § 3231 shows a congressional intention not to supersede state criminal statutes by any provision of Title 18. Section 3231 provides: “The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. “Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof.” The office of the second sentence is merely to limit the effect of the jurisdictional grant of the first sentence. There was no intention to resolve particular supersession questions by the Section. See Appendix, post, p. 511. See also the Voorhis Act passed in 1940, now codified as 18 U. S. C. § 2386, and the Foreign Agents Registration Act passed in 1938, 22 U. S. C. § 611 et seq. 50 U. S. C. § 781 et seq. Id.,§782 (3), (4). Id., §786. Id., §787. Id., § 794 (a). Id., §§ 784, 785, 789, 790. 50 U. S. C. (1955 Supp.) § 841. Id., §843. Id., § 782 (4A). It is worth observing that in Hines this Court held a Pennsylvania statute providing for alien registration was superseded by Title III of the same Act of which the commonly called Smith Act was Title I. Title II amended certain statutes dealing with the exclusion and deportation of aliens. The provisions of Title I involve a field of no less dominant federal interest than Titles II and III, in which Congress manifestly did not desire concurrent state action. 50 U. S. C. §781 (15). United States v. Mesarosh [Nelson], 116 F. Supp. 345, aff’d, 223 F. 2d 449, cert. granted, 350 U. S. 922. 377 Pa., at 76, 104 A. 2d, at 142. The Public Papers and Addresses of Franklin D. Roosevelt, 1939 Volume, pp. 478-479 (1941). Proceedings, p. 23. 377 Pa., at 74-75, 104 A. 2d, at 141. E. g., compare Fla. Stat., 1953, § 876.02: “Any person who— . . . (5) Becomes a member of, associated with or promotes the interest of any criminal anarchistic, communistic, nazi-istic or fascistic organization, . . . [s]hall be guilty of a felony . . . ,” with 50 U. S. C. § 783 (f): “Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute. The fact of the registration of any person under section 787 or section 788 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute.” Garner v. Teamsters Union, 346 U. S. 485, 490-491. But see Grant, The Lanza Rule of Successive Prosecutions, 32 Col. L. Rev. 1309. Question: What is the state of the court in which the case originated? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

sc_adminaction

117

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. JENNINGS v. MAHONEY, DIRECTOR, FINANCIAL RESPONSIBILITY DIVISION, DEPARTMENT OF PUBLIC SAFETY OF UTAH No. 71-5179. Decided November 9, 1971 Per Curiam. Appellant, a Utah motorist, was involved in a collision. Both drivers and a police officer who investigated the accident filed accident reports with Utah’s Department of Public Safety as required by the Utah Motor Vehicle Safety Responsibility Act. Without affording appellant a hearing on fault, and based solely on the contents of the accident reports, the Director of the Financial Responsibility Division determined that there was a reasonable possibility that appellant was at fault. Appellant did not carry liability insurance and was unable to post security to show financial responsibility. The Director therefore suspended her license. A Utah District Court sustained the Director, and the Supreme Court of Utah affirmed. 26 Utah 2d 128, 485 P. 2d 1404 (1971). The proceedings were authorized under Utah Code Ann. §§ 41-12-2 (b) and 41-6-35 (1953). Appellant attacks the statutory scheme as not affording the procedural due process required by our decision in Bell v. Burson, 402 U. S. 535 (1971). We there held that the Georgia version of a motor vehicle responsibility law was constitutionally deficient for failure to afford the uninsured motorist procedural due process. We held that, although a determination that there was a reasonable possibility that the motorist was at fault in the accident sufficed, “before the State may deprive [him] of his driver’s license and vehicle registration,” the State must provide “a forum for the determination of the question” and a “meaningful . . . ‘hearing appropriate to the nature of the case.’ ” Id., at 541, 542. Appellant submits that Utah’s statutory scheme falls short of these requirements in two respects: (1) by not requiring a stay of the Director’s order pending determination of judicial review, the scheme leaves open the possibility of suspension of licenses without prior hearing; (2) in confining judicial review to whether the Director’s determination is supported by the accident reports, and not affording the motorist an opportunity to offer evidence and cross-examine witnesses, the motorist is not afforded a “meaningful” hearing. There is plainly a substantial question whether the Utah statutory scheme on its face affords the procedural due process required by Bell v. Burson. This case does not, however, require that we address that question. The District Court in fact afforded this appellant such procedural due process. That court stayed the Director’s suspension order pending completion of judicial review, and conducted a hearing at which appellant was afforded the opportunity to present evidence and cross-examine witnesses. Both appellant and the Director testified at that hearing. The testimony of the investigating police officer would also have been heard except that appellant’s service of a subpoena upon him to appear was not timely under the applicable court rules. The judgment of the Utah Supreme Court is Affirmed. Question: What is the agency involved in the administrative action? 001. Army and Air Force Exchange Service 002. Atomic Energy Commission 003. Secretary or administrative unit or personnel of the U.S. Air Force 004. Department or Secretary of Agriculture 005. Alien Property Custodian 006. Secretary or administrative unit or personnel of the U.S. Army 007. Board of Immigration Appeals 008. Bureau of Indian Affairs 009. Bureau of Prisons 010. Bonneville Power Administration 011. Benefits Review Board 012. Civil Aeronautics Board 013. Bureau of the Census 014. Central Intelligence Agency 015. Commodity Futures Trading Commission 016. Department or Secretary of Commerce 017. Comptroller of Currency 018. Consumer Product Safety Commission 019. Civil Rights Commission 020. Civil Service Commission, U.S. 021. Customs Service or Commissioner or Collector of Customs 022. Defense Base Closure and REalignment Commission 023. Drug Enforcement Agency 024. Department or Secretary of Defense (and Department or Secretary of War) 025. Department or Secretary of Energy 026. Department or Secretary of the Interior 027. Department of Justice or Attorney General 028. Department or Secretary of State 029. Department or Secretary of Transportation 030. Department or Secretary of Education 031. U.S. Employees' Compensation Commission, or Commissioner 032. Equal Employment Opportunity Commission 033. Environmental Protection Agency or Administrator 034. Federal Aviation Agency or Administration 035. Federal Bureau of Investigation or Director 036. Federal Bureau of Prisons 037. Farm Credit Administration 038. Federal Communications Commission (including a predecessor, Federal Radio Commission) 039. Federal Credit Union Administration 040. Food and Drug Administration 041. Federal Deposit Insurance Corporation 042. Federal Energy Administration 043. Federal Election Commission 044. Federal Energy Regulatory Commission 045. Federal Housing Administration 046. Federal Home Loan Bank Board 047. Federal Labor Relations Authority 048. Federal Maritime Board 049. Federal Maritime Commission 050. Farmers Home Administration 051. Federal Parole Board 052. Federal Power Commission 053. Federal Railroad Administration 054. Federal Reserve Board of Governors 055. Federal Reserve System 056. Federal Savings and Loan Insurance Corporation 057. Federal Trade Commission 058. Federal Works Administration, or Administrator 059. General Accounting Office 060. Comptroller General 061. General Services Administration 062. Department or Secretary of Health, Education and Welfare 063. Department or Secretary of Health and Human Services 064. Department or Secretary of Housing and Urban Development 065. Administrative agency established under an interstate compact (except for the MTC) 066. Interstate Commerce Commission 067. Indian Claims Commission 068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 069. Internal Revenue Service, Collector, Commissioner, or District Director of 070. Information Security Oversight Office 071. Department or Secretary of Labor 072. Loyalty Review Board 073. Legal Services Corporation 074. Merit Systems Protection Board 075. Multistate Tax Commission 076. National Aeronautics and Space Administration 077. Secretary or administrative unit or personnel of the U.S. Navy 078. National Credit Union Administration 079. National Endowment for the Arts 080. National Enforcement Commission 081. National Highway Traffic Safety Administration 082. National Labor Relations Board, or regional office or officer 083. National Mediation Board 084. National Railroad Adjustment Board 085. Nuclear Regulatory Commission 086. National Security Agency 087. Office of Economic Opportunity 088. Office of Management and Budget 089. Office of Price Administration, or Price Administrator 090. Office of Personnel Management 091. Occupational Safety and Health Administration 092. Occupational Safety and Health Review Commission 093. Office of Workers' Compensation Programs 094. Patent Office, or Commissioner of, or Board of Appeals of 095. Pay Board (established under the Economic Stabilization Act of 1970) 096. Pension Benefit Guaranty Corporation 097. U.S. Public Health Service 098. Postal Rate Commission 099. Provider Reimbursement Review Board 100. Renegotiation Board 101. Railroad Adjustment Board 102. Railroad Retirement Board 103. Subversive Activities Control Board 104. Small Business Administration 105. Securities and Exchange Commission 106. Social Security Administration or Commissioner 107. Selective Service System 108. Department or Secretary of the Treasury 109. Tennessee Valley Authority 110. United States Forest Service 111. United States Parole Commission 112. Postal Service and Post Office, or Postmaster General, or Postmaster 113. United States Sentencing Commission 114. Veterans' Administration or Board of Veterans' Appeals 115. War Production Board 116. Wage Stabilization Board 117. State Agency 118. Unidentifiable 119. Office of Thrift Supervision 120. Department of Homeland Security 121. Board of General Appraisers 122. Board of Tax Appeals 123. General Land Office or Commissioners 124. NO Admin Action 125. Processing Tax Board of Review Answer:

sc_issuearea

D

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. CITY OF REVERE v. MASSACHUSETTS GENERAL HOSPITAL No. 82-63. Argued February 28, 1983 — Decided June 27, 1983 Ira II. Zaleznik argued the cause for petitioner. With him on the briefs was Valerie L. Pawson. Michael Broad argued the cause for respondent. With him on the brief was Ernest M. Haddad Briefs of amici curiae urging reversal were filed by Paul R. Devin for the City of Fitchburg et al; and by Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calió for the Washington Legal Foundation. William T. McGrail filed a brief for the Massachusetts Hospital Association, Inc., as amicus curiae urging affirmance. Charles S. Sims, Burt Neubome, and John Reinstein filed a brief for the American Civil Liberties Union et al. as amid curiae. Justice Blackmun delivered the opinion of the Court. The issue in this case is whether a municipality’s constitutional duty to obtain necessary medical care for a person injured by the municipality’s police in the performance of their duties includes a corresponding duty to compensate the provider of that medical care. 1 — I On September 20, 1978, members of the police force of petitioner city of Revere, Mass., responded to a report of a breaking and entering in progress. At the scene they sought to detain a man named Patrick M. Kivlin, who attempted to flee. When repeated commands to stop and a warning shot failed to halt Kivlin’s flight, an officer fired at Kivlin and wounded him. The officers summoned a private ambulance. It took Kivlin, accompanied by one officer, to the emergency room of respondent Massachusetts General Hospital (MGH) in Boston. Kivlin was hospitalized at MGH from September 20 until September 29. Upon his release, Revere police served him with an arrest warrant that had been issued on September 26. Kivlin was arraigned and released on his own recognizance. On October 18, MGH sent the Chief of Police of Revere a bill for $7,948.50 for its services to Kivlin. The Chief responded immediately by a letter denying responsibility for the bill. On October 27, Kivlin returned to MGH for further treatment. He was released on November 10; the bill for services rendered during this second stay was $5,360.41. In January 1979, MGH sued Revere in state court to recover the full cost of its hospital services rendered to Kivlin. The Superior Court for the County of Suffolk dismissed the complaint. MGH appealed, and the Supreme Judicial Court of Massachusetts transferred the case to its own docket. The Supreme Judicial Court reversed in part, holding that “the constitutional prohibition against cruel and unusual punishment, embodied in the Eighth Amendment to the United States Constitution [as applied to the States through the Fourteenth Amendment], requires that Revere be liable to the hospital for the medical services rendered to Kivlin during his first stay at the hospital.” 385 Mass. 772, 774, 434 N. E. 2d 185, 186 (1982). The court apparently believed that such a rule was needed to ensure that persons in police custody receive necessary medical attention. In view of this rather novel Eighth Amendment approach and the importance of delineating governmental responsibility in a situation of this kind, we granted certiorari. 459 U. S. 820 (1982). II We first address two preliminary issues. A MGH suggests that we lack jurisdiction to decide this case because the state-court decision rests on an adequate and independent state ground. The Supreme Judicial Court’s opinion, however, stated unequivocally that state contract law provided no basis for ordering Revere to pay MGH for the hospital services rendered to Kivlin, 385 Mass., at 774, 434 N. E. 2d, at 186, and that MGH had not invoked the Commonwealth’s Constitution in support of its claim, id., at 776, n. 6, 434 N. E. 2d, at 188, n. 6. In a section of its opinion entitled “Eighth Amendment,” the court premised Revere’s liability squarely on the Federal Constitution. Because the court’s decision was based on an interpretation of federal law, we have jurisdiction notwithstanding the fact that the same decision, had it rested on state law, would be unreviewable here. See Oregon v. Hass, 420 U. S. 714, 719, and n. 4 (1975). B The parties submit various arguments concerning MGH’s “standing” to raise its constitutional claim in this Court. MGH, however, clearly has standing in the Article III sense: it performed services for which it has not been paid, and through this action it seeks to redress its economic loss directly. Moreover, prudential reasons for refusing to permit a litigant to assert the constitutional rights of a third party are much weaker here than they were in Craig v. Boren, 429 U. S. 190, 193-194 (1976), where the Court permitted a seller of beer to challenge a statute prohibiting the sale of beer to males, but not to females, between the ages of 18 and 21. In this case, as in Craig, the plaintiff’s assertion of jus tertii was not contested in the lower court, see 385 Mass., at 776-777, n. 7, 434 N. E. 2d, at 188, n. 7, and that court entertained the constitutional claim on its merits. Unlike Craig, this case arose in state court and the plaintiff, MGH, prevailed. The Supreme Judicial Court, of course, is not bound by the prudential limitations on jus tertii that apply to federal courts. The consequence of holding that MGH may not assert the rights of a third party (Kivlin) in this Court, therefore, would be to dismiss the writ of certiorari, leaving intact the state court’s judgment in favor of MGH, the purportedly improper representative of the third party’s constitutional rights. See Doremus v. Board of Education, 342 U. S. 429, 434-435 (1952). In these circumstances, invoking prudential limitations on MGH’s assertion of jus tertii would “serve no functional purpose.” Craig v. Boren, 429 U. S., at 194. rH HH I — I 3> r The Eighth Amendment’s proscription of cruel and unusual punishments is violated by “deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429 U. S. 97, 104 (1976). As MGH acknowledges, Brief for Respondent 3, on the facts of this case the relevant constitutional provision is not the Eighth Amendment but is, instead, the Due Process Clause of the Fourteenth Amendment. “Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. . . . [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.” Ingraham v. Wright, 430 U. S. 651, 671-672, n. 40 (1977); see Bell v. Wolfish, 441 U. S. 520, 535, n. 16 (1979). Because there had been no formal adjudication of guilt against Kivlin at the time he required medical care, the Eighth Amendment has no application. B The Due Process Clause, however, does require the responsible government or governmental agency to provide medical care to persons, such as Kivlin, who have been injured while being apprehended by the police. In fact, the due process rights of a person in Kivlin’s situation are at least as great as the Eighth Amendment protections available to a convicted prisoner. See Bell v. Wolfish, 441 U. S., at 535, n. 16, 545. We need not define, in this case, Revere’s due process obligation to pretrial detainees or to other persons in its care who require medical attention. See Youngberg v. Romeo, 457 U. S. 307, 312, n. 11 (1982); Norris v. Frame, 585 F. 2d 1183, 1187 (CA3 1978); Loe v. Armistead, 582 F. 2d 1291 (CA4 1978), cert. denied sub nom. Moffitt v. Loe, 446 U. S. 928 (1980). Whatever the standard may be, Revere fulfilled its constitutional obligation by seeing that Kivlin was taken promptly to a hospital that provided the treatment necessary for his injury. And as long as the governmental entity ensures that the medical care needed is in fact provided, the Constitution does not dictate how the cost of that care should be allocated as between the entity and the provider of the care. That is a matter of state law. If, of course, the governmental entity can obtain the medical care needed for a detainee only by paying for it, then it must pay. There are, however, other means by which the entity could meet its obligation. Many hospitals are subject to federal or state laws that require them to provide care to indigents. Hospitals receiving federal grant money under the Hill-Burton Act, for example, must supply a reasonable amount of free care to indigents. See 42 U. S. C. § 291c(e). In the Commonwealth of Massachusetts now, any hospital with an emergency facility must provide emergency services regardless of the patient’s ability to pay. Mass. Gen. Laws Ann., ch. Ill, §70E(7c) (West Supp. 1983-1984), added by 1979 Mass. Acts, ch. 214, and amended by 1979 Mass. Acts, ch. 720. Refusal to provide treatment would subject the hospital to malpractice liability. §70E. The governmental entity also may be able to satisfy its duty by operating its own hospital, or, possibly, by imposing on the willingness of hospitals and physicians to treat the sick regardless of the individual patient’s ability to pay. In short, the injured detainee’s constitutional right is to receive the needed medical treatment; how the city of Revere obtains such treatment is not a federal constitutional question. It is not even certain that mandating government reimbursement of hospitals that treat injured persons in police custody would have the effect of increasing the availability or quality of care. Although such a requirement would serve to eliminate any reluctance on the part of private hospitals to provide treatment, it also might encourage police to take injured detainees to public hospitals, rather than private ones, regardless of their relative distances or ability to furnish particular services. IV For these reasons, the judgment of the Supreme Judicial Court is reversed. It is so ordered. The city of Revere apparently has no municipal hospital or even a jail of its own. See App. 14. Nothing in the record indicates that MGH ever tried to obtain payment from Kivlin. Because it ruled that Kivlin was no longer in custody when he returned to MGH on October 27, the court concluded that Revere was not liable to MGH for the services rendered during the second hospitalization. 385 Mass., at 779-780, 434 N. E. 2d, at 189-190. That issue is not before us. The court stated: “The hospital argues that the prohibition against deliberate indifference to the medical needs of prisoners contained implicitly in the Eighth Amendment, Estelle v. Gamble, 429 U. S. 97 (1976), compels a government agency or division responsible for supplying those medical needs to pay for them. We agree.” Id., at 776, 434 N. E. 2d, at 187-188 (footnotes omitted). Later, the court observed that inadequate funding, and the fact that payment would violate state law, were irrelevant: the Eighth Amendment required such payment, and prevailed over contrary state law. Id., at 779, 434 N. E. 2d, at 189. In addition, we could not resolve the question whether MGH has third-party standing without addressing the constitutional issue. To a significant degree, the case “is in the class of those where standing and the merits are inextricably intertwined.” Holtzman v. Schlesinger, 414 U. S. 1316, 1319 (1973) (Douglas, J., in chambers). Both the standing question and the merits depend in part on whether injured suspects will be deprived of their constitutional right to necessary medical care unless the governmental entity is required to pay hospitals for their services. The due process issue, raised by respondent as an alternative ground in support of the judgment, has been fully briefed and is properly before us. See Dandridge v. Williams, 397 U. S. 471, 475-476, n. 6 (1970). There is no reason to believe, moreover, that the Supreme Judicial Court’s analysis of the rights of pretrial detainees would be any different under the Due Process Clause. No factual issues are in dispute, and there would be little point in remanding the case merely to allow the Supreme Judicial Court to reconsider its holding under the relevant constitutional provision. Nothing we say here affects any right a hospital or governmental entity may have to recover from a detainee the cost of the medical services provided to him. We do not deal here, of course, with possible remedies for a pattern of constitutional violations. 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_casetyp1_2-3-2

F

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "civil rights - voting rights, race discrimination, sex discrimination". Sheldon LOVELACE, Appellant, v. ACME MARKETS, INC. No. 86-1690. United States Court of Appeals, Third Circuit. Argued May 14, 1987. Decided May 29, 1987. Rehearing and Rehearing En Banc Denied July 13,1987. Harvey L. Anderson (argued), Fine and Staud, Philadelphia, Pa., for appellant. Herbert G. Keene, Jr. (argued), Stephen C. Baker, Stradley, Ronon, Stevens & Young, Philadelphia, Pa., for appellee. Before GIBBONS, Chief Judge, MANSMANN, Circuit Judge, and McCUNE, District Judge. Hon. Barron P. McCune, United States District Judge for the Western District of Pennsylvania, sitting by designation. OPINION OF THE COURT GIBBONS, Chief Judge: This appeal presents a question concerning the interrelationship between Fed.R. Civ.P. 4(c)(2)(B)(iii) and the 120-day period permitted by Fed.R.Civ.P. 4(j) to effect service of process. We must determine whether the district court properly concluded that the plaintiff’s reliance upon the representation of a specially-appointed process server, that service had been made on time, failed to establish good cause to excuse the plaintiff’s failure to make service of process upon the defendant until 55 days after the 120-day time limit required by Fed.R.Civ.P. 4(j) had expired. We will affirm. I. In October, 1976, the plaintiff, Sheldon Lovelace, was hired as a cashier by the defendant, Acme Markets, Inc. (Acme). Lovelace, who is black, contends that throughout the course of his employment he was discriminated against on the basis of his race. He claims that on May 12, 1984 this discriminatory treatment culminated in his discharge. On October 29, 1984, Lovelace filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in which he alleged that Acme had discriminated against him on the basis of race. The EEOC issued a Notice of Right to Sue on August 1, 1985. On October 29, 1985 Lovelace filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging a violation of 42 U.S.C. § 2000e-2 (1982) and various pendent state claims. Lovelace’s counsel selected the Fed.R. Civ.P. 4(c)(2)(B)(iii) method for service of process and filed a Motion for Special Appointment to Serve Process designating Michael Damiano for the purpose of serving the summons and complaint upon Acme. The district court granted this motion on October 29, 1985 and Damiano was provided with all the necessary papers and directions for effective service of process upon Acme. On December 2, 1985, Lovelace’s counsel received a bill from Damiano that represented that process had been served upon Acme. On February 26, 1986, coincidentally the 120th day following the institution of the action, and as such the last day under Fed.R.Civ.P. 4(j) to effect timely service of process upon Acme, Lovelace’s counsel sent a letter to Damiano requesting adequate proof of such service. Lovelace’s counsel was told that the necessary proof would be forthcoming. On April 1, 1986, Lovelace’s counsel received a letter from the clerk for the district to which the case was assigned which stated, first, that the court had not yet received the affidavit of proof of service upon Acme required by Fed.R.Civ.P. 4(g) and, second, that unless Acme were served within 15 days from the date of the letter, the court would commence proceedings to dismiss the action. Service of process was finally made upon Acme on April 23, 1986, eight days after the deadline set forth in the April 1 letter and 55 days after the deadline established by Fed.R.Civ.P. 4(j). II. Acme brought a motion to dismiss for failure to serve process within the 120-day period provided by Fed.R.Civ.P. 4(j) without good cause. Lovelace contended that the district court had good cause to excuse his failure to serve process within the 120-day period. To support that contention Lovelace alleged that he was misled by the representation of Damiano that process had been served on time when in fact it had not been. The district court rejected Lovelace’s contentions and granted Acme’s motion to dismiss without prejudice. The district court concluded that Lovelace did not demonstrate good cause to permit an extension of the 120-day limit. The court determined that Lovelace should have taken additional steps to ensure timely service of process since, under Fed.R.Civ.P. 4(a), the burden to ensure proper and timely service rested upon Lovelace and his attorney. Lovelace subsequently brought a motion seeking to have the district court reconsider its determination. The dismissal of that motion led to this appeal. III. The district court’s determination that good cause had not been shown to justify an extension of the 120-day limit established by Fed.R.Civ.P. 4(j) will be affirmed unless it is clear that the district court abused its discretion. See Fournier v. Textron, Inc., 776 F.2d 532, 534 (5th Cir.1985); Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir. 1985); Edwards v. Edwards, 754 F.2d 298, 299 (8th Cir.1985). The 1983 amendments to Fed.R. Civ.P. 4 “were intended primarily to relieve United States marshals of the burden of serving summonses and complaints in private civil actions.” 128 Cong. Rec. H9848, 9849 (daily ed. Dec. 15, 1982), reprinted in 1982 U.S.Code Cong. & Admin.News 4434, 4437. Thus, the general service of process rule, Fed.R.Civ.P. 4(c)(2)(A), requires that the “summons and complaint shall ... be served by any person who is not a party and is not less than 18 years of age.” Fed.R.Civ.P. 4(c)(2)(A). Service of the summons and complaint by United States marshals, their deputies, and specially-appointed process servers provided for in Fed.R. Civ.P. 4(c)(2)(B) is a limited exception to that general rule. While we do not believe that a specially-appointed process server was necessary in order that service be properly effected in this action, such a process server was appointed by the court and it was incumbent upon the plaintiff and his attorney to ensure timely service of process. See Fed.R.Civ.P. 4(a). The 120-day limit to effect service of process, established by Fed.R.Civ.P. 4(j) is to be strictly applied, and if service of the summons and the complaint is not made in time and the plaintiff fails to demonstrate good cause for the delay “the court must dismiss the action as to the unserved defendant.” 128 Cong.Rec. H9848, 9850 (daily ed. Dec. 15, 1982) (emphasis added), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4441. It was in accordance with the strict interpretation of the 120-day rule intended by its drafters that the district court concluded that good cause had not been shown to excuse the plaintiff’s delay. Legislative history provides only one example where an extension for good cause would be permissible — specifically when the defendant intentionally evades service of process. 128 Cong.Rec. H9848, 9852 n. 25 (daily ed. Dec. 15, 1982), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4446 n. 25. “Half-hearted” efforts by counsel to effect service of process prior to the deadline do not necessarily excuse a delay, even when dismissal results in the plaintiff's case being time-barred due to the fact that the statute of limitations on the plaintiff’s cause of action has run. See United States For Use of DeLoss v. Kenner General Contractors, Inc., 764 F.2d 707, 710 (9th Cir.1985). Furthermore, when a delay is the result of inadvertance of counsel, it need not be excused. See Wei, 763 F.2d at 372. Similarly, when there is a lack of diligent effort to ensure timely service of process, an extension of the time for service may be refused. See Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476, 477-78 (N.D.Ill.1984). The strictly-applied time limit of Fed.R.Civ.P. 4(j) and the requirement of Fed.R.Civ.P. 6(a) that the plaintiff and his counsel ensure timely service of process combine to require that the plaintiff and his counsel be denied the luxury of sitting back and waiting until the 120-day period expires before ensuring that process has been served upon the defendant. When the 120-day period reaches its expiration and adequate proof of service of process has not been received, the plaintiff must take additional steps to ensure timely service of process, or, in the alternative, move under Fed.R.Civ.P. 6(b) for an enlargement of the time to effect service of process. See 128 Cong.Rec. H9848, 9851 (daily ed. Dec. 15,1982), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4442; 2 J. Moore, Moore’s Federal Practice 114.46 (2d ed. 1986); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1138 (2d ed. Supp.1985). The misplaced reliance upon the word of the specially-appointed process server produced in the plaintiff and his counsel a belief that process had been served upon the defendant. Secure in that belief, plaintiff and his counsel inadvertently permitted the 120-day period to lapse despite the fact that they were not in possession of adequate proof of service of process upon the defendant. It cannot be said that the acts of plaintiff and his counsel as the 120-day period reached its expiration constituted diligent efforts to ensure timely service of process. Alternative means to effect timely service of process were available, as was Fed.R.Civ.P. 6(b), if additional time to serve process was required. This lack of diligence and inadvertence to the running of the 120-day period, even when dismissal under Fed.R.Civ.P. 4(j) could spell the end of Lovelace’s cause of action, cannot be excused if the legislative intent for a strict interpretation of Fed.R.Civ.P. 4(j) is to be followed and the requirement of Fed. R.Civ.P. 4(a) is not to be rendered illusory. See Braxton v. United States, 817 F.2d 238 (3d Cir.1987). IV. We recognize that Lovelace may well be harmed by this determination, but we cannot conclude that the district court abused its discretion by refusing to excuse the 55-day delay under the circumstances presented. The order appealed from will therefore be affirmed. . We recognize that should we affirm the determination of the district court, Lovelace may effectively be denied his day in court. His EEOC cause of action, to which his state claims are pendent, is subject to a 90-day time limit. Since the EEOC granted Lovelace a Notice of Right to Sue on August 1, 1985, it is arguable that a new suit upon that claim may be time-barred. . Acme’s contention that the district court’s denial to reconsider its dismissal of Lovelace’s complaint, without prejudice, is not an appeal-able order, is unfounded. A motion to reconsider is a motion to alter or amend under Fed.R.Civ.P. 59(e). Thus, the order of the district court denying the motion to reconsider is clearly subject to review on appeal. See Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 883 (9th Cir. 1983). . Fed.R.Civ.P. 4(c)(3) provides that courts are free to make special appointments to serve process. However, such an appointment can only be made, for the purposes of Fed.R.Civ.P. 4(c) (2)(B)(iii), when such appointment "is required ... in order that service be properly effected in that particular action.” Fed.R.Civ.P. 4(c) (2) (B) (iii). A situation in which such an appointment is required is where violence is anticipated. 128 Cong.Rec. H9848, 9851 n. 19 (daily ed. Dec. 15, 1982), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4443-44 n. 19. The limited purpose to which the Fed.R.Civ.P. 4(c)(2)(B)(iii) method was intended to be used is further evidenced by the fact that there is no provision in the rule for an alternative method to serve process if the specially-appointed process server fails. The use of an alternative method is provided for should service by mail be unsuccessful. See Fed.R.Civ.P. 4(c)(2)(C)(ii). The absence of a similar proviso in Fed.R.Civ.P. 4(c)(2)(B)(iii) is, we believe, justified by the fact that Fed.R.Civ.P. 4(c)(2)(B)(iii) is intended to be an exception to the general rule for service of process and it is to be used only where it is required to effect service of process — i.e., where the other methods provided for in Fed.R.Civ.P. 4 would prove insufficient and inadequate. Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"? A. voting rights - reapportionment & districting B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot C. voting rights - other (includes race discrimination in voting) D. desegregation of schools E. other desegregation F. employment race discrimination - alleged by minority G. other race discrimination - alleged by minority H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority) I. other reverse race discrimination claims J. employment: sex discrimination - alleged by woman K. pregnancy discrimination L. other sex discrimination - alleged by woman M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women) N. other sex discrimination - alleged by man O. suits raising 42 USC 1983 claims based on race or sex discrimination Answer:

sc_caseorigin

057

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. DESPER, ADMINISTRATRIX, v. STARVED ROCK FERRY CO. No. 231. Argued December 6, 1951. Decided January 2, 1952. Joseph D. Ryan argued the cause and filed a brief for petitioner. Charles T. Shanner argued the cause for respondent. With him on the brief was Charles Wolff. Mr. Justice Jackson delivered .the opinion of the Court. Petitioner brought suit under the Jones Act to recover damages for the death of her intestate son from injuries sustained during the. course of his employment by respondent. The Court of Appeals for the Seventh Circuit reversed the judgment of the District Court entered on a jury’s verdict in petitioner’s favor. This Court granted certiorari. Respondent operates a small fleet of sightseeing motorboats on the Illinois River in the vicinity of Starved Rock. The boats are navigated under Coast Guard regulations by personnel licensed by the Department of Commerce. Operations are necessarily restricted to summer months. Each fall the boats are beached and put up on blocks for the winter. In the spring each is overhauled before being launched for the season. The decedent, Thomas J. Desper, Jr., was first employed by respondent in .April, 1947, to help prepare the boats for their seasonal launching. In June of the same year he acquired the necessary operator’s license from the Department of Commerce and, for the remainder of that season, he' was employed as a boat operator. When the season, closed, he helped take the boats out of the water and block them up for the winter. His employment terminated December 19, 1947. Desper was re-employed March 15, 1948. There was testimony that he was then engaged for the season and was .to resume his operator’s duties when the boats were back in the water. For the time being, however, he was put to cleaning, painting, and waterproofing the-boats, preparing them for navigation. On the date of the accident, April 26th, the boats were still blocked up on land. Several men, Desper among them, were on board a moored barge, maintained by respondent as a machine shop, warehouse, waiting room and ticket office, engaged in painting life preservers for use on the boats. One man was working on a fire extinguisher. It exploded, killing him and Desper. The Jones Act confers a cause of action on “any seaman.” In opposition to petitioner’s suit under the Act, respondent contended that Desper, at the time of his death, was not a “seaman” within the meaning of the Act. Whether he was such a “seaman” is the critical issue in the case which reached this Court. Petitioner contends that the 1939 Amendment to the Federal Employers’ Liability Act extended the scope of the word “seaman,” as used in the Jones Act, to include those whose work “substantially affects” navigation. The Amendment provides that: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall ... be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” Petitioner reads with that Amendment the provision of the Jones Act that statutes “modifying or extending the common-law right or remedy in cases of personal injury to railway employees” shall apply in a seaman’s action. We agree with the court below that the Amendment has no effect on the “right or remedy” of railway employees but merely redefines for the purposes of the Federal Employers’ Liability Act the scope of the word “employee” to include certain persons not theretofore covered, because they were not directly engaged in. interstate or foreign commerce. It does not extend the meaning of “seaman” in the Jones Act to. include one who was not a “seaman” before. Seamen were given the rights of railway employees by the Jones Act, but the-definition of “seaman” was never made dependent on the meaning of “employee” as used in legislation applicable to railroads. The next question is whether, without reference to this 1939 Amendment, decedent was a “seaman” at the time of his death. The many cases turning upon the question whether an individual was a “seaman” demonstrate that the matter depends largely on the facts of the particular case and the activity in which he was engaged at the time of injury. The facts in this case are unique. The work in which the decedent was engaged at the time of his death quite clearly was not that usually done by a “seaman.” The boats were not afloat and had neither captain nor crew. They were undergoing seasonal repairs, the work being of the kind that, in the case of larger vessels, would customarily be done by exclusively shore-based personnel. For a number of reasons the ships might not be launched, or he might not operate one. To be sure, he was a probable navigator in the near future, but the' law does not cover probable or expectant seamen but seamen in being. It is our conclusion that while engaged in such seasonal repair work Desper was not a “seaman” within the purview of the Jones Act. The distinct nature of the work is emphasized by the fact that there was no vessel engaged in navigation at the time of the decedent’s death. All had been “laid up for .the winter.” Hawn v. American S. S. Co., 107 F. 2d 999, 1000 (C. A. 2d Cir.); cf. Seneca Washed Gravel Corp. v. McManigal, 65 F. 2d 779, 780 (C. A. 2d Cir.). In the words of the court in Antus v. Interocean S. S. Co., 108 F. 2d 185, 187 (C. A. 6th Cir.), where it was held that oné who had been a member of a ship’s crew and was injured while preparing it for winter quarters could not maintain a Jones Act suit for his injuries: “The fact that he had been, or expected in the future to be, a seaman does not render maritime work which was not maritime in its nature.” Both petitioner and respondent filed applications with the Industrial Commission of Illinois seeking the benefits provided by the Workmen’s Compensation Act of that State. The Commission rendered an award in petitioner’s favor, but she states that she has taken an appeal to the appropriate state court on the ground that the Commission was “without jurisdiction.” She does not specify why she thinks so, but we surmise that her reason is to avoid conflict with her contention that exclusive jurisdiction in the premises is vested in the federal courts by the Jones. Act. We do not understand her to have taken the position that if the Jones Act is not applicable the Longshoremen’s and Harbor Workers’ Compensation Act is, and that the state Commission, therefore, is without jurisdiction in any event. The question of the applicability of the Longshoremen’s Act does not appear from the record to have been raised by either party in the courts below. Neither has raised it in this Court. We, therefore, find it inappropriate to resolve the conflict, if any, between the Illinois Compensation Act and the Longshoremen’s and Harbor Workers’ Compensation Act. Cf. Southern Pacific Co. v. Jensen, 244 U. S. 205; Parker v. Motor Boat Sales, 314 U. S. 244; Davis v. Department of Labor, 317 U. S. 249. We think the court below properly disposed of the ques-. tion presented. Accordingly, its judgment is Affirmed. Mr. Justice Rlack and Mr. Justice Douglas dissent, — J wnTild affirm the judgment óf thé District Court. 38 Stat. 1185, 41 Stat. 1007, 46 U. S. C. § 688. 188 F. 2d 177. 342 U. S. 847. 38 Stat. 1185, 41 Stat. 1007, 46 U. S. C. § 688, entitled “Recovery for injury to or death of seaman” provides that: “Any seaman who shall suffer personal injury m the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply.; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulat- ■ ing the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in ■ which his principal office is located.” 53 Stat. 1404, 45 U. S. C. § 51. 44 Stat. 1424 as amended, 33 U. S. C. § 901 et seq. The Court of Appeals, however, in phrasing the question presented in the case, advanced the proposition that if petitioner' was not entitled to recovery under the Jones Act she “is restricted to the remedy afforded by the Longshoremen’s and Harbor Workers’ Compensation Act ,•. .. .” We take that as meaning'that petitioner’s only federal remedy; if she cannot prevail under the. Jones Act, is in the Longshoremen’s Act.. It was not intended to decide whether she could uroceed under the state compensation act. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:

songer_sentence

E

What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". Samuel KATKIN and Doris Katkin, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. No. 77-1483. United States Court of Appeals, Sixth Circuit. Argued Dec. 2, 1977. Decided Jan. 26, 1978. John S. Nolan, Miller & Chevalier, Washington, D. C., for appellants. M. Carr Ferguson, Asst. Atty. Gen., Tax Div., U. S. Dept, of Justice, Washington, D. C., Gilbert E. Andrews, Grant W. Wiprud, F. Arnold Heller, Stuart E. Seigel, Chief Counsel, Internal Revenue Service, Washington, D. C., for appellee. Before CELEBREZZE, LIVELY and MERRITT, Circuit Judges. LIVELY, Circuit Judge. The question in this case is whether the receipt of stock in 1971 by shareholders of a corporation which was a party to a 1968 merger that qualified as a tax-free reorganization constituted a “deferred payment” within the meaning of section 483 of the Internal Revenue Code, 26 U.S.C. § 483. Section 483 provides in general for imputation of interest according to a statutory formula to any payment under a contract for the sale or exchange of property which constitutes part or all of the sales price and which is deferred for more than one year after the sale or exchange, where no interest or inadequate interest is provided for. The taxpayers exchanged their stock in two corporations, Detroit Bolt and Nut Co. (Detroit) and Quinn Manufacturing Co. (Quinn), for the stock of Whittaker Corporation (Whittaker) pursuant to an acquisition agreement and plan of reorganization dated August 19,1968. Because the parties were unable to agree on the exact value of the Detroit and Whittaker stock, the taxpayers also received, as part of the exchange, a nonassignable right to receive additional shares of Whittaker stock. The agreement provided that additional Whit-taker stock (up to a certain maximum) would be issued if the value of the Whittaker shares received at closing had not increased at least 20 percent by the third anniversary of the closing date. It was possible that no additional stock would be issued, since entitlement to it was contingent on the market performance of Whit-taker stock. Whittaker set up a reserved stock account, and the maximum number of shares that could be issued was set aside for possible future delivery. By the third anniversary of the closing date, the value of the Whittaker stock had decreased substantially. Accordingly, in 1971, all of the Whit-taker stock in the reserved stock account was issued to the taxpayers. The agreement did not provide for the payment of interest by Whittaker on that portion of the agreed exchange value which was represented by the shares of stock issued in 1971. The Commissioner assessed an income tax deficiency for 1971 on the theory that the issuance of shares of Whittaker stock to the taxpayers in 1971 constituted a deferred payment in connection with the 1968 exchange of stock, applying Example (7), Treas. Reg. § 1.483-1(b)(6). Upon petition by the taxpayers for a determination of no deficiency the Tax Court held “that the contingent payments of Whittaker stock received by petitioners in 1971 are subject to the imputed interest provision of section 483.” On appeal the taxpayers contend that the Tax Court did not seriously consider their argument that the transaction with Whit-taker did not involve a deferred payment. They argue that they received a definite equitable interest in Whittaker in 1968 in exchange for their Detroit and Quinn stock and that the issuance of Whittaker stock to them in 1971 was merely a paper transaction which translated the previously unknown value into a certain number of shares. Hence, they claim, there was no payment in 1971. The government, on the other hand, maintains that the right to receive additional shares was in fact an evidence of indebtedness payable in stock three years after the merger was consummated, and that the issuance of Whittaker stock at that time was a payment. The taxpayers have presented three closely related arguments which are based on the assumption that Congress has exempted the participants in corporate reorganizations from any and all tax consequences if the requirements for non-recognition of gain and loss are met. The government responds that the sweeping language of section 483 indicates that it applies to tax-free reorganizations as well as to other transactions where there is a deferred payment. It refers to the opening language of section 483, “For purposes of this title, in the case of any contract for the sale or exchange of property there shall be treated as interest . . . ” and the provision in subsection (c)(1), “Except as provided in Subsection (f), this section shall apply to any payment on account of the sale or exchange of property which constitutes part or all of the sales price . . . .” Subsection (f) contains five exceptions to the application of section 483 and none of these exceptions relates to tax-free reorganizations. The government points out that the Eighth Circuit found the language of section 483 to be “comprehensive and unambiguous” in applying it to installment sales in Robinson v. Commissioner of Internal Revenue, 439 F.2d 767, 768 (1971). The basic contention of the taxpayers is that the tax treatment of qualified reorganizations should not be affected by the fact that part of the equity interest received by shareholders of an acquired corporation is represented for a period of time by something other than certificates for a definite amount of stock. They point to the “continuing interest” theory which is often cited as justification for the special tax treatment accorded corporate reorganizations. See, e. g., Mertens, Law of Federal Income Taxation, Vol. 3, § 20.55, where the author states: The justification for the exemption from taxation of gains realized in corporate reorganizations is that the parties making the exchanges have simply changed the form of their corporate holdings and that what was formerly a corporate business carried on by a particular corporation, or corporations, in a particular corporate form, or forms, is to be now carried on and continued by other and perhaps new corporations having new corporate form. Since in law their interest in Whittaker is a continuation of their interests in Detroit and Quinn, it is inconsistent with the overall tax treatment of qualified reorganizations to base tax consequences on the time at which indicia of ownership are delivered, they contend. In support of this argument the taxpayers point out that the holding period of stock received in exchange dates from the acquisition of the stock given in exchange rather than from the date of the exchange. 26 U.S.C. § 1223. The fact that a shareholder who receives stock in an acquiring corporation is considered to have a “continuing interest” does not preclude the treatment of any issuance of stock to him subsequent to the initial exchange as a deferred payment. The continuing interest theory is irrelevant to the problem of unstated interest dealt with in section 483. Though the value which the taxpayers were entitled to receive under the acquisition agreement and plan of reorganization was fixed at the time of the initial transfer, the stock which was actually transferred at that time represented only a portion of that value. The taxpayers had the immediate right to vote the stock which was transferred to them at the time of the consummation of the merger and to receive dividends thereon. No such rights attached to the right to receive additional shares. The stock which was set aside in reserve by the acquiring corporation for three years was not property of the taxpayers and would not become their property unless the conditions of the agreement were met. Until it was determined that these conditions had been met and the stock was issued to the taxpayers they had not received the full value for which they bargained in the acquisition agreement. Thus we conclude that the final payment in the agreement for exchange of stock was not made until the stock was issued to the taxpayers in 1971. Webster’s Third New International Dictionary, Unabridged (1971 edition), defines “payment” as the discharge of a debt or an obligation. Black’s Law Dictionary (Rev.Fourth Ed. 1968), defines it as the fulfillment of a promise or the performance of an agreement. The issuance and delivery of the stock to the taxpayers in 1971 was an occurrence within the plain meaning of the word “payment” as used in section 483. The taxpayers also contend that their right to receive additional shares must be treated as stock in Whittaker, since nonrecognition of gain or loss would have been forfeited if they had received “boot” or other property. 26 U.S.C. § 356. From this position they argue that since they received nothing but stock, the scheme of non-recognition is somehow violated by treating part of the value of the 1971 shares as unstated interest. This argument is based primarily upon the decision in Carlberg v. United States, 281 F.2d 507 (8th Cir. 1960). The only question in Carlberg, which was decided before the enactment of section 483, was whether certificates of contingent interest are “stock” within the reorganization provisions of the Internal Revenue Code. The court held that such certificates are stock and that the lapse of time between the initial transfer and ultimate distribution of reserve shares does not of itself affect the qualification of the certificates as stock under the reorganization provisions. The determination that certificates of contingent interest which are issued in connection with a corporate reorganization are “stock” and that delay in issuing stock certificates is not fatal to non-recognition of gain does not dispose of the question of whether such delay may properly be the basis for application of the imputed interest requirement of section 483. Carlberg did not address this question and does not provide an answer. The fact that certificates of contingent interest have been held to be stock of the acquiring corporation rather than “other property,” 26 U.S.C. § 356(b)(2), does not require a holding that the value of the shares eventually to be exchanged for such certificates includes no unstated interest. Section 356 is concerned with the requirements for non-recognition of gain or loss and does not deal with interest, the subject matter of section 483. The taxpayers next argue that even if the transfer of stock in 1971 did constitute a deferred payment within section 483 Congress did not intend for that section to apply to corporate reorganizations which qualify for non-recognition of gain or loss. They rely on the familiar maxim of statutory construction that where there is an apparent conflict between statutes, the specific will prevail over the general, regardless of which is first enacted. Bulova Watch Co. v. United States, 365 U.S. 753, 81 S.Ct. 864, 6 L.Ed.2d 72 (1961). They maintain that the application of section 483 to that portion of the stock received in 1971 directly conflicts with the provisions of the Internal Revenue Code which recognize their transaction as a tax-free reorganization. The taxpayers cite Fox v. United States, 510 F.2d 1330 (3d Cir. 1975), for the proposition that the general provisions of section 483 should not “override” other specific provisions of the Code which apply to established concepts of taxation law. Fox is an unusual case in which a divorced husband sought to obtain deductions for unstated interest which he contended was included in periodic alimony payments to his former wife. The court pointed out that the property settlement between the taxpayer and his divorced wife had been carefully drawn with attention to the tax consequences. The alimony was payable in 9V2 years, thus falling within a provision which made the payments nontaxable to the divorced wife. Alimony payments are deductible by the husband only if they are taxable to the wife by virtue of section 215 of the Internal Revenue Code. Since the payments were not taxable to the wife, under section 215 there could be no deduction by the husband, and a deduction could not be contrived by imputing interest. Of course, this case may be distinguished on the ground that the settlement between the husband and wife was not a contract for the sale or exchange of property — the first requirement for application of section 483. Even if the settlement between husband and wife were considered a contract for the sale or exchange of property, however, we do not believe that the rationale of Fox v. United States, is controlling in the present case. In Fox there was a direct and inherent conflict between section 215, which dealt specifically with the deductibility of alimony payments, and any other provision of the Internal Revenue Code which might be construed to permit a deduction for payments by a husband to his divorced wife of amounts which were not taxable to her. No such direct conflict exists between the reorganization provisions and section 483. The reorganization provisions permit non-recognition of gain from the exchange transaction itself. Imputed interest is ordinary income, not gain from the sale or exchange of property. When Congress provided for non-recognition of gain or loss from the sale or exchange of stock or other securities in certain corporate reorganizations it did not encase such transactions in a cocoon of non-taxability which shields them from every tax consequence to which they would otherwise be subject. Though the primary concern of Congress in enacting section 483 was to prevent the treatment of interest income as capital gain, the operative language of the statute is so all-inclusive, and its exceptions so clearly stated, that we can perceive no basis for holding that it does not apply to a qualified reorganization where part of the stock representing the sales price is transferred more than one year after the initial exchange. We conclude that the majority of the Court of Claims reached the correct result in Jeffers v. United States, 556 F.2d 986 (1977), a case which is essentially indistinguishable from the present one. After preparation of this opinion began the Second Circuit released its opinion in a companion case, Solomon v. Commissioner of Internal Revenue, 570 F.2d 28 (No. 77-4120, December 14, 1977), in which it affirmed the Tax Court’s deficiency findings. The taxpayers in Solomon owned all of the stock of Detroit and Quinn not owned by the Katkins. Thus, the facts (except for the numbers of shares involved) and the legal issues are identical in the two cases. Noting Judge Mansfield’s comprehensive treatment of the pertinent legislative history in Solomon, with which we agree, we have omitted discussion of that history from this opinion. The judgment of the Tax Court is affirmed. APPENDIX § 483. Interest on certain deferred payments (a) Amount constituting interest. — For purposes of this title, in the case of any contract for the sale or exchange of property there shall be treated as interest that part of a payment to which this section applies which bears the same ratio to the amount of such payment as the total unstated interest under such contract bears to the total of the payments to which this section applies which are due under such contract. (b) Total unstated interest. — For purposes of this section, the term “total unstated interest” means, with respect to a contract for the sale or exchange of property, an amount equal to the excess of— (1) the sum of the payments to which this section applies which are due under the contract, over (2) the sum of the present values of such payments and the present values of any interest payments due under the contract. For purposes of paragraph (2), the present value of a payment shall be determined, as of the date of the sale or exchange, by discounting such payment at the rate, and in the manner, provided in regulations prescribed by the Secretary or his delegate. Such regulations shall provide for discounting on the basis of 6-month brackets and shall provide that the present value of any interest payment due not more than 6 months after the date of the sale or exchange is an amount equal to 100 percent of such payment. (c) Payments to which section applies.— (1) In general. — Except as provided in subsection (f), this section shall apply to any payment on account of the sale or exchange of property which constitutes part or all of the sales price and which is due more than 6 months after the date of such sale or exchange under a contract— (A) under which some or all of the payments are due more than one year after the date of such sale or exchange, and (B) under which, using a rate provided by regulations prescribed by the Secretary or his delegate for purposes of this subparagraph, there is total unstated interest. Any rate prescribed for determining whether there is total unstated interest for purposes of subparagraph (B) shall be at least one percentage point lower than the rate prescribed for purposes of subsection (b)(2). (2) Treatment of evidence of indebtedness. — For purposes of this section, an evidence of indebtedness of the purchaser given in consideration for the sale or exchange of property shall not be considered a payment, and any payment due under such evidence of indebtedness shall be treated as due under the contract for the sale or exchange. (d) Payments that are indefinite as to time, liability, or amount. — In the case of a contract for the sale or exchange of property under which the liability for, or the amount or due date of, any portion of a payment cannot be determined at the time of the sale or exchange, this section shall be separately applied to such portion as if it (and any amount of interest attributable to such portion) were the only payments due under the contract; and such determinations of liability, amount, and due date shall be made at the time payment of such portion is made. (e) Change in terms of contract. — If the liability for, or the amount or due date of, any payment (including interest) under a contract for the sale or exchange of property is changed, the “total unstated interest” under the contract shall be recomputed and allocated (with adjustment for prior interest (including unstated interest) payments) under regulations prescribed by the Secretary or his delegate. (f) Exceptions and limitations.— (1) Sales price of $3,000 or less. — This section shall not apply to any payment on account of the sale or exchange of property if it can be determined at the time of such sale or exchange that the sales price cannot exceed $3,000. (2) Carrying charges. — In the case of the purchaser, the tax treatment of amounts paid on account of the sale or exchange of property shall be made without regard to this section if any such amounts are treated under section 163(b) as if they included interest. (3) Treatment of seller. — In the case of the seller, the tax treatment of any amounts received on account of the sale or exchange of property shall be made without regard to this section if no part of any gain on such sale or exchange would be considered as gain from the sale or exchange of a capital asset or property described in section 1231. (4) Sales or exchanges of patents. —This section shall not apply to any payments made pursuant to a transfer described in section 1235(a) (relating to sale or exchange of patents). (5) Annuities. — This section shall not apply to any amount the liability for which depends in whole or in part on the life expectancy of one or more individuals and which constitutes an amount received as an annuity to which section 72 applies. . Section 483 in its entirety is printed as an appendix to this opinion. . * * * * * * Treasury Regulations (1954 Code): Treas. Reg. § 1.483-1. Computation of interest on certain deferred payments. * * * * * * (b) Payments to which section 483 applies -* * * (6) Examples. The provisions of this paragraph may be illustrated by the following examples: * * * * * * Example (7). M Corporation and N Corporation each owns one-half of the stock of O Corporation. On December 31, 1963, pursuant to a reorganization qualifying under section 368(a)(1)(B), M contracts to acquire the one-half interest held by N for an initial distribution on such date of 30,000 shares of M voting stock, and a nonassignable right to receive up to 10,000 additional shares of M’s voting stock during the next 3 years, provided the net profits of O Corporation exceed certain amounts specified in the contract. No interest is provided for in the contract. No additional shares are received in 1964 or in 1965, but in 1966 the annual earnings of O Corporation exceed the specified amount and on December 31, 1966, an additional 3,000 M voting shares are transferred to N. Section 483 applies to the transfer of the 3,000 M voting shares to N on December 31, 1966. See example (2) of paragraph (e)(3) of this section for an illustration of the computation of total unstated interest in this case. * * * * * * . This factor distinguishes the present case from one described in Rev.Rule 70-120 where a part of the stock of the acquiring corporation was held in escrow pending determination of the earnings of an acquired corporation. Though held in escrow for more than one year, the shares were registered in the names of the acquiring shareholders who were entitled to vote and receive all dividends paid on the es-crowed stock. They received an immediate economic benefit from the escrowed stock at the time of the initial transfer. Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

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. SAN DIEGO BUILDING TRADES COUNCIL et al. v. GARMON et al. No. 66. Argued January 20, 1959. Decided April 20, 1959. Charles P. Scully argued' the cause for petitioners. With him on the brief were Walter Wencke, Mathew Tobriner and John C. Stevenson. Marion B. Plant argued the cause for respondents. With him on the brief was James W. Archer. J. Albert Woll and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, urging reversal. Solicitor General Rankin, at the invitation of the Court, 358 U. S. 801, filed a brief for the United States, as amicus curiae, urging affirmance. Me. Justice Frankfurter delivered the opinion of the .Court. This case is before us for the second time. The present litigation began with a dispute between the petitioning unions and respondents, co-partners in the business of selling lumber and other materials in California. Respondents' began an action , in the Superior Court for the County of San Diego, asking for an injunction and damages. Upon hearing, the trial court found the following facts. In March of 1953 the unions sought from respondents an agreement to retain in their employ only those workers who were already members of the unions, or who applied for membership within thirty days. Respondents refused, claiming that none of their employees had shown a desire to join a union, and that, in any event, they could not accept such an arrangement until one of the unions had been designated by the employees as a collective bargaining agent., The unions began at once peacefully to picket the respondents’ place of business, and to exert pressure on customers and suppliers in order to persuade them to stop dealing with respondents. The sole purpose of these pressures was to compel execution of the proposed contract. The unions contested this finding, claiming that the only purpose of their activities was to. educate the workers and persuade them to become members. On the basis of . its findings, the court enjoined the unions from picketing and from the use of other pressures to force an agreement, until one of them had been properly designated as a collective bargaining agent. The court also awarded $1,000 damages for losses found to have been sustained. At the time the suit in the state court was started, respondents had begun a representation proceeding before the National Lafcor Relations Board. The Regional Director declined jurisdiction, presumably because the amount of interstate commerce involved did not meet the Board’s monetary standards in taking jurisdiction. On appeal, the California Supreme Court sustained the judgment of the Superior Court, 45 Cal. 2d 657, 291 P. 2d 1, holding that, since the National Labor Relations Board had declined to exercise its jurisdiction, the California courts had power over the dispute. They further decided that the conduct of thé union constituted an unfair labor practice under § 8 (b) (2) of the National Labor Relations Act, and hence was not privileged under California law. As the California court itself later pointed out this decision did not specify what law, staté or federal, was the basis of the relief granted. Both state and federal law played a part but, “[a]ny distinction as between those laws was not thoroughly explored.” Garmon v. San Diego Bldg. Trades Council, 49 Cal. 2d 595, 602, 320 P. 2d 473, 477. We granted certiorari, 351 U. S. 923, and decided the case together with Guss v. Utah Labor Relations Board, 353 U. S. 1, and Amalgamated Meat Cutters v. Fairlawn Meats, Inc., 353 U. S. 20. In those cases, we held that the refusal of the National Labor Relations Board to assert jurisdiction did not leave with the States power over activities they otherwise would be pre-empted from regulating. Both Guss and Fairlawn involved relief of an equitable nature. In vacating and remanding the-judgment of the California court in this case, we pointed out that those cases controlled this-one, “in its major aspects.” 353 U. S., at 28. However, since it was not clear whether the judgment for damages would be sustained under California law, we remanded to the state court for consideration of that local law issue. The federal question, namely, whether the National Labor Relations Act precluded California from granting an award for damages arising out of the conduct in question, could not be appropriately decided until the antecedent state law question was decided by the state court. On remand, the California court, in accordance with our decision in Guss, set aside the injunction, but sustained the award of damages. Garmon v. San Diego Bldg. Trades Council, 49 Cal. 2d 595, 320 P. 2d 473 (three judges dissenting). After deciding- that California had jurisdiction to award damages for injuries caused by the union’s activities, the California court held that those activities constituted a tort based on an unfair labor practice under state law. In so holding the court relied on general tort provisions of the California Civil Code, §§ 1677, 1708, as well as state enactments dealing specifically with labor relations, Calif. Labor Code, § 923 (1937); ibid., §§ 1115-1118 (1947). We again granted certiorari, 357 U. S. 925, . to determine whether the California court had jurisdiction to award damages arising out of peaceful union activity which it could not enjoin. The issue is a variant of a familiar theme. It began with Allen-Bradley v. Wisconsin Board, 315 U. S. 740, was greatly intensified by litigation flowing from the Taft-Hartley Act, and has recurred here in almost a score of. cases during the last decade. The comprehensive regulation of industrial relations by Congress, novel federal legislation twenty-five years ago but now an integral part of our economic life, inevitably gave rise to difficult problems of federal-state relations. To be sure, in the abstract these problems came to us as ordinary questions of statutory construction. But they involved a more complicated and perceptive process than is conveyed'by the delusive phrase, “ascertaining the - intent of the legislature.” Many of these problems probably coíild not have been, at all events were not, foreseen by the Congress. Others were only dimly perceived and their precise scope only vaguely defined. This Court was called upon to apply a new and complicated legislative scheme, the aims and social policy of which were drawn with broad strokes while the details had to be filled in, to no small extent, by the judicial process. Recently we indicated the task that was thus cast upon this Court in carrying out with fidelity the purposes of Congress, but doing so by giving application to congressional incompletion. What we said in Weber v. Anheuser-Busch, Inc., 348 U. S. 468, deserves repetition, because the considerations there outlined guide this day’s decision: “By the Taft-Hartley Act, Congress did not exhaust the full sweep of legislative power over industrial relations given by the Commerce Clause. Congress formulated a code whereby it outlawed some aspects of labor activities and left others free for the operation of economic forces. As to both categories, the areas that have been pre-empted by federal authority and thereby withdrawn from state power are not susceptible of delimitation by fixed metes and bounds. Obvious conflict, actual or potential, leads to easy judicial exclusion of state action. Such was the situation in Garner v. Teamsters Union, supra. But as the opinion in that case recalled, the Labor Management Relations Act ‘leaves much to the states, though Congress has refrained from telling us how much.’ 346 U. S., at 488. This penumbral area can be rendered progressively clear only by the course of litigation.” 348 U. S., at 480-481. - The case before us concerns one of the most teasing and frequently litigated areas of indhstrial relations, the multitude of activities regulated by §§ 7 and 8 of the National Labor Relations Act. 61 Stat. 140, 29 U. S. C. §§ 157, 158. These broad provisions govern both protected “concerted activities” and unfair labor practices. They regulate the vital, economic instruments of the strike, and the picket line, and impinge on the clash of the still unsettled claims between employers and labor unions. The extent to which the variegated laws of the several States are displaced by a single, uniform, national rule has been a matter of frequent and recurring concern. As we pointed out the other day, “the statutory implications concerning what has been taken fropi the States ¿nd what has been left to them are of a Delphic nature, to be translated into concreteness by the process of litigating elucidation.” International Assn. of Machinists v. Gonzales, 356 U. S. 617, 619. In the area of regulation with which we are here concerned, the process thus described has contracted initial ambiguity and doubt and established guides for judgment by interested parties and certainly guides for decision. We state these principles in full realization that, in the course of a process of tentative, fragmentary illumination carried on over more than a decade during which the writers of opinions ’ almost^inevitably, because unconsciously, focus their primary attention on the facts of particular situations, language may have been used or views implied which'do not completely harmonize with the clear pattern which the decisions have evolved. But it may safely be claimed that the basis and purport of a long series of adjudications have “translated into concreteness” the consistently applied principles which decide this case. In determining the extent to which state regulation must yield to subordinating federal authority, we have been concerned with delimiting areas of potential conflict; potential conflict of rules of law, of remedy, and of administration. The nature .of the judicial process precludes an ad hoc inquiry into the special problems of labor-management relations involved in a particular set of occurrences in order to ascertain the precise nature and degree of federal-state conflict there involved, and more particularly what exact mischief such a conflict would cause. Nor is. it our business to attempt this. Such determinations inevitably depend upon judgments on the impact of these particular conflicts on the entire scheme of federal labor policy and administration. Our task is confined to dealing with classes of situations. To the National Labor Relations Board and to Congress must be left those precise and closely limited demarcations that can be adequately fashioned only by legislation and administration. We have necessarily been concerned with the potential conflict of two law-enforcing authorities, with the disharmonies inherent in two systems, one federal the other state, of inconsistent standards Qf substantive law and differing remedial schemes. But the unifying consideration of our decisions has been regard to the fact that Congress has entrusted administration of the labor policy for the Nation to a centralized administrative agency, armed with its own procedures, and equipped with its specialized knowledge and cumulative experience: “Congress did not .merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties.. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes towards labor controversies. ... A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law. . . Garner v. Teamsters Union, 346 U. S. 486, 490-491. Administration is more than a means of regulation; administration is regulation. We have been concerned with conflict in its broadest sense; conflict with a complex and interrelated federal scheme of law, remedy, and administration. Thus, judicial concern has necessarily focused on the nature of the activities which the States have sought to regulate, rather than on the method of regulation adopted. When the exercise of state power over a particular area of activity threatened interference with the clearly indicated policy of industrial relations, it has been judicially necessary to preclude the States from acting. However, due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. See Interna tional Assn. of Machinists v. Gonzales, 356 U. S. 617. Or where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence ,of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act. When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered, whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations. Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes. At times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 Or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. What is outside the scope of this Court’s authority cannot remain within a State’s power and state jurisdiction too must yield to the exclusive primary competence of the Board. See, e. g., Garner v. Teamsters Union, 346 U. S. 485, especially at 489-491; Weber v. Anheuser-Busch, Inc., 348 U. S. 468. The case before us is such a case. The adjudication in California has throughout been based on the assumption that the behavior of the petitioning unions constituted an unfair labor practice. This conclusion was derived by the California courts from the facts as well as from their view of the Act. It is not for us to decide whether the National Labor Relations Board would have, or should have, decided these questions in the same manner. When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted. To require the States to yield to the primary jurisdiction of the National Board does not ensure Board adjudication of the status of a disputed activity. If the Board decides, subject to appropriate federal judicial review, that conduct is protected by § 7, or prohibited by § 8, then the matter is at an end, and the States are ousted of all jurisdiction. Or, the Board may decide that an activity is neither protected nor prohibited, and thereby raise the question whether such activity may be regulated by the States. However, the Board may also fail to determine the status of the disputed conduct by declining to assert jurisdiction, or by refusal of the General Counsel to file a charge; or by adopting some other disposition which does not define the nature of the activity with unclouded legal significance. This was the basic problem underlying our decision in Guss v. Utah Labor Relations Board, 353 U. S. 1. In that case we held that the failure of the National Labor Relations Board to assume jurisdiction did not leave the States free to regulate activities they would otherwise be precluded from regulating. It follows that the failure of the Board to define the legal Significance under the Act of a particular activity does not give the States the power to act. ’In the absence of the Board’s clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide whether such activities are subject to state jurisdiction. The withdrawal of this narrow area from possible state activity follows from our decisions in Weber and Guss. The governing consideration is that to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy. In the light of these principles the case before us is clear. Since the National Labor Relations Board has not adjudicated the status of the conduct for which the State of California seeks to give a remedy in damages, and since such activity is arguably within the compass of § 7 or § 8 of the Act, the State’s jurisdiction is displaced. Nor is it significant that California asserted its power to givfe damages rather than to enjoin what the Board may restrain though it could not compensate. Our concern is with delimiting areas of conduct which must be free from state regulation if national policy is to be left unhampered. Such regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy. Even the States’ salutary effort to redress private wrongs or grant compensation for past harm cannot be exerted to regulate activities that are potentially subject to the exclusivé federal regulatory scheme. See Garner v. Teamsters Union, 346 U. S. 485, 492-497. It may be that an award of damages in a particular situation will not, in fact, conflict with the active assertion of federal authority. The same may be true of the incidence of a particular state injunction. To sanction either involves a conflict with federal policy in that it involves allowing two law-making sources to govern. In fact, since remedies form an ingredient of any integrated scheme of regulation, to allow the State to grant a remedy here which has been withheld from the National Labor Relations Board only accentuates the danger of conflict. It is true that we have allowed the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order. United Automobile Workers v. Russell, 356 U. S. 634; United Construction Workers v. Laburnum Corp., 347 U. S. 656. We have also allowed the States to enjoin such conduct. Youngdahl v. Rainfair, 355 U. S. 131; Auto Workers v. Wisconsin Board, 351 U. S. 266. State jurisdiction has prevailed in these situations because the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace is not overridden in the absence of clearly expressed congressional direction. ■ We recognize that the opinion in United Construction Workers v. Laburnum Corp., 347 U. S. 656, found support in the fact that the state remedy had no federal counterpart. But that decision was determined, as is demonstrated by the question to which review was restricted, by the “type of conduct” involved, i. e., “intimidation and threats of violence.” In the present case there is no such compelling state interest. The judgment below is Reversed. E. g., Guss v. Utah Labor Relations Board, 353 U. S. 1; Youngdahl v. Rainfair, 355 U. S. 131; Teamsters Union v. New York, N. H. & H. R. Co., 350 U. S. 155; Weber v. Anheuser-Busch, Inc., 348 U. S. 468; Garner v. Teamsters Union, 348 U. S. 485; Automobile Workers v. O’Brien, 339 U. S. 454; Amalgamated Assn. of Street, Electric R. & Motor Coach Employees v. Wisconsin Board, 340 U. S, 383; Hill v. Florida, 325 U. S. 538. See Teamsters Union v. Oliver, 358 U. S. 283. The cases up to that time are summarized in Weber v. Anheuser-Busch, Inc., 348 U. S. 468. United Automobile Workers v. Russell, 356 U. S. 634; Youngdahl v. Rainfair, 355 U. S. 131; Auto Workers v. Wisconsin Board, 351 U. S. 266; United Construction Workers v. Laburnum Corp., 347 U. S. 656. See Weber v. Anheuser-Busch, Inc., 348 U. S. 468, in which it was pointed out that the state court had relied on a general restraint of trade statute. Cf. Auto Workers v. Wisconsin Boards 351 U. S. 266. The case before us involves both tort law of general application and specialized labor relations statutes. See p. 239, supra. See Auto Workers v. Wisconsin Board, 336 U. S. 245. The approach taken in that case, in which the Court undertook for itself to determine the status of the disputed activity, has not been followed in later decisions, and is no longer of general application. “When Congress has taken the particular subject-matter in hand coincidence is as ineffective as opposition . . . Charleston & West. Carolina R. Co. v. Varnville Furniture Co., 237 U. S. 597, 604. The conduct involved in Laburnum was so characterized in United Automobile Workers v. Russell, 356 U. S. 634, 640, in an opinion by Mr. Justice Burton; who also wrote thé opinion of the Court in Laburnum. When this very case was before us for the first time we noted that “Laburnum sustained an award of damages under state tort law for violent conduct. We cannot know that the California court would have interpreted its own state law to allow an award of damages in this situation.” 353 U. S., at 29. ■ In Laburnum this Court itself expressly phrased its grant of cer-tiorari to include only the limited question of the State’s jurisdiction to award damages “[i]n view of, the type of conduct found by the Supreme Court of Appeals of Virginia to have been carried out by Petitioners . . . ,” 346 U. S. 936, despite the fact that petitioners had urged upon us a question not limited to the particular conduct involved. Petition for certiorari, p. 6. Throughout,' the opinion of the Court makes it clear that the holding in favor of state jurisdiction was limited to a situation involving violence and threats of violence. Thus the findings of the Virginia court as to the flagrant and violent activities of petitioners were set out at length. 347 U. S., at 660-662, n. 4. The Court relies on statements by Senator Taft, the Aci’s sponsor, and from a Senate Report which point out that “mass-picketing,” “violence,” “threat [s] of violence,” may be a violation of state law, as well as unfair labor practices under the Act. 347 U. S., at 668.' The Court in Laburnum points out that it would be inconsistent with the provisions of the Act which allow recovery for damages caused by secondary boycotts, not to allow an injured party “to recover damages caused more directly and flagrantly through- such conduct as is before us.” 347 U. S. 666. The Court also placed reliance on a quotation from International Union v. Wisconsin Board, 336 U. S. 245, 253, which points out that the “[p] dicing of . . . conduct .. .,” which consists of “actual or threatened violence to persons or destruction of property,” is left to the States. In its concluding paragraph the Court again stresses that Virginia has jurisdiction over “coercion of the type found here . . . .” The damages awarded were extensive, consisting primarily of loss of profits caused by the disruption of respondents’, business resulting from the violence. These damages were restricted to the “damages directly and proximately caused by wrongful conduct chargeable to the defendants . . .” as defined by the traditional. law of torts. United Construction Workers v. Laburnum Corp., 194 Va. 872, 887, 75 S. E. 2d 694,704. Thus there is nothing in the measure of damages to indicate that state power was exerted to compensate for anything more than the direct consequences of the violent conduct. All these factors make it plain that our decision in Laburnum rested on the nature of the activities there involved, and the interest of the State in regulating them. The case has been so interpreted in later decisions of this Court. See Weber v. Anheuser-Busch, 348 U. S. 468, 477; and the phrases qu.oted from Russell, supra. In Russell we again allowed the State to award damages for injuries caused by “mass picketing and threats of violence . . . ,” 356 U. S., at 638. That opinion also continually stresses the violent nature of the conduct and limits its decision to the “kind of tortious conduct” there involved. 356 U. S., at 646. See also 356 U. S., at 642; and 356 U. S., at 640, where the Court points out that Alabama could have enjoined the activities of the union. • Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:

sc_adminaction_is

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. FEDERAL COMMUNICATIONS COMMISSION v. PACIFICA FOUNDATION et al. No. 77-528. Argued April 18, 19, 1978 Decided July 3, 1978 Stevens, J., announced the Court’s judgment and delivered an opinion of the Court with respect to Parts I-III and IV-C, in which Burger, C. J'., and Rehnquist, J., joined, and in all but Parts IV-A and IV-B of which Blackmun and Powell, JJ., joined, and an opinion as to Parts IV-A and IV-B, in which Burger, C. J., and Rehnquist, J., joined.. Powell, J., filed an opinion concurring in part and concurring in the judgment, in which Blackmun, J., joined, post, p. 755. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 762. Stewart, J., filed a dissenting opinion, in which Brennan, White, and Marshall, JJ., joined, post, p. 777. Joseph A. Marino argued the cause for petitioner. With him on the briefs were Robert R. Bruce and Daniel M. Armstrong. Harry M. Plotkin argued the cause for respondent Pacifica Foundation. With him on the brief were David Tillotson and Harry F. Cole. Louis F. Claiborne argued the cause for the United States, a respondent under this Court’s Rule 21 (4). With him on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, and Jerome M. Feit. Briefs of amici curiae urging reversal were filed by Anthony H. Atlas for Morality in Media, Inc.; and by George E. Reed and Patrick F. Geary for the United States Catholic Conference. Briefs of amici curiae urging affirmance were filed by J. Roger Wollen-berg, Timothy B. Dyk, James A. McKenna, Jr., Carl R. Ramey, Erwin G. Krasnow, Floyd Abrams, J. Laurent Scharff, Corydon B. Dunham, and Howard Monderer for the American Broadcasting Companies, Inc., et ah; by Henry R. Kaufman, Joel M. Gora, Charles Sims, and Bruce J. Ennis for the American Civil Liberties Union et al.; by Irwin Karp for the Authors League of America, Inc;'; by James Bouras, Barbara Scott, and Fritz E. Attaway for the Motion Picture Association of America, Inc.; and by Paul P. Selvin for the Writers Guild of America, West, Inc. Charles M. Firestone filed a brief for the Committee for Open Media as amicus curiae. Me. Justice Stevens delivered the opinion of the Court (Parts I, II, III, and IV-C) and an opinion in which The Chief Justice and Me. Justice Rehnquist joined (Parts IV-A and IY-B). This case requires that we decide whether the Federal Communications Commission has any power to regulate a radio broadcast that is indecent but not obscene. A satiric humorist named George Carlin recorded a 12-minute monologue entitled “Filthy Words” before a live audience in a California theater. He began by referring to his thoughts about “the words you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.” He proceeded to list those words and repeat them over and over again in a variety of colloquialisms. The transcript of the recording, which is appended to this opinion, indicates frequent laughter from the audience. At about 2 o’clock in the afternoon on Tuesday, October 30, 1973, a New York radio station, owned by respondent Pacifica Foundation, broadcast the “Filthy Words” monologue. A few weeks later a man, who stated that he had heard the broadcast while driving with his young son, wrote a letter complaining to the Commission. He stated that, although he could perhaps understand the “record’s being sold for private use, I certainly cannot understand the broadcast of same over the air that, supposedly, you control.” The complaint was forwarded to the station for comment. In its response, Pacifica explained that the monologue had been played during a program about contemporary society’s attitude toward language and that, immediately before its broadcast, listeners had been advised that it included “sensitive language which might be regarded as offensive to some.” Pacifica characterized George Carlin as “a significant social satirist” who “like Twain and Sahl before him, examines the language of ordinary people. . . . Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words.” Pacifica stated that it was not aware of any other complaints about the broadcast. On February 21, 1975, the Commission issued a declaratory order granting the complaint and holding that Pacifica “could have been the subject of administrative sanctions.” 56 F. C. C. 2d 94, 99. The Commission did not impose formal sanctions, but it did state that the order would be “associated with the station’s license file, and in the event that subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress.” In its memorandum opinion the Commission stated that it intended to “clarify the standards which will be utilized in considering” the growing number of complaints about indecent speech on the airwaves. Id., at 94. Advancing several reasons for treating broadcast speech differently from other forms of expression, the Commission found a power to regulate indecent broadcasting in two statutes: 18 U. S. C. § 1464 (1976 ed.), which forbids the use of “any obscene, indecent, or profane language by means of radio communications,” and 47 U. S. C. § 303 (g), which requires the Commission to “encourage the larger and more effective use of radio in the public interest.” The Commission characterized the language used in the Carlin monologue as “patently offensive,” though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to those found in the law of nuisance where the “law generally speaks to channeling behavior more than actually prohibiting it. . . . [T]he concept of ‘indecent’ is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.” 56 F. C. C. 2d, at 98. Applying these considerations to the language used in the monologue as broadcast by respondent, the Commission concluded that certain words depicted sexual and excretory activities in a patently offensive manner, noted that they “were broadcast at a time when children were undoubtedly in the audience (i. e., in the early afternoon),” and that the prerecorded language, with these offensive words “repeated over and over,” was “deliberately broadcast.” Id., at 99. In summary, the Commission stated: “We therefore hold that the language as broadcast was indecent and prohibited by 18 U. S. C. [§] 1464.” Ibid. After the order issued, the Commission was asked to clarify its opinion by ruling that the broadcast of indecent words as part of a live newscast would not be prohibited. The Commission issued another opinion in which it pointed out that it “never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.” 59 F. C. C. 2d 892 (1976). The Commission noted that its “declaratory order was issued in a specific factual context,” and declined to comment on various hypothetical situations presented by the petition. Id., at 893. It relied on its “long standing policy of refusing to issue interpretive rulings or advisory opinions when the critical facts are not explicitly stated or there is a possibility that subsequent events will alter them.” Ibid. The United States Court of Appeals for the District of Columbia Circuit reversed, with each of the three judges on the panel writing separately. 181 U. S. App. D. C. 132, 556 F. 2d 9. Judge Tamm concluded that the order represented censorship and was expressly prohibited by § 326 of the Communications Act. Alternatively, Judge Tamm read the Commission opinion as the functional equivalent of a rule and concluded that it was “overbroad.” 181 U. S. App. D. C., at 141, 556 F. 2d, at 18. Chief Judge Bazelon’s concurrence rested on the Constitution. He was persuaded that § 326’s prohibition against censorship is inapplicable to broadcasts forbidden by § 1464. However, he concluded that § 1464 must be narrowly construed to cover only language that is obscene or otherwise unprotected by the First Amendment. 181 U. S. App. D. C., at 140-153, 556 F. 2d, at 24-30. Judge Leventhal, in dissent, stated that the only issue was whether the Commission could regulate the language “as broadcast.” Id., at 154, 556 F. 2d, at 31. Emphasizing the interest in protecting children, not only from exposure to indecent language, but also from exposure to the idea that such language has official approval, id., at 160, and n. 18, 556 F. 2d, at 37, and n. 18, he concluded that the Commission had correctly condemned the daytime broadcast as indecent. Having granted the Commission’s petition for certiorari, 434 U. S. 1008, we must decide: (1) whether the scope of judicial review encompasses more than the Commission’s determination that the monologue was indecent “as broadcast”; (2) whether the Commission’s order was a form of censorship forbidden by § 326; (3) whether the broadcast was indecent within the meaning of § 1464; and (4) whether the order violates the First Amendment of the United States Constitution. I The general statements in the Commission’s memorandum opinion do not change the character of its order. Its action was an adjudication under 5 U. S. C. § 554 (e) (1976 ed.); it did not purport to engage in formal rulemaking or in the promulgation of any regulations. The order “was issued in a specific factual context”; questions concerning possible action in other contexts were expressly reserved for the future. The specific holding was carefully confined to the monologue “as broadcast.” “This Court . . . reviews judgments, not statements in opinions.” Black v. Cutter Laboratories, 351 U. S. 292, 297. That admonition has special force when the statements raise constitutional questions, for it is our settled practice to avoid the unnecessary decision of such issues. Rescue Army v. Municipal Court, 331 U. S. 549, 568-569. However appropriate it may be for an administrative agency to write broadly in an adjudicatory proceeding, federal courts have never been empowered to issue advisory opinions. See Herb v. Pitcairn, 324 U. S. 117, 126. Accordingly, the focus of our review must be on the Commission’s determination that the Carlin monologue was indecent as broadcast. II The relevant statutory questions are whether the Commission’s action is forbidden “censorship” within the meaning of 47 U. S. C. § 326 and whether speech that concededly is not obscene may be restricted as “indecent” under the authority of 18 U. S. C. § 1464 (1976 ed.). The questions are not unrelated, for the two statutory provisions have a common origin. Nevertheless, we analyze them separately. Section 29 of the Radio Act of 1927 provided: “Nothing in this Act shall be understood or construed to give the licensing authority the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communications. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication.” 44 Stat. 1172. The prohibition against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advance and to excise material considered inappropriate for the airwaves. The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duties. During the period between the original enactment of the provision in 1927 and its re-enactment in the Communications Act of 1934, the courts and the Federal Radio Commission held that the section deprived the Commission of the power to subject “broadcasting matter to scrutiny prior to its release,” but they concluded that the Commission’s “undoubted right” to take note of past program content when considering a licensee’s renewal application “is not censorship.” Not only did the Federal Radio Commission so construe the statute prior to 1934; its successor, the Federal Communications Commission, has consistently interpreted the provision in the same way ever since. See Note, Regulation of Program Content by the FCC, 77 Harv. L. Rev. 701 (1964). And, until this case, the Court of Appeals for the District of Columbia Circuit has consistently agreed with this construction. Thus, for example, in his opinion in Anti-Defamation League of B’nai B’rith v. FCC, 131 U. S. App.. D. C. 146, 403 F. 2d 169 (1968), cert. denied, 394 U. S. 930, Judge Wright forcefully pointed out that the Commission is not prevented from canceling the license of a broadcaster who persists in a course of improper programming. He explained: “This would not be prohibited ‘censorship,’ . . . any more than would the Commission’s considering on a license renewal application whether a broadcaster allowed ‘coarse, vulgar, suggestive, double-meaning’ programming ; programs containing such material are grounds for denial of a license renewal.” 131 U. S. App. D. C., at 150-151, n. 3, 403 F. 2d, at 173-174, n. 3. See also Office of Communication of United Church of Christ v. FCC, 123 U. S. App. D. C. 328, 359 F. 2d 994 (1966). Entirely apart from the fact that the subsequent review of program content is not the sort of censorship at which the statute was directed, its history makes it perfectly clear that it was not intended to limit the Commission’s power to regulate the broadcast of obscene, indecent, or profane language. A single section of the 1927 Act is the source of both the anticensorship provision and the Commission’s authority to impose sanctions for the broadcast of indecent or obscene language. Quite plainly, Congress intended to give meaning to both provisions. Respect for that intent requires that the censorship language be read as inapplicable to the prohibition on broadcasting obscene, indecent, or profane language. There is nothing in the legislative history to contradict this conclusion. The provision was discussed only in generalities when it was first enacted. In 1934, the anticensorship provision and the prohibition against indecent broadcasts were re-enacted in the same section, just as in the 1927 Act. In 1948, when the Criminal Code was revised to include provisions that had previously been located in other Titles of the United States Code, the prohibition against obscene, indecent, and profane broadcasts was removed from the Communications Act and re-enacted as § 1464 of Title 18. 62 Stat. 769 and 866. That rearrangement of the Code cannot reasonably be interpreted as having been intended to change the meaning of the anticensorship provision. H. R. Rep. No. 304, 80th Cong., 1st Sess., A106 (1947). Cf. Tidewater Oil Co. v. United States, 409 U. S. 151, 162. We conclude, therefore, that § 326 does not limit the Commission’s authority to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting. Ill The only other statutory question presented by this case is whether the afternoon broadcast of the “Filthy Words” monologue was indecent within the meaning of § 1464. Even that question is narrowly confined by the arguments of the parties. The Commission identified several words that referred to excretory or sexual activities or organs, stated that the repetitive, deliberate use of those words in an afternoon broadcast when children are in the audience was patently offensive, and held that the broadcast was indecent. Pacifica takes issue with the Commission’s definition of indecency, but does not dispute the Commission’s preliminary determination that each of the components of its definition was present. Specifically, Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive. Pacifica’s claim that the broadcast was not indecent within the meaning of the statute rests entirely on the absence of prurient appeal. The plain language of the statute does not support Pacifica’s argument. The words “obscene, indecent, or profane” are written in the disjunctive, implying that each has a separate meaning. Prurient appeal is an element of the obscene, but the normal definition of “indecent” merely refers to noncon-formance with accepted standards of morality. Pacifica argues, however, that this Court has construed the term “indecent” in related statutes to mean “obscene,” as that term was defined in Miller v. California, 413 U. S. 15. Pacifica relies most heavily on the construction this Court gave to 18 U. S. C. § 1461 in Hamling v. United States, 418 U. S. 87. See also United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 130 n. 7 (18 U. S. C. § 1462) (dicta). Hamling rejected a vagueness attack on § 1461, which forbids the mailing of “obscene, lewd, lascivious, indecent, filthy or vile” material. In holding that the statute’s coverage is limited to obscenity, the Court followed the lead of Mr. Justice Harlan in Manual Enterprises, Inc. v. Day, 370 U. S. 478. In that case, Mr. Justice Harlan recognized that § 1461 contained a variety of words with many shades of meaning. Nonetheless, he thought that the phrase “obscene, lewd, lascivious, indecent, filthy or vile,” taken as a whole, was clearly limited to the obscene, a reading well grounded in prior judicial constructions: “[T]he statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex.” 370 U. S., at 483. In Hamling the Court agreed with Mr. Justice Harlan that § 1461 was meant only to regulate obscenity in the mails; by reading into it the limits set by Miller v. California, supra, the Court adopted a construction which assured the statute’s constitutionality. The reasons supporting Hamling’s construction of § 1461 do not apply to § 1464. Although the history of the former revealed a primary concern with the prurient, the Commission has long interpreted § 1464 as encompassing more than the obscene. The former statute deals primarily with printed matter enclosed in sealed envelopes mailed from one individual to another; the latter deals with the content of public broadcasts. It is unrealistic to assume that Congress intended to impose precisely the same limitations on the dissemination of patently offensive matter by such different means. Because neither our prior decisions nor the language or history of § 1464 supports the conclusion that prurient appeal is an essential component of indecent language, we reject Pacifica’s construction of the statute. When that construction is put to one side, there is no basis for disagreeing with the Commission’s conclusion that indecent language was used in this broadcast. IV Pacifica makes two constitutional attacks on the Commission’s order. First, it argues that the Commission’s construction of the statutory language broadly encompasses so much constitutionally protected speech that reversal is required even if Pacifica’s broadcast of the “Filthy Words” monologue is not itself protected by the First Amendment. Second, Pacifica argues that inasmuch as the recording is not obscene, the Constitution forbids any abridgment of the right to broadcast it on the radio. A The first argument fails because our review is limited to the question whether the Commission has the authority to proscribe this particular broadcast. As the Commission itself emphasized, its order was “issued in a specific factual context.” 59 F. C. C. 2d, at 893. That approach is appropriate for courts as well as the Commission when regulation of indecency is at stake, for indecency is largely a function of context — it cannot be adequately judged in the abstract. The approach is also consistent with Red Lion Broadcasting Co. v. FCC, 395 U. S. 367. In that case the Court rejected an argument that the Commission’s regulations defining the fairness doctrine were so vague that they would inevitably abridge the broadcasters’ freedom of speech. The Court of Appeals had invalidated the regulations because their vagueness might lead to self-censorship of controversial program content. Radio Television News Directors Assn. v. United States, 400 F. 2d 1002, 1016 (CA7 1968). This Court reversed. After noting that the Commission had indicated, as it has in this case, that it would not impose sanctions without warning in cases in which the applicability of the law was unclear, the Court stated: “We need not approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable, United States v. Sullivan, 332 U. S. 689, 694 (1948), but will deal with those problems if and when they arise.” 395 U. S., at 396-. It is true that the Commission’s order may lead some broadcasters to censor themselves. At most, however, the Commission’s definition of indecency will -deter only the broadcasting of patently offensive references to excretory and sexual organs and activities. While some of these references may be protected, they surely lie at the periphery of First Amendment concern. Cf. Bates v. State Bar of Arizona, 433 U. S. 350, 380-381. Young v. American Mini Theatres, Inc., 427 U. S. 50, 61. The danger 'dismissed so summarily in Red Lion, in contrast, was that broadcasters would respond to the vagueness of the regulations by refusing to present programs dealing with important social and political controversies. Invalidating any rule on the basis of its hypothetical application to situations not before the Court is “strong medicine” to be applied “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U. S. 601, 613. We decline to administer that medicine to preserve the vigor of patently offensive sexual and excretory speech. B When the issue is narrowed to the facts of this case, the question is whether the First Amendment denies government any power to restrict the public broadcast of indecent language in any circumstances. For if the government has any such power, this was an appropriate occasion for its exercise. The words of the Carlin monologue are unquestionably “speech” within the meaning of the First Amendment. It is equally clear that the Commission’s objections to the broadcast were based in part on its content. The order must therefore fall if, as Pacifica argues, the First Amendment prohibits all governmental regulation that depends on the content of speech. Our past cases demonstrate, however, that no such absolute rule is mandated by the Constitution. The classic exposition of the proposition that both the content and the context of speech are critical elements of First Amendment analysis is Mr. Justice Holmes’ statement for the Court in Schenck v. United States, 249 U. S. 47, 52: “We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against-uttering words that may have all the effect of force. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Other distinctions based on content have been approved in the years since Schenck. The government may forbid speech calculated to provoke a fight. See Chaplinsky v. New Hampshire, 315 U. S. 568. It may pay heed to the “ 'commonsense differences’ between commercial speech and other varieties.” Bates v. State Bar of Arizona, supra, at 381. It may treat libels against private citizens more severely than libels against public officials. See Gertz v. Robert Welch, Inc., 418 U. S. 323. Obscenity may be wholly prohibited. Miller v. California, 413 U. S. 15. And only two Terms ago wé refused to hold that a “statutory classification is unconstitutional because it is based on the content of communication protected by the First Amendment.” Young v. American Mini Theatres, Inc., supra, at 52. The question in this case is whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content. Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards. Roth v. United States, 354 U. S. 476. But the fact that society may find speech offensive is not a sufficient reason for - suppressingyit. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. If there were any reason to believe that the Commission’s characterization of the Carlin monologue as offensive could be traced to its political content — or even to the fact that it satirized contemporary attitudes about four-letter words— First Amendment protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends. Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: “[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U. S., at 572. Although these words ordinarily lack literary, political, or scientific value, they are not entirely outside the protection of the First Amendment. Some uses of even the most offensive words are unquestionably protected. See, e. g., Hess v. Indiana, 414 U. S. 105. Indeed, we may assume, arguendo, that this monologue would be protected in other contexts. Nonetheless, the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context. It is a characteristic of speech such as this that both its capacity to offend and its “social value,” to use Mr. Justice Murphy’s term, vary with the circumstances. Words that are commonplace in one setting are shocking in another. To paraphrase Mr. Justice Harlan, one occasion’s lyric is another’s vulgarity. Cf. Cohen v. California, 403 U. S. 15, 25. In this case it is undisputed that the content of Pacifica’s broadcast was “vulgar,” “offensive,” and “shocking.” Because content of that character is not entitled to absolute constitutional protection under all circumstances, we must consider its context in order to determine whether the Commission's action was constitutionally permissible. C We have long recognized that each medium of expression presents special First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 502-503. And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve “the public interest, convenience, and necessity.” Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, it affords no such protection to broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367. The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 U. S. 728. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place. Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen’s written message might have been incomprehensible to a first grader, Pacifica’s broadcast could have enlarged a child’s vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 U. S. 629, that the government’s interest in the “well-being of its youth” and in supporting “parents’ claim to authority in their own household” justified the regulation of otherwise protected expression. Id., at 640 and 639. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting. It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution. The Commission’s decision rested entirely on a nuisance rationale under which context is all-important. The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience, and differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant. As Mr. Justice Sutherland wrote, a “nuisance may be merely a right thing in the wrong place, — like a pig in the parlor instead of the barnyard.” Euclid v. Ambler Realty Co., 272 U. S. 365, 388. We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene. The judgment of the Court of Appeals is reversed. It is so ordered. APPENDIX TO OPINION OF THE COURT The following is a verbatim transcript of “Filthy Words” prepared by the Federal Communications Commission. Aruba-du, ruba-tu, ruba-tu. I was thinking about the curse words and the swear words, the cuss words and the words that you can't say, that you're not supposed to say all the time, ['] cause words or people into words want to hear your words. Some guys like to record your words and sell them back to you if they can, (laughter) listen in on the telephone, write down what words you say. A guy who used to be in Washington knew that his phone was tapped, used to answer, Fuck Hoover, yes, go ahead, (laughter) Okay, I was thinking one night about the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever, ['] cause I heard a lady say bitch one night on television, and it was cool like she was talking about, you know, ah, well, the bitch is the first one to notice that in the litter Johnie right (murmur) Right. And, uh, bastard you can say, and hell and damn so I have to figure out which ones you couldn’t and ever and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself. The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon, (laughter) And now the first thing that we noticed was that word fuck was really repeated in there because the word motherfucker is a compound word and it's another form of the word fuck, (laughter) You want to be a purist it doesn't really — it can’t be on the list of basic words. Also, cocksucker is a compound word and neither half of that is really dirty. The word — the half sucker that’s merely suggestive (laughter) and the word cock is a half-way dirty word, 50% dirty — dirty half the time, depending on what you mean by it. (laughter) Uh, remember when you first heard it, like in 6th grade, you used to giggle. And the cock crowed three times, heh (laughter) the cock — three times. It’s in the Bible, cock in the Bible, (laughter) And the first time you heard about a cock-fight, remember — What? Huh? naw. It ain’t that, are you stupid? man. (laughter, clapping) It’s chickens, you know, (laughter) Then you have the four letter words from the old Anglo-Saxon fame. Uh, shit and fuck. The word shit, uh, is an interesting kind of word in that the middle class has never really accepted it and approved it. They use it like, crazy but it’s not really okay. It’s still a rude, dirty, old kind of gushy word, (laughter) They don’t like that, but they say it, like, they say it like, a lady now in a middle-class home, you’ll hear most of the time she says it as an expletive, you know, it’s out of her mouth before she knows. She says, Oh shit oh shit, (laughter) oh shit. If she drops something, Oh, the shit hurt the broccoli. Shit. Thank you. (footsteps fading away) (papers ruffling) Read it! (from audience) Shit! (laughter) I won the Grammy, man, for the comedy album. Isn’t that groovy? (clapping, whistling) (murmur) That’s true. Thank you. Thank you man. Yeah, (murmur) (continuous clapping) Thank you man. Thank you. Thank you very much, man. Thank, no, (end of continuous clapping) for that and for the Grammy, man, [’]cause (laughter) that’s based on people liking it man, yeh, that’s ah, that’s okay man. (laughter) Let’s let that go, man. I got my Grammy. I can let my hair hang down now, shit, (laughter) Ha! So! Now the word shit is okay for the man. At work you can say it like crazy. Mostly figuratively, Get that shit out of here, will ya? I don't want to see that shit anymore. I can’t cut that shit, buddy. I’ve had that shit up to here. I think you’re full of shit myself, (laughter) He don’t know shit from Shinola. (laughter) you know that? (laughter) Always wondered how the Shinola people felt about that (laughter) Hi,. I’m the new man from Shinola. (laughter) Hi, how are ya? Nice to see ya. (laughter) How are ya? (laughter) Boy, I don’t know whether to shit or wind my watch, (laughter) Guess, I’ll shit on my watch, (laughter) Oh, the shit is going to hit de fan. (laughter) Built like a brick shit-house, (laughter) Up, he’s up shit’s creek, (laughter) He’s had it. (laughter) He hit me, I’m sorry, (laughter) Hot shit, holy shit, tough shit, eat shit, (laughter) shit-eating grin. Uh, whoever thought of that was ill. (murmur laughter) He had a shit-eating grin! He had a what? (laughter) Shit on a stick, (laughter) Shit in a handbag. I always like that. He ain’t worth shit in a handbag, (laughter) Shitty. He acted real shitty, (laughter) You know what I mean? (laughter) I got the money back, but a real shitty attitude. Heh, he had a shit-fit. (laughter) Wow! Shit-fit. Whew! Glad I wasn’t there, (murmur, laughter) All the animals — Bull shit, horse shit, cow shit, rat shit, bat shit, (laughter) First time I heard bat shit, I really came apart. A guy in Oklahoma, Boggs, said it, man. Aw! Bat shit, (laughter) Vera reminded me of that last night, ah (murmur). Snake shit, slicker than owl shit, (laughter) Get your shit together. Shit or get off the pot. (laughter) I got a shit-load full of them, (laughter) I got a shit-pot full, all right. Shit-head, shit-heel, shit in your heart, shit for brains, (laughter) shit-face, heh (laughter) I always try to think how that could have originated; the first guy that said that. Somebody got drunk and fell in some shit, you know, (laughter) Hey, I’m shit-face, (laughter) Shit-face, today, (laughter) Anyway, enough of that shit, (laughter) The big one, the word fuck that’s the one that hangs them up the most. [’] Cause in a lot of cases that’s the very act that hangs them up the most. So, it's natural that the word would, uh, have the same effect. It’s a great word, fuck, nice word, easy word, cute word, kind of. Easy word to say. One syllable, short u. (laughter) Fuck. (Murmur) You know, it's easy. Starts with a nice soft sound fuh ends with a huh. Right? (laughter) A little something for everyone. Fuck (laughter) Good word. Kind of a proud word, too. Who are you? I am FUCK, (laughter) FUCK OF THE MOUNTAIN, (laughter) Tune in again next week to FUCK OF THE MOUNTAIN, (laughter) It’s an interesting word too, [’]cause it’s got a double kind of a life — personality — dual, you know, whatever the right phrase is. It leads a double life, the word fuck. First of all, it means, sometimes, most of the time, fuck. What does it mean? -It means to make love. Right? We’re going to make love, yeh, we’re going to fuck, yeh, we’re going to fuck, yeh, we’re going to make love, (laughter) we’re really going to fuck, yeh, we’re going to make love. Right? And it also means the beginning of life, it’s the act that begins life, so there’s the word hanging around with words like love, arid life, and yet on the other hand, it’s also a word that we really use to hurt each other with, man. It’s a heavy. It’s one that you have toward the end of the argument, (laughter) Right? (laughter) You finally can’t make out. Oh, fuck you man. I said, fuck you. (laughter, murmur) Stupid fuck, (laughter) Fuck you and everybody that looks like you. (laughter) man. It would.be nice to change the movies that we already have and substitute the word fuck for the word kill, wherever we could, and some of those movie cliches would change a little bit. Madfuckers still on the loose. Stop me before I fuck again. Fuck the ump, fuck the ump, fuck the ump, fuck the ump, fuck the ump. Easy on the clutch Bill, you’ll fuck that engine again, (laughter) The other shit one was, I don’t give a shit. Like it’s worth something, you know? (laughter) I don’t give a shit. Hey, well, I don’t take no shit, (laughter) you know what I mean? You know why I don’t take no shit? (laughter) [’] Cause I don’t give a shit, (laughter) If I give a shit, I would have to pack shit, (laughter) But I don’t pack no shit cause I don’t give a shit, (laughter) You wouldn’t shit me, would you? (laughter) That’s a joke when you’re a kid with a worm looking out the bird’s ass. You wouldn’t shit me, would you? (laughter) It’s an eight-year-old joke but a good one. (laughter) The additions to the list. I found three more words that had to be put on the list of words you could never say on television, and they were fart, turd and twat, those three, (laughter) Fart, we talked about, it’s harmless It’s like tits, it’s a cutie word, no problem. Turd, you can’t say but who wants to, you know? (laughter) The subject never comes up on the panel so I’m not worried about that one. Now the word twat is an interesting word. Twat! Yeh, right in the twat. (laughter) Twat is an interesting word because it’s the only one I know of, the only slang word applying to the, a part of the sexual anatomy that doesn’t have another meaning to it. Like, ah, snatch, box and pussy all have other meanings, man. Even in a Walt Disney movie, you can say, We’re going to snatch that pussy and put him in a box and bring him on the airplane, (murmur, laughter) Everybody loves it. The twat stands alone, man, as it should. And two-way words. Ah, ass is okay providing you’re riding into town on a religious feast day. (laughter) You can’t say, up your ass. (laughter) You can say, stuff it! (murmur) There are certain things you can say its weird but you can just come so close. Before I cut, I, uh, want to, ah, thank you for listening to my words, man, fellow, uh space travelers. Thank you man for tonight and thank you also, (clapping whistling) 56 F. C. C. 2d, at 99. The Commission noted: “Congress has specifically empowered the FCC to (1) revoke a station’s license (2) issue a cease and desist order, or (3) impose a monetary forfeiture for a violation of Section 1464, 47 U. S. C. [§§] 312 (a), 312 (b), 503 (b) (1) (E). The FCC can also (4) deny license renewal or (5) grant a short term renewal, 47 U. S. C. [§§] 307, 308.” Id., at 96 n. 3. “Broadcasting requires special treatment because of four important considerations: (1) children have access to radios and in many cases are unsupervised by parents; (2) radio receivers are in the home, a place where people’s privacy interest is entitled to extra deference, see Rowan v. Post Office Dept., 397 U. S. 728 (1970); (3) unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast; and (4) there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest. Of special concern to the Commission as well as parents is the first point regarding the use of radio by children.” Id,., at 97. Title 18 U. S. C. § 1464 (1976 ed.) provides: “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both.” Section 303 (g) of the Communications Act of 1934, 48 Stat. 1082, as amended, as set forth in 47 U. S. C. § 303 (g), in relevant part, provides: “Except as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall— “(g) . . . generally encourage the larger and more effective use of radio in the public interest.” Thus, the Commission suggested, if an offensive broadcast had literary, artistic, political, or scientific value, and were preceded by warnings, it might not be indecent in the late evening, but would be so during the day, when children are in the audience. 56 F. C. C. 2d, at 98. Chairman Wiley concurred in the result without joining the opinion. Commissioners Reid and Quello filed separate statements expressing the opinion that the language was inappropriate for broadcast at any time. Id., at 102-103. Commissioner Robinson, joined by Commissioner Hooks, filed a concurring statement expressing the opinion: “[W]e can regulate offensive speech to the extent it constitutes a public nuisance. . . . The governing idea is that 'indecency’ is not an inherent attribute of words themselves; it is rather a matter of context and conduct. ... If I were called on to do so, I would find that Carlin’s monologue, if it were broadcast at an appropriate hour and accompanied by suitable warning, was distinguished by sufficient literary value to avoid being ‘indecent’ within the meaning of the statute.” Id., at 107-108, and n. 9. The Commission did, however, comment: “ '[I]n some cases, public events likely to produce offensive speech are covered live, and there is no opportunity for journalistic editing.’ Under these circumstances we believe that it would be inequitable for us to hold a licensee responsible for indecent language. . . . We trust that under such circumstances a licensee will exercise judgment, responsibility, and sensitivity to the community’s needs, interests and tastes.” 59 F. C. C. 2d, at 893 n. 1. “Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.” 48 Stat. 1091, 47 U. S. C. § 326. Zechariah Chafee, defending the Commission’s authority to take into account program service in granting licenses, interpreted the restriction on “censorship” narrowly: “This means, I feel sure, the sort of censorship which went on in the seventeenth century in England — the deletion of specific items and dictation as to what should go into particular programs.” 2 Z. Chafee, Government and Mass Communications 641 (1947). In KFKB Broadcasting Assn. v. Federal Radio Comm’n, 60 App. D. C. 79, 47 F. 2d 670 (1931), a doctor who controlled a radio station as well as a pharmaceutical association made frequent broadcasts in which he answered the medical questions of listeners. He often prescribed mixtures prepared by his pharmaceutical association. The Commission determined that renewal of the station’s license would not be in the public interest, convenience, or necessity because many of the broadcasts served the doctor’s private interests. In response to the claim that this was censorship in violation of § 29 of the 1927 Act, the Court held: “This contention is without merit. There has been no attempt on the part of the commission to subject any part of appellant’s broadcasting matter to scrutiny prior to its release. In considering the question whether the public interest, convenience, or necessity will be served by a renewal of appellant’s license, the commission has merely exercised its undoubted right to take note of appellant’s past conduct, which is not censorship.” 60 App. D. C., at 81, 47 F. 2d, at 672. In Trinity Methodist Church, South v. Federal Radio Comm’n, 61 App. D. C. 311, 62 F. 2d 850 (1932), cert. denied, 288 U. S. 599, the station was controlled by a minister whose broadcasts contained frequent references to “pimps” and “prostitutes” as well as bitter attacks on the Roman Catholic Church. The Commission refused to renew the license, citing the nature of the broadcasts. The Court of Appeals affirmed, concluding that First Amendment concerns did not prevent the Commission from regulating broadcasts that “offend the religious susceptibilities of thousands ... or offend youth and innocence by the free use of words suggestive of sexual immorality.” 61 App. D. C., at 314, 62 F. 2d, at 853. The court recognized that the licensee had a right to broadcast this material free of prior restraint, but “this does not mean that the government, through agencies established by Congress, may not refuse a renewal of license to one who has abused it.” Id., at 312, 62 F. 2d, at 851. See, e. g., Bay State Beacon, Inc. v. FCC, 84 U. S. App. D. C. 216, 171 F. 2d 826 (1948); Idaho Microwave, Inc. v. FCC, 122 U. S. App. D. C. 253, 352 F. 2d 729 (1965); National Assn. of Theatre Owners v. FCC, 136 U. S. App. D. C. 352, 420 F. 2d 194 (1969), cert. denied, 397 U. S. 922. See, e. g., 67 Cong. Rec. 12615 (1926) (remarks of Sen. Dill); id., at 5480 (remarks of Rep. White); 68 Cong. Rec. 2567 (1927) (remarks of Rep. Scott); Hearings on S. 1 and S. 1754 before the Senate Committee on Interstate Commerce, 69th Cong., 1st Sess., 121 (1926); Hearings on H. R. 5589 before the House Committee on the Merchant Marine and Fisheries, 69th Cong., 1st Sess., 26 and 40 (1926). See also Hearings on H. R. 8825 before the House Committee on the Merchant Marine and Fisheries, 70th Cong., 1st Sess., passim (1928). In addition to § 1464, the Commission also relied on its power to regulate in the public interest under 47 U. S. C. §303 (g). We do not need to consider whether § 303 may have independent significance in a case such as this. The statutes authorizing civil penalties incorporate § 1464, a criminal statute. See 47 U. S. C. §§312 (a) (6), 312(b)(2), and 503 (b)(1)(E) (1970 ed. and Supp. V). But the validity of the civil sanctions is not linked to the validity of the criminal penalty. The legislative history of the provisions establishes their independence. As enacted in 1927 and 1934, the prohibition on indecent speech was separate from the provisions imposing civil and criminal penalties for violating the prohibition. Radio Act of 1927, §§ 14, 29, and 33, 44 Stat. 1168 and 1173; Communications Act of 1934, §§ 312, 326, and 501, 48 Stat. 1086, 1091, and 1100, 47 U. S. C. §§ 312, 326, and 501 (1970 ed. and Supp. V). The 1927 and 1934 Acts indicated in the strongest possible language that any invalid provision was separable from the rest of the Act. Radio Act of 1927, § 38, 44 Stat. 1174; Communications Act of 1934, § 608, 48 Stat. 1105, 47 U. S. C. § 608. Although the 1948 codification of the criminal laws and the addition of new civil penalties changes the statutory structure, no substantive change was apparently intended. Cf. Tidewater Oil Co. v. United States, 409 U. S. 151, 162. Accordingly, we need not consider any question relating to the possible application of § 1464 as a criminal statute. Webster defines the term as “a: altogether unbecoming: contrary to what the nature of things or what circumstances would dictate as right or expected or appropriate: hardly suitable: UNSEEMLY . . . b: not conforming to generally accepted standards of morality: . . . Webster’s Third New International Dictionary (1966). Indeed, at one point, he used “indecency” as a shorthand term for “patent offensiveness,” 370 U. S., at 482, a usage strikingly similar to the Commission’s definition in this case. 56 F. C. C. 2d, at 98. “ ‘[W]hile a nudist magazine may be within the protection of the First Amendment . . . the televising of nudes might well raise a serious question of programming contrary to 18 U. S. C. § 1464. . . . Similarly, regardless of whether the “4-letter words” and sexual description, set forth in “lady Chatterly’s Lover,” (when considered in the context of the whole book) make the book obscene for mailability purposes, the utterance of such words or the depiction of such sexual activity on radio or TV would raise similar public interest and section 1464 questions.’” Enbanc Programing Inquiry, 44 F. C. C. 2303, 2307 (1960). See also In re WUHY-FM, 24 F. C. C. 2d 408, 412 (1970); In re Sonderliyig Broadcasting Corp., 27 R. R. 2d 285, on reconsideration, 41 F. C. C. 2d 777 (1973), aff’d on other grounds sub nom. Illinois Citizens Committee for Broadcasting v. FCC, 169 U. S. App. D. C. 166, 515 F. 2d 397 (1974); In re Mile High Stations, Inc., 28 F. C. C. 795 (1960); In re Palmetto Broadcasting Co., 33 F. C. C. 250 (1962), reconsideration denied, 34 F. C. C. 101 (1963), aff’d on other grounds sub nom. Robinson v. FCC, 118 U. S. App. D. C. 144, 334 F. 2d 534 (1964), cert. denied, 379 U. S. 843. This conclusion is reinforced by noting the different constitutional limits on Congress’ power to regulate the two different subjects. Use of the postal power to regulate material that is not fraudulent or obscene raises “grave constitutional questions.” Hannegan v. Esquire, Inc., 327 U. S. 146, 156. But it is well settled that the First Amendment- has a special meaning in the broadcasting context. See, e. g., FCC v. National Citizens Committee for Broadcasting, 436 U. S. 775; Bed Lion Broadcasting Co. v. FCC, 395 U. S. 367; Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94. For this reason, the presumption that Congress never intends to exceed constitutional limits, which supported Hamling’s narrow reading of § 1461, does not support a comparable reading of § 1464. A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language. Pacifica’s position would, of course, deprive the Commission of any power to regulate erotic telecasts unless they were obscene under Miller v. California, 413 U. S. 15. Anything that could be sold at a newsstand for private examination could be publicly displayed on television. We are assured by Pacifica that the free play of market forces will discourage indecent programming. “Smut may,” as Judge Leventhal put it, “drive itself from the market and confound Gresham,” 181 U. S. App. D. C., at 158, 556 F. 2d, at 35; the prosperity of those who traffic in pornographic literature and films would appear to justify skepticism. Although neither Mr. Justice Powell nor Mr. Justice BrenNAN directly confronts this question, both have answered it affirmatively, the latter explicitly, post, at 768 n. 3, and the former implicitly by concurring in a judgment that could not otherwise stand. See, e. g., Madison School District v. Wisconsin Employment Relations Comm’n, 429 U. S. 167, 175-176; First National Bank of Boston v. Bellotti, 435 U. S. 765. The monologue does present a point of view; it attempts to show that the words it uses are “harmless” and that our attitudes toward them are “essentially silly.” See supra, at 730. The Commission objects, not to this point of view, but to the way in which it is expressed. The belief that these words are harmless does not necessarily confer a First Amendment privilege to use them while proselytizing, just as the conviction that obscenity is harmless does not license one to communicate that conviction by the indiscriminate distribution of an obscene leaflet. The Commission stated: “Obnoxious, gutter language describing these matters has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions . . . .” 56 F. C. C. 2d, at 98. Our society has a tradition of performing certain bodily functions in private, and of severely limiting the public exposure or discussion of such matters. Verbal or physical acts exposing those intimacies are offensive irrespective of any message that may accompany the exposure. With respect to other types of speech, the Court has tailored its protection to both the abuses and the uses to which it might be put. See, e. g., New York Times Co. v. Sullivan, 376 U. S. 254 (special scienter rules in libel suits brought by public officials); Bates v. State Bar of Arizona, 433 U. S. 350 (government may strictly regulate truthfulness in commercial speech). See also Young v. American Mini Theatres, Inc., 427 U. S. 50, 82 n. 6 (Powell, J., concurring). The importance of context is illustrated by the Cohen case. That case arose when Paul Cohen entered a Los Angeles courthouse wearing a jacket emblazoned with the words “Fuck the Draft.” After entering the courtroom, he took the jacket off and folded it. 403 U. S., at 19 n. 3. So far as the evidence showed, no one in the courthouse was offended by his jacket. Nonetheless, when he left the courtroom, Cohen was arrested, convicted of disturbing the peace, and sentenced to 30 days in prison. In holding that criminal sanctions could not be imposed on Cohen for his political statement in a public place, the Court rejected the argument that his speech would offend unwilling viewers; it noted that “there was no evidence that persons powerless to avoid [his] conduct did in fact object to it.” Id., at 22. In contrast, in this case the Commission was responding to a listener’s strenuous complaint, and Pacifica does not question its determination that this afternoon broadcast was likely to offend listeners. It should be noted that the Commission imposed a far more moderate penalty on Pacifica than the state court imposed on Cohen. Even the strongest civil penalty at the Commission’s command does not include criminal prosecution. See n. 1, sufra. 47 U. S. C. §§309 (a), 312 (a)(2); FCC v. WOKO, Inc., 329 U. S. 223, 229. Cf. Shuttlesworth v. Birmingham, 394 U. S. 147; Staub v. Baxley, 355 U. S. 313. Outside the home, the balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker, requiring the offended listener to turn away. See Erznoznik v. Jacksonville, 422 U. S. 205. As we noted in Cohen v. California: “While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue ... , we have at the same time consistently stressed that 'we are often “captives” outside the sanctuary of the home and subject to objectionable speech.’ ” 403 U. S., at 21. The problem of harassing phone calls is hardly hypothetical. Congress has recently found it necessary to prohibit debt collectors from “plae[ing] telephone calls without meaningful disclosure of the caller’s identity”; from “engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number”; and from “us[ing] obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.” Consumer Credit Protection Act Amendments, 91 Stat. 877, 15 U. S. C. § 1692d (1976 ed., Supp. II). The Commission’s action does not by any means reduce adults to ■hearing only what is fit for children. Cf. Butler v. Michigan, 352 U. S. 380, 383. Adults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear these words. In fact, the Commission has not unequivocally closed even broadcasting to speech of this sort; whether broadcast audiences in the late evening contain so few children that playing this monologue would be permissible is an issue neither the Commission nor this Court has decided. Even a prime-time recitation of Geoffrey Chaucer’s Miller’s Tale would not be likely to command the attention of many children who are both old enough to understand and young enough to be adversely affected by passages such as: “And prively he caughte hire by the queynte.” The Canterbury Tales, Chaucer’s Complete Works (Cambridge ed. 1933), p. 58, 1. 3276. See generally Judge Leventhal’s thoughtful opinion in the Court of Appeals. 181 U. S. App. D. C. 132, 155-158, 556 F. 2d 9, 32-35 (1977) (dissenting opinion). Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:

songer_circuit

C

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. RCA CORPORATION v. LOCAL 241, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO, Appeal of RCA CORPORATION, Appeal of LOCAL 241, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO. Nos. 82-5090, 82-5222, 82-5266 and 82-5317. United States Court of Appeals, Third Circuit. Argued Nov. 16, 1982. Decided March 1, 1983. Rehearing and Rehearing En Banc Denied April 7, 1983. Bernard G. Segal, John H. Leddy (argued), Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellant. Ira Silverstein (argued), Meranze, Katz, Spear & Wilderman, Philadelphia, Pa., for appellee. Before GIBBONS, HIGGINBOTHAM and BECKER, Circuit Judges. OPINION OF THE COURT . A. LEON HIGGINBOTHAM, Jr., Circuit Judge. This appeal arises from a final judgment and order of the United States District Court for the District of New Jersey. In the action below RCA Corporation (“RCA”) sought a declaratory judgment that two unilateral decisions of the RCA Retirement Benefits Committee regarding RCA’s Retirement Plan should not be subject to the arbitration provisions of its collective bargaining agreement or any other agreement between RCA and Local 241, International Federation of Professional & Technical Engineers (“Local 241”). RCA and Local 241 each filed a Motion for Summary Judgment. The district court granted and denied both motions in part. The district court concluded that the disputes were arbitrable to the extent that the claims involved alleged violations of the General Collective Bargaining Agreement and Supplementary Agreements thereto which expressly provided for arbitration. The district court held that the claims were non-arbitrable to the extent that they involved violations of the Retirement Plan alone and on the merits of that issue granted summary judgment to RCA. In short, the court below found that the General Collective Bargaining Agreement and Supplementary Agreement, not the Retirement Plan, contemplated arbitration. On January 12, 1982, RCA filed a timely Notice of Appeal limited to that portion of the district court’s order requiring arbitration. The appeal was docketed in this Court as No. 82-5090. On January 20, 1982, RCA sent a letter to Local 241 notifying Local 241 that RCA had ordered a copy of the district court transcript for use in its appeal. Local 241 acknowledged RCA’s letter on January 25, 1982. On February 16, 1982, three weeks after the 14-day deadline within which a notice of appeal must be filed as prescribed by Federal Rule of Appellate Procedure 4(a)(3), Local 241 motioned the district court for an extension of time in which to file a notice of cross-appeal from the district court’s order relating to the non-arbitrability of the Retirement Plan. Because of a misrepresentation by Local 241 alleging that it had not received notice of RCA’s appeal until after the 14-day period had elapsed, and because of a mix-up in the Office of the Clerk of the District Court resulting in the non-delivery of RCA’s Memorandum of Law in Opposition to Local 241’s Motion, Local 241’s motion was granted. Pursuant to this extension Local 241 filed a Notice of Appeal on March 16, 1982, which this Court designated as No. 82-5222. On March 19, 1982, immediately after it learned of the extension granted to Local 241, RCA moved the district court to reconsider and vacate the March 8 order granting Local 241 an extension of time in which to file a notice of appeal. Resting its decision on the unrebutted evidence that Local 241 was notified of RCA’s notice of appeal prior to the January 26, 1982 deadline, the district court, in a Letter Opinion dated April 19, 1982, vacated its March 8 order granting Local 241 an extension. Additionally, the district court issued an order on May 3, 1982, giving effect to the April 19, 1982 Letter Opinion. Local 241 appealed the May 3,1982 order. That appeal was docketed in this Court as No. 82-5317, and on May 4, 1982, Local 241 filed another appeal, No. 82-5266, from the April 19, 1982 Letter Opinion. We will affirm the district court’s vacation of its March 8 order granting Local 241 an extension of time in which to file a Notice of Appeal and therefore we will dismiss Local 241’s appeals, docketed in this Court as No. 82-5222, No. 82-5317 and No. 82-5266. We will affirm also the district court’s decision, in 82-5090, requiring RCA to arbitrate the unilateral actions of its Retirement Benefits Committee because Local 241 alleged that these unilateral actions violate Section 3.01 and 3.02 of the General Agreement and 57.03 of the Supplementary Agreement. I. FACTS The parties agree to the essential facts underlying this appeal. RCA and Local 241 are parties to a General Collective Bargaining Agreement, two Supplementary Agreements and a Retirement Plan. (App. 13a-129a). The General Collective Bargaining Agreement, expressly, and the Supplementary Agreement, by reference, provide for the arbitration of grievances arising under those agreements. The Retirement Plan, however, contains no provision for arbitration of grievances or disputes arising under that plan. The disputes which Local 241 seeks to arbitrate involve two unilateral changes in the Retirement Plan. The first dispute stems from the fact that the Retirement Benefits Committee unilaterally increased the interest rate assumption used in calculating the actuarial lump sum equivalences to extended monthly benefits paid under the Retirement Plan. By raising the interest rate “assumed” over the next X years, the present value and therefore dollar amount of lump-sum benefits.paid today is decreased. The second dispute concerns the “buyback” interest rate applied to withdrawn contributions of previously terminated employees. RCA permits laid off or términated employees to “buy-back” their pension credit if upon departing from RCA they had withdrawn their contributions. The buyback price equals the withdrawn contributions compounded annually at a specified interest rate. Terminated employees who return as so-called new employees are charged five (5) percent while laid off employees are charged six (6) percent when recalled. RCA has refused to recognize the arbitrability Of Local 241’s challenge to these unilateral actions of the Retirement Benefits Committee. II. DISCUSSION The question before this Court is limited to the issue of arbitrability. Delimiting the role of this Court in this manner is well settled, and the question of arbitrability has often been framed as follows: Arbitration is a matter of contract and a party can not be required to submit to arbitration any dispute which he has not agreed so to submit. Whether or not a party to a contract is bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court, not by the arbitrator, on the basis of the contract entered into by the parties. United Steelworkers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 582 [80 S.Ct. 1347,1352, 4 L.Ed.2d 1409] (1962); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241 [82 S.Ct. 1318, 1320, 8 L.Ed.2d 1581] (1962); John Wiley and Sons, Inc. v. Livingston, etc., 376 U.S. 543, 546-47 [84 S.Ct. 909, 912-13, 11 L.Ed.2d 898] (1964); Retail Clerks International Ass’n, Etc. v. Lion Dry Goods, 341 F.2d 715, 719-20 (6th Cir.1965). (Quoted in, Radio Corporation of America v. Association of Scientists and Professional Engineering Personnel, 414 F.2d 893, 895 (3d Cir.1969)). Mindful of the narrow questions before us, we must determine whether RCA and Local 241 agreed to submit to arbitration disputes regarding the unilateral increase of the interest rate assumption used in calculating lump sum benefits. We must decide also whether the parties agreed to submit to arbitration disputes concerning the interest rate used to calculate the buyback price of pension benefits where the interest rate distinguishes between those employees returning following a lay off and those employees returning following prior termination. A. Appeals No. 82-5222, No. 82-5266 and No. 82-5317 In this part we first must determine whether the district court had the jurisdiction to vacate its March 8 order granting Local 241 an extension of time in which to file a notice of appeal. The central question which underlies these three appeals is whether the filing of a notice of appeal by a party divests a trial judge of jurisdiction. In United States v. Leppo, 634 F.2d 101, 104 (3d Cir.1980), Judge Aldisert, writing for a unanimous court, explained: [Ojrdinarily the trial court loses its power to proceed once a party files a notice of appeal. [Citations omitted]. This rule is not based on statutory provisions or the rules of procedure. Rather, it is a judge-made rule designed to avoid confusion or waste of time that might flow from putting the same issues before two courts at the same time. As Professor Moore has observed, the rule “should not be employed to defeat its purpose or to induce needless paper shuffling.” 9 J. Moore, Federal Practice § 203.11 at 3-44 n. 1 (1980); see C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure § 3949, at 358-59 (1977) (emphasis added.) Local 241 failed to file a notice of appeal within the 14-day period but was granted an extension by the district court because Local 241 alleged that it had received no notice of RCA’s appeal until the 14-day period had elapsed. The trial court also had believed, due to a mix-up in the Office of the Clerk of the District Court, that Local 241’s motion was unopposed by RCA. Upon learning of the district court’s March 8 order granting Local 241 an extension of time, RCA moved the court to reconsider. In its motion, RCA offered unrebutted evidence that Local 241 had actual knowledge of RCA’s Notice of Appeal prior to the running of the 14-day period. RCA also offered undisputed evidence that it had filed a timely Memorandum of Law in Opposition to Local 241’s initial motion seeking an extension of time. Based on the above reasons, the district court vacated its March 8 order which had granted Local 241 an extension of time in which to file a notice of appeal. We agree with Judge Aldisert’s reasoning in Leppo, 634 F.2d at 104, that the rule which requires a trial judge to divest himself of a case once a party has filed a notice of appeal “should not be employed to defeat its purpose or to induce unnecessary paper shuffling.” Id. In the instant case the trial judge vacated the March 8 order because he had relied upon misrepresentations by Local 241’s counsel and because he erroneously believed Local 241’s motion was unopposed. Because of the unusual nature of these circumstances, we hold that the trial court had the jurisdiction to vacate its March 8 order and thereby deny Local 241, retroactively, an extension of time in which to file a notice of appeal regarding the matter docketed at No. 82-5222. Having ruled that the district court had jurisdiction, we next must determine whether the court acted properly in denying the extension of time for Local 241 to file its cross-appeal; we will not reverse the district court’s decision unless we find that the court abused its discretion in so ruling, see Pellegrino v. Marathon Bank, 640 F.2d 696, 698 (5th Cir.1981). We cannot find on this record any such abuse of discretion. It appears that any delay in Local 241’s receiving notice of RCA’s appeal was due to coordination problems between the Philadelphia and Atlantic City offices of the union’s own attorneys. Moreover, it is clear that Local 241 had more than a day to file notice of its cross-appeal even after receiving belated notice of RCA’s appeal. We therefore dismiss the cross-appeal and affirm the rulings of the district court. B. Appeal No. 82-5090 Next, we consider the case docketed by this Court as No. 5090. In deciding whether the two challenged unilateral actions of the Retirement Benefits Committee in that case are the subject of arbitration we must analyze the agreements on which the alleged right to arbitration is based. The agreements divide essentially into two categories. One category consists of the relevant provisions of the General Agreement and Supplementary Agreement covering RCA employees at the Company’s Moorestown, New Jersey plant, which provisions mirror those of the General Agreement and Supplementary Agreement covering RCA employees at the Company’s Camden, New Jersey plant. (App. 13a-69a; App. 70a-129a, respectively). Because the relevant provisions in both sets of agreements are identical and because the district court treated and referred to them as one General Collective Bargaining Agreement (or “General Agreement”) we will analyze these provisions as one collective bargaining agreement when possible. The other category contains a single agreement, the Retirement Plan, on which Local 241 at the trial court level and on appeal in No. 82-5222 had based its alleged right to arbitrate the challenged two unilateral actions of the Retirement Benefits Committee. We begin our discussion with the General Collective Bargaining Agreement. It is undisputed that under the General Collective Bargaining Agreement Local 241 and RCA have agreed to arbitrate disputes with regard to the interpretation or application of any provision of the General Agreement. Thus, the initial question we must decide here is whether Local 241, as the party seeking arbitration, is making a claim which is governed by the General Collective Bargaining Agreement. Additionally and simultaneously we must determine whether the issues asserted by Local 241 are within the purview of the particular arbitration clauses. See Bristol Farmers Market v. Arlen Realty, 589 F.2d 1214, 1217-18 (3d Cir. 1978). We do not, however, decide the merits of the grievances. See United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. at 582, 80 S.Ct. at 1352. It is irrelevant to this question that the two challenged provisions originated in the Retirement Plan. The right to arbitration stems from the actions of RCA’s Retirement Benefits Committee in alleged contravention of provisions of the General Agreement. Whether the challenged actions were taken under the auspices of the Retirement Plan, another plan or no plan does not change our analysis. We are concerned only with actions that are alleged to violate particular provisions of a collective bargaining agreement which provides for arbitration of disputes concerning its interpretation or application. The provisions of the General Collective Bargaining Agreement which Local 241 alleged were violated and whose application to the challenged unilateral actions the district court ordered RCA to arbitrate are Paragraphs 3.01 and 3.02 of the General Agreement and Paragraph 57.03 of the Supplementary Agreement. These provisions are set out in full as follows: General Agreement and Paragraph 57.03 of the local plant Supplementary Agreement. Paragraph 3.01, Bargaining Unit Recognition, states: The Company recognizes the Union as the sole collective bargaining agency with respect to rates of pay, wages, hours and other conditions of employment for all employees in those bargaining units for which the Union and any affiliated chapter has been or shall be recognized through appropriate means satisfactory to both Parties as the sole collective bargaining agency. (App. 16a) Paragraph 3.02, Provision Against Coercion, Intimidation, and Discrimination, states: It is mutually agreed that there shall be no coercion, intimidation or discrimination by the Company or the Union or any of its members because of race, color, sex, national origin, political or religious belief, age, handicap, veteran’s status or membership or non-membership in the Union. Coercion, intimidation or discrimination shall not exist where age is a bona fide occupational qualification or is a factor under the Company’s established retirement policy as set forth in the RCA Retirement Plan. (App. 16a) Paragraph 57.03, Joint Committee, states: There shall be a joint committee consisting of two (2) members appointed by the Company and two (2) members appointed by the Chapter, which shall hold monthly meetings and shall be authorized to confer and make recommendations without respect to questions of fact relating to age, service, and eligibility under the Retirement Plan. (App. 51a) In the instant case, Local 241 asserts that RCA’s Retirement Benefits Committee’s increasing of the interest rate assumption used in calculating the actuarial lump sum equivalencies to extended monthly benefits under the Retirement Plan violates Section 3.01 of the General Agreement and Section 57.03 of the Supplementary Agreement. Regarding Section 3.01, Local 241 asserts that RCA’s failure to negotiate this change, which may adversely affect the lump sum benefits available to its members, violates Section 3.01 which recognizes the union as the exclusive bargaining agent for its members with respect to rates of pay, wages, hours and other conditions of employment. Regarding Section 57.03, which establishes a joint labor-management committee to make recommendations concerning the pension plan, Local 241 asserts that the employer’s unilateral increase of the interest rate assumption circumvented the role of this joint labor-management committee in violation of Section 57.03. Local 241 also alleges that the buy-back interest rate applied to withdrawn contributions of previously terminated employees violates Section 3.02 of the General Agreement. The purpose of Section 3.02 is to exclude “discrimination by the Company ... because of .. . membership or non-membership in the union.” (App. 16a). Local 241 asserts that the practice of charging a buy-back interest rate of six percent to laid off employees while charging terminated employees, who return as “new” employees only five percent violates Section 3.02 in that it discriminates against union members, i.e., those who have remained members of the union while they are in laid-off status, and favors non-union members, i.e., those who have dropped out of the union during the time they were terminated. RCA answers that its increase of the interest assumption rate and increase of interest rate used to calculate the buy-back price could not be interpreted reasonably as violations of Paragraphs 3.01 and 3.02 of the General Agreement or Paragraph 57.03 of the Supplementary Agreement and therefore arbitration cannot be had. The determination of the merits of this ease rests within the province of the arbitrator. The arbitrator under the facts of this case would be limited in his authority and power. He could not decide the interest rate used in calculating the buyback price, nor could he decide the appropriate actuarial assumptions for lump-sum benefits. The arbitrator simply has the authority and power to order that the unilateral changes regarding the appropriate buyback interest rate and actuarial assumption “be revoked until such time as negotiations had taken place and reached impasse.” Local 241, during oral argument, indicated that if RCA and it reached an impasse following the arbitrator’s order to bargain, RCA “would probably” be free to adopt the disputed unilateral actions of the Retirement Benefits Committee. For the above reasons, we hold that arbitration is the proper method to decide the merits. While we already have dismissed the cross-appeal challenging the district court’s failure to find the Retirement Plan to be an independent basis supporting arbitration, it is useful nonetheless to discuss the cross-appeal with a view toward testing the validity of our other conclusion and completing the picture. RCA contends that disputes concerning the interpretation or application of particular provisions of the Retirement Plan are non-arbitrable because the Retirement Plan and its amendment fail to provide mandatory arbitration provisions and because the Retirement Plan establishes the Retirement Benefits Committee as the body having exclusive power to settle disputes. Local 241, however, contends that because RCA has entered into a collective bargaining agreement, which expressly provides for arbitration and mentions the Retirement Plan, and because the General Collective Bargaining Agreement recognizes the union as the sole bargaining agent with regard to wages and conditions of employment, the Retirement Plan is arbitrable. The district court found, and we agree, that the Retirement Plan fails to provide an independent basis for mandatory arbitration. As the district court stated: The retirement plan itself does not contain a provision for the arbitration of disputes or issues arising under it. Nor is the plan a jointly administered one, as such plans are established under section 302 of the Labor-Management Relations Act which contains specific requirements for the resolutions of disputes by arbitration. The retirement plan is administered exclusively by RCA, which is its sole fiduciary under section 402(a)(1) of ERISA. (App. 301a) The negotiations between plaintiff and its unions over changes in the retirement plan are conducted separately, [have] always been so, from negotiations concerning the general collective bargaining agreement. Proposals to amend the retirement plan are separately prepared and considered and the effective and termination dates [are different]. (Id. 302a.) Moreover there is no provision in the General Agreement that either brings or seeks to bring the Retirement Plan within the ambit of the General Agreement. The mere mentioning of the Retirement Plan in the General Agreement is insufficient reason to construe the Retirement Plan as part and parcel of the General Agreement. The district court correctly found that the Retirement Plan was not adopted by the General Collective Bargaining Agreement as such. The district court focused on the following omissions: The retirement plan agreements do not correspond to those of past or present collective bargaining agreements.... The retirement plan does not provide for the arbitration of disputes, as indicated earlier .... The retirement benefits committee has the power to “determine any questions arising in the administration, interpretation and application of the plan, which determination shall be conclusive and binding on all persons concerned.” Although the defendant local has made proposals to amend the plan as affects its membership and the parties have adopted amendments to the plan, no arbitration provision for the retirement plan was ever proposed or discussed. (Id. 302a-03a). Because the Retirement Plan fails to provide for arbitration either independently or when read in conjunction with the General Agreement, we find the part of the district court’s opinion that held the provisions of the Retirement Plan non-arbitrable on an incorporation basis to be entirely consistent with that portion of the district court’s order requiring arbitration based on the General Collective Bargaining Agreement. CONCLUSION We are satisfied that Local 241’s allegations satisfy the threshold requirement for arbitration under its General Collective Bargaining Agreement with RCA; thus we will affirm the judgment of the district court granting Local 241’s Motion for Summary Judgment as to its claim under Paragraphs 3.01, 3.02 and 57.03 of the Collective Bargaining Agreement. We will affirm also the district court’s vacation of its March 8 order granting Local 241 an extension of time in which to file a Notice of Appeal and therefore we will dismiss the appeals, docketed in this Court as No. 82-5222, No. 82-5317 and No. 82-5266. . RCA’s Board of Directors makes annual appointments of the Retirement Benefits Committee. The Retirement Benefits Committee is responsible for administering the Retirement Plan. . By deciding that the district court had jurisdiction and the power to vacate its March 8 order, we automatically decide cases docketed as No. 82-5222, No. 82-5266 and No. 82-5317 against Local 241. These three are inextricably tied because in 82-5266 and 82-5317 Local 241 asserts that the district court lacks the jurisdiction to vacate its March 8 order vacating the extension of time which was essential to the viability of 82-5222. . "Chapter” is used to describe an affiliation of Union Local 241. . Transcript of Oral Argument at 34. Local 241 conceded this limited authority and power of the arbitrator. Local 241 also concluded that the arbitrator would not be within the scope of his authority or power to determine the buy-back interest rate or actuarial assumption. Id. . Id. 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_othcrim

A

What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". Ulpiano VARELA CARTAGENA, Defendant, Appellant, v. UNITED STATES of America, Appellee. Ramon LOPEZ ROSA, Defendant, Appellant, v. UNITED STATES of America, Appellee. Nos. 7066, 7067. United States Court of Appeals First Circuit. June 28, 1968. Manuel Nelson Zapata, New York City, with whom Santos P. Amadeo and Gerardo Ortiz Del Rivero, San Juan, P. R., were on brief, for appellants. Charles E. Figueroa, Asst. U. S. Atty., with whom Francisco A. Gil, Jr., U. S. Atty., and Blas C. Herrero, Jr., Asst. U. S. Atty., were on brief, for appellee. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. PER CURIAM. Appellants Cartagena and Rosa are two of three defendants tried under 18 U.S.C. §§ 371 and 472 for conspiracy to pass and for passing counterfeit money. Both were convicted. The third defendant, Rodriguez, was acquitted. Error is principally alleged in the district court’s refusal to grant written and oral motions to sever trial of appellants and Rodriguez on the ground of conflicting defenses and the disclosure by counsel for the latter that his client’s testimony could be substantially damaging to codefendants. Where, as here, the joinder requirements of Fed.R.Crim.P. 8(b) are satisfied, relief in this court is available only upon a showing of abuse of discretion by the trial court in refusing severance under Fed.R.Crim.P. 14. Sagansky v. United States, 358 F.2d 195, 199-200 (1st Cir.), cert, denied, 385 U.S. 816, 87 S.Ct. 36, 17 L.Ed.2d 55 (1966). We find none on the facts of this case. To be sure, the effect of Rodriguez’ testimony was to exculpate himself and to inculpate appellants. His defense was not that none of the alleged acts occurred or that he did not himself pass counterfeit money but that, having had no knowledge that it was counterfeit, he lacked the requisite mens rea for conviction. His testimony was that he was walking outside his home, was given a ride to town by appellants, and was persuaded to go to the patron saint’s festivities in another town. In the course of an evening of drinking, he and appellant Rosa each made several separate purchases of rum with a twenty dollar bill received from appellant Cartagena on each occasion. At the last stop, when a bill was discovered as counterfeit, appellants left precipitately by car, leaving Rodriguez behind to face the music. This testimony contained no admissions attributable to appellants. It was unlike the testimony in many conspiracy cases in which incriminating statements by a non-testifying co-conspirator are admissible from the lips of a testifying co-conspirator in a joint trial or not at all. Rodriguez’ testimony in this case would have been competent at appellants’ separate trial had one been granted. Whether Rodriguez were to be tried before or after Cartagena and Rosa, whether at the time of such trial he had been convicted, acquitted or were still an accused, he would in all probability still have been a witness for the government and could have as effectively damaged appellants. We see no prejudice here, to say nothing of a strong showing of prejudice. Sagansky v. United States, supra at 199. Three other points are raised for the first time in this appeal, without objection having been taken below or noted in the statement of points on appeal as required by our rule 23(2). Neither singly nor in combination do they rise to the level of plain error noticeable under Fed.R.Crim.P. 52(b). The first of these asserted errors is that counsel for Rodriguez, in the course of a lengthy summation stressing credibility, twice mentioned that his client had testified and subjected himself to cross-examination. The record is bereft of any mention of appellants’ silence or any guile or innuendo. It is in sharp contrast to the situation in either Desmond v. United States, 345 F.2d 225 (1st Cir. 1965), or De Luna v. United States, 308 F.2d 140 (5th Cir. 1962). The privilege against self-incrimination of a co-defendant who does not choose to testify does not go so far as to deprive one who does so choose of effective argument in his behalf, so long as it is, as it was here, sensitive to the rights of others. Cf. United States v. Knox Coal Co., 347 F.2d 33 (3d Cir.), cert, denied, 382 U.S. 904, 86 S.Ct. 239, 15 L.Ed.2d 157 (1965); United States v. Parness, 331 F.2d 703 (3d Cir.), cert, denied, 379 U.S. 801, 85 S.Ct. 10, 13 L.Ed.2d 20 (1964). A second alleged error is that the court charged that all witnesses are presumed to speak the truth and that a presumption “is a deduction or a conclusion which the law requires you to make under certain circumstances. * * * ” Appellants cite our disapproval of such an instruction in McMillen v. United States, 386 F.2d (1st Cir. 1967). But unlike the situation in McMillen where we found plain error, the court below did not fail to give an appropriate instruction as to accomplice testimony, there was no other error interacting with the presumption instruction to elevate it to plain error, and there was adequate corroborating evidence apart from Rodriguez’ testimony. Finally, appellants charge error in the closing argument of Rodriguez’ counsel who, referring to the evidence that Rodriguez had given a statement to the police, argued that had his testimony varied from the statement, there would have been an attempt to impeach him. Appellants seek to equate this with an improper use of a prior consistent statement. To assert such a ground as plain error indicates only that our strictures in Dichner v. United States, 348 F.2d 167 (1st Cir. 1965), have not yet reached all of their intended audience. Affirmed. Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

songer_numappel

4

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Robert DAVIDSON v. Edward O’LONE, Superintendent, Arthur Jones, Hearing Officer, Joseph Cannon, Superintendent, and Robert James, Internal Affairs. Appeal of Joseph CANNON and Robert James. No. 82-5743. United States Court of Appeals, Third Circuit. Argued Dec. 1, 1983. Reargued In Banc May 7, 1984. Decided Dec. 27, 1984. Originally Argued Dec. 1, 1983. Before GIBBONS and SLOVITER, Circuit Judges, and GREEN, District Judge Reargued In Banc May 7, 1984. Before ALDISERT, Chief Judge, SEITZ, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges. Madeleine W. Mansier (argued), Deputy Atty. Gen., Irwin I. Kimmelman, Atty. Gen. of New Jersey, Trenton, N.J., for appellants Joseph Cannon and Robert James; James J. Ciancia, Asst. Atty. Gen., Trenton, N.J., of counsel. James D. Crawford (argued), Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee. Hon. Clifford Scott Green, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. At the time of the reargument in banc, Judge Seitz was Chief Judge. . Both Judge Weis and Judge Garth join the majority opinion. OPINION OF THE COURT SLOVITER, Circuit Judge. The principal issue presented by this appeal is whether 42 U.S.C. § 1983 encompasses a claim for personal injury to a state prisoner based on the negligence of prison officials when New Jersey state law provides no remedy. I. Plaintiff Robert Davidson was an inmate at Leesburg State Prison when, on December 17, 1980, he intervened in a fight between two other inmates, Gibbs and McMillian. The three had disciplinary hearings on the morning of December 19, and immediately afterward McMillian threatened Davidson. Davidson returned to the hearing room to report the incident and, at the request of the guard on duty, wrote a note intended for Arthur Jones, the hearing officer. The note said: When I went back to the unit after seeing you McMillian was on the steps outside the unit. When I was going past him he told me ‘Til fuck you up you old mother-fucking fag.” Go up to your cell, I be right there. I ignored this and went to another person’s cell and thought about it. Then I figured I should tell you so “if” anything develops you would be aware. I’m quite content to let this matter drop but evidently McMillian isn’t. Thank you, R. Davidson. Dal4. Jones, to whom the note was addressed, was a civilian and not part of the prison administration. He told the guard, Jose Garcia, to pass the note to the proper officials. At 11:40 a.m. Garcia delivered it to Joseph Cannon, assistant superintendent of the prison. Cannon read it and told Garcia to give it to Corrections Sergeant Robert James. Cannon testified later that he did not regard the situation as urgent because Davidson, whom he had known for years, did not contact him directly, as he had previously done in various situations. Sergeant James was not in his office, and Garcia did not get the note to him until after 2:00 p.m. Garcia told him then that the note reported a threat by McMillian against Davidson. James attended to other matters, which he described as emergencies, leaving the note on his desk. At 4:00 he started a second shift, as Assistant Center Keeper, in another part of the prison. Between the time he received the note and the time he left the prison that night, James, spent only about 10 minutes in his office. He forgot about the note, which he had not read. James acknowledged that in such a situation he would ordinarily interview the inmates. Though he was not able to attend to the matter that day, he testified that if he had remembered the note he would have posted it at the Center to alert officers on the morning shift. Davidson, as the parties have stipulated, took no other steps to notify the authorities or request protective custody. He testified that he did not foresee the attack, but wrote the note to exonerate himself in the event that McMillian started another fight. Davidson also testified that he wanted officials to reprimand McMillian. Neither Cannon nor James worked on December 20 or 21. On December 21, McMillian attacked Davidson with a fork, inflicting wounds to his face, neck, head and body, and breaking his nose. Though the stab wounds healed within several weeks, Davidson has undergone surgery to correct problems stemming from his broken nose, suffering continuing pain and residual effects. Davidson was foreclosed from recovery from these defendants for his injuries under state law, for the New Jersey Tort Claims Act provides that “[njeither a public entity nor a public employee is liable for ... any injury caused by ... a prisoner to any other prisoner.” N.J.Stat.Ann. § 59:5-2(b)(4)(West 1982). The parties agree that as a result of this provision, Davidson has no state law claim for his injuries against the defendants or against the state. Davidson brought suit in the United States District Court for the District of New Jersey under 42 U.S.C. § 1983, naming as defendants Cannon, James, Jones, and Edward O’Lone, the prison superintendent. The court granted summary judgment in favor of O’Lone. The case against the other three was tried with Davidson appearing pro se. The court concluded that plaintiff did not establish an Eighth Amendment violation “because defendants did not act with deliberate ór callous indifference to plaintiff’s needs and because the incident complained of was a single attack.” Dal8. The court concluded, however, that Cannon and James, but not Jones, negligently failed to take reasonable steps to protect Davidson, that Davidson was injured as a result, and that their negligence deprived Davidson of a constitutionally protected liberty interest in freedom from assault while in prison. The court reasoned that because the New Jersey immunity provision denied Davidson a hearing, Davidson had been deprived of his liberty interest without due process. Davidson was awarded compensatory damages of $2,000. Defendants appeal, contending that the district court erred in concluding that they were negligent, that the court erred in concluding that an inmate such as Davidson in a state prison has a liberty interest in being protected by prison officials from a single assault by another inmate, and that the court erred in concluding that 42 U.S.C. § 1983 encompasses a claim arising out of a negligent failure by prison officials to protect an inmate against a single assault by another inmate. We will consider these contentions seriatim. II. After hearing all of the relevant evidence, the district court concluded, with respect to Cannon and James: We find that these two defendants negligently failed to take reasonable steps to protect plaintiff, and that he was injured as a result. Both of these officials had the responsibility to care for plaintiff’s safety, actual notice of the threat by an inmate with a known history of violence, and an opportunity to prevent harm to plaintiff. Dal8. Appellants concede that the applicable standard by which we must review the findings of the district court when sitting without a jury is the “clearly erroneous” standard contained in Rule 52(a) of the Federal Rules of Civil Procedure. See Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). Appellants thus bear the heavy burden of convincing us that the district court determination either “is completely devoid of minimum evidentiary support displaying some hue of credibility,” or “bears no rational relationship to the supportive evidentiary data.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir.1972). The appropriate standard of care owed by prison custodians in New Jersey with respect to the risk of inmate injury was set forth in Harris v. State, 61 N.J. 585, 297 A.2d 561 (1972). As the court stated there, a prisoner is owed “a duty of due care while in custody” and further, “in appropriate circumstances [the prisoner] would be entitled to a recovery on a showing that a prison official negligently failed to discharge his responsibility for the [prisoner’s] care with resulting injuries to him.” Id. at 590, 297 A.2d at 563. The Harris court denied recovery because the defendants had received no warning of a danger to the plaintiff. In this case, the district court found that the defendants had “actual notice of the threat by an inmate with a known history of violence,” Dal8, which we find satisfies the Harris notice requirement. See also Restatement (Second) of Torts § 320 (1965). Appellants challenge the district court findings as clearly erroneous on several grounds. They contend that the district court erred in finding that they knew about McMillian’s past, that they failed to exercise reasonable care to protect Davidson, and that their failure to follow the prison procedures proximately caused the injury. However, while we agree that on this record there would be room for the trier of fact to have reached a different conclusion as to negligence, we cannot hold that there was no negligence as a matter of law nor that we are “left with the definite and firm conviction that a mistake has been committed” by the district court in reaching its findings. United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Thus we accept the determination that defendants were negligent in failing to take steps to prevent McMillian’s assault on Davidson. III. Appellants argue that the district court erred as a matter of law when it identified a “liberty interest” protected by the Due Process Clause to be free from physical attack and injury. Since § 1983, by its own terms, provides redress only when state employees infringe those rights “secured by the Constitution and laws” of the United States, see, e.g., Paul v. Davis, 424 U.S. 693, 700-01, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976); Smith v. Spina, 477 F.2d 1140, 1143 (3d Cir.1973), plaintiff must satisfy this threshold requirement before we need reach the question whether simple negligence can give rise to § 1983 liability. See Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). We must, therefore, decide whether plaintiff as a state prisoner had a constitutionally protected “liberty interest” in security from physical assault by fellow prisoners. The constitutional right on which Davidson relies is that of his liberty interest in personal security protected by the Fourteenth Amendment. That the amendment covers such a basic personal right was affirmed by the Supreme Court in Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977), where it stated, “Among the historic liberties [protected by the due process clause] was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.” Davidson’s status as a prisoner does not deprive him of his right to rely on the Fourteenth Amendment. Because an inmate is not free to leave the confines which s/he is forced to share with other prisoners, the state bears the responsibility for the inmate’s safety. Undoubtedly, a similar responsibility stemming from the state’s control over the plaintiff underlay the Court’s finding of a liberty interest in Ingraham, where the plaintiff was in a public school, in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), where the plaintiff was an inmate of a state institution for the mentally retarded, and in City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983), where the plaintiff was injured while being apprehended by the police. The Supreme Court has “repeatedly held that prisons are not beyond the reach of the Constitution.” Hudson v. Palmer, — U.S. —, —, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984). As it recently stated, “[W]e have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.” Id. This court held in Curtis v. Everette, 489 F.2d 516, 518 (3rd Cir.1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974), that the Due Process Clause is a valid basis for a prisoner’s § 1983 action seeking relief for injuries inflicted by another prisoner. In Curtis, the allegations that defendant prison officials stopped the plaintiff prisoner from defending himself from an attack by another prisoner were held to implicate the plaintiff’s constitutional “right to be secure in his person” under the Fourteenth Amendment. Id. Appellants argue that the substantive due process right to personal security does not protect a state prisoner from an isolated attack by another prisoner. In so arguing, appellants have contracted into one issue what are in fact two separate issues, whether the liberty interest in bodily integrity protected by the Fourteenth Amendment covers the state’s failure to prevent attacks by other prisoners and the circumstances under which § 1983 provides a remedy for deprivation of that interest. Our focus in this section is directed only to the Fourteenth Amendment liberty interest. As to that, we find no Supreme Court precedent that would limit the protected liberty interest in freedom from attack to those attacks inflicted by the state officials themselves. Certainly it would be absurd to argue that a state prisoner does not have a liberty interest that would be infringed were his or her state custodian deliberately to open the prison door knowing that a lynch mob converged outside. The state infringement would be as direct as if the prison guard had tied the rope around the prisoner’s neck. The fact that there was only a single or isolated episode is irrelevant in determining whether a liberty interest was implicated. That such a liberty interest covers attacks committed by persons other than state custodians has been recently affirmed in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Romeo, an involuntarily committed resident of a state institution for the mentally retarded, claimed in his § 1983 suit against administrators of the institution that his substantive right, inter alia, to safe conditions of confinement protected by the due process clause of the Fourteenth Amendment was violated because state officials were aware of and failed to take all reasonable steps to prevent his injury by other residents and by his own violence. The Court expressly recognized and reaffirmed the substantive liberty interest under the Fourteenth Amendment implicated by this claim. The Court stated: In the past, this Court has noted that the right to personal security constitutes a “historic liberty interest” protected substantively by the Due Process Clause. Ingraham v. Wright, 430 U.S. 651, 673 [97 S.Ct. 1401, 1413, 51 L.Ed.2d 711] (1977). And that right is not extinguished by lawful confinement, even for penal purposes. See Hutto v. Finney, 437 U.S. 678 [98 S.Ct. 2565, 57 L.Ed.2d 522] (1978). Id. at 315, 102 S.Ct. at 2458. Thus we reject appellants’ contention that Davidson had no interest protected by the Constitution. IV. The reasoning by which the district court concluded that Davidson was entitled to recover in this § 1983 action against Cannon and James is as follows: Cannon and Jones were negligent; as a result of that negligence, Davidson was injured; freedom from bodily injury is a liberty interest which is protected by the Fourteenth Amendment of the Constitution; New Jersey does not provide prisoners, such as Davidson, with a remedy in state court because it immunizes its employees against claims for injuries to a prisoner caused by another prisoner; ergo Davidson can recover under § 1983. We have noted our agreement with the district court’s reasoning up to the step at which it concluded that § 1983 liability extends to the negligent conduct of the prison officials in failing to investigate or take other action to protect Davidson. We turn now to that question, denominated as “elusive” by the Supreme Court. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). There are literally hundreds of cases in the Courts of Appeals in which various aspects of this issue have arisen and no clearly discernible thread has evolved. As the Supreme Court has recognized, “The diversity in approaches [among the various federal courts] is legion.” Parratt v. Taylor, 451 U.S. 527, 533, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). We begin, therefore, by examining the Supreme Court’s own treatment of the issue. Until the Court’s decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), there was little case law dealing with violations of § 1983 since most of the civil rights litigation against state officers before that time involved 18 U.S.C. § 242, the criminal counterpart to § 1983. In Monroe v. Pape, the Court held, inter alia, that because § 1983, unlike § 242, does not contain the word “willfully,” proof of “will-fullness” should not be required of a plaintiff seeking recovery under § 1983. The Court defined “willfully” as the doing of an act with “a specific intent to deprive a person of a federal right.” Id. at 187, 81 S.Ct. at 484. Justice Harlan, who concurred, addressed the relationship between the state action encompassed in § 1983 and that covered under ordinary state tort law. He stated that one must attribute “to the enacting legislature the view that a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right.” Id. at 196, 81 S.Ct. at 488 (emphasis added). The language and some of the holdings of the subsequent Supreme Court cases considering this issue reflect the Court’s rejection of the notion that every state tort committed by a state officer acting under color of state law is ipso facto converted into a violation of § 1983. Thus, for example, in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Court held that a state prisoner subjected to medical malpractice does not automatically have a claim under § 1983. The Court stated, “Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id. at 106, 97 S.Ct. at 292. In a case decided earlier that year, Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Court, speaking through Justice Rehnquist, held that a citizen defamed by police through circulation of a flyer of “active shoplifters” on which his name and photograph appeared did not state a claim for relief under § 1983 and the Fourteenth Amendment. The Court expressly rejected the premise that “the Due Process Clause of the Fourteenth Amendment and § 1983 make actionable many wrongs inflicted by government employees which had heretofore been thought to give rise only to state-law tort claims.” Id. at 699, 96 S.Ct. at 1159. Justice Rehnquist stated that such a premise “would be contrary to pronouncements in our cases on more than one occasion with respect to the scope of § 1983 and of the Fourteenth Amendment.” Id. The authority on which Justice Rehnquist relied was Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), where Justice Douglas had written for the plurality: Violation of local law does not necessarily mean that federal rights have been invaded. The fact that a prisoner is assaulted, injured, or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution or laws of the United States. Id. at 108-09, 65 S.Ct. at 1039, quoted in Paul v. Davis, 424 U.S. at 700, 96 S.Ct. at 1160. Justice Douglas’ opinion in Screws continued with the caution that Congress should not be understood to have attempted to make all torts of state officials federal crimes. It brought within [the criminal provision] only specified acts done ‘under color’ of law and then only those acts which deprived a person of some right secured by the Constitution or laws of the United States. 325 U.S. at 109, 65 S.Ct. at 1039, also quoted in Paul v. Davis, 424 U.S. at 700, 96 S.Ct. at 1160. Although Justice Douglas in Screws was construing the criminal analogue to § 1983, these passages of the Screws opinion were used as applicable authority by the majority in Paul v. Davis in its interpretation of § 1983. Indeed, Justice Rehnquist then proceeded to apply the analysis from Screws to reject the claim that defamation by the police fell within the scope of § 1983 and of the Fourteenth Amendment. Justice Rehnquist wrote: [Plaintiff] apparently believes that the Fourteenth Amendment’s Due Process Clause should ex proprio vigore extend to him a right to be free of injury wherever the State may be characterized as the tortfeasor. But such a reading would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States. We have noted the “constitutional shoals” that confront any attempt to derive from congressional civil rights statutes a body of general federal tort law, Griffin v. Breckenridge, 403 U.S. 88, 101-102 [91 S.Ct. 1790, 1797-1798, 29 L.Ed.2d 338] (1971); a fortiori, the procedural guarantees of the Due Process Clause cannot be the source for such law. Paul v. Davis, 424 U.S. at 701, 96 S.Ct. at 1160. Shortly thereafter, in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), the Supreme Court appeared ready to decide directly the issue before us since it granted certiorari to consider “[w]hether negligent failure to mail certain of a prisoner’s outgoing letters states a cause of action under section 1983.” Id. at 559 n. 6, 98 S.Ct. at 858 n. 6. Because the Court decided that the defendants were entitled to prevail on the defense of qualified immunity as a matter of law, it did not reach the question on which certiorari was granted. Thereafter, in Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), the Court again confronted this question. Again, the Court disposed of the case on other grounds since it held that no constitutional right was implicated because the defendant police officer charged with false imprisonment under § 1983 had acted on the basis of a valid arrest warrant. However, in his discussion concerning whether negligent conduct can form the basis of an award of damages under 42 U.S.C. § 1983, Justice Rehnquist, once more writing for the Court, stated: Having been around this track once before in Procunier, supra, we have come to the conclusion that the question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action. Id. at 139-40, 99 S.Ct. at 2692. The duty upon which liability was sought to be predicated in Baker v. McCollan was closely akin to that Davidson relies on here. Plaintiff McCollan had been falsely imprisoned because his brother, the real culprit, had used plaintiffs driver’s license as his identification. The Court of Appeals held that plaintiff’s complaint stated a claim for relief under § 1983 because under tort law “the sheriff or arresting officer has a duty to exercise due diligence in making sure that the person arrested and detained is actually the person sought under the warrant and not merely someone of the same or a similar name. See Restatement (2d) Torts § 125, comment (d) (1965).” McCollan v. Tate, 575 F.2d 509, 513 (5th Cir.1978). Thus in McCollan, as in this case, plaintiff’s claim was based on obligations under tort law of those state officials who have custody of prisoners. The Supreme Court, in reversing the Court of Appeals decision, rejected the contention that the duty imposed by tort law would be automatically transmuted into a duty protected by the Constitution. Justice Rehnquist stated: Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort-law principles. Just as “[mjedical malpractice does not become a constitutional violation merely because the victim is a prisoner,” Estelle v. Gamble, 429 U.S. 97, 106 [97 S.Ct. 285, 292, 50 L.Ed.2d 251] (1976), false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official. Id. 443 U.S. at 146, 99 S.Ct. at 2695-2696. Thus, nothing in the Court’s cases through 1979 provides any support for the principle that negligent conduct by a state official causing injury to the person constitutes a deprivation of a Fourteenth Amendment right which can be redressed in a § 1983 suit. As authority for that position, the district court read the Supreme Court’s opinion in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), as holding “that a state official’s negligence is sufficient to constitute a ‘deprivation’ for due process purposes.” Da20. We turn to Parratt to determine if it supports the broad construction given it by the district court. In Parratt the plaintiff prisoner brought an action claiming that his now famous hobby materials valued at $23.50 were negligently lost by prison officials in violation of his right under the Fourteenth Amendment not to have his property taken without due process of law. Plaintiff’s claim was ultimately rejected by the Supreme Court, which held that because there were state remedies that could have fully compensated plaintiff for the property loss he suffered, the requirements of due process had been satisfied. 451 U.S. at 537-44, 101 S.Ct. at 1913-17. Recently, in Hudson v. Palmer, — U.S. —, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Court extended the Parratt holding to apply as well to certain intentional deprivations of a prisoner’s property. It stated, [W]e hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy is available. For intentional, as for negligent deprivations of property by state employees, the State’s action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy. Id. 104 S.Ct. at 3204. (emphasis added). The holdings of Parratt and Hudson that the available state postdeprivation remedies provide adequate procedural due process do not meet the substantive due process issue presented in this case. However, in Parratt, before reaching the procedural due process issue Justice Rehnquist, writing for the Court, considered the scope of § 1983, and wrote: Nothing in the language of § 1983 or its legislativé history limits the statute solely to intentional deprivations of constitutional rights. In Baker v. McCollan [443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d (1979)], we suggested that simply because a wrong was negligently as opposed to intentionally committed did not foreclose the possibility that such action could be brought under § 1983 ____ Section 1983, unlike its criminal counterpart, 18 U.S.C. § 242, has never been found by this Court to contain a state-of-mind requirement. The Court recognized as much in Monroe v. Pape, 365 U.S. 167 [81 S.Ct. 473, 5 L.Ed.2d 492] (1961) .... Both Baker v. McCollan and Monroe v. Pape suggest that § 1983 affords a ‘civil remedy’ for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind. 451 U.S. at 534-35, 101 S.Ct. at 1912-13 (footnote omitted). Admittedly, this language standing alone is susceptible of the interpretation placed upon it by the district court that mere negligence can constitute a deprivation that can be redressed by a § 1983 action. However, in the context of the development of the law set forth above, we conclude Parratt does not so hold. Most significant is that in the two earlier cases also authored by Justice Rehnquist, Baker v. McCollan, decided only two years before Parratt, and Paul v. Davis, the Court vigorously rejected the suggestion that traditional torts became constitutional violations when committed by state officials. It is implausible that the Court would make a major pronouncement that constituted a 180 degree turnabout as to the scope of substantive due process or § 1983 without discussion or analysis. This is particularly so because early in the Parratt opinion the Court specifically noted that it had “twice granted certiorari in cases to decide whether mere negligence will support a claim for relief under § 1983,” 451 U.S. at 532, 101 S.Ct. at 1911 (citing Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978) and Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)) and stated that “in each of those [the Court] found it unnecessary to decide the issue.” Id. Had the Court intended to finally decide the issue in Parratt that it had expressly left open previously, it is reasonable to expect that it would have done so affirmatively. Instead, what the Court did was reiterate the statements in Monroe v. Pape and Baker v. McCollan that § 1983 was not limited to intentional deprivation of constitutional rights. That proposition is not the obverse of one stating that § 1983 encompasses suits for negligence by state officials, because there is a broad range of actions between the two poles. Indeed, Justice Powell, concurring in the result in Parratt, observed that the Court “passe[d] over the threshold question — whether a negligent act by a state official ... constitutes a deprivation of property for due process purposes.” Id. 451 U.S. at 547, 101 S.Ct. at 1919. Thus, nothing in the Court’s opinion in Parratt leads us to conclude that the Court held that merely negligent conduct by state officers constitutes a constitutional deprivation encompassed by § 1983. Of course, the absence of any conclusive Supreme Court holding that requires us to construe § 1983 as encompassing all claims for negligence does not necessarily foreclose that interpretation. However, our own court’s opinions, as well as precedent from other circuits that we find persuasive, have concluded that negligence claims are not encompassed within § 1983. We reaffirm that conclusion, in large measure because of what we view as the purpose and essence of § 1983. The essential element of a § 1983 action is abuse by a state official of his or her official position. Monroe v. Pape, 365 U.S. at 172, 81 S.Ct. at 476. Justice Brennan has emphasized that “Section 1983 focuses on ‘[m]isuse’ of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Paul v. Davis, 424 U.S. at 717, 96 S.Ct. at 1168 (dissenting opinion) (emphasis in original) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)). In Kent v. Prasse, 385 F.2d 406 (3d Cir.1967) (approvingly discussed by Justice Powell in his separate opinion in Parratt, 451 U.S. at 550-51, 101 S.Ct. at 1920-21), we held that a tort committed by a state official acting under color of state law is not, in and of itself, sufficient to show an invasion of a person’s constitutional rights under § 1983. That position was reiterated in a subsequent series of cases. See Black v. Stephens, 662 F.2d 181, 188 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982); Smith v. Spina, 477 F.2d 1140, 1143 (3d Cir.1973); Howell v. Cataldi, 464 F.2d 272, 277 (3d Cir.1972); Nettles v. Rundle, 453 F.2d 889 (3d Cir.1971). As we said in Rhodes v. Robinson, 612 F.2d 766, 772 (3d Cir.1979), “Where a person suffers injury as an incidental and unintended consequence of official actions, the abuse of power contemplated in the due process and [eighth] amendment cases does not arise.” Various other courts since Parratt have also agreed that simple negligence does not suffice to state a claim under § 1983. See Hull v. City of Duncanville, 678 F.2d 582, 584 & n. 2 (5th Cir.1982) (construing Parratt ); Mills v. Smith, 656 F.2d 337, 340 n. 2 (8th Cir.1981) (per curiam) (construing Parratt). But see Howard v. Fortenberry, 723 F.2d 1206, 1209 n. 6 (5th Cir.1984); McKay v. Hammock, 730 F.2d 1367, 1373 (10th Cir.1984). A construction that § 1983 does not encompass negligence actions does not restrict its function as the primary vehicle to provide redress for unconstitutional action by state employees that violates the constitution. We eschew prescribing a comprehensive litmus test to determine which actions are or are not within § 1983, particularly since such a test has so far eluded the Supreme Court, but the pattern emerges from earlier cases. Application of force by police officers or prison guards exceeding that which is reasonable and necessary under the circumstances states a claim under § 1983. Black v. Stephens, 662 F.2d at 188; Howell v. Cataldi, 464 F.2d at 282; Martinez v. Rosado, 614 F.2d 829 (2d Cir.1980). Similarly, if the officials encouraged others to use excessive force, the officials would be liable. See Black v. Stephens, 662 F.2d at 189 (alternative basis for liability against police chief was policy of encouraging police officers to use excessive force). Liability under § 1983 may be imposed on prison officials even when the assault has been committed by another prisoner, if there was intentional conduct, deliberate or reckless indifference to the prisoner’s safety, or callous disregard on the part of prison officials. See Wade v. Haynes, 663 F.2d 778, 780-81 (8th Cir.1981), aff'd on other grounds sub nom. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (verdict sustained against correctional officers and the superintendent of the reformatory for placing the prisoner in a dangerous situation in which it was highly foreseeable that the assault would occur); Holmes v. Goldin, 615 F.2d 83, 85 (2d Cir.1980) (prisoner assaulted by another prisoner entitled to an opportunity “to show purposeful acts on the part of the correction officers- or deliberate indifference to his safety amounting to a violation of due process.”) This is consistent with our holding in Curtis v. Everette, 489 F.2d at 518, that allegations by a prisoner of “intentional conduct” by prison officials who stopped him from defending himself when assaulted by another prisoner stated a § 1983 claim. Other cases provide examples of conduct beyond mere negligence that fall within the scope of § 1983. In Stokes v. Delcambre, 710 F.2d 1120, 1124 (5th Cir.1983), the court held that “the jury could have concluded that the jail was administered in a manner virtually indifferent to the safety of prisoners” and that under those facts, the defendants would be held to have violated the prisoners’ constitutional rights, whether expressed in Fifth or Eighth Amendment terms. Moreover, when officials with a responsibility to prevent harm, such as prison officials, fail to establish or execute appropriate procedures for preventing serious malfunctions in the administration of justice, such failure would support a claim under § 1983. See, e.g., Murray v. City of Chicago, 634 F.2d 365 (7th Cir.1980), cert. dismissed sub. nom. Finley v. Murray, 456 U.S. 604, 102 S.Ct. 2226, 72 L.Ed.2d 366 (1982). Similarly, a regulation issued by the Police Chief delaying disciplinary hearings against police officers until adjudication of the underlying arrest charges which caused officers to file unwarranted charges against plaintiff fell within § 1983, Black v. Stephens, 662 F.2d at 189-90. Another vital area in which § 1983 plays an effective role is in providing a federal forum to challenge an established state procedure that infringes upon an individual’s liberty or property interests, such as the Illinois procedure by which a claim could be terminated through no fault of the claimant declared invalid in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), or the New Jersey statute prohibiting prisoners from bringing tort actions against public entities or employees while confined struck down in Holman v. Hilton, 712 F.2d 854 (3d Cir.1983). We thus reaffirm that actions may be brought in federal court under § 1983 when there has been infringement of a liberty interest by intentional conduct, gross negligence or reckless indifference, or an established state procedure. The viability of such § 1983 actions does not depend on whether or not a postdeprivation remedy is available in state court. We do not read anything to the contrary in the holdings in Parratt and Hudson, which concerned a prisoner’s property right. It is untenable that the Court intended in those cases to subject all suits for unconstitutional acts under color of law, including those implicating a liberty or life interest, to a state remedy, if available. Such an interpretation would deprive § 1983 of its original remedial purpose to “aid [in] the preservation of human liberty and human rights”, see remarks of Representative Shellabarger during the Congressional debates surrounding the passage of the forerunner of § 1983, quoted in Owen v. City of Independence, 445 U.S. 622, 636, 100 S.Ct. 1398, 1408, 63 L.Ed.2d 673 (1980), and would reduce its scope to the rare instances where the state has foreclosed a remedy, as here. The Court has repeatedly declined to require exhaustion of state remedies for § 1983 actions. See Patsy v. Florida Board of Regents, 457 U.S. 496, 500, 102 S.Ct. 2557, 2559-60, 73 L.Ed.2d 172 (1982); Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S.Ct. 1209, 1222, 39 L.Ed.2d 505 (1974) (“When federal claims are premised on [§ 1983] we have not required exhaustion of state judicial or administrative remedies)”. We read Parratt and Hudson as decided in the context of prisoners’ interests in their personal property which were fully redressable by the available state remedies. In contrast, at issue here is a liberty interest. In determining whether behavior deprives the plaintiff of a substantive Fourteenth Amendment liberty interest, we must again focus on what constitutes due process. As the Supreme Court stated in Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), the Due Process Clause imposes requirements of decency and fairness because they are “implicit in the concept of ordered liberty”. In Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), the Court described a violation of substantive rights under the Due Process Clause as "conduct that shocks the conscience.” Id. at 172, 72 S.Ct. at 209. The Court did not say whether anything less would suffice, and it declined to formulate a test: “Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend ‘a sense of justice.’ ” Id. at 173, 72 S.Ct. at 210. The conduct of the two prison officials here fails to rise to that level. Cannon followed the established procedure in directing Davidson to the proper officer, but he simply failed to follow up. James, who was operating under a double shift burden, merely forgot to investigate a prisoner’s note, which was ambiguous as to the nature of the threat, and conveyed no sense of urgency. When the only finding is that of mere negligence, as here, we cannot find the “outrageousness” or abuse of official power that warrants raising the tortious conduct of the prison official to the level of a deprivation of constitutional right within the scope of § 1983. Accord Branchcomb v. Brewer, 669 F.2d 1297, 1298 (8th Cir.1982) (per curiam) (Eighth Amendment); Williams v. Kelley, 624 F.2d 695, 697-98 (5th Cir.1980) (Fourteenth Amendment), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981). In summary, we hold that § 1983 retains its central role in affording remedies for victims of constitutional deprivation, but that such a role does not extend to providing a remedy for the type of negligence found in this case. V. Davidson has suggested that his claim should be viewed as one of deprivation of procedural due process. His contention appears to be that when New Jersey enacted the statute foreclosing suit by a prisoner against either the state or a prison employee for injuries suffered by another prisoner, N.J.Stat.Ann. 59:5-2(b)(4) (West 1982), it violated his right to procedural due process. For a number of reasons we reject this claim. In the first place, plaintiff here, unlike the plaintiff in Holman v. Hilton, 712 F.2d 854 (3d Cir.1983), has not challenged the constitutionality of the statute. Plaintiffs claim, instead, is only for money damages from the defendants for the injuries inflicted by the assault. In the second place, a claim for procedural due process must be predicated on deprivation of a substantive right or interest created by the Constitution, a statute or other entitlement. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Since we have rejected Davidson’s claim that his substantive right under the Fourteenth Amendment was deprived by defendants’ negligence, and there has been no claim of a statutory or other entitlement, there is nothing to trigger an inquiry into what process is due. In any event, nothing in the Constitution insures that a putative plaintiff may maintain a particular type of negligence claim in state court. The tradition of immunity was firmly rooted before the passage of § 1983. See Owen v. City of Independence, 445 U.S. 622, 637-38, 100 S.Ct. 1398, 1408-09, 63 L.Ed.2d 673 (1980). In Martinez v. California, 444 U.S. 277, 28183, 100 S.Ct. 553, 557-58, 62 L.Ed.2d 481 (1980), the Court rejected the claim that a state statute which foreclosed a tort suit established a federal constitutional violation. In sustaining the dismissal of a § 1983 action brought for death caused by a released parolee, the Court held constitutional a state statute similar to that here providing all public entities and public employees with immunity from liability for their action in releasing a parolee. Nor do we find any merit in plaintiff’s argument which seeks to distinguish between previously existing immunities and those recently created. As the Court stated in Logan v. Zimmerman Brush Co., 455 U.S. 422, 432, 102 S.Ct. 1148, 1156, 71 L.Ed.2d 265 (1982): the State remains free to create substantive defenses or immunities for use in adjudication — or to eliminate its statutorily created causes of action altogether— just as it can amend or terminate its welfare or employment programs, (emphasis supplied). The Court explained in Ferri v. Ackerman, 444 U.S. 193, 198, 100 S.Ct. 402, 406, 62 L.Ed.2d 355 (1979), “For when a state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law.” See Daniels v. Williams, 720 F.2d 792, 798 (4th Cir.1983). The implication of Davidson’s procedural due process claim is almost unlimited. It would subject to procedural due process scrutiny every state decision to immunize a public entity and employee from discrete claims, see, e.g., N.J.Stat.Ann. 59:4-6, (creating immunity from liability caused by the plan or design of public property). Davidson has provided no authority to support such a far reaching extension of procedural due process, and the available authority, as stated above, is to the contrary. VI. For the foregoing reasons we will reverse the judgment of the district court and direct entry of judgment for defendants. . This appeal was originally heard by a panel of this court and then reheard by the court in banc pursuant to Chapter IX.A. of the Internal Operating Procedures of this court. . Other courts have treated a prisoner’s § 1983 claim against prison officials for failure to protect against unjustified intrusions in personal security as raising an Eighth Amendment claim, see, e.g., Wade v. Haynes, 663 F.2d 778, 781 (8th Cir.1981), aff'd on other grounds sub nom. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); Withers v. Levine, 615 F.2d 158 (4th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980); Clappier v. Flynn, 605 F.2d 519 (10th Cir.1979); Parker v. McKeithen, 488 F.2d 553 (5th Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974). Nothing in these opinions, however, signifies rejection of such a claim premised upon the Fourteenth Amendment. In Holmes v. Goldin, 615 F.2d 83 (2d Cir.1980), the court accepted a claim predicated on both bases. . An enigmatic footnote in Baker v. McCollan, 443 U.S. 137, 140 n. 1, 99 S.Ct. 2689, 2692 n. 1, 61 L.Ed.2d 433 (1979), appears to distinguish between the question of defendant's state of mind as bearing on "whether a constitutional violation has occurred in the first place” and "whether § 1983 contains some additional qualification of that nature.” Subsequent commentary has drawn a substantive distinction between the two questions. See, e.g., S. Nahmod, Civil Rights & Civil Liberties Litigation § 3.02 (Supp. 1983). However, in earlier cases, the Court treated the scope of § 1983 and the Fourteenth Amendment correlatively. See, e.g., Paul v. Davis, 424 U.S. 693, 699, 96 S.Ct. 1155, 1159, 47 L.Ed.2d 405 (1976). For purposes of this case, the questions whether negligent conduct by state officials is a deprivation of Fourteenth Amendment rights and whether it can be redressed by suit under § 1983 appear to be mirror images of each other. . The academic commentary has also been distinguished by its diversity of opinion. See, e.g., Kirkpatrick, Defining a Constitutional Tort Under Section 1983: The State-Of-Mind Requirement, 46 U.Cin.L.Rev. 45 (1977); McClellan & Northcross, Remedies and Damages for Violation of Constitutional Rights, 18 Duq.L.Rev. 409 (1980); Whitman, Constitutional Torts, 79 Mich. L.Rev. 5 (1980); Note, Basis of Liability in a Section 1983 Suit: When is the State-Of-Mind Analysis Relevant?, 57 Ind.L.J. 459 (1982); Note, Section 1983 Liability for Negligence, 58 Neb.L. Rev. 271 (1978); Note, A Theory of Negligence for Constitutional Torts, 92 Yale L.J. 683 (1983). . The Civil Rights Acts of 1870 and 1871, codified today as 42 U.S.C. §§ 1981, 1982, 1983, 1985, and 1986 were enacted to enforce the newly ratified Civil War Amendments in the hostile southern states. As Justice Harlan said in his dissent in the Civil Rights Cases, 109 U.S. 3, 44, 3 S.Ct. 18, 45, 27 L.Ed. 835 (1883), the pervading purpose of those amendments was to secure "the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him” (quoting The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1872)). Section 1983 originated as § 1 of the Act of April 20, 1871, 17 Stat. 13, and "was passed by a Congress that had the Klan 'particularly in mind.’ ” Monroe v. Pape, 365 U.S. at 174, 81 S.Ct. at 477 (quoting Randall, The Civil War and Reconstruction, 857 (1937)). Referring frequently to a 600-page report documenting outrages against blacks that had gone unpunished, the 42d Congress sought a remedy "against those who representing a State in some capacity were unable or unwilling to enforce a state law.” Id. at 176, 81 S.Ct. at 478 (Court's emphasis). . As our analysis of Parratt shows, the statement in Holman v. Hilton, 712 F.2d 854 (3d Cir. 1983), reading Parratt as holding "as a general matter, that § 1983 affords a remedy for negligent deprivation of federally protected rights by persons acting under the color of state law,” id. at 856, is too broad. It was, in any event, unnecessary to the holding of the case that the established state procedure at issue violated due process. . Although in this case we deal with due process violations under the Fourteenth Amendment, the constitutional deprivation supporting § 1983 recoveries is not limited to that provision. See, e.g., Brule v. Southworth, 611 F.2d 406 (1st Cir.1979) (discharge for exercise of First Amendment rights); Tinetti v. Wittke, 620 F.2d 160 (7th Cir.1980) (strip search for traffic violation infringed Fourth Amendment). . Judges Weis and Garth do not believe that this case presents the issue of gross negligence and do not join in the reference to it. . Our holding avoids the anomalies that would result were a prisoner's § 1983 suit such as this under the Fourteenth Amendment to be judged under a lesser standard of care than the deliberate indifference standard applicable to a prisoner's Eighth Amendment claim, see Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), or were a prisoner to be entitled under the Constitution to a higher standard of care than an involuntarily committed mental patient, see Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Some members of this court believe that in circumstances such as those presented here, the Eighth Amendment standard is the same as that of the substantive due process clause of the Fourteenth Amendment, and that consistency demands that the Fourteenth Amendment not proscribe conduct the Eighth Amendment permits. See Williams v. Mussomelli, 722 F.2d 1130, 1132-34 (3d Cir.1983). See also Rhodes v. Robinson, 612 F.2d 766 (3d Cir.1979) (discussion of opinions applying similar standards in cases arising under the two amendments). However, other members of the court believe the standard for liability under § 1983 "may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action.” See Baker v. McCollan, 443 U.S. at 139-40, 99 S.Ct. at 2692. Because the district court in this case found that there was no Eighth Amendment violation, and no cross-appeal has been filed, the Eighth Amendment issue is not before us. . The New Jersey provision struck down in Holman v. Hilton, 712 F.2d 854 (3d Cir.1983), did not create a substantive defense but instead precluded a prisoner from asserting the cause of action to which s/he was entitled until the prisoner was released from prison. Id. at 857-58. That holding is not jeopardized by this opinion. Question: What is the total number of appellants in the case? Answer with a number. 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. PENNSYLVANIA RAILROAD CO. v. UNITED STATES. No. 451. Argued May 17, 1960. Decided June 13, 1960. Hugh B. Cox argued the cause for petitioner. With him on the brief was William F. Zearfaus. Assistant Attorney General Doub argued the cause for the United States. With him on the brief were Solicitor General Rankin and Alan S. Rosenthal. Mr. Justice Black delivered the opinion of the Court. This case involves the power of District Courts to review Interstate Commerce Commission orders determining the reasonableness of rates. In 1941 and 1942 the United States made 75 shipments of iron and steel over the Pennsylvania Railroad intended for export from the port of New York to Great Britain. War conditions prevented exportation from New York. This caused a dispute about applicable transportation charges since the Pennsylvania had in effect tariffs for “domestic rates” that were higher than “export rates.” Since the goods were not exported as planned the Railroad billed the United States for the higher domestic rates which the Government paid because required to do so by § 322 of the Transportation Act of 1940, 54 Stat. 955, 49 U. S. C. § 66. Later, under authority of the same section, the General Accounting Office deducted from other bills due the Railroad the difference between the higher and lower rates, claiming that the higher domestic rates were inapplicable, unreasonable and unlawful. The Railroad then brought this action in the Court of Claims to recover the amount deducted. Properly relying on our holding in United States v. Western Pacific R. Co., 352 U. S. 59, 62-70, the Court of Claims suspended proceedings to enable the parties to have the Interstate Commerce Commission pass on the reasonableness of the rates. After hearings the Commission found and reported that the domestic rates were “unjust and unreasonable” as to 62 of the shipments but “just and reasonable” as to 13. 305 I. C. C. 259, 265. The Railroad then took two steps to challenge that part of the order adverse to it: (1) it invoked the jurisdiction of a United States District Court in Pennsylvania under 28 U. S. C. §§ 1336, 1398, and 49 U. S. C. § 17 (9) to enjoin and set aside the order; and (2) it moved that the Court of Claims stay its proceedings until the District Court could pass upon the validity of the order. The United States objected to further stay in the Court of Claims and asked for dismissal of the case or judgment in its favor. It urged in support of dismissal that the Railroad had deprived the Court of Claims of jurisdiction when it filed the .District Court action to enjoin the Commission. order because 28 U. S. C. § 1500 declares that “The Court of Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff . . . has pending in any other court any suit or process against the United States . . . The Court of Claims rejected this contention and its action in this respect is not challenged here. The United States argued in support of its motion for judgment that the order of the Commission did not require anything to be done or not done, that it was therefore an advisory opinion only, and consequently not the kind of “order” subject to review by 28 U. S. C. § 1336, 49 U. S. C. § 17 (9), or any other provision of law. The contention of the United States was that although the Court of Claims was compelled to submit the question of the reasonableness of the rates to the Commission, neither that court nor any other court had power to review the Commission’s determination. The Court of Claims agreed with this contention of the United States, accordingly refused to stay the case for the District Court to pass on the validity of the order, and entered judgment for the Railroad for only $1,663.39, which the Commission had held to be recoverable, instead of the $7,237.87 which the Railroad claimed. The result is that the Railroad has been held bound by the Commission’s order although completely denied any judicial review of that order. We granted certiorari to consider this denial. 361 U. S. 922. The Railroad contends that it was error for the Court of Claims to refuse to stay its proceedings while the District Court reviewed the Commission’s order. The Solicitor General concedes here that this was error. We reach the same conclusion on the basis of our independent consideration of the record. We decided some years ago that while a mere “abstract declaration” on some issue by the Commission may not be judicially reviewable, an order that determines a “right or obligation” so that “legal consequences” will flow from it is reviewable. Rochester Telephone Corp. v. United States, 307 U. S. 125, 131, 132, 143. The record shows that the Commission order here meets this standard. The Commission found that the Railroad’s domestic rates were “unreasonable” as to 62 shipments. This order is by no means a mere “advisory opinion,” its “legal consequences” are obvious, for if valid it forecloses the “right” of the Railroad to recover its domestic rates on those shipments. We have held that judicial review is equally available whether a Commission order-relates to past or future rates, or whether its proceeding follows referral by a court or originates with the Commission. El Dorado Oil Works v. United States, 328 U. S. 12. For these reasons we conclude that the Railroad was entitled to have this Commission order judicially reviewed. We have already determined, however, that the power to review such an order cannot be exercised by the Court of Claims. United States v. Jones, 336 U. S. 641, 651-653, 670-671. That jurisdiction is vested exclusively in the District Courts. 28 U. S. C. § 1336, 49 U. S. C. § 17 (9). See Seaboard Air Line R. Co. v. Daniel, 333 U. S. 118, 122. Moreover, this order is properly reviewable by a one-judge rather than a three-judge District Court because it is essentially one “for the payment of money” within the terms of 28 U. S. C. §§ 2321 and 2325, which exempt such orders from the three-judge procedure of 28 U. S. C. § 2284. United States v. Interstate Commerce Comm’n, 337 U. S. 426, 441, 443. It necessarily follows, of course, that since the Railroad had a right to have the Commission’s order reviewed, and only the District Court had the jurisdiction to review it, the Court of Claims was under a duty to stay its proceedings pending this review. Other questions argued by the Government are not properly presented by this record. It was error for the Court of Claims to render judgment on the basis of the Commission's order without suspending its proceedings to await determination of the validity of that order by the Pennsylvania District Court. Reversed. 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_geniss

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". UNITED STATES of America, Plaintiff-Appellant, v. Jerry V. MITCHELL and Roger Woods, Defendants-Appellees. No. 90-7423. United States Court of Appeals, Eleventh Circuit. Feb. 26, 1992. Frank W. Donaldson, U.S. Atty., Anthony A. Joseph, James A. Sullivan, Asst. U.S. Attys., Birmingham, Ala., for plaintiff-appellant U.S. John C. Robbins, Doug Jones, Birmingham, Ala., for defendant-appellee Jerry V. Mitchell. Jo Allison Taylor, Birmingham, Ala., for defendant-appellee Roger Woods. Before TJOFLAT, Chief Judge, CLARK , Senior Circuit Judge, and KAUFMAN , Senior District Judge. See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. Honorable Frank A. Kaufman, Senior U.S. District Judge for the District of Maryland, sitting by designation. TJOFLAT, Chief Judge: The Government appeals from an order in the Northern District of Alabama granting a motion in limine to preclude certain expert testimony on the basis of Fed. R.Evid. 403 and 702. In the absence of a record of the pre-trial hearing on this motion, we find ourselves unable to affirm the challenged order. We therefore vacate the district court’s order and remand the case for further proceedings. I. Defendants Jerry V. Mitchell, Chief of Police for Albertville, Alabama, and Roger Woods are charged with three counts of conspiracy to commit extortion, and defendant Mitchell individually with twelve counts of extortion, all in violation of the Hobbs Act, 18 U.S.C. § 1951 (1988). Specifically, defendants stand accused of “fixing” tickets for driving under the influence of alcohol (DUI) in exchange for money. In order to obtain a conviction under the Hobbs Act, the Government must establish a connection between the extortionate conduct and interstate commerce. 18 U.S.C. § 1951(a). On the morning of the scheduled trial date, June 11, 1990, both defendants, prior to the empaneling of the jury, filed motions in limine to preclude the testimony of Dr. Robert A. Voas. Upon hearing arguments from counsel and receiving the Government’s proffer of Dr. Voas’ testimony in camera, the district court orally granted the motions. No record of the arguments, the proffer, or the court’s oral ruling exists because the in camera hearing on the motions occurred in the absence of a court reporter. In a written order issued later that day, the court precluded Dr. Voas’ testimony “under [Fed.K.Evid.] 702 and 403.” Left without the assistance of a record of the Government’s proffer, we turn to the court’s written order for a brief summary of the proffer. According to the court’s order, Dr. Voas, “[i]f permitted to testify ... would establish his qualifications as an expert in alcoholism and highway safety and then testify to the same matters that were presented by him as a witness in United States v. Wright, 797 F.2d 245, 249 (5th Cir.1986) [, cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987) ].” In a footnote to the quoted sentence, the order further explains that “[t]he government has indicated that it would not attempt to elicit from Voas in this case his opinion that failure to prosecute DWI charges has a demoralizing effect upon police officers.” On June 11, 1990, the Government filed its notice of appeal from the district judge’s order granting defendants’ motions to preclude Dr. Voas’ testimony. On June 15, 1990, the Government filed its certification that the appeal was not taken for purposes of delay and that the precluded evidence constitutes a substantial proof of a fact material in the proceedings. Accordingly, we have jurisdiction pursuant to 18 U.S.C. § 3731 (1988). II. We review the preclusion of evidence under an abuse of discretion standard. United States v. Norton, 867 F.2d 1354, 1361 (11th Cir.) (quoting United States v. Mitchell, 666 F.2d 1385, 1390 (11th Cir.), cert. denied, 457 U.S. 1124, 102 S.Ct. 2943, 73 L.Ed.2d 1340 (1982)), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 701 (1989). In order for us to hold, however, that the district court did not abuse its discretion in precluding Dr. Voas’ testimony prior to trial and in the absence of a detailed and reported proffer by the Government, we would have to conclude that the precluded testimony could under no circumstances have been admissible. Based on the relevant parts of the record in this case, which include defendants’ motions in limine and the district court’s bare-bones order, we cannot reach this categorical conclusion. We first consider the reasons for precluding Dr. Voas’ testimony enunciated in the district court’s order. We then determine whether Dr. Yoas’ testimony, under all possible trial scenarios, would have been inadmissible as irrelevant. A. To affirm the district court’s pretrial order precluding Dr. Yoas’ testimony pursuant to Fed.R.Evid. 702, we would have to find either that Dr. Voas’ “scientific, technical, or other specialized knowledge” under no circumstances could have “assisted] the trier of fact [in this case, the jury] to understand the evidence or to determine a fact in issue,” or that the district court properly exercised its discretion in finding Dr. Voas unqualified as an expert, or both. Addressing the latter alternative first, we point to Dr. Voas’ conspicuous absence at the in camera hearing that supposedly settled his lack of qualifications. The district court therefore would have had to find Dr. Voas unqualified without ever having asked Dr. Voas a single question and without ever having observed or heard Dr. Voas respond to a question posed to him by counsel for either side. Should there have been a dispute about Dr. Voas’ qualifications—and, in the absence of a record or a more detailed order, we can only speculate—the district court could not have resolved it based solely upon arguments presented by counsel without abusing its discretion. Turning to the other possible basis for precluding Dr. Voas’ testimony pursuant to Rule 702, we cannot rule out that this testimony might have assisted the jury. Looking into our crystal ball for clues about what the trial might look like and about what might have transpired at the time the Government puts forth Dr. Voas’ testimony, we can easily make out a scenario in which Dr. Voas’ testimony benefits the jury. Although defendant Mitchell, based on his experience as Police Chief, might well be familiar with the effects that failure to prosecute DUI offenders might or might not have on interstate commerce, defendant Mitchell might well decide not to testify, or, should he take the stand, might decide not to give his opinion on this subject. In either case, Dr. Voas’ testimony on this issue would not be cumulative, and therefore would assist the jury in its deliberations. Without the benefit of a trial transcript or a record of a detailed outline of what the trial transcript would include, which conceivably could have been established at the pre-trial hearing on defendants’ motions in limine, we cannot eliminate the possibility that Dr. Voas’ testimony might assist the jury. Accordingly, we cannot conclude that the trial court did not abuse its discretion in precluding Dr. Voas’ testimony. B. Similarly, we could affirm the pretrial preclusion of Dr. Voas’ testimony on the basis of Fed.R.Evid. 403 only if we found that there exists no possible trial scenario in which the probative value of this testimony would not be “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. In the absence of a trial transcript or a recorded and very detailed road map of the case, we cannot with any confidence arrive at this conclusion. On the sparse record before us, we simply cannot determine what probative value, if any, Dr. Voas’ testimony might have at the time it is presented by the Government. Rule 403 requires a delicate balancing of probative value against certain effects that testimony might have on the jury or on the trial proceedings at the moment it is presented. We can fill neither dish of this balance. On the one hand, the probative value, if any, of Dr. Voas’ testimony depends heavily upon what has transpired at trial before and what will transpire following its presentation, including, but not limited to, defendant Mitchell’s testimony, should he take the stand. On the other hand, the effect on the jury of Dr. Voas’ testimony will depend crucially on the specific posture of the trial at the time of its presentation. Cf. United States v. Beechum, 582 F.2d 898, 915 (5th Cir.1978) (en banc) (“a significant consideration in determining the probative value of extrinsic offense evidence is the posture of the case”), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Whether or not Dr. Voas’ testimony will cause undue delay or waste of time will likewise entirely depend upon when it is introduced. A scenario in which Dr. Voas’ testimony might not constitute cumulative evidence already has been outlined above. Finally, even if we could, and clearly we cannot, foresee where Dr. Voas’ testimony would fall on the balance to be struck under Fed.R.Evid. 403 at the time of its introduction at trial, certainly we cannot predict with any confidence whether or not the district court, by giving a limiting instruction instead of excluding the evidence altogether, could circumvent any or all of the negative effects contemplated in Fed. R.Evid. 403 that might be associated with this testimony. C. Not only are we unable to conclude that Dr. Voas’ testimony, under all possible trial scenarios, would have been inadmissible on the grounds cited in the district court’s preclusion order, but also we cannot find that Dr. Voas’ testimony necessarily would have been inadmissible as irrelevant. On the contrary, Dr. Voas’ testimony might well have revealed 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. Dr. Voas’ testimony regarding the effects of failing to prosecute DUI offenders does not appear clearly irrelevant to the interstate commerce element of the Hobbs Act crimes charged in the indictment. See United States v. Wright, 797 F.2d 245, 249 (5th Cir.1986) (upholding a finding, based on testimony by Dr. Voas, that failure to prosecute DUI offenders results in interference with interstate commerce sufficient for Hobbs Act purposes), cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987). Even if we were to find that Dr. Voas’ testimony could never be relevant to any fact placed at issue in the pleadings prior to trial, we cannot exclude the possibility that this testimony might become relevant as the trial progresses and additional facts become of consequence to the trial’s outcome. For example, Dr. Voas’ testimony about the effects of failing to prosecute DUI offenders might become relevant as the defense, through testimony, seeks to establish either that one or both of the defendants knew nothing of any effects on interstate commerce caused by a failure to prosecute DUI offenders, or that no such effects exist. At that time, Dr. Voas’ testimony would become relevant as to the credibility of the defense witness rendering this testimony, insofar as a witness’ credibility becomes a consequential fact as soon as he or she takes the stand. III. For the reasons stated above, we VACATE the district court’s order precluding the testimony of Dr. Voas and REMAND the case with the instruction to conduct an adequate hearing on defendants’ preclusion motions in the presence of a court reporter. VACATED and REMANDED. . The Fifth Circuit in Wright, 797 F.2d at 249, found not clearly erroneous the district court’s factual findings underlying its conclusion that the government had proved the interstate commerce element of a Hobbs Act crime, which conclusion relied on the following testimony given by Dr. Voas, as summarized by the Fifth Circuit: Mr. Voas testified that the consumption of alcohol is "a major, perhaps the major factor in causing highway accidents[ ]’’ [and] that the more serious an automobile accident is, the more likely it is that a drinking driver is involved. Voas also testified that a person who has been arrested for DWI has a much greater chance of later being involved in a fatal accident than has a person with no DWI arrest or conviction record. It was Voas' opinion that the higher risk can be reduced either by treating the drinking driver or by suspending or revoking his driving privileges. Voas also testified that when the public became aware, either through the press or by word of mouth, that people arrested for DWI are not being prosecuted, then the deterrent effect of criminal sanctions is diminished. Failure to prosecute cases where the evidence is sufficient to sustain a conviction has a demoralizing effect on police officers to the point that they tend to make fewer arrests. Finally, Voas testified that alcoholism is a tremendous problem in the United States, costing the nation one hundred billion dollars per year in medical expenses and lost working time, and that people with drinking problems who finally do seek help often do so because they have been arrested and prosecuted on a charge of drunk driving. Id. . In its entirety, Fed.R.Evid. 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. . The district court’s order does not indicate on which of these potential grounds it relies. . The order provided in relevant part: In Wright, a majority of the appellate panel upheld a Hobbs Act conviction based on Voas’ opinions that had been received in a non-jury trial apparently without objection. Here, in this jury trial, the defendants have objected to that testimony and the court concludes under [Fed.R.Evid.] 702 and 403 that such testimony should not be permitted. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. . We further urge the district court to consider whether it would be prudent to rule on defendants’ preclusion motions prior to the time at which the Government intends to put Dr. Voas on the stand. As our opinion indicates, a ruling prior to trial would appear questionable in the absence of detailed presentations by both parties predicting with sufficient certainty the exact state of the record at the time the Government seeks to present Dr. Voas' testimony. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:

songer_direct1

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Joseph RUKAVINA Petitioner, v. The IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 13547. United States Court of Appeals Seventh Circuit. May 24, 1962. Anna R. Lavin, Chicago, Ill., for petitioner. James P. O’Brien, U. S. Atty., John P. Crowley, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., of counsel, for respondent. Before KNOCH, CASTLE and SWYGERT, Circuit Judges. KNOCH, Circuit Judge. This petition for review of a deportation order is filed in this Court pursuant to the provisions of the Immigration and Nationality Act of 1952, § 106(a) as amended (Public Law 87-301), 8 U.S.C.A. § 1105a(a). Joseph Rukavina is a native of Austria-Hungary who entered the United States as a quota resident alien in 1914. Subsequently, in 1939, he was deported on the ground that he had been sentenced more than once, to imprisonment of one year or more, on conviction in the United States, of a crime committed after entry, involving moral turpitude. In one case, the offense was obtaining money, property, or credit, by means of the confidence game in the year 1933. He re-entered as a stowaway, and in 1954, was again deported as an excludable alien. On May 31, 1960, he was again charged with being an excludable alien subject to deportation, having entered the United States in December, 1956, as a stowaway. After a hearing before a special inquiry officer, petitioner was ordered deported. His appeal to the Board of Immigration Appeals was dismissed. Petitioner contends that his deportation in 1939 was based in part on conviction of a crime which did not involve moral turpitude and that he was, therefore, illegally deprived of his resident status which he was merely resuming on the two occasions when he was charged with illegal entry. It is petitioner’s position that “moral turpitude” characterizes an act of baseness or depravity contrary to accepted moral standards, as of the time of the act. Petitioner notes that obtaining money, etc., by the confidence game is not included among “infamous” crimes in the Illinois Revised Statutes, Ch. 38, § 587. Petitioner asserts that fraud is not involved in the offense and that the crime of which petitioner was convicted was one analogous to “bare embezzlement.” Numerous Illinois cases have defined obtaining money by means of the confidence game as a crime involving a “fraudulent scheme.” Petitioner would have us disregard these cases as of too recent determination, and not representative of the moral standards of 1933. We cannot agree. Obtaining money by means of the confidence game involves an act of cheating or swindling. Even if we do limit ourselves to the accepted moral standards of 1933, we must conclude that the crime did involve moral turpitude. Petitioner has moved this Court for leave to file the certified record of petitioner’s conviction in People v. Joseph Rukavina, No. 67036, Criminal Court of Cook County, Illinois, in support of petitioner’s contention that his conviction was for a crime not involving moral turpitude. This motion must be denied. Title 8 U.S.C.A. § 1105a(a) (4) provides for our review of final orders of deportation to be based solely on the administrative record. The certified record sought to be filed is not a part of that administrative record. However, we doubt that this exhibit would aid petitioner’s case. It includes the indictment to which petitioner pleaded guilty. That indictment charges that petitioner “unlawfully, fraudulently and feloniously did obtain * * * seven thousand dollars * * *." Petitioner relies on DiPasquale v. Karnuth, 2 Cir., 1947, 158 F.2d 878 and Delgadillo v. Carmichael, 1947, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17, to support his position that he was taken out of the United States against his will and hence cannot be said to have “entered” on his return. In DiPasquale, an alien rode in a railroad sleeping car from Buffalo, New York, to Detroit, Michigan, without knowing that the train passed through Canada on the way. The Second Circuit held that when, still asleep, he arrived at Detroit, he could not be said to have “entered” the country. Delgadillo was a seaman. He made a legal entry in 1923 and resided in the United States continuously until 1942, when he shipped out on an intercoastal voyage from Los Angeles, California, to New York City, in an American merchant ship. The ship was torpedoed on the way. Delgadillo was rescued and taken to Havana, Cuba, where the American Consul cared for him for about a week. He was then returned to the United States via Miami, Florida. He continued to serve as a seaman in the American merchant fleet. The United States Supreme Court held that his arrival at Miami from Havana was not an “entry” within the meaning of the Immigration Act. This short summary of the facts of these cases indicates that they differ materially from the matter presently before us. Petitioner’s counsel in oral argument asserts a right to judicial review of the order of deportation entered in 1939 on the ground of gross miscarriage of justice. Title 8 U.S.C.A. § 1105a(c). We have carefully reviewed the proceedings in the instant case and find no such gross miscarriage of justice as would justify our review of the 1939 proceedings. U. S. ex rel. Rubio v. Jordan, 7 Cir., 1951, 190 F.2d 573. All other arguments advanced on behalf of the petitioner have been carefully considered. None of them alters our conclusion that the decision of the Board of Immigration Appeals must be affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:

songer_const2

114

What follows is an opinion from a United States Court of Appeals. Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second 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. Mrs. Mary Ellen PRITCHARD, Wife of Charles C. Pritchard, et al., Appellants, v. Robert C. DOWNIE, Administrator of the Estate of Eugene G. Smith, Appellee. No. 17389. United. States Court of Appeals Eighth Circuit. Jan. 21, 1964. Sidney W. Provensal, Jr., New Orleans, La., for appellant. Winslow Drummond, of Wright, Lindsey, Jennings, Lester & Shults, Little Rock, Ark., Robert S. Lindsey, and Joseph C. Kemp, Little Rock, Ark., for appellee. Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. The nine plaintiffs involved in these eight suits brought against Eugene G. Smith, Chief of Police of the City of Little Rock, Arkansas, have appealed from final judgment dismissing their complaints. These eight cases were consolidated for trial and were tried to the court on the merits. Judge Young’s opinion, setting forth his findings of fact with respect to each plaintiff’s claim and the reasons why all of the actions should be dismissed, is reported at 216 F.Supp. 621. Plaintiffs’ causes of action are based upon alleged violation of their federally protected civil rights, particularly those of free speech and assembly. All of the plaintiffs except Mrs. Sosebee claim they were wrongfully arrested and taken into custody on August 12, 1959. Some plaintiffs claim that unnecessary force was used in connection with their arrests. Plaintiffs assert they were falsely imprisoned and denied the opportunity to promptly post bail and that the plaintiffs who were minors should have been taken to the juvenile court rather than being temporarily lodged in jail. On August 12, 1959, the Little Rock schools were being reopened on an integrated basis. Much of the background with respect to the serious difficulties encountered in connection with the attempt to integrate the Little Rock schools is set out in Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, and cases there cited. Plaintiffs at the time of their arrests were part of a group of some 200 people who had assembled initially at the State Capitol, had a meeting there, and then pursuant to a preconceived plan previously published in the newspapers marched toward the school. Their activities met with no interference or resistance until they reached an intersection about a block from the school where they were confronted by a police line and told to disperse and leave the street. Some of the group complied but plaintiffs continued what the court aptly describes as “an unlawful and riotous assembly.” Judge Young’s well-considered opinion carefully summarizes his findings with respect to the activity of each of the plaintiffs. We have carefully examined the extensive record containing some 687 pages. Much of the testimony is conflicting. No purpose will be served in discussing the evidence in detail. Judge Young in his opinion has very satisfactorily demonstrated that substantial evidence supports his finding that probable cause existed for the arrest of each of the plaintiffs and the further finding that only the minimum force necessary to effect the arrest was made in the situations where plaintiffs resisted arrest. The only ease cited by plaintiffs in support of reversal in their entire brief is that of Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. Said case is cited in support of plaintiffs’ contention that their right of free speech and peaceful assembly guaranteed by the First Amendment and protected by the Fourteenth Amendment from invasion by the states has been abridged. It is quite true that the Supreme Court in Edwards, upon the basis of the facts there presented, determined that the defendants' arrests and convictions on a state breach of peace charge infringed defendants’ federally protected rights of free assembly and free speech. The Court in Edwards, at page 236 of 372 U.S., at ¿age 683 of 83 S.Ct., distinguishes the case from Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267, and recognizes that the rights of free speech and assembly are subject to some reasonable limitations. In Feiner v. New York, the Court quoted from Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213, including the following: “No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to. prevent or punish is obvious.” 340 U.S. 315, 320, 71 S.Ct. 303, 306. And as a basis for sustaining a state conviction, states: “It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace. * * * The findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner’s deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.” 340 U.S. 315, 321, 71 S.Ct. 303, 306. Our present ease is factually distinguishable from Edwards in a number of material respects. In Edwards the Court found that the state statute was ambiguous and that the activity was confined to the capítol grounds and that there was no violence or threat of violence. In our present case, subsequent to the assembly and meeting on the State House grounds, the marchers proceeded down the street for some twelve blocks and were stopped only when they reached the vicinity of the school, at which point some engaged in violence in an effort to break through the police line. Upon the basis of substantial evidence, the court was justified in finding the conduct of the marchers to be riotous. Press releases had indicated an intention on the part of the marchers to go to the school ground where some of the mothers proposed to remove some of their children from the school. In the light of the history of the violent disturbances at the school in connection with the previous attempts to integrate, some of which are described in Cooper v. Aaron, supra, a rational basis existed for stopping the riotous mob before it reached the school ground. As the trial court clearly points out in its opinion, the plaintiffs in their forceful efforts to reach the school ground had in their riotous conduct violated one or more reasonable existing Arkansas statutes designed to meet such situations. Moreover, in Edwards the appeal was from a conviction. Here the claim is false arrest. An arrest is justified if probable cause exists therefor. The burden of proving probable cause for arrest is considerably lighter than that involved in sustaining a conviction. The record shows that a large number of persons other than plaintiffs were arrested on this day. All were processed as rapidly as possible. All of the plaintiffs were released on bond. Some were released within an hour or two after the arrests and all were released from custody within five or six hours thereafter. Some of the plaintiffs are juveniles. Complaint is made that they were taken to jail rather than to juvenile court and that this constitutes a denial of equal protection of the law. Plaintiffs have failed to point to any constitutional requirement or interpretative case holding that the placing of an arrested juvenile in jail for a few hours is a violation of his federal constitutional rights. Like the trial court, we find no cases supporting the minor plaintiffs’ contention that their short period of incarceration after their arrests constitutes a denial of any federal constitutional right. Plaintiffs urge that the trial court committed error in receiving over their objection movies taken at the scene of arrest by newsmen and police officers and also some film showing 1957 demonstrations against integration. In admitting the film after its nature and method of assembly had been fully explained, the court stated: “I realize the inherent defects of a film of that kind, taken by a number of people and which results in repetition. I think it has some value and I think I understand its limitations. Objection to it will be overruled.” The sufficiency of preliminary proof to warrant the admission of a picture or a movie into evidence rests largely within the discretion of the trial court. The matter of editing of the film goes to the weight of the evidence and not its admissibility. Millers’ Nat’l Ins. Co. v. Wichita Flour Mills Co., 10 Cir., 257 F.2d 93, 100. See McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S.W.2d 566, 570. The fact that the movie film contained a collection of pictures taken by a number of photographers and that it was repetitious and was edited was fully understood by the trial court. The pictures were exhibited to this court during oral argument. We are entirely satisfied that the court did not abuse its discretion in receiving the film in evidence. We are of the view that the court could not possibly have been misled or misguided by its viewing of the film. The oral testimony of the witnesses, apart from the movies, strongly supports the court’s findings. We have frequently stated that it is virtually impossible for a trial judge in a non jury case to commit reversible error by receiving incompetent evidence. Green v. Dingman, 8 Cir., 234 F.2d 547, 553; Builders Steel Co. v. Commissioner, 8 Cir., 179 F.2d 377, 379. Inasmuch as what we have heretofore said requires an affirmance, we do not reach the question of whether the trial court correctly determined that Smith is liable only for his own acts and not for the independent acts of other police officers. Our examination of the record and a full consideration of the errors urged as a basis for reversal leads us to the inescapable conclusion that the court committed no error in dismissing the complaints in each of the consolidiated actions. Affirmed. . Defendant Smith died after the commencement of these actions. His administrator has been subsituted as defendant. This court has heretofore held that the causes- of action survived, Pritchard v. Smith, 8 Cir., 289 F.2d 153, 88 A.L.R. 2d 1146, and that the administrator should be substituted as defendant. Downie v. Pritchard, 8 Cir., 309 E\2d 634. . Mrs. Sosebee was not arrested. The court with respect to Mrs. Sosebee states that she was either pushed back by the police or knocked down inadvertently by an officer while he was trying to fend off an attacker. The court’s basis for dismissal of Mrs. Sosebee’s claim is thus stated: “The facts indicate that Mrs. Soseboe’s injuries if any, were negligible. In fact, she stated that after her fall she went back to the cux-b and stayed until the crowd dispersed. Chief Smith was in no way connected with Mrs. Sosebee’s fall.” Question: What is the second 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_origin

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. James Wm. SMITH, Appellant, v. Robert S. McNAMARA, U. S. Secretary of Defense, Appellee. Gilbert Esco ANGLE, Appellant, v. Robert S. McNAMARA, U. S. Secretary of Defense, Appellee. Nos. 9761, 9754. United States Court of Appeals Tenth Circuit. June 12, 1968. William M. Allison, Denver, Colo, (each petitioner pro se on separate briefs) for appellants. Benjamin E. Franklin, Topeka, Kan. (Newell A. George, Topeka, Kan., with him on brief) for appellee. Before MURRAH, Chief Judge, JONES Court of Claims, and BREIT-ENSTEIN, Circuit Judge. Honorable Marvin Jones, sitting by designation. MURRAH, Chief Judge. By separate petitions to the District Court of Kansas, Smith and Angle sought in effect to mandamus the Secretary of Defense to remove from their records dishonorable discharges resulting from court martial convictions in 1945 and 1948, respectively. The salient contention in both petitions seems to be that the court martials were void because petitioners were denied their constitutional right to counsel. On the authority of Ashe v. McNamara, 1 Cir., 355 F.2d 277, Judge Stanley entertained jurisdiction under 28 U.S.C. § 1361 to judicially review administrative orders of the Secretary acting through the Army Board for Correction of Military Records pursuant to 10 U.S.C. § 1552. He denied the writ of mandamus, holding that the court mar-tials were not constitutionally void and the Secretary was not legally required to grant the honorable discharges. For the first time on appeal the Secretary suggests the failure of jurisdiction in the Angle case for want of proper service. Public law 87-748 (1962), 28 U.S.C. §§ 1361, 1391(e), which confers jurisdiction on the District Courts to entertain actions in the nature of mandamus against government officers provides for service of summons and complaint in accordance with the Federal Rules of Civil Procedure “except that delivery of the summons and complaint to [such] officer * * * may be made by certified mail [outside] the district in which the action is brought.” 28 U.S.C. § 1391(e). Rule 4(d) (4) and (5), F.R.Civ.P., significantly provides that in suits against officers of the United States a copy of the summons and complaint must be delivered to the officer and to the United States, i. e. the United States Attorney and the Attorney General. See Messenger v. United States, 2 Cir., 231 F.2d 328; Wallach v. Cannon, 8 Cir., 357 F.2d 557. Angle admits that no such delivery was made on either the officer sued, i. e. the Secretary of Defense, or on the United States as provided in the rules. Nor did the Secretary or the United States waive the lack of service by pleading or appearance. It follows that the court never acquired jurisdiction in Angle’s case and the action must be dismissed on that ground. A different situation obtains with regard to Smith where the Secretary entered his appearance in response to an order to show cause. It now seems to be conceded that by such appearance the lack of proper service was waived, and we proceed to consider the Smith ease on its merits. Smith was convicted in 1945 of the crimes of Absence Without Leave and Robbery in violation of Articles of War 61 and 93 and sentenced to a term of imprisonment at hard labor, forfeiture of pay and allowances and dishonorable discharge. At trial he was represented by a member of the Military Police admittedly not trained in the law; the prosecuting officer was a member of the Transportation Corps and there is no record indication that he was legally trained. The convening authority approved the findings of guilt but reduced the term of confinement and suspended the dishonorable discharge. The record of trial was then reviewed by the office of the Judge Advocate General and found legally sufficient to support the sentence. Smith escaped from detention in the Phil-lipines and was recaptured five years later in the United States, at which time he was returned to confinement and suspension of the dishonorable discharge was revoked. Through legally trained, non-military counsel, Smith petitioned the office of the Judge Advocate General for a new trial raising some of the issues urged here, but not complaining of lack of counsel. The petition was denied but the term of imprisonment was subsequently reduced. On completion of the sentence, he petitioned the Army Board three times to grant him an honorable discharge and payment of all sums previously withheld; his requests were denied without a hearing. He brought the present action by petition pro se while in the custody of the State of Kansas on an unrelated conviction. The record before the court included one page of the transcript of testimony at the court martial and numerous documents summarizing the proceedings including both the brief and decision on the petition for new trial. In denying relief the trial court was of the opinion that all of Smith’s asserted claims had been fully investigated on the petition for new trial and found meritless by the military authorities. The Secretary’s initial contention on appeal is that, notwithstanding Ashe, the District Court had no jurisdiction to review the court martial and consequently the denial of the writ of mandamus should have been made to rest on that ground alone. The Secretary invokes the finality provisions of two statutes: (1) 10 U.S.C. § 876 which makes the decisions of court martials “final” and “binding upon all * * * courts”; and (2) 10 U.S.C. § 1552 which makes corrections of military records thereunder by the Secretary “final and conclusive on all officers of the United States”. It is sufficient to say that the contention with respect to Section 1552 was squarely met and conclusively answered in Ashe, supra, where, upon painstaking review of the legislative history, the First Circuit was of the opinion that the statute “was not intended to preclude any otherwise proper judicial review of departmental action [upon a petition] to change the type of [a] discharge.” Id. 355 F.2d 281. As to Section 876, it is well settled that the section “do[es] not deprive civil courts [of jurisdiction] of habeas corpus jurisdiction in proper cases.” Easley v. Hunter, 10 Cir., 209 F.2d 483; and see Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508; Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146. And, notwithstanding the finality language of section 876, the Court of Claims has continuously entertained suits by military personnel claiming that their court martial convictions were void. Augenblick v. United States, 377 F.2d 586, 180 Ct.Cl. 131; and see Shaw v. United States, 357 F.2d 949, 953,174 Ct.Cl. 899 and cases cited in footnote 4. The court in Augenblick, supra, 377 F.2d 592, reasoned that “To deny collateral attack to one not in confinement — ■ the consequence of saying that habeas corpus is the only remedy — would be to deny the possibility of review by a constitutional court, and ultimately by the Supreme Court, of the constitutional claims of servicemen * * * who have not been sentenced to jail or who have been released.” For like reasons we conclude that the trial court was vested with jurisdiction to review by mandamus, as in habeas corpus, the “final” court martial decision even though Smith had completed the term of imprisonment imposed as a result of that conviction. It follows that where the “conviction was the product of court-martial procedure so fundamentally unfair that, upon a proper petition, a district court at the place of incarceration would have been obliged to grant * * * a writ of habeas corpus”, it would be “as much the duty of the Secretary and the Correction Board, as it would have been of a court * * *, to treat as void a sentence thus unconstitutionally imposed” and “the matter of changing the type of discharge [would therefore involve] a plain duty to grant relief, enforceable by an action in the nature of mandamus under section 1361 of title 28.” Ashe, supra, 355 F.2d 280, 282. This brings us squarely and inevitably to the constitutional validity of Smith’s court martial and particularly to the question whether the representation afforded him there complied with the fundamental right of due process, i. e. a full and fair hearing where liberty is at stake. In Kennedy v. Commandant, 10 Cir., 377 F.2d 339, we were confronted with the claim of denial of the constitutional right to counsel in a special court martial under the Uniform Code of Military Justice, which provides that both trial and defense counsel in a general court martial must be legally trained and that prosecution and defense counsel in a special court’martial need only be of coequal training. See Article 27, 10 U.S.C. § 827. In the circumstances of that case we found it “unnecessary and inappropriate to resolve the question whether the right to counsel provisions of the Sixth Amendment as recently vitalized in federal prosecutions and made applicable to state prosecutions * * * should now be made strictly applicable to military prosecutions.” But, we were certain that, in any event the spirit of the Sixth Amendment right to counsel pervaded the due process rights of military justice to the end that an accused person was entitled to the guiding hand of one whose competence was comparable to that of his adversary. We were satisfied that such requirement “fully complies] with the right of counsel requirements of the Sixth Amendment.” Kennedy, supra, 343. The instant case arose before the advent of the Uniform Code of Military Justice, but the applicable Articles of War provided that: “Accused shall have the right to be represented * * * by counsel of his own selection * * * [or by appointed counsel]”. Article 17. Case law of the era interpreted this provision to mean that a commissioned officer admitted to practice before court martials was “a competent attorney within the purview of the Sixth Amendment.” Altmayer v. Sanford, 5 Cir., 148 F.2d 161, 162; and see Romero v. Squier, 9 Cir., 133 F.2d 528; Duval v. Humphrey, D.C., 83 F.Supp. 457, 460; Hayes v. Hunter, D.C., 83 F.Supp. 940, 944. By inference we are asked to overrule this line of cases in light of the “vitalized” Sixth Amendment. We do not choose to do so. “It would be fallacious to assume that a service member appears before a court martial in the identical position as a defendant before a civilian court. From Powell v. [State of] Alabama, 287 U.S. 45 [53 S.Ct. 55, 77 L.Ed. 158] * * * down to and including Gideon v. Wainright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799] * * *, there persists the plight of one charged with crime before civilian courts, who appears alone and without counsel because he is indigent. * * * [N]o serviceman appears before a court martial alone.” Judge Kilday in United States v. Culp, 14 U.S. C.M.A. 199, 202. While the qualifications of counsel under the applicable Articles of War were not as stringent as the requirements of the Military Code, they did provide for counsel and Smith received it. We are not persuaded that Smith’s representation by non-legally trained counsel violated his right to counsel when the prosecuting officer was apparently also untrained in the law. This is particularly so in as much as Smith was represented by legally trained counsel on his petition for new trial and all issues relevant to the conduct of the court martial were then raised, considered and decided. Our situation is quite different from Ashe, supra, where the contradictory defenses of the two accused servicemen defended by a single attorney made it per se impossible for him to function as counsel for both. Smith also complains (1) that a reduction in rank from private first class to private was punishment for his alleged absence without leave and that as such he was put in double jeopardy; (2) that he was convicted on the uncorroborated testimony of an accomplice; (3) that the reading of the charge sheet in open court amounted to the introduction of hearsay evidence. All these issues were raised and answered on the petition for new trial and have been dealt with “fully and fairly” by the military and we will not interfere with their judgment. Burns v. Wilson, supra; Kennedy v. Commandant, supra, 377 F.2d 342, and cases cited. The motion for writ of mandamus was properly denied. . Section 1552 pertinently provides that the “Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice.” . See Prairie Band of Pottawatomie Tribe of Indians v. Udall, 10 Cir., 355 F.2d 364. . Unlike the petitioner in Ashe, supra, Smith did not seek review of the Board’s action by the U.S. Court of Military Appeals, but the Secretary has not suggested that court had jurisdiction to review these administrative decisions. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:

sc_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. JAGO, FORMER SUPERINTENDENT, SOUTHERN OHIO CORRECTIONAL FACILITY, et al. v. VAN CUREN No. 80-1942. Decided November 9, 1981 Per Curiam. After pleading guilty to embezzlement and related crimes, respondent was sentenced by an Ohio court to not less than 6 nor more than 100 years in prison. Under existing law respondent would have become eligible for parole in March 1976. On January 1, 1974, however, Ohio enacted a “shock parole” statute which provided for the early parole of first offenders who had served more than six months in prison for nonviolent crimes. Ohio Rev. Code Ann. §2967.31 (1975). Pursuant to this statute, respondent was interviewed on April 17, 1974, by a panel representing the Ohio Adult Parole Authority (OAPA). The panel recommended that respondent be paroled “on or after April 23, 1974,” and OAPA subsequently approved the panel’s recommendation. Respondent was notified of the decision by a parole agreement which stated: “The Members of the Parole Board have agreed that you have earned the opportunity of parole and eventually a final release from your present conviction. The Parole Board is therefore ordering a Parole Release in your case.” Brief in Opposition 1. Respondent attended and completed prison prerelease classes and was measured for civilian clothes. At a meeting six days after the panel’s interview with respondent, OAPA was informed that respondent had not been entirely truthful in the interview or in the parole plan that he had submitted to his parole officers. Specifically, respondent had told the panel that he had embezzled $1 million when in fact he had embezzled $6 million, and had reported in his parole plan that he would live with his half brother if paroled when in fact he intended to live with his homosexual lover. As a result of these revelations, OAPA rescinded its earlier decision to grant respondent “shock parole” and continued his case to a June 1974 meeting at which parole was formally denied. Neither at this meeting nor at any other time was respondent granted a hearing to explain the false statements he had made during the April interview and in the parole plan which he had submitted. After denial of his parole, respondent brought a mandamus action against OAPA. The Supreme Court of Ohio held that OAPA was not required to grant respondent a hearing and that it could not be commanded to recall its decision rescinding parole. State ex rel. Van Curen v. Ohio Adult Parole Authority, 45 Ohio St. 2d 298, 345 N. E. 2d 75 (1976). We denied respondent’s petition for certiorari to review the decision of the Supreme Court of Ohio. 429 U. S. 959 (1976). Respondent then filed a petition for a writ of habeas corpus in the Federal District Court for the Southern District of Ohio, claiming that the rescission without hearing violated his right to due process of law under the United States Constitution. The District Court denied the writ and the United States Court of Appeals for the Sixth Circuit summarily affirmed the denial. Van Curen v. Jago, 578 F. 2d 1382 (1978). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded for further consideration in light of our decision in Greenholtz v. Nebraska Penal and Inmates, 442 U. S. 1 (1979). Jago v. Van Curen, 442 U. S. 926 (1979). On remand the Court of Appeals in turn remanded to the District Court for further consideration. Applying Green-holtz, the District Court determined that “early release in Ohio is a matter of grace” and that Ohio law “is fairly unambiguous that no protectable interest in early release arises until actual release.” App. to Pet. for Cert. 24A-25A. Accordingly, the District Court held that the rescission of respondent’s parole without a hearing did not violate due process. On appeal, the Court of Appeals acknowledged that “[p]a-role for Ohio prisoners lies wholly within the discretion of the OAPA,” and that “[t]he statutes which provide for parole do not create a protected liberty interest for due process purposes.” 641 F. 2d 411, 414 (1981). Nonetheless, the Court of Appeals reversed the decision of the District Court. Relying upon language from our decision in Perry v. Sindermann, 408 U. S. 593 (1972), the Court of Appeals concluded that a liberty interest such as that asserted by respondent can arise from “mutually explicit understandings.” See id., at 601. Thus, it held: “Having been notified that he ‘ha[d] been paroled’ and that ‘the Board is ordering a Parole Release in your case,’ [respondent] had a legitimate expectation that his early release would be effected. This expectation was a liberty interest, the deprivation of which would indeed constitute a grievous loss. It was an interest which could not be taken from him without according [him] procedural due process.” 641 F. 2d, at 416. We do not doubt that respondent suffered “grievous loss” upon OAPA’s rescission of his parole. But we have previously “rejected]. . . the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause.” Meachum v. Fano, 427 U. S. 215, 224 (1976). In this case, as in our previous cases, “[t]he question is not merely the ‘weight’ of the individual’s interest, but whether the nature of the interest is one within the contemplation of the ‘liberty or property language of the Fourteenth Amendment.’” Morrissey v. Brewer, 408 U. S. 471, 481 (1972). We hold that the Court of Appeals erred in finding a constitutionally protected liberty interest by reliance upon the “mutually explicit understandings” language of Perry v. Sindermann, supra. Our decision in Sindermann was concerned only with the Fourteenth Amendment’s protection of “property” interests, and its language, relied upon by the Court of Appeals, was expressly so limited: “We have made clear in [Board of Regents v. Roth, 408 U. S. 564, 571-572 (1972)], that ‘property’ interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, ‘property’ denotes a broad range of interests that are secured by ‘existing rules or understandings.’ Id., at 577. A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.” 408 U. S., at 601. To illustrate the way in which “mutually explicit understandings” operate to create “property” interests, we relied in Sindermann upon two analogous doctrines. First, we compared such understandings to implied contracts: “[The] absence of ... an explicit contractual provision may not always foreclose the possibility that a teacher has a ‘property’ interest in re-employment. . . . [T]he law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be ‘implied.’” Id., at 601-602. That the implied-contract aspect of Sindermann “understandings” has been limited to the creation of property interests is illustrated by Bishop v. Wood, 426 U. S. 341 (1976), another property interest case in which we relied upon the “understandings” language of Sindermann to conclude that “[a] property interest in employment can, of course, be created by ordinance, or by an implied contract.” 426 U. S., at 344 (footnote omitted). Principles of contract law naturally serve as useful guides in determining whether or not a constitutionally protected property interest exists. Such principles do not, however, so readily lend themselves to determining the existence of constitutionally protected liberty interests in the setting of prisoner parole. In Meachum v. Fano, supra, we recognized that the administrators of our penal systems need considerable latitude in operating those systems, and that the protected interests of prisoners are necessarily limited: “Our cases hold that the convicted felon does not forfeit all constitutional protections by reason of his conviction and confinement in prison. He retains a variety of important rights that the courts must be alert to protect. See Wolff v. McDonnell, 418 U. S., at 556, and cases there cited. But none of these cases reaches this one; and to hold as we are urged to do that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.” 427 U. S., at 225. We would severely restrict the necessary flexibility of prison administrators and parole authorities were we to hold that any one of their myriad decisions with respect to individual inmates may, as under the general law of contracts, give rise to protected “liberty” interests which could not thereafter be impaired without a constitutionally mandated hearing under the Due Process Clause. The second analogy relied upon in Sindermann to give content to the notion of “mutually explicit understandings” was the labor law principle that the tradition and history of an industry or plant may add substance to collective-bargaining agreements. See 408 U. S., at 602. Just last Term, however, we rejected an argument that a sort of “industrial common law” could give rise to a liberty interest in the prisoner parole setting. The prisoners in Connecticut Board of Pardons v. Dumschat, 452 U. S. 458 (1981), relying upon the frequency with which the Connecticut Board of Pardons had in the past commuted and paroled life sentences, argued that the consistency of the Board’s actions “ ‘ha[d] created an unwritten common law of sentence commutation and parole acceleration,”’ and had given rise to “‘an unspoken understanding between the State Board [of Pardons] and inmates.’” Id., at 465 (emphasis added) (quoting Brief for Respondents, O. T. 1980, No. 79-1997, pp. 17-18). We responded: “No matter how frequently a particular form of clemency has been granted, the statistical probabilities standing alone generate no constitutional protections; a contrary conclusion would trivialize the Constitution. The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency.” 452 U. S., at 465. Thus, this Court has recognized that the “mutually explicit understandings” of Sindermann have a far more useful place in determining protected property interests than in determining those liberty interests protected by the Due Process Clause of the Fourteenth Amendment. As the majority opinion in the Court of Appeals for the Sixth Circuit observed: “Parole for Ohio prisoners lies wholly within the discretion of the OAPA. The statutes which provide for parole do not create a protected liberty interest for due process purposes.” 641 F. 2d, at 414. In dissent, Judge Phillips explained: “In State ex rel. Newman v. Lowery, 157 Ohio St. 463, 464, 105 N. E. 2d 643 (1952), cert. denied, 344 U. S. 881 . . . (1952), the Supreme Court of Ohio said: ‘The question of parole of prisoners being in the discretion of the Pardon and Parole Commission, that commission had authority to rescind its order of March 9, 1950, granting a parole effective on or after a future date.’” Id., at 418. Notwithstanding its conclusion that the granting of parole was a purely discretionary matter, the majority of the Court of Appeals in this case concluded that, once the recommendation for “shock parole” had been made, respondent was entitled to a hearing for the purpose of explaining his false statements and representations because the initial recommendation for “shock parole” gave rise to a “mutually explicit understanding.” As we have previously stated, however, we deal here not with “property” interests but with “liberty” interests protected by the Fourteenth Amendment. We think that the reasoning of Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979), Dumschat, supra, and the Court of Appeals’ own concession that Ohio law creates no protected “liberty” interest, require reversal of the holding of the Court of Appeals that respondent was entitled to a hearing prior to denial of his parole in June. The petition for certiorari is granted, the respondent’s motion to proceed informa pauperis is granted, and the judgment of the Court of Appeals for the Sixth Circuit is Reversed. In his brief in opposition to the petition for certiorari, respondent does not contest OAPA’s conclusion that he misrepresented the amount of his embezzlement to the interviewing panel, and admits “that the total loss was over a million dollars.” Brief in Opposition 2. Moreover, respondent admits that his parole plan misrepresented his relationship to the person with whom he planned to live upon release. Id., at 2-3. Justice Stevens’ dissenting opinion appears to follow from his dissenting view in Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 22 (1979) (Marshall, J., joined by Brennan and Stevens, JJ., dissenting in part), and Connecticut Board of Pardons v. Dumschat, 452 U. S., at 468 (Stevens, J., dissenting). It is understandable that the distinction between Morrissey v. Brewer, 408 U. S. 471 (1972), which involved return to custody after parole release, and Greenholtz v. Nebraska Penal Inmates, supra, and Connecticut Board of Pardons v. Dumschat, supra, which involved prerelease expectations of parole or probation, would be thought “dubious” by one who dissented in the two latter cases. Nonetheless, that view was expressed in dissents from the Court’s opinions in those cases and cannot be regarded as controlling here. . Petitioners contend that this case is moot under Weinstein v. Bradford, 423 U. S. 147 (1975), because respondent has now been paroled. We disagree. Although it is true that respondent was released from prison in 1980, the release was conditioned upon respondent’s compliance with terms that significantly restrict his freedom. For example, respondent must receive written permission before changing his residence, changing his job, or traveling out of state, must report to local law enforcement authorities at any out-of-state destination to which he travels, must not maintain a checking account, must report monthly to his parole officer, and may be imprisoned upon violation of the conditions of his parole. Affidavit in Support of Respondent’s Motion to Proceed In Forma Pauperis. In Weinstein, by contrast, we noted that “respondent was temporarily paroled on December 18, 1974, and that this status ripened into a complete release from supervision on March 25, 1975. From that date forward it [was] plain that respondent [could] have no interest whatever in the'procedures followed by petitioners in granting parole.” 423 U. S., at 148 (emphasis added). Similarly, in Jones v. Cunningham, 371 U. S. 236 (1963), where a state prisoner received conditional parole virtually identical to respondent’s parole in this case, we held that the prisoner was “in custody” for purposes of federal habeas and that the Court of Appeals had erred in dismissing the appeal as moot. Id., at 241-243. The conditions of respondent’s parole will last for a period of two years; thereafter he will be free from OAPA’s supervision. Had OAPA not rescinded respondent’s parole in 1974 it is likely that he would no longer be subject to parole restrictions on his freedom. Therefore, were we to affirm the lower court’s conclusion that OAPA should not have rescinded respondent’s parole without a hearing, we could remand the case with instructions that the District Court determine whether a hearing would have resulted in respondent’s release in 1974. If so, the flexible nature of ha-beas relief would permit the District Court to order that respondent be released from the conditions under which he is now living. Indeed, in his response to the petition for certiorari, respondent affirmatively states that if the lower court’s decision is affirmed he will “immediately seek release from parole.” Brief in Opposition 7. In Vitek v. Jones, 436 U. S. 407 (1978), and Scott v. Kentucky Parole Board, 429 U. S. 60 (1976), the cases cited by the dissent, we remanded so that the Courts of Appeals might consider mootness before we decided the question. In this case the Court of Appeals did consider mootness and, as the above discussion indicates, correctly concluded that a live controversy remains. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:

songer_weightev

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Clarence C. JOHNSON, Appellant v. UNITED STATES of America, Appellee. No. 16063. United States Court of Appeals District of Columbia Circuit. Argued April 17,1961. Decided June 22, 1961. Petition for Rehearing Denied Aug. 15, 1961. Mr. Harold F. Golding, Washington, D. C. (appointed by the District Court) for appellant. Mr. Arnold T. Aikens, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., at the time of argument, and Carl W. Belcher, Asst. U. S. Atty., at the time of argument, were on the brief, for appellee. Mr. Donald S. Smith, Asst. U. S. Atty., also entered an appearance for appellee. Before Wilbur K. Miller, Chief Judge, and Bazelon and Burger, Circuit Judges. BURGER, Circuit Judge. Appellant was convicted of “forging and uttering” under 22 D.C.Code § 1401 (1951). At his own request he was tried without a jury. A motion to suppress the victim’s stolen credit card was denied and the appellant contends this was error because the search warrant which authorized search of his dwelling did not describe the credit card but only other stolen articles which were recovered in the search. A police officer engaged in searching appellant’s bedroom under a warrant which described numerous articles of stolen personal property opened a dresser drawer in the process of search. In the drawer he saw a credit card issued in the name of the complaining witness whose other stolen personal property had just been found in appellant’s possession. With the credit card was a statement from Lansburgh’s Department Store also in the complaining witness’ name. Neither the credit card nor the statement was specified in the warrant. Appellant contends that it was reversible error for the District Court to refuse to suppress the card and statement as evidence. He argues that the police could not seize the credit card and statement without securing a new warrant as provided by Rule 41(c) Fed.R.Crim.P., 18 U.S.C.A. With the credit card were documents of purchase of merchandise in the name of the same person. Appellant’s brief states that the searching officer “discovered what ostensibly appeared to be forged documents * * An officer engaged in a lawful search is not confined to seizing only those items described in the warrant, especially where the unlisted items seized are instrumentalities of a crime. “The Fourth Amendment provides that the warrant must particularly describe the ‘things to be seized.’ But it is well established that given a lawful search some things may be seized in connection therewith which are not described in the warrant * Palmer v. United States, 1953, 92 U.S. App.D.C. 103, 104, 203 F.2d 66, 67. See also Bryant v. United States, 5 Cir., 1958, 252 F.2d 746. “This Court has frequently recognized the distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed * * Harris v. United States, 1947, 331 U.S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399. Affirmed. . Appellant lias been tried and convicted for housebreaking and larceny of the personal property described in the warrant. Johnson v. United States, 110 U.S.App. 193, 290 F.2d 384. After the complaining witness had reported theft of the listed articles he learned that someone had forged his name to purchase agreements and he promptly reported this to the police. In No. 16073 appellant challenged the validity of the instant search warrant under which certain goods later admitted into evidence were seized. He contended that the warrant was obtained upon information derived in executing an arrest warrant which was based upon a fatally defective complaint. No such contention was advanced in the instant case. . The warrant included a maroon colored Atlas vacuum cleaner, a black and white Sylvania clock radio, wood cabinet radio, 2 hats, 15 shirts, blue suit, etc. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_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. UNITED STATES of America, Appellee, v. Joseph F. SCHIPANI, Defendant-Appellant. No. 382, Docket 30256. United States Court of Appeals Second Circuit. Argued May 12, 1966. Decided June 29, 1966. Jerome C. Ditore, Asst. U. S. Atty., Eastern Dist. of New York (Joseph P. Hoey, U. S. Atty., Eastern Dist. of New York, on the brief), for appellee. Jacob P. Lefkowitz, New York City, for defendant-appellant. Before WATERMAN, MOORE and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge: The defendant-appellant was convicted ■on all five counts of an indictment charging him with, violations of Title 26 U.S.C. § 7201 for willfully evading the payment of personal income taxes due from him for the five calendar years 1956 through 1960. He was fined $2500 and sentenced to three years imprisonment on each count, to be served concurrently, but with the proviso that he should not be released from confinement until the fines had been fully paid. The case was tried on the “net worth” theory, in support of which the Government offered evidence to prove that Schipani had a certain net worth at the beginning of 1956 and an increase in net worth at the end of that year and at the end of each succeeding calendar year during the indictment period. The proof was entirely circumstantial because Schipani kept no records, did not file any income tax return at all for any of the years covered by the indictment, and did not furnish the Government with any leads with regard to any cash reserve, income or expenses. An essential element of a case of this kind is proof of the opening net worth of the accused as it was at the beginning of the indictment period. Holland v. United States, 348 U.S. 121, 132, 75 S.Ct. 127, 99 L.Ed. 150 (1954). The Government offered as a basis or starting point for this phase of its case a statement made by the defendant in 1943 concerning his cash resources at that time, thirteen years before the indictment. In that year Schipani had been convicted of an offense and commenced serving one and a half years of a two year term of imprisonment. On February 10, 1943, in the course of a routine interrogation by the prison authorities relating to Schipani’s personal history and circumstances at the time he was admitted to the prison, he stated that the only cash he then had was $1350 which he had left with his wife. The trial court found this to be true; and it also found, from evidence of Schipani’s financial dealings and affairs from that time to and including December 31, 1955, that Schipani had assets on January 1, 1956 of $18,908.89 and liabilities of $1300 from which it computed a net worth of $17,608.89 at the beginning of the indictment period. The trial court further found that, at the end of the calendar year 1956, the defendant had an increase in his net worth of $7,307.85, and in each of the four subsequent indictment years there was likewise an increase in the defendant’s net worth. The findings state, and the evidence clearly showed, that the Government made an exhaustive investigation into virtually every possible source of information concerning Schipani’s economic circumstances from January, 1943 through December, 1960. The leads obtained from checking over one hundred central and branch bank offices in areas in which Schipani lived and which he frequented, finance companies and credit bureaus, various insurance, retail and brokerage firms, records of Kings County and the New York Surrogate Courts and the Estate and Gift Tax Office of the United States were followed through by investigators. The Government also sought out and questioned friends and relatives of the appellant for further leads which were then pursued. The information thus obtained furnished the proof presented in the Government’s case. The cash on hand at the end of one year and the beginning of the next, however, was only one of the items entering into the total of the assets at that time. The unadjusted net worth was simply the result of subtracting the total liabilities at the time from the total assets. The court below found that the initial cash of $1350 in 1943 had been consumed; and it was assumed, on the basis of the presumption of innocence, that, because Schipani filed no income tax returns for the years 1943 through 1955, he never (except for a very small amount in 1945) in any of those years had a yearly gross income in excess of the amount which would have required him to file a return. His expenditures, however, were greatly in excess of such amounts of income. It was, therefore, found that the cash on hand at the beginning of the indictment period, January 1, 1956, was zero. The other items of assets, which on that date were found to total $18,908.89, consisted of two savings accounts in the Flatbush Savings Bank, an investment in United States Savings Bonds, real estate, and a 1955 Ford automobile. From this amount was subtracted a loan and a mortgage note totaling $1300. In the subsequent indictment years, 1957 through 1960, the total asset figures reflect purchases of stock, furniture, and a boat as well as increases in the existing savings bank accounts and the opening of two additional small savings bank accounts. The liability total, which was deducted from the total value of the assets in each of the years, also reflected additional increases in liabilities, most of which were associated with major asset purchases during the same years. The Government in its proof and the trial court in its findings, in arriving at the opening net worth and in calculating the net increase in net worth for each of the indictment years, also made certain adjustments. The findings show that additions to the unadjusted figure included non-capital expenditures and the non-deductible losses on the sale of personal property. The latter were included in arriving at the 1956 net worth and the 1960 net worth. The loss for each of these years was treated as the equivalent of an expenditure, which explains the differences between “total expenditures” and “additions to net worth” for each of those years, whereas those items in the other three years (1957-1959, inclusive) are exactly the same. The deductions made from the unadjusted net worth, reflect the dividends-received exclusion in each of the indictment years, the proceeds of a paid up life insurance policy in 1959, and refunds from the receiver of taxes and a realty company. The defense offered no evidence and the principal issue at the trial was the sufficiency of the Government’s case. The trial court concluded that the Government had proven beyond a reasonable doubt that Schipani had a gross income in each of the indictment years considerably in excess of the amount which required him to file an income tax return, that income taxes were due for each of those years and that the defendant willfully sought to evade the payment of the taxes by filing no return for any of the years in question. We affirm. The appellant has presented a number of points on appeal, most of which attack the proof of “opening net worth” as insufficient to establish a prima facie case and which also attack, as inadequate for proof beyond a reasonable doubt, the evidence offered to show the increases in net worth, particularly as they were allocated to each separate tax year. The only issue raised on the admissibility of evidence concerns the denial of the defendant’s pre-trial motion and the overruling at the trial of his objection to the prison record of what Schipani said to the prison official in February of 1943 that he had only $1350 in cash which he had left with his wife. The appellant argues here, as he did below, that this violated his Fourth Amendment right because the report was the product of an unreasonable search and seizure and his Fifth Amendment right because it was an involuntary and incriminating statement. We agree with the trial judge, however, that as far as the Fourth Amendment is concerned, this routine taking down of relevant information as part of the regular prison procedure in setting up the personal record of an inmate, unrelated to any pending investigation of a criminal offense, is not an unreasonable search or seizure of appellant’s “person, house, papers and effects.” Schipani made a voluntary response to a question asked him under circumstances which bore no conceivable relationship to the procuring of an in-culpatory statement by police or prosecuting officials in connection with any criminal activity, particularly to the present case which was not thought of or initiated until many years later. It, therefore, furnishes no basis for a claim of lack of due process under the Fifth Amendment. With regard to the Government’s proof that there was virtually no cash in the defendant’s hands as part of his assets as that bore upon the opening net worth of Schipani on January 1, 1956, we are of the opinion that under the circumstances of this case, the Government would have shown a more consistent approach if, in the pre-indictment period, 1943-1955, inclusive, it had assumed, as it did for the years covered by the indictment, 1956-1960, inclusive, that proof of expenditures in a particular calendar year showed a commensurate income for that year. Where, as here, there was so complete and thorough an exhaustion of non-taxable sources for cash, it seems unnecessary to invoke Schipani’s presumption of innocence to sanctify the proposition that he earned, during the pre-indictment years, no more than the maximum gross income ($499.99 or $599.99) which a person may receive without being required to file a tax return. His expenditures, as shown by the Government, for the 1943-1955 period did not include living expenses for himself and family, except for rent. It is more than likely that such living expenses consumed the $1350 in the year and a half of his imprisonment. At any rate, it must have been expended by the end of the 13 year period. Even if it were not, and it remained as a cash resource on January 1, 1956, there would still have been a substantial increase in net worth in 1956. The total of Schip-ani’s expenditures in the pre-indictment years must have reflected money which he had first received in income. The court in effect so found, and also determined that Schipani had no surplus of earnings over expenditures during that period. The appellant does not otherwise attack the findings because of a lack of or infirmity in, the evidential bases on which they rest, but rather contests what he describes as the court’s “factual theory of the proofs” and the sufficiency of the evidence to establish his guilt on each of the counts beyond a reasonable doubt. Conviction in a net worth case necessarily rests upon inferences reasonably drawn from circumstantial evidence. It is within the province of the trier to draw those inferences and, so long as they are reasonably and logically supported by the evidence they must stand. The trial judge made detailed findings, with annotations of references to pertinent evidence in the record, covering opening net worth and the annual increase in net worth for each separate calendar and tax year for the five years covered by the indictment. We are satisfied that there was ample evidence to support the findings and sufficient proof to establish Schipani’s guilt on all of the counts beyond a reasonable doubt. Appellant argues, in substance, that the presumption of innocence requires, in cases of this kind, based as they are largely on circumstantial evidence, that the proof must be such as to exclude every reasonable hypothesis of innocence. He asserts that the evidence in the present case would have warranted an inference by the court that Schipani had a cash hoard or reserve from which his expenditures and increases in net worth derived, and that, therefore, the Government had the burden of proving that such a hoard did not exist, which it failed to do. In the first place the Supreme Court has characterized this rule for “evaluating the proof” as confusing and incorrect. Holland v. United States, supra, at 139-140, 75 S.Ct. 127. It declared that the rule to be applied is proof beyond a reasonable doubt, whether the evidence is circumstantial or testimonial. In the second place the totality of circumstances shown by the evidence in the case, including financial assistance given to his family, his borrowings, his delinquency in paying life insurance premiums, instalments on purchase of an automobile, payments on mortgage debt and other bills as well as other incidents found by the trial court, support the conclusion that no such cash hoard ever existed. The absence of such a reserve fund was established as part of the Government’s prima facie case. At that point the appellant remained quiet at his own peril. Holland v. United States, supra, at 138-139, 75 S.Ct. 127; United States v. Mackey, 345 F.2d 499, 506, (7th Cir. 1965), cert. denied, 382 U.S. 824, 86 S.Ct. 54, 15 L.Ed.2d 69; Fowler v. United States, 352 F.2d 100, 107 (8th Cir., 1965), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). The appellant has not on this appeal suggested any non-taxable sources other than a cash hoard, and it appears that the Government negatived all other reasonably possible sources from which Schipani could have acquired non-taxable funds. Under the circumstances, proof of “a likely source” of net worth increases is not necessary. United States v. Massei, 355 U.S. 595, 78 S.Ct. 495, 2 L.Ed.2d 517 (1958). Nevertheless, evidence was offered, and the trial court found, that Schipani had likely sources of income from an interest in a restaurant and also as a negotiator in labor-management relations. The Government made out a prima facie proof of this fact in the case; it was not contradicted. The appellant disputes that the Government proved the element of willfulness, that is to say the specific intention to evade the payment of taxes. The evidence of Schipani’s apparent attempts to conceal income, however, through the use of assumed names and other devices, and his failure to file income tax returns, considered in connection with the proof of unreported taxable income, are all that are necessary to show the requisite intent. Holland v. United States, supra, at 139, 75 S.Ct. 127; Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 87 L.Ed. 418 (1943). This leads us to comment briefly on appellant’s claim that his constitutional rights were violated because he was convicted of the felony violation of willful tax evasion under Title 26 U.S.C. § 7201 “on the charge of failure to file income tax returns” which, if willful, is a misdemeanor under Title 26 U.S.C. § 7203. He asserts that § 7201 is void for vagueness. Actually he was charged with violations of § 7201 as a willful evader and not simply as one who willfully failed to file tax returns under § 7203. The latter may under proper circumstances be a lesser included offense of the former. “Willfully” under § 7203 calls only for proof that the taxpayer failed to file his tax return intentionally and knowingly and not through accident or mistake or other innocent cause. “Willfully” under § 7201 calls for proof that the taxpayer failed to file a tax return with the specific intention of evading or defeating payment of the tax. The context of the respective statutes makes this perfectly clear, and they have been so interpreted and construed by the Supreme Court. Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Spies v. United States, supra. There is no merit to the claim that § 7201 is vague. Finally, the appellant argues that he was prejudiced by the procedure employed by the trial court in screening certain materials under the Jencks Act, 18 U.S.C. § 3500. The procedure used by the trial judge was the same which this court strongly condemned in United States v. Pérsico, 349 F.2d 6, 13 (2d Cir., 1965). The in camera proceedings were conducted with the assistant United States Attorney present and participating, but in the absence of defense counsel. In Pérsico, we stated: “ * * * the procedure followed was entirely unnecessary and violated Canon 17 of the Canons of Judicial Ethics. We do not consider this a ground for reversal, but it is adverted to solely to assure that such procedure is not followed in the future” (footnote omitted). The reason that the use of such a procedure was not considered a ground for reversal is that, a study of the transcript of the in camera proceeding by this court revealed “that absolutely nothing untoward occurred insofar as the fair trial of this case was concerned” (349 F.2d at 13). In the present case the verbatim minutes of the similar irregular proceedings were examined and we, likewise, find that nothing took place that prejudiced the defendant in any way. We, therefore, do not reverse. Neither the lack of prejudice to the defendant in this particular ease nor the lengthy explanation for the procedure in the opinion of the trial judge, however, justifies its continued use. We are aware that the in camera proceedings in this case took place prior to the date of the Pérsico decision and the trial court was not on notice of the error, but the use of this procedure after the date of Pérsico will call for corrective action. There was no other question raised on this appeal as to the handling or disclosure to the defense of Jencks Act material, but the materials withheld from the defendant at the trial were not sealed and sent up to this court as the statute requires. It is essential that the district courts comply with the statutory requirement in this regard. We have considered the remaining questions raised by the appellant but conclude that they neither disclose a ground for error nor warrant discussion. The judgment of the district court is affirmed. . Title 26 U.S.C. § 7201, in pertinent part, reads as follows: “Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony * * * ” Net Worth Previous Increase in Net Worth Year End Net Worth 12/31/55 $17,608.89 12/31/56 24,916.24 $17,608.89 $7,307.35 12/31/57 28,933.05 24,916.24 4,016.81 12/31/58 33,979.11 28,933.05 5,046.06 12/31/59 38,353.30 33,979.11 4,374.19 12/31/60 39,245.26 38,353.30 891.96 . Expenditures were made by defendant during the years 1943 through 1955 of the following amounts segregated by calendar years. 1943 $1,203.47 1949 $3,691.73 1944 1,145.60 1950 3,528.62 1945 1,145.34 1951 3,804.05 1946 1,164.64 1952 4,912.86 1947 8,694.02 1953 3,776.71 1948 3,138.80 1954 4,646.71 1955 7,079.72 . Funds available to defendant on December 31 of each of the years in the period from 1/1/43 to 12/31/55 segregated by calendar years were as follows: 12/31/1943 $1,146.52 12/31/1944 955.91 12/31/1945 442.76 12/31/1946/1955 —0— . Defendant’s total assets at the beginning and end of each indictment : were approximately as follows: 1/1/56 (12/31/55) $18,908.89 12/31/56 $37,806.52 1/1/57 37,806.52 12/31/57 38,897.48 1/1/58 38,897.48 12/31/58 44,447.77 1/1/59 44,447.77 12/31/59 45,589.33 1/1/60 45,589.33 12/31/60 45,273.58 . Defendant’s total liabilities at the beginning and end of each indictment year were approximately as follows: 1/1/56 (12/31/55) $ 1,300.00 12/31/56 $12,890.28 1/1/57 12,890.28 12/31/57 9,964.43 1/1/58 9,964.43 12/31/58 10,468.66 1/1/59 10,468.66 12/31/59 7,236.03 1/1/60 7,236.03 12/31/60 6,028.32 . The total expenditures for each of the indictment years were as follows: 1956 $ 7,339.09 1957 9,135.45 1958 10,316.66 1959 17,432.93 1960 10,289.32 Increase in Net Worth before adjustment Adjustments to (Exh. 281) Net Worth (Exh. 285) Additions Deductions Gross Income 1956 $7,307.35 $ 8,553.09 $ 61.52 $15,798.92 1957 4,016.81 9,135.45 96.79 13,055.47 1958 5,046.06 10,316.66 37.08 15,325.64 1959 4,374.19 17,432.93 1,084.19 20,722.93 1960 891.96 12,080.23 59.20 12,912.99 Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

sc_petitioner

007

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. TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS, et al., Petitioners v. The INCLUSIVE COMMUNITIES PROJECT, INC., et al. No. 13-1371. Supreme Court of the United States Argued Jan. 21, 2015. Decided June 25, 2015. Scott A. Keller, Solicitor General, for the petitioners. Michael M. Daniel, for the respondent. Donald B. Verrilli, Jr., Solicitor General, for the United States as amicus curiae, by special leave of the Court, supporting the respondent. Ken Paxton, Attorney General of Texas, Charles E. Roy, First Assistant Attorney General, Office of the Attorney General, Austin, TX, Scott A. Keller, Solicitor General, Counsel of Record, Joseph D. Hughes, Beth Klusmann, Alex Potapov, Assistant Solicitors General, for Petitioners. Brent M. Rosenthal, Counsel of Record, Rosenthal Weiner LLP, Dallas, TX, for Respondent Frazier Revitalization Inc. Michael M. Daniel, Counsel of Record, Laura B. Beshara, Daniel & Beshara, P.C., Dallas, TX, for Respondent The Inclusive Communities Project, Inc. Greg Abbott, Attorney General of Texas, Daniel T. Hodge, First Assistant Attorney General, Austin, TX, Jonathan F. Mitchell, Solicitor General, Counsel of Record, Andrew S. Oldham, Deputy Solicitor General, Beth Klusmann, Alex Potapov, Assistant Solicitors General, for Petitioners. Opinion Justice KENNEDYdelivered the opinion of the Court. The underlying dispute in this case concerns where housing for low-income persons should be constructed in Dallas, Texas-that is, whether the housing should be built in the inner city or in the suburbs. This dispute comes to the Court on a disparate-impact theory of liability. In contrast to a disparate-treatment case, where a "plaintiff must establish that the defendant had a discriminatory intent or motive," a plaintiff bringing a disparate-impact claim challenges practices that have a "disproportionately adverse effect on minorities" and are otherwise unjustified by a legitimate rationale. Ricci v. DeStefano,557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009)(internal quotation marks omitted). The question presented for the Court's determination is whether disparate-impact claims are cognizable under the Fair Housing Act (or FHA), 82 Stat. 81, as amended, 42 U.S.C. § 3601 et seq. I A Before turning to the question presented, it is necessary to discuss a different federal statute that gives rise to this dispute. The Federal Government provides low-income housing tax credits that are distributed to developers through designated state agencies. 26 U.S.C. § 42. Congress has directed States to develop plans identifying selection criteria for distributing the credits. § 42(m)(1). Those plans must include certain criteria, such as public housing waiting lists, § 42(m)(1)(C), as well as certain preferences, including that low-income housing units "contribut[e] to a concerted community revitalization plan" and be built in census tracts populated predominantly by low-income residents. §§ 42(m)(1)(B)(ii)(III), 42(d)(5)(ii)(I). Federal law thus favors the distribution of these tax credits for the development of housing units in low-income areas. In the State of Texas these federal credits are distributed by the Texas Department of Housing and Community Affairs (Department). Under Texas law, a developer's application for the tax credits is scored under a point system that gives priority to statutory criteria, such as the financial feasibility of the development project and the income level of tenants. Tex. Govt.Code Ann. §§ 2306.6710(a)-(b)(West 2008). The Texas Attorney General has interpreted state law to permit the consideration of additional criteria, such as whether the housing units will be built in a neighborhood with good schools. Those criteria cannot be awarded more points than statutorily mandated criteria. Tex. Op. Atty. Gen. No. GA-0208, pp. 2-6 (2004), 2004 WL 1434796, *4-*6. The Inclusive Communities Project, Inc. (ICP), is a Texas-based nonprofit corporation that assists low-income families in obtaining affordable housing. In 2008, the ICP brought this suit against the Department and its officers in the United States District Court for the Northern District of Texas. As relevant here, it brought a disparate-impact claim under §§ 804(a) and 805(a) of the FHA. The ICP alleged the Department has caused continued segregated housing patterns by its disproportionate allocation of the tax credits, granting too many credits for housing in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods. The ICP contended that the Department must modify its selection criteria in order to encourage the construction of low-income housing in suburban communities. The District Court concluded that the ICP had established a prima facie case of disparate impact. It relied on two pieces of statistical evidence. First, it found "from 1999-2008, [the Department] approved tax credits for 49.7% of proposed non-elderly units in 0% to 9.9% Caucasian areas, but only approved 37.4% of proposed non-elderly units in 90% to 100% Caucasian areas." 749 F.Supp.2d 486, 499 (N.D.Tex.2010)(footnote omitted). Second, it found "92.29% of [low-income housing tax credit] units in the city of Dallas were located in census tracts with less than 50% Caucasian residents." Ibid. The District Court then placed the burden on the Department to rebut the ICP's prima facie showing of disparate impact. 860 F.Supp.2d 312, 322-323 (2012). After assuming the Department's proffered interests were legitimate, id.,at 326, the District Court held that a defendant-here the Department-must prove "that there are no other less discriminatory alternatives to advancing their proffered interests," ibid.Because, in its view, the Department "failed to meet [its] burden of proving that there are no less discriminatory alternatives," the District Court ruled for the ICP. Id.,at 331. The District Court's remedial order required the addition of new selection criteria for the tax credits. For instance, it awarded points for units built in neighborhoods with good schools and disqualified sites that are located adjacent to or near hazardous conditions, such as high crime areas or landfills. See 2012 WL 3201401 (Aug. 7, 2012). The remedial order contained no explicit racial targets or quotas. While the Department's appeal was pending, the Secretary of Housing and Urban Development (HUD) issued a regulation interpreting the FHA to encompass disparate-impact liability. See Implementation of the Fair Housing Act's Discriminatory Effects Standard, 78 Fed.Reg. 11460 (2013). The regulation also established a burden-shifting framework for adjudicating disparate-impact claims. Under the regulation, a plaintiff first must make a prima facie showing of disparate impact. That is, the plaintiff "has the burden of proving that a challenged practice caused or predictably will cause a discriminatory effect." 24 CFR § 100.500(c)(1) (2014). If a statistical discrepancy is caused by factors other than the defendant's policy, a plaintiff cannot establish a prima facie case, and there is no liability. After a plaintiff does establish a prima facie showing of disparate impact, the burden shifts to the defendant to "prov[e] that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests." § 100.500(c)(2). HUD has clarified that this step of the analysis "is analogous to the Title VII requirement that an employer's interest in an employment practice with a disparate impact be job related." 78 Fed.Reg. 11470. Once a defendant has satisfied its burden at step two, a plaintiff may "prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect." § 100.500(c)(3). The Court of Appeals for the Fifth Circuit held, consistent with its precedent, that disparate-impact claims are cognizable under the FHA. 747 F.3d 275, 280 (2014). On the merits, however, the Court of Appeals reversed and remanded. Relying on HUD's regulation, the Court of Appeals held that it was improper for the District Court to have placed the burden on the Department to prove there were no less discriminatory alternatives for allocating low-income housing tax credits. Id., at 282-283. In a concurring opinion, Judge Jones stated that on remand the District Court should reexamine whether the ICP had made out a prima facie case of disparate impact. She suggested the District Court incorrectly relied on bare statistical evidence without engaging in any analysis about causation. She further observed that, if the federal law providing for the distribution of low-income housing tax credits ties the Department's hands to such an extent that it lacks a meaningful choice, then there is no disparate-impact liability. See id.,at 283-284(specially concurring opinion). The Department filed a petition for a writ of certiorari on the question whether disparate-impact claims are cognizable under the FHA. The question was one of first impression, see Huntington v. Huntington Branch, NAACP,488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988)(per curiam), and certiorari followed, 573 U.S. ----, 135 S.Ct. 46, 189 L.Ed.2d 896 (2014). It is now appropriate to provide a brief history of the FHA's enactment and its later amendment. B De jureresidential segregation by race was declared unconstitutional almost a century ago, Buchanan v. Warley,245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917), but its vestiges remain today, intertwined with the country's economic and social life. Some segregated housing patterns can be traced to conditions that arose in the mid-20th century. Rapid urbanization, concomitant with the rise of suburban developments accessible by car, led many white families to leave the inner cities. This often left minority families concentrated in the center of the Nation's cities. During this time, various practices were followed, sometimes with governmental support, to encourage and maintain the separation of the races: Racially restrictive covenants prevented the conveyance of property to minorities, see Shelley v. Kraemer,334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); steering by real-estate agents led potential buyers to consider homes in racially homogenous areas; and discriminatory lending practices, often referred to as redlining, precluded minority families from purchasing homes in affluent areas. See, e.g., M. Klarman, Unfinished Business: Racial Equality in American History 140-141 (2007); Brief for Housing Scholars as Amici Curiae22-23. By the 1960's, these policies, practices, and prejudices had created many predominantly black inner cities surrounded by mostly white suburbs. See K. Clark, Dark Ghetto: Dilemmas of Social Power 11, 21-26 (1965). The mid-1960's was a period of considerable social unrest; and, in response, President Lyndon Johnson established the National Advisory Commission on Civil Disorders, commonly known as the Kerner Commission. Exec. Order No. 11365, 3 CFR 674 (1966-1970 Comp.). After extensive factfinding the Commission identified residential segregation and unequal housing and economic conditions in the inner cities as significant, underlying causes of the social unrest. See Report of the National Advisory Commission on Civil Disorders 91 (1968) (Kerner Commission Report). The Commission found that "[n]early two-thirds of all nonwhite families living in the central cities today live in neighborhoods marked by substandard housing and general urban blight." Id.,at 13. The Commission further found that both open and covert racial discrimination prevented black families from obtaining better housing and moving to integrated communities. Ibid.The Commission concluded that "[o]ur Nation is moving toward two societies, one black, one white-separate and unequal." Id.,at 1. To reverse "[t]his deepening racial division," ibid.,it recommended enactment of "a comprehensive and enforceable open-occupancy law making it an offense to discriminate in the sale or rental of any housing ... on the basis of race, creed, color, or national origin." Id.,at 263. In April 1968, Dr. Martin Luther King, Jr., was assassinated in Memphis, Tennessee, and the Nation faced a new urgency to resolve the social unrest in the inner cities. Congress responded by adopting the Kerner Commission's recommendation and passing the Fair Housing Act. The statute addressed the denial of housing opportunities on the basis of "race, color, religion, or national origin." Civil Rights Act of 1968, § 804, 82 Stat. 83. Then, in 1988, Congress amended the FHA. Among other provisions, it created certain exemptions from liability and added "familial status" as a protected characteristic. See Fair Housing Amendments Act of 1988, 102 Stat. 1619. II The issue here is whether, under a proper interpretation of the FHA, housing decisions with a disparate impact are prohibited. Before turning to the FHA, however, it is necessary to consider two other antidiscrimination statutes that preceded it. The first relevant statute is § 703(a) of Title VII of the Civil Rights Act of 1964, 78 Stat. 255. The Court addressed the concept of disparate impact under this statute in Griggs v. Duke Power Co.,401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). There, the employer had a policy requiring its manual laborers to possess a high school diploma and to obtain satisfactory scores on two intelligence tests. The Court of Appeals held the employer had not adopted these job requirements for a racially discriminatory purpose, and the plaintiffs did not challenge that holding in this Court. Instead, the plaintiffs argued § 703(a)(2) covers the discriminatory effect of a practice as well as the motivation behind the practice. Section 703(a), as amended, provides as follows: "It shall be an unlawful employer practice for an employer- "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or "(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). The Court did not quote or cite the full statute, but rather relied solely on § 703(a)(2). Griggs,401 U.S., at 426, n. 1, 91 S.Ct. 849. In interpreting § 703(a)(2), the Court reasoned that disparate-impact liability furthered the purpose and design of the statute. The Court explained that, in § 703(a)(2), Congress "proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Id.,at 431, 91 S.Ct. 849. For that reason, as the Court noted, "Congress directed the thrust of [§ 703(a)(2) ] to the consequences of employment practices, not simply the motivation." Id.,at 432, 91 S.Ct. 849. In light of the statute's goal of achieving "equality of employment opportunities and remov[ing] barriers that have operated in the past" to favor some races over others, the Court held § 703(a)(2) of Title VII must be interpreted to allow disparate-impact claims. Id.,at 429-430, 91 S.Ct. 849. The Court put important limits on its holding: namely, not all employment practices causing a disparate impact impose liability under § 703(a)(2). In this respect, the Court held that "business necessity" constitutes a defense to disparate-impact claims. Id.,at 431, 91 S.Ct. 849. This rule provides, for example, that in a disparate-impact case, § 703(a)(2) does not prohibit hiring criteria with a "manifest relationship" to job performance. Id.,at 432, 91 S.Ct. 849; see also Ricci,557 U.S., at 587-589, 129 S.Ct. 2658(emphasizing the importance of the business necessity defense to disparate-impact liability). On the facts before it, the Court in Griggsfound a violation of Title VII because the employer could not establish that high school diplomas and general intelligence tests were related to the job performance of its manual laborers. See 401 U.S., at 431-432, 91 S.Ct. 849. The second relevant statute that bears on the proper interpretation of the FHA is the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602 et seq.,as amended. Section 4(a) of the ADEA provides: "It shall be unlawful for an employer- "(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; "(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or "(3) to reduce the wage rate of any employee in order to comply with this chapter." 29 U.S.C. § 623(a). The Court first addressed whether this provision allows disparate-impact claims in Smith v. City of Jackson,544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). There, a group of older employees challenged their employer's decision to give proportionately greater raises to employees with less than five years of experience. Explaining that Griggs"represented the better reading of [Title VII's] statutory text," 544 U.S., at 235, 125 S.Ct. 1536a plurality of the Court concluded that the same reasoning pertained to § 4(a)(2) of the ADEA. The Smithplurality emphasized that both § 703(a)(2) of Title VII and § 4(a)(2) of the ADEA contain language "prohibit[ing] such actions that 'deprive any individual of employment opportunities or otherwise adversely affecthis status as an employee, because of such individual's' race or age." 544 U.S., at 235, 125 S.Ct. 1536. As the plurality observed, the text of these provisions "focuses on the effectsof the action on the employee rather than the motivation for the action of the employer" and therefore compels recognition of disparate-impact liability. Id.,at 236, 125 S.Ct. 1536. In a separate opinion, Justice SCALIA found the ADEA's text ambiguous and thus deferred under Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to an Equal Employment Opportunity Commission regulation interpreting the ADEA to impose disparate-impact liability, see 544 U.S., at 243-247, 125 S.Ct. 1536(opinion concurring in part and concurring in judgment). Together, Griggsholds and the plurality in Smithinstructs that antidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose. These cases also teach that disparate-impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification-or, in the case of a governmental entity, an analogous public interest-a court must determine that a plaintiff has shown that there is "an available alternative ... practice that has less disparate impact and serves the [entity's] legitimate needs." Ricci, supra,at 578, 129 S.Ct. 2658. The cases interpreting Title VII and the ADEA provide essential background and instruction in the case now before the Court. Turning to the FHA, the ICP relies on two provisions. Section 804(a) provides that it shall be unlawful: "To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(a). Here, the phrase "otherwise make unavailable" is of central importance to the analysis that follows. Section 805(a), in turn, provides: "It shall be unlawful for any person or other entity whose business includes engaging in real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin." § 3605(a). Applied here, the logic of Griggsand Smithprovides strong support for the conclusion that the FHA encompasses disparate-impact claims. Congress' use of the phrase "otherwise make unavailable" refers to the consequences of an action rather than the actor's intent. See United States v. Giles,300 U.S. 41, 48, 57 S.Ct. 340, 81 L.Ed. 493 (1937)(explaining that the "word 'make' has many meanings, among them '[t]o cause to exist, appear or occur' " (quoting Webster's New International Dictionary 1485 (2d ed. 1934))). This results-oriented language counsels in favor of recognizing disparate-impact liability. See Smith, supra,at 236, 125 S.Ct. 1536. The Court has construed statutory language similar to § 805(a) to include disparate-impact liability. See, e.g.,Board of Ed. of City School Dist. of New York v. Harris,444 U.S. 130, 140-141, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979)(holding the term "discriminat[e]" encompassed disparate-impact liability in the context of a statute's text, history, purpose, and structure). A comparison to the antidiscrimination statutes examined in Griggsand Smithis useful. Title VII's and the ADEA's "otherwise adversely affect" language is equivalent in function and purpose to the FHA's "otherwise make unavailable" language. In these three statutes the operative text looks to results. The relevant statutory phrases, moreover, play an identical role in the structure common to all three statutes: Located at the end of lengthy sentences that begin with prohibitions on disparate treatment, they serve as catchall phrases looking to consequences, not intent. And all three statutes use the word "otherwise" to introduce the results-oriented phrase. "Otherwise" means "in a different way or manner," thus signaling a shift in emphasis from an actor's intent to the consequences of his actions. Webster's Third New International Dictionary 1598 (1971). This similarity in text and structure is all the more compelling given that Congress passed the FHA in 1968-only four years after passing Title VII and only four months after enacting the ADEA. It is true that Congress did not reiterate Title VII's exact language in the FHA, but that is because to do so would have made the relevant sentence awkward and unclear. A provision making it unlawful to "refuse to sell [,] ... or otherwise [adversely affect], a dwelling to any person" because of a protected trait would be grammatically obtuse, difficult to interpret, and far more expansive in scope than Congress likely intended. Congress thus chose words that serve the same purpose and bear the same basic meaning but are consistent with the structure and objectives of the FHA. Emphasizing that the FHA uses the phrase "because of race," the Department argues this language forecloses disparate-impact liability since "[a]n action is not taken 'because of race' unless race is a reasonfor the action." Brief for Petitioners 26. Griggsand Smith,however, dispose of this argument. Both Title VII and the ADEA contain identical "because of" language, see 42 U.S.C. § 2000e-2(a)(2); 29 U.S.C. § 623(a)(2), and the Court nonetheless held those statutes impose disparate-impact liability. In addition, it is of crucial importance that the existence of disparate-impact liability is supported by amendments to the FHA that Congress enacted in 1988. By that time, all nine Courts of Appeals to have addressed the question had concluded the Fair Housing Act encompassed disparate-impact claims. See Huntington Branch, NAACP v. Huntington,844 F.2d 926, 935-936 (C.A.2 1988); Resident Advisory Bd. v. Rizzo,564 F.2d 126, 146 (C.A.3 1977); Smith v. Clarkton,682 F.2d 1055, 1065 (C.A.4 1982); Hanson v. Veterans Administration,800 F.2d 1381, 1386 (C.A.5 1986); Arthur v. Toledo,782 F.2d 565, 574-575 (C.A.6 1986); Metropolitan Housing Development Corp. v. Arlington Heights,558 F.2d 1283, 1290 (C.A.7 1977); United States v. Black Jack,508 F.2d 1179, 1184-1185 (C.A.8 1974); Halet v. Wend Investment Co.,672 F.2d 1305, 1311 (C.A.9 1982); United States v. Marengo Cty. Comm'n,731 F.2d 1546, 1559, n. 20 (C.A.11 1984). When it amended the FHA, Congress was aware of this unanimous precedent. And with that understanding, it made a considered judgment to retain the relevant statutory text. See H.R.Rep. No. 100-711, p. 21, n. 52(1988), 1988 U.S.C.C.A.N. 2173 (H.R. Rep.) (discussing suits premised on disparate-impact claims and related judicial precedent); 134 Cong. Rec. 23711 (1988) (statement of Sen. Kennedy) (noting unanimity of Federal Courts of Appeals concerning disparate impact); Fair Housing Amendments Act of 1987: Hearings on S. 558 before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 100th Cong., 1st Sess., 529 (1987) (testimony of Professor Robert Schwemm) (describing consensus judicial view that the FHA imposed disparate-impact liability). Indeed, Congress rejected a proposed amendment that would have eliminated disparate-impact liability for certain zoning decisions. See H.R. Rep., at 89-93. Against this background understanding in the legal and regulatory system, Congress' decision in 1988 to amend the FHA while still adhering to the operative language in §§ 804(a) and 805(a) is convincing support for the conclusion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals finding disparate-impact liability. "If a word or phrase has been ... given a uniform interpretation by inferior courts ..., a later version of that act perpetuating the wording is presumed to carry forward that interpretation." A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012); see also Forest Grove School Dist. v. T.A.,557 U.S. 230, 244, n. 11, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009)("When Congress amended [the Act] without altering the text of [the relevant provision], it implicitly adopted [this Court's] construction of the statute"); Manhattan Properties, Inc. v. Irving Trust Co.,291 U.S. 320, 336, 54 S.Ct. 385, 78 L.Ed. 824 (1934)(explaining, where the Courts of Appeals had reached a consensus interpretation of the Bankruptcy Act and Congress had amended the Act without changing the relevant provision, "[t]his is persuasive that the construction adopted by the [lower federal] courts has been acceptable to the legislative arm of the government"). Further and convincing confirmation of Congress' understanding that disparate-impact liability exists under the FHA is revealed by the substance of the 1988 amendments. The amendments included three exemptions from liability that assume the existence of disparate-impact claims. The most logical conclusion is that the three amendments were deemed necessary because Congress presupposed disparate impact under the FHA as it had been enacted in 1968. The relevant 1988 amendments were as follows. First, Congress added a clarifying provision: "Nothing in [the FHA] prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, sex, handicap, or familial status." 42 U.S.C. § 3605(c). Second, Congress provided: "Nothing in [the FHA] prohibits conduct against a person because such person has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled substance." § 3607(b)(4). And finally, Congress specified: "Nothing in [the FHA] limits the applicability of any reasonable ... restrictions regarding the maximum number of occupants permitted to occupy a dwelling." § 3607(b)(1). The exemptions embodied in these amendments would be superfluous if Congress had assumed that disparate-impact liability did not exist under the FHA. See Gustafson v. Alloyd Co.,513 U.S. 561, 574, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)("[T]he Court will avoid a reading which renders some words altogether redundant"). Indeed, none of these amendments would make sense if the FHA encompassed only disparate-treatment claims. If that were the sole ground for liability, the amendments merely restate black-letter law. If an actor makes a decision based on reasons other than a protected category, there is no disparate-treatment liability. See, e.g., Texas Dept. of Community Affairs v. Burdine,450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). But the amendments do constrain disparate-impact liability. For instance, certain criminal convictions are correlated with sex and race. See, e.g., Kimbrough v. United States,552 U.S. 85, 98, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)(discussing the racial disparity in convictions for crack cocaine offenses). By adding an exemption from liability for exclusionary practices aimed at individuals with drug convictions, Congress ensured disparate-impact liability would not lie if a landlord excluded tenants with such convictions. The same is true of the provision allowing for reasonable restrictions on occupancy. And the exemption from liability for real-estate appraisers is in the same section as § 805(a)'s prohibition of discriminatory practices in real-estate transactions, thus indicating Congress' recognition that disparate-impact liability arose under § 805(a). In short, the 1988 amendments signal that Congress ratified disparate-impact liability. A comparison to Smith's discussion of the ADEA further demonstrates why the Department's interpretation would render the 1988 amendments superfluous. Under the ADEA's reasonable-factor-other-than-age (RFOA) provision, an employer is permitted to take an otherwise prohibited action where "the differentiation is based on reasonable factors other than age." 29 U.S.C. § 623(f)(1). In other words, if an employer makes a decision based on a reasonable factor other than age, it cannot be said to have made a decision on the basis of an employee's age. According to the Smithplurality, the RFOA provision "plays its principal role" "in cases involving disparate-impact claims" "by precluding liability if the adverse impact was attributable to a nonage factor that was 'reasonable.' " 544 U.S., at 239, 125 S.Ct. 1536. The plurality thus reasoned that the RFOA provision would be "simply unnecessary to avoid liability under the ADEA" if liability were limited to disparate-treatment claims. Id.,at 238, 125 S.Ct. 1536. A similar logic applies here. If a real-estate appraiser took into account a neighborhood's schools, one could not say the appraiser acted because of race. And by embedding 42 U.S.C. § 3605(c)'s exemption in the statutory text, Congress ensured that disparate-impact liability would not be allowed either. Indeed, the inference of disparate-impact liability is even stronger here than it was in Smith. As originally enacted, the ADEA included the RFOA provision, see § 4(f)(1), 81 Stat. 603, whereas here Congress added the relevant exemptions in the 1988 amendments against the backdrop of the uniform view of the Courts of Appeals that the FHA imposed disparate-impact liability. Recognition of disparate-impact claims is consistent with the FHA's central purpose. See Smith, supra,at 235, 125 S.Ct. 1536(plurality opinion); Griggs,401 U.S., at 432, 91 S.Ct. 849. The FHA, like Title VII and the ADEA, was enacted to eradicate discriminatory practices within a sector of our Nation's economy. See 42 U.S.C. § 3601("It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States"); H.R. Rep., at 15 (explaining the FHA "provides a clear national policy against discrimination in housing"). These unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification. Suits targeting such practices reside at the heartland of disparate-impact liability. See, e.g., Huntington,488 U.S., at 16-18, 109 S.Ct. 276(invalidating zoning law preventing construction of multifamily rental units); Black Jack,508 F.2d, at 1182-1188(invalidating ordinance prohibiting construction of new multifamily dwellings); Greater New Orleans Fair Housing Action Center v. St. Bernard Parish,641 F.Supp.2d 563, 569, 577-578 (E.D.La.2009)(invalidating post-Hurricane Katrina ordinance restricting the rental of housing units to only " 'blood relative[s]' " in an area of the city that was 88.3% white and 7.6% black); see also Tr. of Oral Arg. 52-53 (discussing these cases). The availability of disparate-impact liability, furthermore, has allowed private developers to vindicate the FHA's objectives and to protect their property rights by stopping municipalities from enforcing arbitrary and, in practice, discriminatory ordinances barring the construction of certain types of housing units. See, e.g.,Huntington, supra,at 18, 109 S.Ct. 276. Recognition of disparate-impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping. But disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability mandates the "removal of artificial, arbitrary, and unnecessary barriers," not the displacement of valid governmental policies. Griggs, supra,at 431, 91 S.Ct. 849. The FHA is not an instrument to force housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation. Unlike the heartland of disparate-impact suits targeting artificial barriers to housing, the underlying dispute in this case involves a novel theory of liability. See Seicshnaydre, Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of Disparate Impact Claims Under the Fair Housing Act, 63 Am. U. L. Rev. 357, 360-363 (2013)(noting the rarity of this type of claim). This case, on remand, may be seen simply as an attempt to second-guess which of two reasonable approaches a housing authority should follow in the sound exercise of its discretion in allocating tax credits for low-income housing. An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest served by their policies. This step of the analysis is analogous to the business necessity standard under Title VII and provides a defense against disparate-impact liability. See 78 Fed.Reg. 11470(explaining that HUD did not use the phrase "business necessity" because that "phrase may not be easily understood to cover the full scope of practices covered by the Fair Housing Act, which applies to individuals, businesses, nonprofit organizations, and public entities"). As the Court explained in Ricci,an entity "could be liable for disparate-impact discrimination only if the [challenged practices] were not job related and consistent with business necessity." 557 U.S., at 587, 129 S.Ct. 2658. Just as an employer may maintain a workplace requirement that causes a disparate impact if that requirement is a "reasonable measure[ment] of job performance," Griggs, supra,at 436, 91 S.Ct. 849so too must housing authorities and private developers be allowed to maintain a policy if they can prove it is necessary to achieve a valid interest. To be sure, the Title VII framework may not transfer exactly to the fair-housing context, but the comparison suffices for present purposes. It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapidated housing in our Nation's cities merely because some other priority might seem preferable. Entrepreneurs must be given latitude to consider market factors. Zoning officials, moreover, must often make decisions based on a mix of factors, both objective (such as cost and traffic patterns) and, at least to some extent, subjective (such as preserving historic architecture). These factors contribute to a community's quality of life and are legitimate concerns for housing authorities. The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in suburban communities. As HUD itself recognized in its recent rulemaking, disparate-impact liability "does not mandate that affordable housing be located in neighborhoods with any particular characteristic."78 Fed.Reg. 11476. In a similar vein, a disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant's policy or policies causing that disparity. A robust causality requirement ensures that "[r]acial imbalance ... does not, without more, establish a prima facie case of disparate impact" and thus protects defendants from being held liable for racial disparities they did not create. Wards Cove Packing Co. v. Atonio,490 U.S. 642, 653, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), superseded by statute on other grounds, 42 U.S.C. § 2000e-2(k). Without adequate safeguards at the prima facie stage, disparate-impact liability might cause race to be used and considered in a pervasive way and "would almost inexorably lead" governmental or private entities to use "numerical quotas," and serious constitutional questions then could arise. 490 U.S., at 653, 109 S.Ct. 2115. The litigation at issue here provides an example. From the standpoint of determining advantage or disadvantage to racial minorities, it seems difficult to say as a general matter that a decision to build low-income housing in a blighted inner-city neighborhood instead of a suburb is discriminatory, or vice versa. If those sorts of judgments are subject to challenge without adequate safeguards, then there is a danger that potential defendants may adopt racial quotas-a circumstance that itself raises serious constitutional concerns. Courts must therefore examine with care whether a plaintiff has made out a prima facie case of disparate impact and prompt resolution of these cases is important. A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact. For instance, a plaintiff challenging the decision of a private developer to construct a new building in one location rather than another will not easily be able to show this is a policy causing a disparate impact because such a one-time decision may not be a policy at all. It may also be difficult to establish causation because of the multiple factors that go into investment decisions about where to construct or renovate housing units. And as Judge Jones observed below, if the ICP cannot show a causal connection between the Department's policy and a disparate impact-for instance, because federal law substantially limits the Department's discretion-that should result in dismissal of this case. 747 F.3d, at 283-284(specially concurring opinion). The FHA imposes a command with respect to disparate-impact liability. Here, that command goes to a state entity. In other cases, the command will go to a private person or entity. Governmental or private policies are not contrary to the disparate-impact requirement unless they are "artificial, arbitrary, and unnecessary barriers." Griggs,401 U.S., at 431, 91 S.Ct. 849. Difficult questions might arise if disparate-impact liability under the FHA caused race to be used and considered in a pervasive and explicit manner to justify governmental or private actions that, in fact, tend to perpetuate race-based considerations rather than move beyond them. Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision. The limitations on disparate-impact liability discussed here are also necessary to protect potential defendants against abusive disparate-impact claims. If the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income individuals, then the FHA would have undermined its own purpose as well as the free-market system. And as to governmental entities, they must not be prevented from achieving legitimate objectives, such as ensuring compliance with health and safety codes. The Department's amici,in addition to the well-stated principal dissenting opinion in this case, see post,at 2532 - 2533, 2548 - 2549 (opinion of ALITO, J.), call attention to the decision by the Court of Appeals for the Eighth Circuit in Gallagher v. Magner,619 F.3d 823 (2010). Although the Court is reluctant to approve or disapprove a case that is not pending, it should be noted that Magnerwas decided without the cautionary standards announced in this opinion and, in all events, the case was settled by the parties before an ultimate determination of disparate-impact liability. Were standards for proceeding with disparate-impact suits not to incorporate at least the safeguards discussed here, then disparate-impact liability might displace valid governmental and private priorities, rather than solely "remov[ing] ... artificial, arbitrary, and unnecessary barriers." Griggs,401 U.S., at 431, 91 S.Ct. 849. And that, in turn, would set our Nation back in its quest to reduce the salience of race in our social and economic system. It must be noted further that, even when courts do find liability under a disparate-impact theory, their remedial orders must be consistent with the Constitution. Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that "arbitrar [ily] ... operate[s] invidiously to discriminate on the basis of rac[e]." Ibid.If additional measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means. See Richmond v. J.A. Croson Co.,488 U.S. 469, 510, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989)(plurality opinion) ("[T]he city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races"). Remedial orders that impose racial targets or quotas might raise more difficult constitutional questions. While the automatic or pervasive injection of race into public and private transactions covered by the FHA has special dangers, it is also true that race may be considered in certain circumstances and in a proper fashion. Cf. Parents Involved in Community Schools v. Seattle School Dist. No. 1,551 U.S. 701, 789, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007)(KENNEDY, J., concurring in part and concurring in judgment) ("School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; [and] drawing attendance zones with general recognition of the demographics of neighborhoods"). Just as this Court has not "question[ed] an employer's affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the [promotion] process," Ricci,557 U.S., at 585, 129 S.Ct. 2658it likewise does not impugn housing authorities' race-neutral efforts to encourage revitalization of communities that have long suffered the harsh consequences of segregated housing patterns. When setting their larger goals, local housing authorities may choose to foster diversity and combat racial isolation with race-neutral tools, and mere awareness of race in attempting to solve the problems facing inner cities does not doom that endeavor at the outset. The Court holds that disparate-impact claims are cognizable under the Fair Housing Act upon considering its results-oriented language, the Court's interpretation of similar language in Title VII and the ADEA, Congress' ratification of disparate-impact claims in 1988 against the backdrop of the unanimous view of nine Courts of Appeals, and the statutory purpose. III In light of the longstanding judicial interpretation of the FHA to encompass disparate-impact claims and congressional reaffirmation of that result, residents and policymakers have come to rely on the availability of disparate-impact claims. See Brief for Massachusetts et al. as Amici Curiae2 ("Without disparate impact claims, States and others will be left with fewer crucial tools to combat the kinds of systemic discrimination that the FHA was intended to address"). Indeed, many of our Nation's largest cities-entities that are potential defendants in disparate-impact suits-have submitted an amicusbrief in this case supporting disparate-impact liability under the FHA. See Brief for City of San Francisco et al. as Amici Curiae3-6. The existence of disparate-impact liability in the substantial majority of the Courts of Appeals for the last several decades "has not given rise to ... dire consequences." Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,565 U.S. ----, ----, 132 S.Ct. 694, 710, 181 L.Ed.2d 650 (2012). Much progress remains to be made in our Nation's continuing struggle against racial isolation. In striving to achieve our "historic commitment to creating an integrated society," Parents Involved, supra,at 797, 127 S.Ct. 2738(KENNEDY, J., concurring in part and concurring in judgment), we must remain wary of policies that reduce homeowners to nothing more than their race. But since the passage of the Fair Housing Act in 1968 and against the backdrop of disparate-impact liability in nearly every jurisdiction, many cities have become more diverse. The FHA must play an important part in avoiding the Kerner Commission's grim prophecy that "[o]ur Nation is moving toward two societies, one black, one white-separate and unequal." Kerner Commission Report 1. The Court acknowledges the Fair Housing Act's continuing role in moving the Nation toward a more integrated society. The judgment of the Court of Appeals for the Fifth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:

songer_r_fiduc

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES DEPARTMENT OF INTERIOR, Appellant, v. James W. ELLIOTT, Jr., Trustee, Appellee. In re ELKINS ENERGY CORP., Debtor. No. 84-1826. United States Court of Appeals, Fourth Circuit. Argued March 5, 1985. Decided May 6, 1985. Thomas W.B. Porter, Washington, D.C. (William Kanter, Tracy J. Whitaker, Dept, of Justice, Washington, D.C., Robert S. More, Sp. Asst. U.S. Atty., Knoxville, Tenn., Milo Mason, Dept, of the Interior, Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., John P. Alderman, U.S. Atty., Roanoke, Va., on brief), for appellant. Kurt J. Pomrenke, Bristol, Va. (James W. Elliott, Jr., White, Elliott & Bundy, Bristol, Va., on brief), for appellee. Before RUSSELL, WIDENER and PHILLIPS, Circuit Judges. DONALD RUSSELL, Circuit Judge: Appellant United States Department of the Interior (DOI) appeals from the district court’s decision, which affirmed the bankruptcy court, denying its claim for an administrative expense for penalties assessed against the debtor in possession for post-petition violations of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201-1328 (1983) (Surface Mining Act). The sole issue raised by this appeal is whether postpetition environmental penalty claims are allowable under section 57(j) of the Bankruptcy Act, former 11 U.S.C. § 93(j) (1976), as an administrative expense of preserving the estate under section 64(a)(1) of the Bankruptcy Act, former 11 U.S.C. § 104(a)(1). Finding that postpetition environmental penalty claims are allowable under sections 57(j) and 64(a)(1) as an administrative expense, we reverse. I Elkins Energy Corporation (Elkins) filed a petition for an arrangement under Chapter XI of the Bankruptcy Act (Act) on August 3, 1979. The bankruptcy court permitted Elkins, a mining corporation, to continue its operations as a debtor in possession, pursuant to section 343 of the Act, former 11 U.S.C. § 743. On September 11, 1979, the Office of Surface Mining Reclamation and Enforcement of the DOI (OSM) issued a notice of violation to the debtor in possession for three violations of the Surface Mining Act. Elkins corrected the three violations by October 3, 1979, but nevertheless was notified that a civil penalty of $1,100 had been proposed for the issued notice of violation. On February 28, 1980, the OSM issued two more notices of violation for several additional violations of the Surface Mining Act. While the notices of violation were outstanding,' the bankruptcy court confirmed Elkins’ plan of arrangement. Elkins, however, failed to correct three of the cited violations; consequently, on June 17, 1982, OSM assessed Elkins civil penalties of $23,250 and $45,000 for the outstanding notices of violation and $1,100 for the initial notice of violation, pursuant to 30 U.S.C. § 1268(a) (1983). On that very day, the bankruptcy court converted Elkins’ case from a Chapter XI arrangement to a straight bankruptcy and appointed as trustee appellee James W. Elliott, Jr. On October 6, 1982, DOI filed a proof of claim for $69,350 for postpetition environmental penalties assessed against Elkins. The trustee timely objected to DOI’s claim, contending that section 57(j) of the Act prohibits allowance of claims for postpetition civil penalties. The bankruptcy court sustained the trustee’s objection to DOI’s claim, 38 B.R. 390 (1984), and the district court affirmed. II The sole issue before us is whether section 57(j) of the Bankruptcy Act prohibits the recovery by DOI of environmental penalties assessed against Elkins, as a debtor in possession, after Elkins filed a petition for an arrangement in bankruptcy. Section 57(j), former 11 U.S.C. § 93(j), provides: (j) Debts owing to the United States or to any State or any subdivision thereof as a penalty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby and such interest as may have accrued on the amount of such loss according to law. Although the language of section 57(j) appears broad enough to “bar all claims of any kind against a bankrupt except those based on a ‘pecuniary’ loss,” Simonson v. Granquist, 369 U.S. 38, 40, 82 S.Ct. 537, 538, 7 L.Ed.2d 557 (1962), the Supreme Court has twice construed section 57(j) to allow postpetition tax penalty claims incurred by a trustee while operating the debtor’s business. In Boteler v. Ingels, 308 U.S. 57, 59-60, 60 S.Ct. 29, 31-32, 84 L.Ed. 442 (1939), the Court stated, in holding a trustee liable for penalties incurred while the trustee operated the business of the debtor: Subdivision 57(j) prohibits allowance of a tax penalty against the bankrupt estate only if incurred by the bankrupt before bankruptcy by reason of his own delinquency. After bankruptcy, it does not purport to. exempt the trustee from the operation of state laws, or to relieve the estate from liability for the trustee’s delinquencies. See Nicholas v. United States, 384 U.S. 678, 692-695, 86 S.Ct. 1674, 1684-1686, 16 L.Ed.2d 853 (1966) (trustee liable for federal tax penalties incurred by the trustee after the bankruptcy petition had been filed). Moreover, the leading bankruptcy treatise, relying on Boteler, advises that section 57(j) “applies only to claims against the bankrupt arising prior to bankruptcy. It does not propose to exonerate a trustee or receiver in bankruptcy from penalties which he incurs in the course of continued operation of the bankrupt’s business.” 3 J. Moore & L. King, Collier on Bankruptcy U 57.22[1], p. 386 (14th ed. 1977) (emphasis in original). It is, accordingly, beyond question that postpetition tax penalties incurred by a trustee while operating a bankrupt’s business are allowable under section 57(j). See also Gough Indus. Inc. v. Rothman, 446 F.2d 536, 540 (9th Cir.1971), cert. denied, 405 U.S. 916, 92 S.Ct. 933, 30 L.Ed.2d 785 (1972); In Re Samuel Chapman, Inc., 394 F.2d 340, 341 (2d Cir.1968); In Re Chicago & N.W. Ry. Co., 119 F.2d 971, 972 (7th Cir.1941); In Re Los Angeles Lumber Products Co., 45 F.Supp. 77, 87 (S.D.Cal.1942); Annot., 1 A.L.R.Fed. 657 (1969 & Supp.1984). But the trustee argues, and both the district court and the bankruptcy court held, that section 57(j) allows only postpetition tax penalties incurred by a trustee while operating the debtor’s business. The trustee contends that the Supreme Court in Boteler and Nicholas created a narrow exception to section 57®’s broad prohibition of penalty claims for tax penalties incurred by the trustee because, pursuant to 28 U.S.C. § 960 and its predecessor, Act of June 18, 1934, ch. 585, 48 Stat. 993, the trustee is required to pay all applicable federal, state, and local taxes while operating the debtor’s business. Since no similar statute compels the trustee to pay penalties arising from violations of regulatory statutes, the trustee contends that such penalties are not allowable under section 57(j). We disagree. Although no court has held that postpetition civil penalties incurred by a debtor in possession are allowable under section 57(j), we find that the rationale of Boteler and Nicholas extends beyond mere tax cases. We are convinced that section 57(j) allows all postpetition penalty claims, regardless of their type and regardless of whether they are incurred by the trustee or by the debtor in possession. Congress enacted section 57(j) to protect the innocent creditors of a debtor: Congress refused to allow claims for penalties because they are intended to punish the debtor for delinquencies caused by the debtor. See, e.g., 3 J. Moore & L. King, supra, at 1157.22[1], p. 381; Simonson v. Granquist, 369 U.S. at 40-41, 82 S.Ct. at 538-539; In Re Unified Control Systems, Inc., 586 F.2d 1036, 1038 (5th Cir.1978) (per curiam); United States v. Rome, 414 F.Supp. 517, 519-520 (D.Mass.1976); In Re Kline, 403 F.Supp. 974, 977 (D.Md.1975), aff'd, 547 F.2d 823 (4th Cir.1977) (per curiam); In Re Shawsheen Dairy, Inc., 47 F.Supp. 494, 497 (D.Mass.1942). Penalties incurred by the debtor before the filing of the bankruptcy petition should not reduce the distribution to which the creditors are entitled, because the creditors could not prevent the accrual of the penalties. On the other hand, once the bankruptcy petition has been filed, the creditors can prevent the accrual of penalties. They, therefore, cannot by their inaction allow the debtor to incur penalties while operating the business, perhaps benefiting the profitability of the business, and yet object to the allowance of postpetition penalty claims. In effect, once the petition is filed the creditors lose their “innocent” status. If a debtor remains in possession, his operation of the business is subject “at all times to the control of the court.” The creditors, through an elected creditors’ committee, are empowered to, among other things, “examine into the conduct of the debtor’s affairs” and to make recommendations to the supervising bankruptcy court concerning the debtor’s operation of the business. The leading bankruptcy treatise recognizes the watchdog role of the creditors. The operation of the business by the debtor in possession is to be done under the authority and supervision of the court, however. The creditors have an interest in this operation, and through their committee of creditors elected at the initial meeting may give voice to their judgment as to how the business should be run. Therefore, the committee elected at the first meeting will consider matters of operation, and may make recommendations and suggestions as to the operation of the business during the pendency of the case. ... The court ... will ... give close consideration to the voice of creditors given through the committee of creditors elected at the first meeting. 8 J. Moore & L. King, Collier on Bankruptcy § 5.15, p. 581 (14th ed. 1978). Since the creditors’ committee can request the bankruptcy court to intervene in the debt- or’s operation of the business, the creditors cannot shield their eyes from the debtor’s unlawful activities, activities that may benefit the creditors by increasing the distribution to which the creditors are entitled. Subjecting the estate to postpetition penalty claims will encourage the creditors to ensure that the debtor is complying with the law while at the same time ensure that violations of law do not go unpunished. The Second Circuit, in holding that tax penalties incurred by a debtor in possession are allowable under section 57(j), recognized that creditors should not be permitted to benefit from the debtor in possession’s delinquencies: [A] rule under which the estate will remain liable for the tax penalties may well result in inducing the general creditors to interest themselves in the debtor in possession’s promptly discharging his duties under the revenue laws and thus aiding in the proper collection of the taxes which fall due during arrangement proceedings. In Re Samuel Chapman, Inc., 394 F.2d 340, 342 (2d Cir.1968). The trustee’s reliance on Simonson v. Granquist, 369 U.S. 38, 82 S.Ct. 537, 7 L.Ed.2d 557 (1962) and a string of related cases is misplaced, because at issue in those cases were prepetition penalty claims, not postpetition penalty claims. Consequently, the broad language in Simonson that section 57(j) “plainly manifests a congressional purpose to bar all claims of any kind against a bankrupt except those based on a ‘pecuniary’ loss,” 369 U.S. at 40, 82 S.Ct. at 538, is inapposite. Instead, the holding of both Boteler and Nicholas is more instructive, because there is no reasoned distinction between various types of postpetition penalty claims. Whether the postpetition penalty is a tax penalty or an environmental penalty and whether the penalty is incurred by the trustee or the debtor in possession is irrelevant: the critical inquiry is the extent to which the creditors could prevent the accrual of the penalties. In light of the ability of the creditor’s committee to act as the watchdog of the debtor and to object to the debtor’s operation of the business to the ever-supervising bankruptcy court, all postpetition penalty claims are allowable under section 57(j). After the bankruptcy petition is filed, the creditors lose their “innocence” due to their ability to take action to prevent the debtor in possession from incurring postpetition penalties. The trustee further argues that the public policy of preventing the estate from being diluted by the assessment of penalties supports disallowance of the postpetition penalty claims here at issue. The trustee, however, ignores that in another similar setting, namely when postpetition tax penalty claims are at issue, postpetition penalty claims are allowable. Furthermore, the articulated purpose of section 57(j), the protection of innocent creditors from penalty claims incurred by an independent debtor, would not be furthered by a holding that permits creditors to benefit from their silence while the debtor violates the law. We, therefore, hold that postpetition environmental penalties assessed against the debtor in possession for violations of the Surface Mining Act are allowable under section 57(j). Therefore, DOI’s claim of $69,350 for an administrative expense of preserving the estate under section 64(a)(1) of the Act, former 11 U.S.C. § 104(a)(1), should have been allowed. The judgment of the district court is accordingly REVERSED. . Since Elkins’ petition was filed before October 1, 1979, the effective date of the Bankruptcy Reform Act of 1978 for purposes of this litigation, this appeal is governed by the provisions of the Bankruptcy Act. Pub.L. No. 95-598, § 403(a), 92 Stat. 2683 (1978). . United States Dept. of the Interior v. Elliott, 40 B.R. 985 (W.D.Va.1984). . Bankruptcy Act § 342, former 11 U.S.C. § 742. . Bankruptcy Act § 339(l)(a), former 11 U.S.C. § 739(l)(a). . In Re Petite Auberge Village, Inc., 650 F.2d 192 (9th Cir.1981); In Re Becker's Motor Transp., Inc., 632 F.2d 242 (3d Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1358, 67 L.Ed.2d 341 (1981); In Re Unified Control Systems, Inc., 586 F.2d 1036 (5th Cir.1978) (per curiam); United States v. Wagner, 390 F.2d 13 (10th Cir.1968); In Re Brewster-Raymond Co., 344 F.2d 903 (6th Cir. 1965). . We decline to draw a distinction between post-petition tax penalties, such as those at issue in Boteler and Nicholas, and penalties incurred for violations of environmental regulations. Preserving and maintaining this nation's natural beauty is an important governmental interest. Furthermore, the existence of methods, other than the assessment of civil penalties, of effecting compliance with the Surface Mining Act and regulations promulgated thereunder, see 30 U.S.C. § 1271, does not affect our construction of § 57(j). We are unprepared to interfere with the discretion vested in the Secretary-of the Interior to ensure compliance, by whatever means he deems to be most effective, with the Surface Mining Act. Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:

songer_civproc1

41

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. Gemeral Earnest BERRY, Jr., Plaintiff-Appellant, v. CIGNA/RSI-CIGNA, Defendant-Appellee. No. 92-1316 Summary Calendar. United States Court of Appeals, Fifth Circuit. Oct. 29, 1992. C. Victor Lander, Lander and Associates, P.C., Dallas, Tex., for plaintiff-appellant. Walter C. Davis, III, Walter Davis & Associates, Dallas, Tex., for defendant-ap-pellee. Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges. EMILIO M. GARZA, Circuit Judge: Plaintiff, Gemeral Earnest Berry, Jr., brought an employment discrimination suit against his employer, CIGNA/RSI-CIGNA (“Cigna”). Berry appeals the district court’s sua sponte order dismissing his suit for failure to prosecute. Finding that the district court abused its discretion by dismissing Berry’s suit, we reverse and remand. I Gemeral Earnest Berry, Jr., an African-American employee of Cigna, filed an employment discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”), alleging that after being promoted, Cigna paid him less than white employees holding identical positions, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. On June 26, 1991, Berry received a right-to-sue letter from the EEOC. The ensuing litigation proceeded as follows: 1. On September 23, 1991, Berry filed a Title VII and § 1981 suit against Cigna in federal district court. 2. On October 1, 1991, Berry filed his first amended complaint. 3. On October 28, 1991, Cigna filed a motion to dismiss Berry’s § 1981 claim. On November 8, 1991, Berry filed an opposition to Cigna’s motion to dismiss. On November 26, 1991, the district court granted Cigna’s motion to dismiss. 4. On December 6, 1991, Berry filed a motion for reconsideration concurrently with a motion to amend his original complaint. Cigna replied to Berry’s motion for reconsideration on January 3, 1992. 5. On January 6, 1992, Berry moved for leave to file a second amended complaint. On that same day, the district court denied Berry’s motion for reconsideration. On January 29, 1992, the district court denied Berry’s motion to file a second amended complaint. On March 17, 1992, the district court dismissed Berry’s complaint (consisting now of the Title VII claim only), without prejudice and without notice, because Berry had failed to move for default judgment against Cigna. The district court’s order for dismissal cited Rule 3.1(h), Local Rules for the United States District Court for the Northern District of Texas, (“Local Rule 3.1(h)”) which directs the district court to dismiss an action summarily if a plaintiff fails to move for default judgment after a defendant is in default for ninety days. On March 20, 1992, Berry filed a motion to reinstate his suit. The district court denied the motion, stating that the dismissal was proper under Local Rule 3.1(h), and that Berry had failed to show why the rule should not apply to his case. Berry appeals the district court’s dismissal of his Title VII suit against Cigna. II A dismissal for failure to file a motion for default judgment is equivalent to a dismissal for failure to prosecute. See Williams v. Brown & Root, Inc., 828 F.2d 325, 326-27 (5th Cir.1987) (dismissal of plaintiff’s suit for failure to file a motion for default judgment, as required by local rule, treated as dismissal for failure to prosecute). Furthermore, we treat the dismissal of Berry’s suit for failure to prosecute as an involuntary dismissal under Fed.R.Civ.P. 41(b). See Boudwin v. Graystone Ins. Co., 756 F.2d 399, 400 n. 1 (5th Cir.1985) (where district court dismissed plaintiff’s suit for failure to prosecute, this Court on appeal treated the dismissal as an involuntary dismissal under Fed.R.Civ.P. 41(b)). Rule 41(b) allows the district court to dismiss an action upon the motion of a defendant, or upon its own motion, for failure to prosecute. Morris v. Ocean Sys tems, 730 F.2d 248, 251 (5th Cir.1984); Rogers v. Kroger Co., 669 F.2d 317, 319-20 (5th Cir.1982). This authority is based on the “courts’ power to manage and administer their own affairs to ensure the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962). Berry argues that (1) he is time-barred from reasserting a Title VII claim against CIGNA, and (2) because he is time-barred from bringing another Title VII suit, we should treat the dismissal without prejudice as if it were a dismissal with prejudice. A civil action under Title VII must be brought within ninety days of receipt of a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f); Price v. Digital Equip. Corp., 846 F.2d 1026, 1027 (5th Cir.1988). If a Title VII complaint is timely filed pursuant to an EEOC right-to-sue letter and is later dismissed, the timely filing of the complaint does not toll the ninety-day limitations period. See Digital Equip. Corp., 846 F.2d at 1027 (where plaintiffs Title VII suit had been dismissed for failure to prosecute, ninety-day limitations period had not been tolled by timely filing of Title VII suit, and second Title VII lawsuit was time-barred). Consequently, we conclude that Berry is time-barred from reasserting a Title VII claim against Cigna. We also agree that we should treat the dismissal of Berry’s case as a dismissal with prejudice. “Where further litigation of [a] claim will be time-barred, a dismissal without prejudice is no less severe a sanction than a dismissal with prejudice, and the same standard of review is used.” McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556 (5th Cir.1981); see also Williams, 828 F.2d at 329; Boazman v. Economics Lab., Inc., 537 F.2d 210, 213 (5th Cir.1976). We review a dismissal with prejudice for failure to prosecute for abuse of discretion. Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986); Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1519 (5th Cir.1985). A dismissal with prejudice “ ‘is an extreme sanction that deprives the litigant of the opportunity to pursue his claim.’ ” Callip, 757 F.2d at 1519 (quoting McGowan, 659 F.2d at 556); see also McGlathery, 792 F.2d at 474. Consequently, this Court has limited the district court’s discretion in dismissing cases with prejudice. McGlathery, 792 F.2d at 474; Callip, 757 F.2d at 1519. We will affirm dismissals with prejudice for failure to prosecute only when (1) there is a clear record of delay or contumacious conduct by the plaintiff, and (2) the district court has expressly determined that lesser sanctions would not prompt diligent prosecution, or the record shows that the district court employed lesser sanctions that proved to be futile. Callip, 757 F.2d at 1519-21; McGlathery, 792 F.2d at 474; Boudwin, 756 F.2d at 401; Morris, 730 F.2d at 252. Additionally, in most cases where this Court has affirmed dismissals with prejudice, we found at least one of three aggravating factors: “(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.” McGlathery, 792 F.2d at 474; see also Callip, 757 F.2d at 1529. Applying the standards pertaining to Fed.R.Civ.P. 41(b) to this case, we find that the district court abused its discretion by involuntarily dismissing Berry’s suit for failure to prosecute. The order of dismissal for failure to prosecute does not contain express findings upon which the dismissal was based. It merely states that the case was being dismissed because Berry had failed to move for default judgment against Cigna. Furthermore, nothing in the record indicates a clear record of delay or contumacious conduct. In fact, the record contains no evidence showing significant periods of total inactivity.” See Morris, 730 F.2d at 252. In addition, there is no evidence that the district court determined that lesser sanctions would be appropriate. Neither does the record contain any of the aggravating factors discussed in McGlathery. The district court apparently dismissed Berry’s lawsuit merely because of Berry’s failure to file a motion for default judgment. Because this does not amount to a clear record of delay or contumacious conduct, and because there has been no showing of the futility of lesser sanctions, we hold that the district court abused its discretion in involuntarily dismissing Berry’s case for failure to prosecute. Ill For the foregoing reasons, we REVERSE the judgment of the district court and REMAND for further proceedings. . Cigna was in default because it had not yet filed an answer to Berry’s Title VII complaint. . Local Rule 3.1(h) provides: Where a defendant has been in default for a period of 90 days, but plaintiff has failed to move for default judgment, the action will be summarily dismissed as to that defendant, without prejudice and without notice. . Berry argues that the district court should have applied Fed.R.Civ.P. 55(a) rather than Local Rule 3.1(h). Rule 55(a) only authorizes the court to enter a default judgment against a defendant who fails to file pleadings; it does not state whether a court may dismiss a case where the plaintiff fails to file a motion for default judgment. Because Fed.R.Civ.P. 41(b) governs involuntary dismissals for failure to prosecute, we consult decisions applying Rule 41(b). .Fed.R.Civ.P. 41(b) provides: Involuntary Dismissal: Effect Thereof.... For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or any claim against the defendant. . A clear record of delay is found where there have been " 'significant periods of total inactivity.’ ” Morris, 730 F.2d at 252. . Generally, where a plaintiff has failed only to comply with a few court orders or rules, we have held that the district court abused its discretion in dismissing the suit with prejudice. See, e.g., Morris v. Ocean Systems, 730 F.2d 248, 252 (5th Cir.1984) (no clear record of delay or contumacious conduct where counsel failed twice to comply with court-imposed deadlines requiring counsel to notify court of plaintiff’s rejection of settlement offers), Burden v. Yates, 644 F.2d 503, 504-05 (5th Cir.1981) (no clear record of delay or contumacious conduct where counsel failed to file three documents on time); McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556-58 (5th Cir.1981) (no clear record of delay or contumacious conduct where counsel failed to comply with scheduling and other pretrial orders); Silas v. Sears, Roebuck & Co., 586 F.2d 382, 384-85 (5th Cir.1978) (no clear record of delay or contumacious conduct where counsel failed to answer interrogatories, failed to confer with defendant on pretrial order, and failed to appear at a pretrial conference). On the other hand, where a plaintiff has failed to comply with several court orders or court rules, we have held that the district court did not abuse its discretion in involuntarily dismissing the plaintiffs suit with prejudice. See, e.g., Price v. McGlathery, 792 F.2d 472, 474-75 (5th Cir.1986) (clear record of delay and contumacious conduct where counsel failed to file pretrial order, failed to appear at a pretrial conference, and failed for almost a year to certify that he would comply with the district court’s order); Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1515-17, 1521 (5th Cir.1985) (clear record of delay or contumacious conduct where counsel failed to comply with nine deadlines imposed by the rules of procedure or by orders of the court). . In Williams, the district court dismissed the plaintiffs case pursuant to a local rule — similar to the local rule at issue here — which required the plaintiff to file a motion for default judgment within 60 days after the defendant defaulted. See Williams, 828 F.2d at 326-27. On appeal, this Court stated that the local rule apparently allowed the district court to dismiss a case where the plaintiff merely failed to move for a default judgment. See id. at 329. The Court stated that, "without other evidence of delay and without the consideration of lesser sanctions, such an application of [the local rule] would not meet the involuntary dismissal standards [of Fed.R.Civ.P. 41(b) ].” Id. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:

songer_amicus

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 or not there was any amicus participation before the court of appeals. PEOPLE OF THE STATE OF CALIFORNIA, Appellant, v. UNITED STATES of America, Appellee. SANTA MARGARITA MUTUAL WATER COMPANY, Appellant, v. UNITED STATES of America, Appellee. No. 14049. United States Court of Appeals Ninth Circuit. March 30, 1956. Edmund G. Brown, Atty. Gen., George G. Grover, Dep. Atty. Gen., Henry Hol-singer, Principal Attorney, Division of Water Resources, Gavin M. Craig, Senior Attorney, Division of Water Resources, State of California, Sacramento, Cal., for appellant, State of California. W. B. Dennis, for Santa Margarita Mut. Water Co., Fallbrook, Cal. J. Lee Rankin, Asst. Atty. Gen., William H. Yeeder, Sp. Asst, to Atty. Gen., for appellee. Swing, Scharnikow & Staniforth, Phil D. Swing, San Diego, Cal., for Fallbrook Public Utility Dist., amicus curiae. Before STEPHENS, ORR and FEE, Circuit Judges. JAMES ALGER FEE, Circuit Judge. The United States brought an action against some three thousand (3,000) defendants to quiet title to water rights claimed to be appurtenant to lands acquired in 1941-1943 and used for various purposes of the army and navy and which, collectively, with additions from the public domain, will be referred to as “Pendleton.” The history of this litigation appears in United States v. Fallbrook Public Utility Dist., D. C., 101 F.Supp. 298, 108 F.Supp. 72, 109 F.Supp. 28 and 110 F. Supp. 767. The State of California was served as a defendant and appeared as intervenor. On motion of the government, separate trial was held as to Santa Margarita and People of the State of California. Thereafter, the trial court entered a judgment in favor of the government and against these two, the appellants, Santa Margarita and the State alone, from which these appeals are taken. The judgment which was rendered contained recitals of certain declarations purporting to be based upon findings of fact, and adjudged that the Santa Margarita Mutual Water Company and the State of California, and each of them, “are forever barred from any and all claim of right, title or interest in and to those rights to the use of water” which the court found vested in the United States. The judgment was made final July 1, 1953. During the years 1941, 1942 and 1943, the United States, by three separate transactions, acquired by condemnation and purchase most of the Rancho Santa Margarita and by executive order added thereto from the adjoining public domain 1574.61 acres more and established thereon the United States Naval Ammunition Depot at Fallbrook, the United States Naval Hospital and Camp Joseph H. Pendleton. All of this land, with the exception of the lands added from the public domain, had been in private ownership long before California joined the Union. This military reservation as a whole has an area of 135,000 acres. The Santa Margarita River is a coastal stream which drains a watershed in San Diego and Riverside Counties and flows through Pendleton for 21 miles and thereupon enters the ocean. The United States brought into the trial court all of the other claimants of the river system, praying that its title to water right as the landowner at the mouth be quieted against each .and all. By final judgment, the District Court is empowered to grant complete relief as to all claimants and the United States, adjudicate the water rights, set up control systems and require physical solutions of specific problems, equitably charging the expense thereof to the claimant of surplus so created. The cardinal fact in the case is that in 1941 the State of California ceded to the United States general sovereignty over the territory, land and water, embraced in the enclave. Among the factors extraneous to the merits, which seem to have affected the trial of this case, was the standing and good faith of Santa Margarita and its supporters. This Court has spoken as to the efforts of interested parties to prevent the trial of this case by the able District Judge. There also was improper interference legislatively to prevent a hearing in one of the courts of the nation. The trial court found that Santa Margarita had “not made any diversion” and the State had issued no permits for diversion or storage. In other words, here was a paper application. It can apparently be gleaned from the record that this stream and its tributaries are upon lands over which the United States did not have sovereignty before the cession by the State of California. None of these creeks are navigable. There is no problem of the use of these waters for power or navigation. Flood control is necessary only to conserve water and create a surplus. There are thus no complicating factors. Before the acquisition by the government, the problem was one of settlement of rights of individual landowners under California law. The law of California, by stipulation here and by the federal Constitution, controls the water rights within its boundaries. The most strict application of the doctrine of riparian rights adapted from the common law between proprietors on a stream, both as to normal flow and flood waters, was enforced by the courts of the state. Even the constitutional amendment of the fundamental law of the state, although limiting the scope of applicability of the established doctrine by the concept of beneficial use, is given close scrutiny in order not to interfere with vested rights. Here the United States “claims only such rights to the use of water as it acquired when it purchased Rancho Santa Margarita, together with any rights which it may have gained by prescription or use or both since” that time. Inasmuch as the rights at the date of ac-quisition depend upon the law of the state, this Court defers to the interpretation of the able trial judge, himself a lawyer of the state of long standing, acquainted with the imponderables and implications inherent in the pronouncement of the courts of the state. This Court will not reject any such interpretation unless convinced that it be manifestly contrary to the holdings of the local tribunals. On the other hand, decision of problems of national law and process and procedure of federal courts are familiar ground to the judges of this Court. It is incumbent upon federal appellate judges also to maintain the delicate balance between the sharers of dual sovereignty in this area, the United States of Amer-ica and the State of California. The problem has intriguing scholastic aspects. But it is earthily practical. These are therein deep rooted implications of the structure of government. If the partial judgment in this case had only gone to the extent of declaring under the laws of California one who has filed an application for appropriation of water, which had not been acted upon by the state authorities and under which no diversion had been made, acquired no privileges which should conflict with the vested real property rights of riparian owners and established appropriators, no appeal would probably have been taken. But this judgment, above summarized, apparently cuts off (a) the right of the State of California, as sovereign over the landowners and appropriators on the watershed, other than the federal government, to resolve the water rights outside the enclave between such parties and also the rights of the State of California, as landowner and proprietor of water rights on parcels in the watershed above the enclave; (b) the right of Santa Margarita, by perfecting its application, to rank ahead of subsequent applicants for appropriations, including the Navy, and to utilize surplus water, if any, which developed now or in the future. And finally (c) in a suit where there are many other parties, the partial judgment attempts to fix positive rights of ownership of water in the government “by prescription” or “use” which rights would not only be valid against the State of California and Santa Margarita, but against all the other litigants and the world. The government apparently desired to try Santa Margarita because it was obviously in the weakest position of any prospective user on the stream. This was, of course, perfectly proper, and this Court has affirmed the trial judge in the exercise of his discretion. But no license was accorded thereby to enter judgment in such sweeping terms. It is demonstrable that some of the declarations, conclusions and findings are improper as to each, Santa Margarita and the State of California. If Santa Margarita had any right, even inchoate, under the laws of California, then that right, whatever its value, must be protected. The State of California should not be denied the power of granting a permit to Santa Margarita valid against all private landowners. It would, of course, only be valid for surplus waters, if any, now or in the future. Diversion of water not surplus by an appropriator is a trespass. While there might be a final judgment in this case declaring the future needs and settlements of the United States, such a judgment should not cut off rights to use the water which is presently surplus, if any. These errors in the breadth of the partial judgment may have been caused by a misconception of (a) “military necessity,” (b) “sovereign rights” of the United States, or (c) the effect of a judgment in the state court between Rancho and Vail and a stipulation between the government attorneys and Vail. One factor is handled only to be immediately discarded. The government brief blares out like a trumpet the “military necessity” in the use of Pendleton against the “aggressors.” “It was on the postulate that the United States of America could utilize water in the State of California successfully to wage war that the case was tried.” This reasoning seems to have had effect on the findings of the trial court. The crisis existing when this land was acquired still exists. It may exist beyond the lives of any now living. New developments may require the taking of more land. For that, the government will pay just compensation. If more water rights than those presently appurtenant to the holdings are necessary, the government can acquire these also by paying just compensation. But the principles of property law should not be warped in order to provide for contingencies yet to come. The stipulation above quoted measures the right of the government. The theory of the government agents seems to be that, if a military post be established upon the mouth of a stream and the State voluntarily cedes sovereignty of the area, on the ground of military purposes and future military necessities, the government obtains the right to use all of the water which in the state of nature flowed there, even if the land and water is located in a state where the United States had no sovereignty except by the admission of the state to the Union. It is true, the decision here does not approach the limits of the theory proposed, but the findings and declaration seem to have been influenced thereby. As noted, the United States had no original sovereignty over the territory included in the present boundaries of the State of California. This is a unique situation, although not entirely unprecedented. No sovereign rights over this land existed in the United States except as provided by the dual system until the State of California ceded exclusive jurisdiction over the tracts of land acquired by condemnation. By federal law, thereafter, United States held paramount and exclusive control and jurisdiction over the land and water which at any time is upon the land within the limits of this enclave. The process of the state courts could not run therein unless by consent. The executive and administrative bodies and regulations had no control therein. State law, substantive and procedural, had no force over persons or objects within the boundaries. The question of “sovereign rights” of the United States pervades this entire case and has done so from the beginning. Not only that, but the steady beating of the war drums in the government’s brief by references to “military necessity” tends to deflect full consideration from the property rights of ordinary citizens. It is true enough that, at the time of the establishment of Camp Pendleton in 1942, military necessity was a prime consideration. There are elaborate disclaimers by the government attorneys of any appeal to the doctrine of sovereignty in settling this case. These appear likewise in the opinions and findings of the trial court. On the surface, it is agreed by all that the law of the State of California should be applied. For all that, the sovereign rights of the United States seem to have had a controlling effect upon the findings and judgment. Now it must be conceded by all parties that the United States had sovereign rights in the enclave. The rules governing the use of that property were properly set by the Executive under the Constitution. Its rights within the borders were sovereign, paramount and supreme. This principle applied to the use of water appurtenant to the land. The United States could store the water which came to the land or use it on a different watershed than that of the Santa Margarita without interference from anyone. The Water Master of the State of California had no authority in the enclave and could not object. Santa Margarita could not object or prevent the United States from using the water which came onto the land in any way its officers chose. This sovereign authority was essential and was granted by the Constitution. But the physical possession of the corpus of the water after it enters the enclave and the ability and legal right then to use it for whatever purposes are not evidentiary of a water right, for the right to use water is a property right and is appurtenant to particular parcels of land. We must not fall into the fallacy of believing that, because the United States, by its sovereignty, made use of the corpus of water which entered the enclave as it chose, it thereby acquired property rights in the flow against upper riparians or appropriators under municipal law. This principle has important effects. The findings of the trial court that there was no surplus either now or in the future were vitally affected. Since neither appropriators, riparians nor anyone else could object or prevent such use of water by the United States in the enclave, such use was not adverse to their interests. These parties could not be estopped by “use” of the corpus of the water with which none of them by any possibility could interfere. To hold that the “use” of the corpus of the water coming onto the enclave for any purposes the government agents required, whether beneficial or not, and that the “needs”, present and future, claimed by government attorneys were the measure of vested property rights, would be to adjudge that California not only ceded the sovereignty over the enclave, but thereby bargained, sold and delivered a vested water right adverse to all other claimants in all the flow of the stream at that time. But California did not own such a water right and could not grant it. The government, as regards all claimants to water outside the enclave, is not in the position of sovereign, but in the position of a lower riparian which is compelled to make beneficial use within the watershed and for other than proper riparian uses must show an appropriation according to law. This case must be remanded because of the apparent misconceptions of the law of the enclave by the trial court and the application of the theory of sovereignty to the subversion of vested and inchoate private rights. Declarations, findings and conclusions, hereinafter criticized, eventually may be found in substance to be well founded upon the entry of final judgment in the action. In remanding, this Court is not attempting to find fact or express any opinion as to fact situation, but rather to indicate that many of the declarations, findings and conclusions are not well founded on the present record, are premature and may tend, if allowed to stand, to be given undue weight in the final judgment, owing to the erroneous influence of factors herein considered. The two declarations of the judgment are manifestly erroneous: “12. If the correlative rights of the two chief riparian owners (the United States of America and the Vail Estate) are considered, there was not at the time of the filing of the appropriation notices by the Santa Margarita Mutual Water Company in 1946 and 1947, any surplus water supply to appropriate. “13. There is no surplus water supply at the present time subject to appropriation.” 110 F.Supp. 767, 788. as is Finding 115: “There is no surplus water at the present time available for appropriation from the Santa Margarita River system; there was no surplus so available in the year 1946; there was no surplus so available when Camp Pendleton was placed in operation as a military installation in 1942.” 110 F.Supp. 767, 783. If these are findings of fact, they are clearly erroneous; and, if conclusions of law, they are wrong. There are no facts found by the court anywhere which justify this declaration. In essence, it appears to be based upon prior litigation between the Vails and predecessor of the United States and the acceptance by the latter of that decree as a basis in this case. Also, the agreements and stipulations between the United States and Vail seem to have been given weight. None of these considerations was proper, since Vail was not a party to this present judgment and the rights of Santa Margarita against it wrere reserved. Similarly, the State of California had other lands in the watershed which it excepts specifically because this declaration eliminates consideration of the water rights of these lands by a spurious merger of the rights of Vail and the United States. This merger was an attempt to tie the landowner uppermost on the watershed to the lowermost owner, which could not be done against those having intervening rights on the stream except by the application of the principles of sovereignty. Appellants make the point in the assignments of error that the Vail Estate is not a party to the instant judgment. The trial court specifically said, as a ground for entering the partial judgment against appellants, that the rights of Santa Margarita against Vail and all other defendants in the main suit would be reserved. There had been a lawsuit wherein the water rights of Rancho Santa Margarita, a private owner, predecessor of the government, on a part of this land against the Vails were determined. But this stipulated judgment between two litigants is contractual in character between the principals to the agreement and is not binding upon the Water District or the State. Thus the correlative rights between the Vail Estate and the government have been settled by agreement. Such a correlation does not bind appellants. But a key declaration is based upon the assumption that it does. There is connected therewith another finding which comes within the same assignment of error. The court found the United States was entitled to 3 cubic feet of water per second at the upper end of Temecula gorge, which was released to it by the Vail Estate as against the Santa Margarita. The stipulation that it is necessary for Vail to release these 3 cubic feet was and is, of course, binding upon the parties thereto. But the release at that point is obviously not a delivery to the United States. It only means that Vail was not entitled to any use of water unless and until there had been such a quantity released. It must be assumed that the rights of the intervening landowners and appropriators between the point of release and the boundary of the Rancho must have been considered. In any event, neither the state court nor Rancho and Vail had power to bind such parties or the State of California. This feature must be considered since it was given so much weight by the trial court in determining there was no surplus. If the Vail Estate could not use this water above the filling of the Water Company, there would be a question of fact between them as to whether Vail could sell this water to the United States. Furthermore, the question concerns all other riparians and appropriators between Vail and Camp Pendleton. None of these factors could be considered in making a decree that, on account of them, there was no surplus in the Santa Margarita watershed. All the findings of fact relating to the Vail Estate and the litigation with the previous owner of the lands now held by the government would be pertinent in litigation between Vail and the government, but neither that nor the adoption of the decree by the government helps it against either the Santa Margarita or the State of California. As will be hereafter noted, the trial court distinctly states this is not a final judgment as to Santa Margarita, but its rights in connection with the other defendants (including Vail) must be hereafter determined. The court was therefore in error in using the supposed rights of Vail as against Santa Margarita. The declaration (No. 13) that there is no surplus at the present time is invalid. Here the misconception is apparent. If the corpus of the water coming onto the land in a dry year be considered, there might not be sufficient to satisfy the legitimate needs of the United States upon riparian land in that particular year. But that circumstance would not diminish its “water right” appurtenant to the land. Nor would it increase the incorporeal water right. In a future flood year, the United States would have the right to insist that only such water enter the reservation which a private owner could have used beneficially upon riparian land. It is improper to average the use, demand or supply of water over a series of years in the attempt to determine whether or not there is a present surplus. The defects made manifest in the discussion of paragraph 12 enter into this consideration also and likewise vitiate this declaration. The declaration that “there is no surplus water supply at the present time subject to appropriation” is clearly erroneous. This “finding” is in truth a conclusion. As such, there is a begging of the question at issue. The trial court assumes that “the demands of the United States of America of 15,300 acre-feet a year as recognized by the Trial Court” are valid and established. But that is the very point at issue. Instead of reasoning back from postulated “demands” of the government to find whether a present surplus exists, the trial court should have found in second feet or some other appropriate measure what water was at the designated time applied beneficially and not prodigally to riparian lands. The conclusion involves many facets of conflict. First, do the sovereign rights of the United States within the enclave change its relative position in respect to other private riparian owners and appropriators ? Second, are the correlative rights of the two chief appropriators, the Vail Estate and the United States of America, which have been settled by agreement between them and which depend upon the final adjudication binding upon intervening riparians and appropriators to claimed surplus water ? Finding No. 115, that there was no surplus water at the time the United States acquired the lands is a pure deduction related back from the finding that there is no surplus at present time. No precise finding as to the amount of water used on each tract beneficially at that time has been made in this proceeding. This finding has no basis in the testimony or record. It is shown clearly erroneous by the fact that other findings show that flood water wasted into the ocean in various years when the land was in private ownership. We are not therefore prepared to say, upon the bases of the findings of the trial court and the record in this case, that the uses to which the water was put by the United States were valid as compared with the inchoate appropri-ative right of Santa Margarita. Every water right in private ownership in California and each use or diversion thereof as appurtenant to land is subject to the limitations and prohibitions of the Constitutional amendment. Peabody v. City of Vallejo, 2 Cal.2d 351, 367, 40 P.2d 486. It is certain from the evidence in the case that in some years there is surplus water which flows clear through the watershed and wastes into the sea. No attempt is made by this Court to determine here what rights Santa Margarita might receive under a permit with relation to the United States and other ripa-rians and other appropriators. But it was error for the trial court to enter a final judgment as regards Santa Margarita without determining these questions. Finally, the trial court found that there were 4535.3 acres of lands in the lower basin and that “the natural forage in this area is dependent upon the supply of water in the underground basin.” There were no definite findings as to how much water had been used at any time for that purpose. There was no finding that allowing the floodwaters to plunge over these lands was a reasonable method of application and use. There was no finding that no physical solution could be found for the problem, charging the cost to those claiming the surplus thereby created. There was no finding that the water stored in Lake O’Neill could not have been applied to this agricultural use, besides delighting the eye of the beholder. There was no finding that the Rancho and the government agents were not depleting this basin themselves by pumping water outside the watershed. If the latter were true, it might be possibly claimed as a “substituted use,” but surely the other parties above would not be required to allow water to flow down for the original use and for the substituted use in addition thereto. Yet this is within the scope of the declaratory judgment. The adequacy of the findings, conclusions and declarations as to surplus which have just been discussed directly bear upon the rights of the State of California and Santa Margarita. There are pronouncements as to purported rights of the government not riparian in character, which enter into the declaration as to present surplus and also affect these litigants, but, since these are stated as vested property rights acquired by prescription and use, positively affect all the other parties in the main case filed in the name of the United States and all the world. These pronouncements are summarized in the margin. We now take up a consideration of the supposed positive rights of the government declared in this suit to exist by prescription and use as the foundation of a partial judgment in an action brought against all the owners in a watershed: (1) Storage of water in equalizing reservoirs or in Lake O’Neill; (2) uses of water outside the watershed; (3) military uses and the use of water in townsites or barracks not riparian. Such uses may indeed be beneficial. Suffice it to say, the findings do not support the existence of any water right in Rancho or the government by either of these methods of acquisition. Although the question was argued, this Court does not presently decide whether a lower owner in California can acquire title to water rights by prescription or use against upper riparians or appropriators. “Use” of water can mean nothing more than appropriation and application to some purpose. Since no estoppel could be raised against other landowners and appropriators, the phrase used in the stipulation must mean “prescription” or “appropriation.” Because of this, the theory underlying the judgment, however, is that Rancho acquired a water right for such purposes above enumerated by “prescription or use.” Apparently, under the law of California since 1913, a valid water right by appropriation can be acquired only by filing an application with the state authorities and pursuing it through the steps required by law. There is no finding that Rancho or the government agents made or pursued such an application. At a late date after the filing of Santa Margarita, the agents of the government have made a filing, ostensibly for the Navy, upon the stream. If its lawyers and agents had obeyed the injunction of the reclamation statute when Camp Pendleton was first acquired and had filed for the surplus waters of the stream, another question would have arisen. But because they were not foresighted enough to do that is no reason to allow them to act as if they had. The Santa Margarita rights, if these have any value, may be purchased. If these have no value, they may be disregarded. In no event can they be appropriated by fiat. Appropriated water must be appurtenant to a particular parcel of land and a particular beneficial use, and the initiation must be fixed at a positive date. Title to a water right by prescription must be founded on like essentials, and it must be further found that the use of a specified quantity on a given parcel continued through the period. There is no prescriptive right in gross. There can be no acquisition of such a right for a purpose not beneficial. But findings to support the acquisition of a title by either method in Rancho are conspicuously absent. The trial court seems also to have laid emphasis upon the proposition that the use by Rancho was adverse because in violation of the Vail decree. It would seem that, if thus adverse, it was only adverse as to Vail, and, if in violation of the terms of judgment, it could not be “under claim of right.” We do not pass upon this point, but designate the inadequacy of the findings. The findings were not sufficient to support any prescriptive water right either in Rancho or the government. In order to be valid, such findings must specify a particular period not less than five years, during all of which a quantity of water (miners’ inches, cubic feet per second, acre feet) was continuously applied to a particular beneficial use, under claim of right, hostile and adverse to the property rights of all others interested. There is also an attempt in the findings, conclusions and declarations to cure this defect and to cumulate the time when Rancho made use of water for purposes not riparian with that time when agents of the government made nonriparian uses of a different character and for different purposes. This attempt is fallacious. As soon as the United States took sovereignty of the enclave, as we have heretofore noted, its agents had the right to use the corpus of any water on any part of the area for any purpose. The State of California could not object or interfere. Its officers and agents could not even enter Pendleton without permission. The Bureau of Water Resources had no power or authority within these limits, as above noted. The trial court so held, and the holding is correct. The private landowners and appropriates could not object to any use of water by the government agents. Indeed, the former might well have been kept in complete ignorance of what was going on. In any event, no one could resist by self-help the use by the agents of the government in whatever use they wished to make. An action for damages or for injunction by landowners or appropriates above would necessarily have been dismissed. Since no one had the right to interfere, the government could not acquire originally or by tacking onto some previous use a property right in waters which had not yet come onto the land. The use of water in the enclave by the government was of sovereign right and was not and could not be adverse to any other holder or claimant above. The doctrine of prescription envisions a party, whose rights are being openly and notoriously violated by another, and who has the power to intervene and prevent the violation from becoming an adverse property right by self-help or by bringing an action or obtaining an injunction before the period of prescription runs. But, when the United States was in possession as sovereign, the water which came into the enclave could be used without let or hinderance in any way which the agents of the government chose. The implication apparently is that upper riparians or future appropriates must during the period have dammed up the water and prevented the flow of floodwaters from reaching the enclave and wasting into the ocean. There is no foundation for this assumption. For it is paradoxical to say the government agents had the right to use the corpus as they did and still say such use of waters, admittedly surplus at the time, founded right not only against an upper riparian such as the State of California, but against the world, to have all surplus water flow in perpetuity until it reached the boundaries of the enclave. But, if sufficient findings were not made to support the judgment in this respect, the declarations and findings as to the existence of a present surplus fail also. The implication that the government agents had the right to use water outside the watershed is another apparent application and extension of the right of sovereignty outside the boundaries of the enclave to the prejudice of owners of vested and inchoate rights under the laws of the State of California, There is no finding sufficient to support an existing property right at the time of acquisition by the government to use water off the watershed. Insofar as there is a claim for pumping privileges, the law limits the use of water so obtained to the watershed and the rights of the overlying owners must be equaled with those of other riparians and established appropriated. There is no uncontrolled right to use pumped water wastefully or in another watershed. There are no findings of an appropriation by the agents of the government or any previous owner of pumped water which developed into a perfected water right. Neither do the findings show a specific completed prescriptive right. The findings to establish either an ap-propriative or a prescriptive right or a right to use water off the watershed are entirely inadequate. The key question in this case is who had the right to store these floodwaters for future disposition, Vail, Santa Margarita, Fallbrook or the United States, or perhaps some other owner intermediate on the stream? Or perhaps some physical solution by or control under court decree could permit participation by all in the conservation of all flow of the watershed for beneficial use so that no drop would waste uselessly into the Pacific? The findings, declarations and conclusions are not sufficient to establish ttle right to the nonriparian use of the flow of floodwater by storage in any of the three participants to this partial judgment. The trial court at no place defines the rights which an applicant for a permit to appropriate for storage acquires under California law in relation to other owners and users. There are no adequate findings as to the right of the owners previous to the government to hold water in Lake O’Neill. There are no findings upon which use of an “equalizing reservoir” or any other reservoir for riparian or nonriparian land had been acquired by the predecessors of the government. As to “military use” and particularly the use of water in barracks an(j quarters of service personnel off the watershed, as a substitute use for portions of the flow previously used off the watershed for agricultural purposes, the difficulties have been suggested above, Certainly, the findings are inadequate to. show that part of the water now used or vaguely intended to be so used in the future is not presently surplus. Surely the uses are not riparian to the lands in the watershed. The use in barracks is analogous to municipal use. Undoubtedly, the agents of the government could use-for such purpose any water lawfully comjng onto the enclave by virtue of a water right owned by Rancho. But the findings do not show Rancho owned such a property right. it will be noted that this Court has. carefully avoided suggesting that Santa Margarita has any rights or even inchoate privileges, either as a matter of fact or law. It may well be that a state administrative board might never grant a permit. If a permit were granted and Santa Margarita diverted water not at that time surplus, a trespass would! have been committed by the diversion upon the owner of the water right, whether the United States or another. Further, this Court does not attempt to say whether there is a present surplus in the water-shu- It is here directly decided that entry of a partial judgment in declaratory form containing an absolute pronouncement that neither Santa Margarita nor the State of California had any rights against the agents of the government in the flow in this watershed-was premature. The attorneys for the government had brought all the parties into court and final judgment could in-elude physical solutions and a supervisory system of control, if that be deemed advisable. The only proper method of adjudicating the rights on a stream, whether riparian or appropriative or mixed, is to have all owners of lands on the watershed and all appropriators who use water from the stream involved in another watershed in court at the same time. The trial court violated this principle by issuing a declaratory judgment as to the right of the United States as against one claimant whose rights were junior, which had the effect of preventing a trial of the other water rights involved without giving a hearing as to the individual owners. Under the rule of waters adopted, the State originally was strictly riparian and must be recognized as such. Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607. The Constitutional amendment has been noted as a limitation on that right, which is strictly construed, as the trial court correctly notes. But everyone must admit that the purpose of the constitutional amendment was to vest with a public interest the use of all the waters of the state, so that no part of the precious supply should flow uselessly into the sea or otherwise go to waste. This characterization applies to flood waters as well as the normal flow. But there is no right to an unreasonable use or unreasonable method of use. United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231. In providing for the United States, the trial court apparently held that the flood waters must be permitted to flow into the sea in order to protect the lower land of its holding from intrusion of salt water. There is no express finding that this is a beneficial use. But it is clear from the facts found that in certain years tremendous quantities of water do flow uselessly into the ocean. It is entirely improper for the government to show that, on the average of a series of years, it would not obtain its quota. The right to floodwater, in order to be claimed as appurtenant to the land, must be used in the year when it occurs. As a result of the considerations which have been suggested above, we are of opinion this case must be reversed due to the entry of the partial judgment in this cause. The assignment of no damage by the entry of such a judgment was an abuse of discretion. It is, in fact, somewhat shocking in litigation where a whole stream system with various types of ownership of land and use of water, appurtenant and in gross, vested and inchoate, overlying, riparian by appropriation and by permit, that the court should attempt to adjudicate matters which affect the whole collection of rights and all the defendants in a proceeding which directly involves three litigants only. Most prominent in this adjudication is the finding and declaration that the government has certain water rights by prescription. A right by prescription is binding upon all the world, not only upon the water district, but upon all owners and possessors of rights on the stream system. But these parties, although defendants in the suit, cannot appeal from this decision. It may be said that this finding or declaration is not binding upon them. If allowed to stand, however, the determination will have effect upon the other defendants because it is a finding of a right against all the world in a suit in which they are parties. The court ostensibly reserved the right of trial to Santa Margarita and as to other owners, but it has been seen that the presumed rights of the Vail Estate and. its agreements with the United States were used adversely to Santa Margarita. The State of California has other property in the watershed. It has been specifically assigned as error that the rights of these properties were not adjudicated as against the United States in this case. The judgment “purports to adjudicate all of the State’s rights” in the river. Santa Margarita Mutual Water Company has appealed from the granting of a certificate by the court, to the effect that there was nc just reason for delay in the entry of a final judgment against it and the State of California. After a review of the record, the outstanding fact is that all of the riparians and appropriators on the watershed are vitally interested in certain of the findings and most of the declarations of the judgment. Since this action includes the entire watershed, it is in the nature of a plenary suit to settle the correlative right of everyone interested in the waters. The standard course in such a proceeding is to enter a decree setting up all the rights as of the same date. The State of California did not represent all of these private rights. Besides the damage to Santa Margarita of considering the rights of other persons’ drawing water from the stream and, particularly, the Vail Estate, which is not a party to this specific trial, the rights of the others interested in the flow of the stream were prejudged before they had been tried, by sweeping declarations of the judgment in favor of the contentions of agents and attorneys for the government. This was an abuse of discretion. The cause is therefore reversed and remanded with directions to take further proceedings in accordance with this opinion and enter no judgment until the entire suit can be disposed of at the same date. Reversed and remanded. . Santa Margarita Mutual Water Company, herein referred to as “Santa Margarita.” . Declaration of Judgment No. 16, 110 B\ Supp. 767, 788. . Rancho Santa Margarita was the private landowner from which the United States acquired most of these lands, and this title was used as descriptive of the lands so acquired. In either connection, this opinion uses “Rancho” as the designation. . 43 U.S.C.A. § 666. . See Fallbrook Public Utility District v. United States District Court, Southern District of California, Southern Division, 9 Cir., 202 F.2d 942. . “It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which he is lawfuly entitled. This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.” Constitution of the State of California, Article XIV, Sec. 3. . Primarily, the concepts of “state ownership” of water and “prior appropriation” on privately owned lands, as applied in strictly desert land states, are entirely alien. The history and interpretation of the California water law show the riparian doctrine accepted there has been much more strict than at common law. . Fallbrook Public Utility District v. United States District Court, Southern District of California, Southern Division, supra. . Upon the reversal and remand for new trial of the cause entitled Rancho Santa Margarita v. Vail, 11 Cal.2d 501, 81 P.2d 533, a stipulated judgment dated December 26, 1940, was entered in the “Superior Court of the State of California in and for the County of San Diego” between the parties thereto. The judgment purported to declare the rights of the parties thereto “in and to the waters of the Temecula-Santa Margarita River and its tributaries.” It specifically set up an elaborate system for the measurement of the flow of the stream, and provided for pumping privileges and the release to the Rancho during “irrigation season of each year, to wit, May 1 to October 31” of “a constant flow of water not less than three (3) cubic feet per second” at a gauging station at the upper end of Temecula Gorge, immediately downstream from the confluence of Murrieta Creek. . The Vail estate, owner of 40,575 acres of upper riparian land, a party to litigation noted above in Footnote 9 and a defendant in this suit but not a party to the trial, see Declarations of Judgment Nos. 4, 5, 6, 9 and 12, 110 F.Supp. 787, 788. The estate and the individual Vails will be herein referred to as “Vail,” “the Vails” and “Vail Estate.” . An adverse right to an average of 4300 acre-feet per year for diversion into Lake O’Neill was found to have been acquired by the United States and its predecessors in interest during “a five-year period since 1920.” United States v. Fallbrook Public Utility District, 110 F.Supp. 767, 777, Findings of Fact Nos. 59, 60 (page 777). An adverse right to the use of 4806 acre-feet per year was found to have been acquired for the irrigation of portions of Stuart Mesa and South Coast Mesa outside the watershed. The open, continuous and adverse use was said to have begun on Stuart Mesa in 1938, and on South Coast Mesa in 1939, after the Supreme Court of California had declared that the water of the Santa Margarita was insufficient in a suit between the Rancho and the Vails. Distribution of water to these areas through the government’s distribution system was found to have commenced in 1942, along with practically all of the water used for military purposes, such uses also occurring off the watershed. Findings of Fact Nos. 61-66 (page 778). The yearly average actual use by the military reservation was found as 9,934 acre-feet, but the needed average on a “present-day basis,” was found to be 11,-000 acre-feet per year. Finding of Fact No. 67 (page 778). The quantity of water available to the government was found to be 12,500 acre-feet per year. Finding of Fact No. 113 (page 783). As a conclusion of law, it was held that an adverse right to impound water In Lake O’Neill was vested in the government, and moreover “all of the elements for acquisition of prescriptive rights have been found to exist respecting the use of water from the Santa Margarita River” upon South Coast Mesa and Stuart Mesa. Conclusion of Law No. 21 (page 786). It was then adjudged that the present average need was 11,000 acre-feet per year, which included 4806 acre-feet used on irrigated lands outside the watershed. Additionally, the government was possessed of a prescriptive right to impound annually 4,300 acre-feet of water in Lake O’Neill. It was then concluded that, inasmuch as there was “not more than 12,500 acre-feet annually” available to the government, no surplus water supply existed, after consideration of the correlative rights of the chief riparian owners (the government and the Vails). Declarations of Judgment Nos. 10-13 (page 788). . “No right to appropriate or use water subject to appropriation shall be initiated or acquired except upon compliance with the provisions of this division.” California Water Code, § 1225. A prescriptive right can be gained only by the open, continuous, hostile and adverse user of water under claim of right, to which another has a claim that can be protected by injunction or other legal process. Hence “prescriptive rights” are not acquired “by the taking of surplus or excess water.” City of Pasadena v. City of Alhambra, 33 Cal.2d 908, 926, 207 P.2d 17, 29. . Declaration of Judgment No. 9, 110 F. Supp. 767, 787. . Findings of Fact Nos. 59, 60, 63, 65; Conclusion of Law No. 21; Declaration of Judgment No. 10, 110 F.Supp. 767, 777, 778, 786, 788. . Peabody v. City of Vallejo, 2 Cal.2d 351, 40 P.2d 486. . The defendants, not joined to the trial, are neither “parties” nor “privies” to the findings and judgment entered therein because: “ ‘Under the term parties, in this connection, the law includes all who are directly interested in the subject-matter, and had a right to mate defense, or to control the proceedings, and to appeal from the judgment. * * Persons not having these rights are regarded as strangers to the cause * * * “privity” denotes mutual or successive relationship to the same rights of property.’ ” Litchfield v. Crane, 123 U.S. 549, 550-551, 8 S.Ct. 210, 211, 31 L.Ed. 199. Cf. Brotherhood of Locomotive Firemen and Enginemen v. United States, 5 Cir., 183 F.2d 65, 66. Question: Was there any amicus participation before the court of appeals? A. no amicus participation on either side B. 1 separate amicus brief was filed C. 2 separate amicus briefs were filed D. 3 separate amicus briefs were filed E. 4 separate amicus briefs were filed F. 5 separate amicus briefs were filed G. 6 separate amicus briefs were filed H. 7 separate amicus briefs were filed I. 8 or more separate amicus briefs were filed J. not ascertained Answer:

songer_r_stid

36

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 a respondent. Robert LONBERGER, Petitioner-Appellant, v. Arnold R. JAGO, Superintendent, Southern Ohio Correctional Facility, Respondent-Appellee. No. 79-3100. United States Court of Appeals, Sixth Circuit. Argued April 3, 1980. Decided Dec. 1, 1980. Norman G. Zemmelman, Britz & Zemmel-man, Toledo, Ohio (Court-appointed), John Czarnecki, Haywood, Cooper, Straub, Wa-linski & Cramer Co., L.P.A., Toledo, Ohio (Court-appointed), for petitioner-appellant. William J. Brown, Atty. Gen. of Ohio, Randall G. Burnworth, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee. Before LIVELY and BROWN, Circuit Judges, and PECK, Senior Circuit Judge. JOHN W. PECK, Senior Circuit Judge. This is an appeal from an order of the United States District Court for the Northern District of Ohio, Western Division, dismissing petitioner’s Motion for a Writ of Habeas Corpus. Petitioner, Robert Lonber-ger, is an Ohio prisoner who was convicted by a jury of aggravated murder with a “specification,” which resulted in the death penalty under Ohio’s sentencing enhancement statute. Subsequently, the Ohio Court of Appeals reversed the conviction of aggravated murder, and reduced the verdict to the lesser included offense of murder. On remand, the trial court sentenced the defendant to fifteen years to life imprisonment. Petitioner challenges the constitutionality of his Ohio conviction, and we here consider (1) whether it was error for the trial court to allow evidence of a prior conviction of attempted murder to go to the jury at the same time that the jury was deciding petitioner’s guilt or innocence on the substantive charge; and (2) whether the district court erred in holding that petitioner’s guilty plea to a charge of attempted murder, the basis of the “specification,” was knowingly and voluntarily made. I. Petitioner was indicted by the Lucas County, Ohio, Grand Jury and charged with murder while committing rape, defined by § 2903.01(B), Ohio Rev.Code, as “aggravated murder.” The indictment further contained a “specification” that petitioner had been previously convicted of attempted murder. The Ohio statutes under which petitioner was tried provided for life imprisonment upon conviction of aggravated murder unless, in addition to the principal offense, one of seven “specifications” listed in O.R.C. § 2929.04 was charged and proved at trial, in which case the defendant could be sentenced to death. O.R.C. § 2929.02 and 2929.03. A prior conviction of attempted murder was one of the “specifications prescribed by the statute. O.R.C. § 2929.04(A)(5). The evidence adduced at trial on the principal charge revealed that on the night of January 29, 1975, Charita Lanier was brutally murdered. The cause of death was exsanguination resulting from a severe laceration of the neck. A bloodstained and bent twelve-inch knife belonging to the victim was found at the scene and identified as the probable murder weapon. An autopsy performed the following morning revealed the presence of sperm in the vaginal canal. No bruises or external signs of trauma were found with the exception of the fatal laceration of the neck. The State also offered testimony that the petitioner was with the victim in her home the night of her death, and introduced into evidence blood-spotted clothing belonging to the defendant. The state sought to prove the specification of a prior conviction in addition to proving the substantive charge. To this end, the state introduced into evidence a conviction statement, with the indictment appended, from Cook County, Illinois. These documents indicated that a Robert Lonberger had been convicted of attempted murder in 1972. Petitioner’s pre-trial motion to dismiss the specification on the ground that his 1972 guilty plea to attempted murder had not been knowingly and voluntarily made was rejected by the trial court. The prosecutor and the trial court also rejected appellant’s offer to stipulate to having committed the prior offense (the stipulation would have kept from the jury the details of the prior offense, including the fact that it too involved an attack upon a woman with a knife). The admission into evidence of the conviction statement was accompanied by an instruction to the jury that it was not to consider the prior conviction in determining the defendant’s guilt or innocence on the substantive charge. On May 30, 1975, a jury returned a verdict of guilty against the petitioner on the charge of aggravated murder, and it further found him guilty of the specification. Petitioner appealed to the Ohio Court of Appeals, which reversed the verdict of guilty of aggravated murder on the grounds that the State had failed to establish the elements of rape or the identity of the appellant as the offender beyond a reasonable doubt. The Ohio appeals court reduced the verdict to the lesser included offense of murder and remanded the case for sentencing, whereupon defendant was sentenced to fifteen years to life. After exhausting his state court remedies, appellant petitioned the district court for a writ of habeas corpus, which was denied. II. Petitioner first charges that the evidence of his prior conviction was not admissible under Ohio law. Alternatively, he argues that a one-stage trial at which evidence of a prior conviction is introduced solely on the issue of punishment violates the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Petitioner argues that he is entitled, therefore, to á bifurcated trial at which a jury must pass upon the principal offense charged prior to the introduction of any evidence of his previous conviction, which only goes to prove the specification. With regard to Ohio law, the Ohio Supreme Court rejected the identical argument in State v. Gordon, 28 Ohio St.2d 45, 276 N.E.2d 243 (1971). There the court held that where it is necessary to charge a prior offense in the indictment for purposes of enhanced punishment, as a matter of state law the prior offense becomes an element of the second offense, and, therefore, “[i]t is not reversible error to read to the jury an indictment which contains the averment of a prior conviction or to place such indictment in the jury’s possession during its deliberations [in a single-stage trial]. .. . ” The Ohio legislature has explicitly required that the specification charged here be alleged in the indictment. We conclude, therefore, on the authority of State v. Gordon, that the admission of petitioner’s prior conviction in a single-stage trial conformed with Ohio’s rules of evidence and criminal procedure. Petitioner’s constitutional attack on Ohio’s procedure is adequately answered by the Spencer v. Texas, 385 U.S. 544, 87 S.Ct. 48, 17 L.Ed.2d 606 (1967), decision and its progeny. In Spencer v. Texas the Supreme Court declined to hold that the Texas procedure of enforcing its recidivist statutes, a procedure identical to that utilized by Ohio in the instant case, violated the due process clause of the Fourteenth Amendment. The Court there recognized the inherent prejudice of prior crimes evidence, but reasoned that a defendant’s interest in avoiding such prejudice is outweighed by the state’s interest in trying all the issues in a one-stage trial. Following the Spencer v. Texas decision, we stated: “[Combining in one indictment charges of prior offenses together with the immediate charges, reading the entire indictment to the jury and offering proof of such earlier offenses, all before submitting the case to the jury, [is] not a state practice offensive to the proscriptions of the Fourteenth Amendment.” Haggard v. Henderson, 382 F.2d 288, 289 (6th Cir. 1967). See also Evans v. Cowan, 506 F.2d 1248 (6th Cir 1974); Wilson v. Wiman, 386 F.2d 968 (6th Cir. 1967). Appellant’s attempts to distinguish Spencer v. Texas are not persuasive. He argues, for example, that the Spencer court noted in its opinion that the prior convictions in Texas were made an element of the principal crime under the Texas habitual criminal statutes. Thus, he continues, the legitimate state purpose in introducing evidence of prior crimes in Spencer-type cases is absent here, where the penalty provisions are separate and distinct from the substantive offense. The distinction drawn by petitioner is nowhere to be found in Spencer. To the contrary, the Texas recidivist statutes at issue in Spencer are very similar to the enhanced punishment statute at issue here. Each of the statutes is concerned solely with the enhancement of punishment; none expressly make a prior conviction an element of a substantive offense. Appellant would fare no better were we to accept his proposed distinction. For the Ohio Supreme Court has held that a prior conviction is a factual element of the substantive crime to be proved where the prior offense has been charged in the indictment under Ohio’s enhanced punishment statutes. State v. Gordon, 28 Ohio St.2d 45, 276 N.E.2d 243 (1971). Petitioner further argues that the evidence of his previous conviction was particularly inflammatory, an allegation conspicuously absent in Spencer v. Texas. Here the jury was given a copy of the indictment accompanying petitioner’s conviction statement. The indictment charged that the defendant “attempted to kill Dorothy Maxwell by cutting Dorothy Maxwell with a knife.” Thus, the jury was apprised of the fact that the defendant had previously attempted to murder a woman with a knife, a crime strikingly similar to the one for which he was on trial. In Haggard v. Henderson, 382 F.2d 288 (6th Cir. 1967), a Tennessee defendant was found guilty of burglary and larceny in a case in which the prosecution introduced evidence of eight prior convictions for offenses ranging from larceny to attempted murder. The eight prior offenses were offered under the auspices of Tennessee’s habitual criminal statute, which required only three prior convictions to be proved. We reversed the district court’s grant of a writ of habeas corpus, despite the potential for inflaming the jury by the overkill techniques employed by the state, holding that Spencer v. Texas was not “critically distinguishable].” 382 F.2d at 290. One judge noted that absent the Spencer decision, he would have voted to affirm the district court. Id. (Edwards, J., concurring). Were we writing on a clean slate, we might vote to reverse the conviction at bar due to the inflammatory nature of the prior crime evidence, especially in light of petitioner’s offer to stipulate to the previous offense. We are constrained to hold, however, that no violation of defendant’s right to due process occurred in view of Spencer v. Texas and our decision in Haggard v. Henderson. Appellant also asserts, without elaboration, that the single-stage trial procedure used in Ohio denied him his Fifth Amendment privilege against self-incrimination, and “chilled” his Sixth Amendment right to a jury trial. The former contention was considered and rejected by the Supreme Court in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), and requires no further comment. Petitioner’s Sixth Amendment argument is that prior crimes evidence may be so prejudicial that a defendant is forced to explore the possibility of pleading guilty to a lesser offense in order to avoid a jury trial and the attendant possible death sentence. The argument assumes that limiting instructions are incapable of mitigating the impact of the disclosure to the jury of the prior conviction. “To say the United States Constitution is infringed simply because this type of evidence may be prejudicial and limiting instructions inadequate to vitiate prejudicial effects, would make inroads into this entire complex code of state criminal evidentiary law, and would threaten other large areas of trial jurisprudence.” Spencer v. Texas, supra, 385 U.S. at 562, 87 S.Ct. 652. The Court there went on to say: “This type of prejudicial effect is acknowledged to inhere in criminal practice, but it is justified on the grounds that (1) the jury is expected to follow instructions in limiting this evidence to its proper function.” Id. Petitioner’s challenge to Ohio’s single-stage procedure is without merit. III. We next address the issue of whether petitioner’s prior conviction was inadmissible because his plea of guilty was involuntary. An invalid conviction may not be used to enhance sentencing. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). An involuntary plea of guilty renders a conviction based thereon constitutionally invalid. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A guilty plea will be deemed involuntary unless there is a showing that it was intelligently and knowingly entered-an issue governed by federal standards. Id. In the instant case, the State offered, as proof of the voluntariness of petitioner’s 1972 plea of guilty to attempted murder in Cook County, Illinois, a conviction statement, and a transcript of the plea’s acceptance. The conviction statement avers that records of the circuit court of Cook County, Illinois, show that a Robert Lonberger was indicted and charged with “AGGRAVATED BATTERY, ETC.” That document further states that after initially pleading not guilty, Lonberger withdrew his plea, offered to plead guilty, and his offer was accepted after the trial judge explained the consequence of a guilty plea to the defendant. Petitioner stipulated at trial that he was the Robert Lonberger named in the conviction statement. The indictment was composed of four charges: three counts of “aggravated battery” and one count of “attempt.” With the exception of one of the aggravated battery charges, all of the offenses charged in the indictment were committed against one Dorothy Maxwell, and occurred on the same date. That part of the indictment charging the offense of “attempt” specified that a Robert Lonberger “with intent to commit the offense of murder, intentionally and knowingly attempted to kill Dorothy Maxwell with a knife.” Notwithstanding the conviction statement’s averment that the trial judge explained the consequences of a guilty plea to the defendant, at no time during the hearing at which the guilty plea was entered were the words “murder” or “attempted murder” mentioned by anyone. The transcript of the 1972 Chicago hearing reveals that the following colloquy took place following a conference among the trial judge, the prosecutor and Lonberger’s counsel: The Court: In other words, you are pleading guilty, that you did on August 25, .1968, commit the offense of aggravated battery on one Dorothy Maxwell, and that you did on the same date attempt on Dorothy Maxwell, with a knife, is that correct? The Constitution requires, at a minimum, that there be an affirmative showing that a plea of guilty was intelligent and knowing before it is accepted by the trial judge. Boykin v. Alabama, supra, at 242, 89 S.Ct. at 1711. In Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257, 49 L.Ed. 108 (1976), the Supreme Court, holding that a defendant must receive “real notice of the true charges against him,” observed: A plea may be involuntary either because the accused does not understand the nature of the constitutional protection that he is waiving or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary in this latter sense. 426 U.S. at 645, 96 S.Ct. at 2257. In view of the trial judge’s failure to apprise the petitioner at any time that he was pleading guilty to attempted murder, and it nowhere affirmatively appearing in the transcript that the petitioner was aware that his plea was to the charge of attempted murder, we are compelled to conclude that the transcript on its face is inadequate to show that the defendant understood the charge to which he was pleading. In Roddy v. Black, 516 F.2d 1380 (6th Cir. 1975), we held that “[I]n the face of an inadequate transcript at the time of a guilty plea’s acceptance, the state must make a clear and convincing showing that the plea was in fact knowingly and understandably entered.” Moreover, the state is not relieved of this duty where the conviction being attacked arose in another jurisdiction. Craig v. Beto, 458 F.2d 1131 (5th Cir. 1972); U. S. ex rel. Savini v. Jackson, 250 F.2d 349 (2d Cir. 1957). In Roddy v. Black, supra, a case decided prior to Henderson, supra, we refused to find a conviction invalid where the transcript disclosed that the judge who accepted the petitioner’s plea of guilty to assault and battery and immoral and indecent practices made reference only to a charge of “A&B” during the proceeding. Unlike the present case, however, in Roddy the state introduced testimony of the petitioner’s counsel, the prosecutor, and testimony of the judge who accepted the plea to the effect that the defendant “in fact knew the nature of the charges to which he was pleading guilty.” 516 F.2d at 1385. No such evidence was presented at petitioner’s pretrial hearing in the present case. In fact, the only extrinsic evidence was the testimony of petitioner. He testified that he had not been apprised of the nature of the charges against him in the 1972 Chicago conviction. He stated that his attorney had told him that he was “copping out to aggravated battery.” Petitioner further testified that he never personally received or read the indictment. In the instant case, the state produced no evidence that petitioner received or read the 1972 indictment charging him with attempted murder. The state introduced no evidence that petitioner’s counsel or the court explained that he was charged with attempted murder. Finally, the transcript is inadequate to show that petitioner understood that he was pleading guilty to attempted murder. We hold, therefore, that the state failed to meet its burden to show by clear and convincing evidence that the defendant understood the nature of the charge against him. We find it unnecessary to decide the additional issues raised by the petitioner in this appeal in view of our holding today that his Ohio conviction was unconstitutional. The district court is reversed. We remand the case to the district court with directions to issue a writ of habeas corpus unless the State of Ohio grants petitioner a new trial within a reasonable time to be determined by the district court. . O.R.C. § 2903.01 reads: (A) No person shall purposely, and with prior calculation and design, cause the death of another. (B) No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape. (C) Whoever violates this section is guilty of aggravated murder, and shall be punished as provided in section 2929.02 of the Revised Code. . O.R.C. § 2929.02 provides, in pertinent part: (A) Whoever is convicted of aggravated murder in violation of section 2903.01 of the Revised Code shall suffer death or be imprisoned for life, as determined pursuant to sections 2929.03 and 2929.04 of the Revised Code. In addition, the offender may be fined an amount fixed by the court, but not more than twenty-five thousand dollars. . O.R.C. § 2929.03 provides: (A) If the indictment or count in the indictment charging aggravated murder contains no specification of an aggravating circumstance listed in division (A) of section 2929.-04 of the Revised Code, then, following a verdict of guilty of the charge, the trial court shall impose sentence of life imprisonment on the offender. (B) If the indictment or count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, the verdict shall separately state whether the accused is found guilty or not guilty of the principal charge and, if guilty of the principal charge, whether the offender is guilty or not guilty of each specification. The jury shall be instructed on its duties in this regard, which shall include an instruction that a specification must be proved beyond a reasonable doubt in order to support a guilty verdict on such specification, but such instruction shall not mention the penalty which may be the consequence of a guilty or not guilty verdict on any charge or specification. (C) If the indictment or count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, then, following a verdict of guilty of the charge but not guilty of each of the specifications, the trial court shall impose sentence of life imprisonment on the offender. If the indictment contains one or more specifications listed in division (A) of such section, then following a verdict of guilty of both the charge and one or more of the specifications, the penalty to be imposed on the offender shall be determined: (1) By the panel of three judges which tried the offender upon his waiver of the right to trial by jury; (2) By the trial judge, if the offender was tried by jury. (D) When death may be imposed as a penalty for aggravated murder, the court shall require a pre-sentence investigation and a psychiatric examination to be made, and reports submitted to the court pursuant to section 2947.06 of the Revised Code. Copies of the reports shall be furnished to the prosecutor and to the offender or his counsel. The court shall hear testimony and other evidence, the statement, if any, of the offender, and the arguments, if any, of counsel for the defense and prosecution, relevant to the penalty which should be imposed on the offender. If the offender chooses to make a statement, he is subject to cross-examination only if he consents to make such statement under oath or affirmation. (E) Upon consideration of the reports, testimony, other evidence, statement of the offender, and arguments of counsel submitted to the court pursuant to division (D) of this section, if the court finds, or if the panel of three judges unanimously finds that none of the mitigating circumstances listed in division (B) of section 2929.04 of the Revised Code is established by a preponderance of the evidence, it shall impose sentence of death on the offender. Otherwise, it shall impose sentence of life imprisonment on the offender. . O.R.C. § 2929.04 provides, in pertinent part: (A) Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment or count in the indictment pursuant to section 2941.14 of the Revised Code, and is proved beyond a reasonable doubt: * * t}: * * (5) The offender has previously been convicted of an offense of which the gist was the purposeful killing of or attempt to kill another, committed prior to the offense at bar, or the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender. . See Footnote 4, supra. . The recidivist statutes involved in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), were Articles 62, 63, and 64 of the Vernon’s Ann. Texas Pen. Code (1952). Article 62 provides: If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases. Article 63 provides: Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary. Article 64 provides: A person convicted a second time of any offense to which the penalty of death is affixed as an alternate punishment shall not receive on such second conviction a less punishment than imprisonment for life in the penitentiary. Question: What is the state of the first listed state or local government agency that is a respondent? 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_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. VIRGINIA v. MOORE CERTIORARI TO THE SUPREME COURT OF VIRGINIA No. 06-1082. Argued January 14, 2008 Decided April 23, 2008 Stephen R. McCullough, Deputy State Solicitor General of Virginia, argued the cause for petitioner. With him on the briefs were Robert F. McDonnell, Attorney General, William E. Thro, State Solicitor General, William C. Mims, Chief Deputy Attorney General, Marla Graff Decker, Deputy Attorney General, and Leah A. Darron, Senior Assistant Attorney General. Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, and Matthew D. Roberts. Thomas C. Goldstein argued the cause for respondent. With him on the brief were S. Jane Chittom, Pamela S. Karlan, Jeffrey L. Fisher, Amy Howe, and Kevin K. Russell Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, Kent C. Sullivan, First Assistant Attorney General, Eric J. R. Nichols, Deputy Attorney General for Criminal Justice, R. Ted Cruz, Solicitor General, and Susanna Dokupil and Adam W. Aston, Assistant Solicitors General, by Roberto J. SdnchezRamos, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Dustin McDaniel of Arkansas, John W. Suthers of Colorado, Bill McCollum of Florida, Lawrence G. Wasden of Idaho, Michael A. Cox of Michigan, Jim Hood of Mississippi, Catherine Cortez Masto of Nevada, Kelly A. Ayotte of New Hampshire, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, and Bruce A Salzburg of Wyoming; and for Wayne County, Michigan, by Kym L. Worthy and Timothy A. Baughman. Briefs of amici curiae urging affirmance were filed for the American Bar Association by William H. Neukom and Rory K Little; for the American Civil Liberties Union et al. by Susan N. Herman, Steven R. Shapiro, and Rebecca Glenberg; and for the Virginia Trial Lawyers Association by David B. Hargett. E. Joshua Rosenkranz, Warrington S. Parker III, and Pamela Harris filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae. Justice Scalia delivered the opinion of the Court. We consider whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law. I On February 20, 2008, two city of Portsmouth police officers stopped a car driven by David Lee Moore. They had heard over the police radio that a person known as “Chubs” was driving with a suspended license, and one of the officers knew Moore by that nickname. The officers determined that Moore’s license was in fact suspended, and arrested him for the misdemeanor of driving on a suspended license, which is punishable under Virginia law by a year in jail and a $2,500 fine, Va. Code Ann. §§18.2-11 (Lexis 2004), 18.2-272 (Supp. 2007), 46.2-301(0 (2005). The officers subsequently searched Moore and found that he was carrying 16 grams of crack cocaine and $516 in cash. See 272 Va. 717, 636 S. E. 2d 395 (2006); 45 Va. App. 146, 609 S. E. 2d 74 (2005). Under state law, the officers should have issued Moore a summons instead of arresting him. Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who “fail or refuse to discontinue” the violation, and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. Va. Code Ann. §19.2-74 (Lexis 2004). The intermediate appellate court found none of these circumstances applicable, and Virginia did not appeal that determination. See 272 Va., at 720, n. 3, 636 S. E. 2d, at 396-397, n. 3. Virginia also permits arrest for driving on a suspended license in jurisdictions where “prior general approval has been granted by order of the general district court,”' Va. Code Ann. §46.2-936; Virginia has never claimed such approval was in effect in the county where Moore was arrested. Moore was charged with possessing cocaine with the intent to distribute it in violation of Virginia law. He filed a pretrial motion to suppress the evidence from the arrest search. Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law. See 45 Va. App., at 160-162, 609 S. E. 2d, at 82 (Annunziata, J., dissenting). Moore argued, however, that suppression was required by the Fourth Amendment. The trial court denied the motion, and after a bench trial found Moore guilty of the drug charge and sentenced him to a 5-year prison term, with one year and six months of the sentence suspended. The conviction was reversed by a panel of Virginia’s intermediate court on Fourth Amendment grounds, id., at 149-150, 609 S. E. 2d, at 76, reinstated by the intermediate court sitting en banc, 47 Va. App. 55, 622 S. E. 2d 253 (2005), and finally reversed again by the Virginia Supreme Court, 272 Va., at 725, 636 S. E. 2d, at 400. The Court reasoned that since the arresting officers should have issued Moore a citation under state law, and the Fourth Amendment does not permit search incident to citation, the arrest search violated the Fourth Amendment. Ibid. We granted certiorari. 551 U. S. 1187 (2007). II The Fourth Amendment protects “against unreasonable searches and seizures” of (among other things) the person. In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve. See Wyoming v. Houghton, 526 U. S. 295, 299 (1999); Wilson v. Arkansas, 514 U. S. 927, 931 (1995). We are aware of no historical indication that those who ratified the Fourth Amendment understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted. The immediate object of the Fourth Amendment was to prohibit the general warrants and writs of assistance that English judges had employed against the colonists, Boyd v. United States, 116 U. S. 616, 624-627 (1886); Payton v. New York, 445 U. S. 573, 583-584 (1980). That suggests, if anything, that founding-era citizens were skeptical of using the rules for search and seizure set by government actors as the index of reasonableness. Joseph Story, among others, saw the Fourth Amendment as “little more than the affirmance of a great constitutional doctrine of the common law,” 3 Commentaries on the Constitution of the United States § 1895, p. 748 (1833), which Story defined in opposition to statutes, see Codification of the Common Law in The Miscellaneous Writings of Joseph Story 698, 699, 701 (W. Story ed. 1852). No early case or commentary, to our knowledge, suggested the Amendment was intended to incorporate subsequently enacted statutes. None of the early Fourth Amendment cases that scholars have identified sought to base a constitutional claim on a violation of a state or federal statute concerning arrest. See Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 613-614 (1999); see also T. Taylor, Two Studies in Constitutional Interpretation 44-45 (1969). Of course such a claim would not have been available against state officers, since the Fourth Amendment was a restriction only upon federal power, see Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). But early Congresses tied the arrest authority of federal officers to state laws of arrest. See United States v. Di Re, 332 U. S. 581, 589 (1948); United States v. Watson, 423 U. S. 411, 420 (1976). Moreover, even though several state constitutions also prohibited unreasonable searches and seizures, citizens who claimed officers had violated state restrictions on arrest did not claim that the violations also ran afoul of the state constitutions. The apparent absence of such litigation is particularly striking in light of the fact that searches incident to warrantless arrests (which is to say arrests in which the officer was not insulated from private suit) were, as one commentator has put it, “taken for granted” at the founding, Taylor, supra, at 45, as were warrantless arrests themselves, Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 764 (1994). There are a number of possible explanations of why such constitutional claims were not raised. Davies, for example, argues that actions taken in violation of state law could not qualify as state action subject to Fourth Amendment constraints. 98 Mich. L. Rev., at 660-663. Be that as it may, as Moore adduces neither case law nor commentaries to support his view that the Fourth Amendment was intended to incorporate statutes, this is “not a case in which the claimant can point to ‘a clear answer [that] existed in 1791 and has been generally adhered to by the traditions of our society ever since/” Atwater v. Lago Vista, 532 U. S. 318, 345 (2001) (alteration in original). Ill A When history has not provided a conclusive answer, we have analyzed a search or seizure in light of traditional standards of reasonableness “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Houghton, 526 U. S., at 300; see also Atwater, 532 U. S., at 346. That methodology provides no support for Moore’s Fourth Amendment claim. In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable. Id., at 354; see also, e. g., Devenpeck v. Alford, 543 U. S. 146, 152 (2004); Gerstein v. Pugh, 420 U. S. 103, 111 (1975); Brinegar v. United States, 338 U. S. 160, 164, 170, 175-176 (1949). Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. In Cooper v. California, 386 U. S. 58 (1967), we reversed a state court that had held the search of a seized vehicle to be in violation of the Fourth Amendment because state law did not explicitly authorize the search. We concluded that whether state law authorized the search was irrelevant. States, we said, remained free “to impose higher standards on searches and seizures than required by the Federal Constitution,” id., at 62, but regardless of state rules, police could search a lawfully seized vehicle as a matter of federal constitutional law. In California v. Greenwood, 486 U. S. 35 (1988), we held that search of an individual’s garbage forbidden by California’s Constitution was not forbidden by the Fourth Amendment. “[W]hether or not a search is reasonable within the meaning of the Fourth Amendment,” we said, has never “depended] on the law of the particular State in which the search occurs.” Id., at 43. While “[individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution,” ibid., state law did not alter the content of the Fourth Amendment. We have applied the same principle in the seizure context. Whren v. United States, 517 U. S. 806 (1996), held that police officers had acted reasonably in stopping a car, even though their action violated regulations limiting the authority of plainclothes officers in unmarked vehicles. We thought it obvious that the Fourth Amendment’s meaning did not change with local law enforcement practices — even practices set by rule. While those practices “vary from place to place and from time to time,” Fourth Amendment protections are not “so variable” and cannot “be made to turn upon such trivialities.” Id., at 815. Some decisions earlier than these excluded evidence obtained in violation of state law, but those decisions rested on our supervisory power over the federal courts, rather than the Constitution. In Di Re, 332 U. S. 581, federal and state officers collaborated in an investigation that led to an arrest for a federal crime. The Government argued that the legality of an arrest for a federal offense was a matter of federal law. Id., at 589. We concluded, however, that since Congress had provided that arrests with warrants must be made in accordance with state law, the legality of arrests without warrants should also be judged according to state-law standards. Id., at 589-590. This was plainly not a rule we derived from the Constitution, however, because we repeatedly invited Congress to change it by statute — saying that state law governs the validity of a warrantless arrest “in [the] absence of an applicable federal statute,” id., at 589, and that the Di Re rule applies “except in those cases where Congress has enacted a federal rule,” id., at 589-590. Later decisions did not expand the rule of Di Re. Johnson v. United States, 333 U. S. 10 (1948), relied on Di Re to suppress evidence obtained under circumstances identical in relevant respects to those in that case. See 333 U. S., at 12, 15, n. 5. And Michigan v. DeFillippo, 443 U. S. 31 (1979), upheld a warrantless arrest in a case where compliance with state law was not at issue. While our opinion said that “[w]hether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law,” it also said that a warrantless arrest satisfies the Constitution so long as the officer has “probable cause to believe that the suspect has committed or is committing an offense.” Id., at 36. We need not pick and choose among the dicta: Neither Di Re nor the cases following it held that violations of state arrest law are also violations of the Fourth Amendment, and our more recent decisions, discussed above, have indicated that when States go above the Fourth Amendment minimum, the Constitution’s protections concerning search and seizure remain the same. B We are convinced that the approach of our prior cases is correct, because an arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure. Whren, supra, at 817; Atwater, supra, at 354. Arrest ensures that a suspect appears to answer charges and does hot continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation. See W. LaFave, Arrest: The Decision to Take a Suspect Into Custody 177-202 (1965). Moore argues that a State has no interest in arrest when it has a policy against arresting for certain crimes. That is not so, because arrest will still ensure a suspect’s appearance at trial, prevent him from continuing his offense, and enable officers to investigate the incident more thoroughly. State arrest restrictions are more accurately characterized as showing that the State values its interests in forgoing arrests more highly than its interests in making them, see, e. g., Dept, of Justice, National Institute of Justice, D. Whitcomb, B. Lewin, & M. Levine, Issues and Practices: Citation Release 17 (Mar. 1984) (describing cost savings as a principal benefit of citation-release ordinances); or as showing that the State places a higher premium on privacy than the Fourth Amendment requires. A State is free to prefer one search- and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional. If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily exclude from criminal trials evidence obtained in violation of its statutes. See 45 Va. App., at 161, 609 S. E. 2d, at 82 (Annunziata, J., dissenting) (citing Janis v. Commonwealth, 22 Va. App. 646, 651, 472 S. E. 2d 649, 652 (1996)). Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures. Even if we thought that state law changed the nature of the Commonwealth’s interests for purposes of the Fourth Amendment, we would adhere to the probable-cause standard. In determining what is reasonable under the Fourth Amendment, we have given great weight to the “essential interest in readily administrable rules.” Atwater, 532 U. S., at 347. In Atwater, we acknowledged that nuanced judgments about the need for warrantless arrest were desirable, but we nonetheless declined to limit to felonies and disturbances of the peace the Fourth Amendment rule allowing arrest based on probable cause to believe a law has been broken in the presence of the arresting officer. Id., at 346-347. The rule extends even to minor misdemeanors, we concluded, because of the need for a bright-line constitutional standard. If the constitutionality of arrest for minor offenses turned in part on inquiries as to risk of flight and danger of repetition, officers might be deterred from making legitimate arrests. Id., at 351. We found little to justify this cost, because there was no “epidemic of unnecessary minor-offense arrests,” and hence “a dearth of horribles demanding redress.” Id., at 353. Incorporating state-law arrest limitations into the Constitution would produce a constitutional regime no less vague and unpredictable than the one we rejected in Atwater. The constitutional standard would be only as easy to apply as the underlying state law, and state law can be complicated indeed. The Virginia statute in this case, for example, calls on law enforcement officers to weigh just the sort of case-specific factors that Atwater said would deter legitimate arrests if made part of the constitutional inquiry. It would authorize arrest if a misdemeanor suspect fails or refuses to discontinue the unlawful act, or if the officer believes the suspect to be likely to disregard a summons. Va. Code Ann. § 19.2-74.A.1. Atwater specifically noted the “extremely poor judgment” displayed in arresting a local resident who would “almost certainly” have discontinued the offense and who had “no place to hide and no incentive to flee.” 532 U. S., at 346-347. It nonetheless declined to make those considerations part of the constitutional calculus. Atwater differs from this case in only one significant respect: It considered (and rejected) federal constitutional remedies for all minor-misdemeanor arrests; Moore seeks them in only that subset of minor-misdemeanor arrests in which there is the least to be gained — that is, where the State has already acted to constrain officers’ discretion and prevent abuse. Here we confront fewer horribles than in Atwater, and less of a need for redress. Finally, linking Fourth Amendment protections to state law would cause them to “vary from place to place and from time to time,” Whren, 517 U. S., at 815. Even at the same place and time, the Fourth Amendment’s protections might vary if federal officers were not subject to the same statutory constraints as state officers. In Elkins v. United States, 364 U. S. 206, 210-212 (1960), we noted the practical difficulties posed by the “silver-platter doctrine,” which had imposed more stringent limitations on federal officers than on state police acting independent of them. It would be strange to construe a constitutional provision that did not apply to the States at all when it was adopted to now restrict state officers more than federal officers, solely because the States have passed search-and-seizure laws that are the prerogative of independent sovereigns. We conclude that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections. IV Moore argues that even if the Constitution allowed his arrest, it did not allow the arresting officers to search him. We have recognized, however, that officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. United States v. Robinson, 414 U. S. 218 (1973). We have described this rule as covering any “lawful arrest,” id., at 235, with constitutional law as the reference point. That is to say, we have equated a lawful arrest with an arrest based on probable cause: “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Ibid, (emphasis added). Moore correctly notes that several important state-court decisions have defined the lawfulness of arrest in terms of compliance with state law. See Brief for Respondent 32-33 (citing People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923); People v. DeFore, 242 N. Y. 13, 17-19, 150 N. E. 585, 586 (1926)). But it is not surprising that States have used “lawful” as shorthand for compliance with state law, while our constitutional decision in Robinson used “lawful” as shorthand for compliance with constitutional constraints. The interests justifying search are present whenever an officer makes an arrest. A search enables officers to safeguard evidence, and, most critically, to ensure their safety during “the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.” Robinson, supra, at 234-235. Officers issuing citations do not face the same danger, and we therefore held in Knowles v. Iowa, 525 U. S. 113 (1998), that they do not have the same authority to search. We cannot agree with the Virginia Supreme Court that Knowles controls here. The state officers arrested Moore, and therefore faced the risks that are “an adequate basis for treating all custodial arrests alike for purposes of search justification.” Robinson, supra, at 235. The Virginia Supreme Court may have concluded that Knowles required the exclusion of evidence seized from Moore because, under state law, the officers who arrested Moore should have issued him a citation instead. This argument might have force if the Constitution forbade Moore’s arrest, because we have sometimes excluded evidence obtained through unconstitutional methods in order to deter constitutional violations. See Wong Sun v. United States, 371 U. S. 471, 484-485, 488 (1963). But the arrest rules that the officers violated were those of state law alone, and as we have just concluded, it is not the province of the Fourth Amendment to enforce state law. That Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest. We reaffirm against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety. The judgment of the Supreme Court of Virginia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. The arresting officers did not perform a search incident to arrest immediately upon taking Moore into custody, because each of them mistakenly believed that the other had done so. App. 54-55; see also id., at 33-34. They realized their mistake after arriving with Moore at Moore’s hotel room, which they had obtained his consent to search, and they searched his person there. Ibid. Moore does not contend that this delay violated the Fourth Amendment. Atwater v. Lago Vista, 532 U. S. 318 (2001), rejected the view Justice Ginsburg advances that the legality of arrests for misdemeanors involving no breach of the peace “depended on statutory authorization.” Post, at 178, n. 1 (opinion concurring in judgment). Atwater cited both of the sources on which Justice Ginsburg relies for a limited view of common-law arrest authority, but it also identified and quoted numerous treatises that described common-law authority to arrest for minor misdemeanors without limitation to eases in which a statute authorized arrest. See 532 U. S., at 330-332. Atwater noted that many statutes authorized arrest for misdemeanors other than breaches of the peace, but it concluded that the view of arrest authority as extending beyond breaches of the peace also reflected judge-made common law. Id., at 330-331. Particularly since Atwater considered the materials on which Justice Ginsbukg relies, we see no reason to revisit the case’s conclusion. Of the early cases that Davies collects, see 98 Mich. L. Rev., at 613, n. 174; id., at 614, n. 175, the lone decision to treat statutes as relevant to the Fourth Amendment’s contours simply applied the principle that statutes enacted in the years immediately before or after the Amendment was adopted shed light on what citizens at the time of the Amendment’s enactment saw as reasonable. Boyd v. United States, 116 U. S. 616, 622-623 (1886). Massachusetts, for example, had a state constitutional provision paralleling the Fourth Amendment, but the litigants in the earliest eases we have identified claiming violations of arrest statutes in the Commonwealth did not argue that their arrests violated the Commonwealth’s Constitution. See Brock v. Stimson, 108 Mass. 520 (1871); Phillips v. Fadden, 125 Mass. 198 (1878); see also Tubbs v. Tukey, 57 Mass. 438 (1849) (asserting violation of state common law concerning arrest but not asserting violation of state constitution). Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspecifiable Answer:

songer_state

07

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". Edward F. WARDE, Plaintiff-Appellee, v. Marvin B. DAVIS and Barbara Davis, Defendants-Appellants. No. 73-1080. United States Court of Appeals, Tenth Circuit. Argued and Submitted July 11, 1973. Decided March 19, 1974. Anthony Zarlengo, Denver, Colo., for def endants-appellants. John J. Mullins, Jr., Denver, Colo., for plaintiff-appellee. Before PHILLIPS, HILL and DOYLE, Circuit Judges. HILL, Circuit Judge. This diversity action involves a contract dispute over sums allegedly due ap-pellee Warde for landscape architectural services performed by him for appellants Barbara and Marvin Davis. The trial court found appellants liable for breach of contract and awarded appellee $13,200 plus interest. Following argument to this court, and after reviewing the entire record, we concluded that the findings of fact were insufficient for a proper review of the case. It was therefore remanded to the trial court for the purpose of making sufficient and adequate findings of fact in compliance with Rule 52, F.R.Civ.P. Adequate findings of fact subsequently were made and the case is now before us for a proper determination. The facts are simple. Appellants purchased real property in Englewood, Colorado, for the purpose of building a luxurious home. Desiring an aesthetically beautiful landscape to complement their new home, appellants asked Warde to design and supervise the landscape. Warde, a renowned landscape architect living in Beverly Hills, California, accepted the offer, but only on his own terms. These terms were set out in a letter to appellants dated September 19, 1968. The letter stated that appellants had requested Warde “to design and draw up Landscape Plans and Specifications” for their residence and that said plans were to consist of the following: 1. Landscape Construction Plans showing circular drive and parking area, tennis court and tennis pavilion, future swimming pool, gazebo or equivalent, location of air conditioning compressor, sun bathing area, enclosed play area with recessed trampoline, recessed sandbox and other play equipment. Also incorporated in this Plan will be the location of major trees, garden lighting, outline of planting areas, location and description of any necessary walls, fences, and screens, garden paths, and lawn area and other garden accessories. 2. Landscape planting plans showing location, size, and description of all planting material to be installed. The letter further stated the landscape plans would cost $1,800 and that “there will be, in addition, a supervision fee of 15% of the total amount spent.” Finally, the letter provided that Warde would be reimbursed for all expenses incurred in traveling to and from the job site from Los Angeles, California. Although reluctant to accept the 15% supervision fee, appellants ultimately relented and agreed to Warde’s terms. Once the landscape plans were tentatively drawn construction began, and shortly thereafter disagreements between appellants and Warde erupted. Appellants felt that Warde’s landscape plan specifications were too general to be acted upon by contractors. They also felt that Warde was not spending adequate time on the job, but rather was delegating many of his supervisory functions to contractors. Because he was not performing his work as appellants had anticipated, Warde’s services were terminated on November 25, 1969. This lawsuit followed. At trial appellant Davis testified that Warde spent very little time at the job site. Warde would come out to Engle-wood for one day and then fly back to Los Angeles, leaving all supervisory work to the subcontractors. He further testified that he and his wife placed many calls to Warde requesting him to come out more frequently and give the job closer supervision; but to no avail. He also intimated that Warde’s landscape plan specifications were too vague, as evidenced by the fact that on numerous occasions he or his wife received telephone calls from contractors asking for an explanation of Warde’s landscape plans. Warde denied being derelict in his supervisory duties. He testified that it was his practice to design the landscape, select locations for the construction, and select the aesthetically appealing material to be used in the construction. Much of the actual supervision was left to the contractor. As for landscape plan specifications, Warde conceded that details were left up to his contractors. Although landscape architects usually furnish detailed plans showing contractors what must be done, it was his procedure to utilize detailed specifications supplied by the contractors. Warde’s position is that technical specifications for a construction project can best be made by the experts in their respective fields, i. e., the contractors. The case was tried to the court without a jury. In the trial appellants asserted that Warde should not be allowed to recover because: (1) he violated state law by practicing landscape- architecture in Colorado without a Colorado license; (2) he failed to execute the contract according to its terms; and (3) the contract was a nullity because there was no mutual meeting of the minds on the meaning of “supervision”. The trial judge rejected these arguments and held that Warde was entitled to recover the 15% supervision fee on the cost of all work completed on or prior to his termination on November 25, 1969, plus the balance due on his landscape plans and reimbursement for travel expenses. He was also entitled to a 15% fee on that part of a swimming pool completed by November 25. In the final judgment Warde was awarded $13,200 for expenses and supervision fees plus $2,369.50 in interest. On appeal four issues are presented for our consideration. Appellants first charge that Warde’s failure to register as a landscape architect pursuant to Colorado statutes regulating the practice of architecture bars any recovery. Secondly, that it was error to allow Warde a supervision fee on those items completed on or shortly after the date of his termination. Thirdly, that it was error to conclude the letter of September 19, 1968 constitutes an agreement between the parties. Finally, that it was error to assess interest on the judgment. Whether failure to register as a landscape architect pursuant to Colorado law invalidates the contract between appellants and Warde raises a question not heretofore answered by the Colorado Supreme Court. We therefore are bound by the well settled rule that when a state court has not decided the question, the federal district court’s view of state law will be given great weight and credence. United States v. Hershberger, 475 F.2d 677 (10th Cir. 1973); In re Privett, 435 F.2d 261 (10th Cir. 1970). The two applicable statutes state in part: C.R.S.1963, 10-2-2 (1967 Cum.Supp.). Qualifications for practice — seal—(1) No person shall use the designation “landscape architect” or “landscape architecture”, or advertise any title or description tending to convey the impression that he is a landscape architect, or practicing landscape architecture, unless such person is a registered landscape architect, and shall comply with the provisions of this article. Every holder of a registration shall display it in his principal office, place of business, or place of employment. C.R.S.1963, 10-2-6 (1967 Cum.Supp.). Exemptions — (3) None of the provisions of this article shall apply to the business conducted in this state by any horticulturist, nurseryman . . . or any other person, including, but not limited to, their right to plan and supervise in connection therewith, except that no such person shall use the designation “landscape architect”, “landscape architecture”, or any description tending to convey the impression that he is a registered landscape architect unless he is registered as provided in this article. The district court interpreted these statutes as prohibiting a person from holding himself out as an architect rather than prohibiting a person from engaging in the business of landscape architecture. Davis, Brody, Wisniewski v. Barrett, 253 Iowa 1178, 115 N.W.2d 839 (1962). Unquestionably the statutes specifically prohibit a person from using any title tending to convey the impression that he is a landscape architect unless registered by Colorado, but nowhere do the statutes expressly prohibit a person from engaging in the landscape architectural business without a Colorado license. The statutes are apparently an attempt to prevent fraud by unqualified persons who use the title “landscape architect” as a guise for soliciting clients. The statutes are directed more toward preventing misrepresentations than preventing the practice of landscape architecture. Appellants counter this argument by citing numerous cases where the Colorado courts have held service statutes to prohibit engaging in a service without a Colorado license, but in each case the statute expressly prohibited a person from engaging in a business without first obtaining a license. We do not find such an express prohibition here. There is no proof appellants were defrauded into employing Warde as their landscape architect. Appellants solicited Warde in the State of California to perform the services now in question. The record does not disclose that Warde represented himself to appellants as a landscape architect licensed by the State of Colorado. Nor is there any evidence that appellants selected Warde because they believed he was an architect licensed by Colorado. Rather the evidence is that appellants did not feel there were any landscape architects in Colorado qualified to do the work so they searched elsewhere to find a suitable architect. Davis is a competent businessman who unquestionably knew what he was doing when he employed Warde. We thus cannot find where Warde breached Colorado’s holding-out statutes in accepting employment with appellants. Appellants next argue the trial court erred in concluding that the letter of September 19, 1968, constitutes a valid contract between the parties. As noted earlier, that letter listed certain landscape plans to be drawn by Warde and stated the plans would cost $1,800 plus a supervision fee of 15% of the total amount spent. Appellants now charge there was no meeting of the minds on the terms “specifications” and “supervision”. Davis testified that he thought Warde would draw detailed specifications permitting subcontractors to proceed to fulfill the specifications, whereas in fact Warde relied upon the contractors for the detailed specifications. Davis also assumed that Warde’s supervisory function included being on the job site while work was proceeding to insure that the subcontractors were performing their work according to Warde’s specifications. This failure by both parties to agree on Warde’s duties, appellants argue, is a material breach which voids the contract. Our review of the record convinces us there was a meeting of the minds on the terms of the contract, and we therefore reject appellants’ contentions. Unquestionably Davis considered the September 19 letter an acceptable contract, because on October 10, 1968, he sent Warde a letter specifically approving the letter-contract and enclosing a check for $500 as a retainer fee. Apparently Warde’s modus operandi was accepted by appellants for quite some time because they retained Warde for over a year. During this time Warde was paid over $9,900 for traveling expenses and services rendered. Appellants’ retaining of Warde for over a year disposes of any argument that the contract failed for lack of a meeting of the minds. See Hensel Phelps Const. Co. v. United States, 413 F.2d 701 (10th Cir. 1969). Appellants next charge the trial court with error in concluding that Warde was entitled to a supervision fee on certain items. The trial court, after hearing all the evidence and viewing all exhibits, determined that Warde was entitled to his expenses plus a 15% supervision fee on those items contracted for and completed on or before the date of his termination. We have reviewed the record carefully and are convinced there is sufficient evidence to support the trial court’s determination. Appellants’ final argument is that the trial court erred in allowing Warde interest from December 1, 1970. It is their position that Warde recovered under a theory of quantum meruit, which is a claim fo.r unliquidated damages, and thus interest should not be allowed prior to judgment. As we mentioned earlier, the district court concluded there was a binding contract between Warde and appellants; hence the judgment was based upon breach of contract rather than quantum meruit. Warde was awarded interest from the time the money was due, and under Colorado law this is a proper determination. Harvey v. Denver & R. G. R. Co., 56 Colo. 570, 139 P. 1098 (1914); Donley v. Bailey, 48 Colo. 373, 110 P. 65 (1910); 1963 C. R.S. 73-1-2. After carefully reviewing the entire record we agree with the trial court’s decision and accordingly affirm it in all respects. 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_numresp

12

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. James JONES, Appellant, v. BOARD OF POLICE COMMISSIONERS; Gerald McFadden; Terran Williams; Antoinette Lee; Lawrence Stevens; City of St. Louis; Robert J. Baer; John J. Frank; James E. Mosbacher; William H. Young; Arthur R. Coffey; Mayor Vincent C. Schoemel, Jr., Appellees. No. 87-1097. United States Court of Appeals, Eighth Circuit. Submitted Nov. 10, 1987. Decided April 1, 1988. Rehearing and Rehearing En Banc Denied May 20, 1988. Helmut Starr, St. Louis, Mo., for appellant. ' David Richard Bohm, St. Louis, Mo., for appellees. Before McMILLIAN, ARNOLD and BOWMAN, Circuit Judges. BOWMAN, Circuit Judge. James Jones, the plaintiff in this 42 U.S. C. § 1983 action for damages, appeals from a judgment entered by the District Court after a jury verdict for the defendants. The incident upon which the action is based occurred in O’Fallon Park in the city of St. Louis on April 13, 1982. There is a sharp dispute as to what transpired that evening. I. Jones testified that he stopped in the park to inspect an unusual noise coming from the rear of his vehicle. When shortly thereafter gunshots were fired by an unknown assailant and a bullet shattered the back windshield of his car, he jumped into his automobile and drove out of the park. A chase ensued. Only after leaving the park did he become aware that some of the vehicles following him were police cars. According to Jones, when the chase ended he stopped his automobile and stepped out, putting his hands in the air. While he was behind the door on the driver’s side of his vehicle, the police began firing at him, but none of the bullets struck either him or the car door. Two police officers, Gerald McFadden and Lawrence Stevens, approached Jones without weapons in their hands. They struck him, threw him to the ground, handcuffed him, and while he was lying there someone shot him in the groin. Defendants’ version of the incident is very different. The four police officers named as defendants were assigned to a special detail in O’Fallon Park. Defendants McFadden and Terran Williams were dressed in plain clothes and were operating an unmarked police car. Soon after entering the park, McFadden and Williams passed a black Cadillac driven by Jones. A black man was in the car with him. The Cadillac turned around and pulled up next to the police car, its occupants looking in at the two officers. When the Cadillac pulled away, they decided to follow it. After rounding a curve, the Cadillac parked near the front of a white Buick. The officers stopped their car and observed the scene with an infrared scope. Jones got out of the Cadillac and walked toward the Buick, holding either a rifle or a shotgun. Jones forced the passenger to get out of the Buick and walk toward the Cadillac. At this point, McFadden radioed that there was a robbery in progress. He and Williams drove closer to the scene. Using the door of the police car as a shield, McFadden ordered Jones to halt and identified himself as a police officer. Jones fired one shot in McFadden’s direction, then turned and fired at another police car that just had arrived. The occupants of this second car, Officers Stevens and Antoinette Lee, ducked as their windshield shattered. Jones jumped into the Cadillac and sped away. The police followed in hot pursuit, the Cadillac never leaving their sight except for two or three seconds as they rounded a corner. Both McFadden and Stevens fired shots at the Cadillac during the chase. The Cadillac’s flight ended at a police roadblock. It approached the roadblock at a high rate of speed, racing toward a police car driven by Officer Michael Johnson. Johnson and his partner leapt out of their car and Johnson fired three shots at the windshield of the Cadillac. The Cadillac pulled to the curb. Jones jumped out and started to run. The police fired a number of shots at him from the blockaded intersection. McFadden approached Jones on foot, advising him that he was a police officer and that Jones was under arrest. Jones struggled with McFadden in an attempt to escape, and McFadden struck him with his fist three times. Coming to McFadden’s aid, Stevens grabbed and struck Jones. Together the officers placed handcuffs on him. None of the officers fired any shots at Jones after he was handcuffed. After subduing Jones, the officers discovered that he had suffered a gunshot wound to the perineum. They did not find any weapons, nor did they find the passenger they had seen in the Cadillac. II. Jones was charged with robbery, was tried, and was acquitted. Thereafter, he filed this action against McFadden, Williams, Lee, and Stevens, and against the members of the Board of Police Commissioners of the City of St. Louis, alleging that defendants had deprived him of his liberty without due process of law. Specifically, Jones alleged that the police officers used excessive force in arresting him and that they shot him while he was handcuffed and lying on the ground. At trial, the District Court granted a directed verdict for the Board of Police Commissioners, and the jury returned a verdict for the remaining defendants. The District Court denied plaintiff’s motion for a new trial and entered judgment for all defendants. For reversal, Jones argues that the trial court erred by (1) denying his motion for new trial on the ground that the verdict is contrary to the clear weight of the evidence; (2) failing properly to instruct the jury concerning the officers’ liability for use of excessive force; and (3) denying his motion in limine to exclude evidence of his record as a convicted felon and allowing this evidence to be admitted for the purpose of impeaching his credibility as a witness. We affirm. III. Jones argues that the verdict is contrary to the clear weight of the evidence and that the District Court therefore abused its discretion by denying his motion for a new trial. “The denial of a motion for a new trial is within the sound discretion of the trial court, and its ruling will be reversed only upon a showing that the court abused its discretion.” Ryko Mfg. Co. v. Eden Serve., 823 F.2d 1215, 1221-22 (8th Cir.1987) (citations omitted), cert. denied, — U.S. —, 108 S.Ct. 751, 98 L.Ed. 2d 763 (1988). The evidence in this case is conflicting, and the jury chose to believe the police officers. Crediting their testimony, it is impossible to conclude that the verdict is against the weight of the evidence. There is substantial evidence that two of the officers saw Jones committing an apparent robbery, that he fled from the scene, that the officers used no more force than reasonably appeared necessary to apprehend and subdue him, and that they did not shoot him after he was handcuffed and lying on the ground. Accordingly, we cannot say that the District Court abused its discretion. IV. Jones contends that the District Court committed plain error by failing to instruct the jury that law enforcement officers may be liable under 42 U.S.C. § 1983 for using excessive force in completing an arrest. The challenged instruction provided: As stated before, the Fourteenth Amendment to the Federal Constitution provides that no state shall deprive any person of his liberty without due process of law. The plaintiff in this case, in common with the defendants and all other persons living under the protection of our Constitution, had the legal right at all times not to be deprived, without due process of law, of any liberty secured to him or protected by the Constitution or laws of the United States. To be deprived of liberty “without due process of law” means to be deprived of liberty without authority of the law. Before the jury can determine, then, whether or not the plaintiff was deprived by the defendants of any of his liberty under the Federal Constitution “without due process of law,” the jury must first determine, from a preponderance of the evidence in the case, whether the defendants knowingly did the acts alleged and, if so, whether, under the circumstances shown by the evidence in the case, the defendants acted within or without the bounds of their lawful authority under state law. For if the defendants acted within the limits of their lawful authority under state law, then the defendants could not have deprived the plaintiff of any liberty “without due process of law,” since the Court finds and instructs you that the state law applicable in this case meets the requirements of the Federal Constitution. At all times the plaintiff in this case had the legal right not to be deprived of any liberty protected by the Constitution or laws of the United States, except by due process of law. To be deprived of liberty “without due process of law” means to be deprived of liberty without authority of law. In this respect, this plaintiff has the same legal rights as have the defendants and as have all people living in the United States. Jury Instruction No. 11. Jones argues that this instruction permitted the jury to make an unguided determination regarding the validity of defendants’ acts under state law. When a particular jury instruction is assigned as error, the reviewing court must determine whether the instructions, taken as a whole and viewed in light of the evidence and the applicable law, fairly and adequately submitted the issues in the case to the jury. Swift v. R.H. Macy’s & Co., 780 F.2d 1358, 1360-61 (8th Cir.1985). Because Jones’s trial counsel made no objection to instruction 11, our review must be limited to determining whether the error, if any, is plain error in the sense that it has produced a miscarriage of justice. See Fed.R.Civ.P. 51; Rogers v. Rulo, 712 F.2d 363, 368 (8th Cir.1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984). The plain error exception is quite narrow and is confined to the exceptional case where the error seriously affected the fairness or the integrity of the trial. Rogers, 712 F.2d at 368. Reviewing the instructions as a whole, in light of the evidence and the applicable law, we cannot say that instruction 11 constituted plain error. Instruction 10, as well as 11, informed the jury that Jones had a right not to be deprived of liberty without due process of law. Using the expressions “unprovoked,” “without just cause or excuse,” “maliciously,” “wantonly,” and “oppressively,” instruction 17A correctly described the type of conduct that constitutes excessive force. Although instruction 11 standing alone would not give the jury sufficient guidance, we are satisfied, in view of the other instructions, that the rigorous requirements for reversal under the plain error standard of review have not been met in this case. V. Jones argues that the District Court abused its discretion by denying his motion in limine to exclude evidence of his convictions for robbery, rape, and forcible sodomy. Plaintiff argues that the District Court had a duty under Federal Rules of Evidence 403 and 609 to balance the probative value of this evidence against the potential for prejudice, and that the absence of a hearing on the motion in limine or any record of the court’s balancing constitutes reversible error. Jones similarly asserts error with regard to the admission, during his cross-examination, of all his prior convictions, and he particularly emphasizes his view that it was unfair to allow the jury to learn of his rape and forcible sodomy convictions. Federal Rule of Evidence Rule 609(a) provides: For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment. Rule 609(a) modifies the common law, which freely allowed the use of prior felonies, without regard to the nature of the particular offense, to impeach a witness’s credibility. See Fed.R.Evid. 609 advisory committee’s note. Subsection (1) requires the trial judge to balance the probative value of the evidence of prior felony convictions against the prejudicial effect “to the defendant.” Under subsection (2), a conviction (felony or misdemeanor) involving dishonesty or false statement is, subject to the ten-year time limit imposed by Rule 609(b), always admissible; there is no balancing to be done. With regard to the admissibility of Jones’s convictions, Rule 609(a)(1) is clearly not applicable in the present case. Assuming arguendo that the Rule does apply to civil cases — and we are not convinced that it does — it is not helpful to Jones as he is the plaintiff in this case. Although at least one other circuit has extended the balancing test of Rule 609(a)(1) to plaintiffs in civil cases, see Petty v. Ideco, 761 F.2d 1146, 1152 (5th Cir.1985), we do not believe that this decision can be reconciled with the unambiguous wording of Rule 609(a)(1). The plain language of the Rule simply cannot be read to mean anything other than that the Rule applies only when to admit evidence of prior convictions for impeachment purposes might unduly prejudice “the defendant.” Thus, a plaintiff has no standing to invoke Rule 609(a)(1), even if the Rule was intended to apply in civil cases, which we seriously doubt. We turn to Federal Rule of Evidence 403, which provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Rule 403 is a “rule of exclusion that cuts across the rules of evidence.” Shows v. M/V Red Eagle, 695 F.2d 114, 118 (5th Cir.1983) (citation omitted). In keeping with that broad view of Rule 403, we have held that Rule 609 does not preclude the application of Rule 403’s balancing test to evidence of prior convictions offered for impeachment purposes. See, e.g., Radtke v. Cessna Aircraft Co., 707 F.2d 999, 1000 (8th Cir.1983); Czajka v. Hickman, 703 F.2d 317, 319 (8th Cir.1983). Contra Campbell v. Greer, 831 F.2d 700, 707-08 (7th Cir.1987). In this Circuit, it thus is possible, at least in theory, that evidence of prior convictions admissible under Rule 609 without any balancing test could be excluded under the balancing test of Rule 403. Under Rule 403, the District Court was required to weigh the probative value of the evidence of Jones’s criminal record against the danger of unfair prejudice, but was empowered to exclude this evidence only if the court decided that its probative value was substantially outweighed by the danger of unfair prejudice. A trial court’s ruling as to the admissibility of evidence will not be disturbed unless there is a clear and prejudicial abuse of discretion. See Radtke, 707 F.2d at 1001 (citing E.I. du Pont de Nemours & Co, v. Berkley & Co., 620 F.2d 1247, 1272 (8th Cir.1980)). We find no such abuse of discretion in this case. While it is part of the conventional wisdom to regard crimes such as robbery, rape, and forcible sodomy as being less probative of a witness’s veracity than are offenses involving crimen falsi, a number of courts have approved the admission of evidence of such crimes for purposes of assessing credibility. See, e.g., Campbell, 831 F.2d at 707-08; Leno v. Gaughan, 664 F.2d 314, 315 (1st Cir.1981). Cases such as the one before us, in which the jury had to choose between conflicting versions of the same occurrence, turn on the jury’s credibility determinations. The evidence of. Jones’s prior convictions had probative value to an assessment of his credibility as a witness, and we cannot say, that he was unfairly prejudiced by the admission of this evidence. While it would have been preferable for the trial court to have made a record of its balancing of the probative value of Jones’s convictions against the danger of unfair prejudice, its failure to do so is harmless when “the substantial rights of the parties” are not affected. See Fed.R. Civ.P. 61. Cf Czajka, 703 F.2d at 319. By denying Jones’s motion in limine to exclude the evidence of his convictions, the Court necessarily responded to his claims of prejudice. We are satisfied that the Court’s failure to make a record of its balancing of probative value against danger of unfair prejudice did not affect Jones’s substantial rights. Jones raises other issues. We have carefully considered them and find them to be without merit. Accordingly, the judgment of the District Court is affirmed. . The Honorable William L. Hungate, United States District Judge for the Eastern District of Missouri. . It is undisputed that Jones suffered a single gunshot wound to the perineum and that the edges of the wound were burned. The perineum is the region between the thighs, bounded in the male by the scrotum and the anus. Dor-land’s Medical Dictionary 529-30 (23d ed. 1982). The police deny that anyone shot Jones while he was lying on the ground. There was uncontra-dicted testimony that it was unlikely that Jones’s wound occurred as he claimed, since from that extremely close range the ammunition used by the police would have caused greater injury than Jones actually suffered. The physician who treated Jones’s wound testified that the rim of burn around the wound was not excessive, that he did not recall if the burned skin showed any sign of gunpowder, and that he could not speculate as to the distance from which the bullet had been fired. . This Court has questioned whether we have the authority to overturn as an abuse of discretion a trial court’s denial of a motion for a new trial on the ground that the jury’s verdict is against the weight of the evidence. See, e.g., Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 906 (8th Cir.1985); SCNO Barge Lines, Inc. v. Anderson Clayton & Co., 745 F.2d 1188, 1194 (8th Cir.1984). We need not address this issue as we find no abuse of discretion in this case. . There is considerable difference of opinion as to whether Rule 609(a)(1) is applicable in civil cases. Compare Campbell v. Greer, 831 F.2d 700, 703-05 (7th Cir.1987) (Rule 609(a)(l)’s balancing test applies only when the prosecutor in a criminal case is trying to impeach the defendant) with Petty v. Ideco, 761 F.2d 1146, 1152 (5th Cir.1985) (Rule 609(a)(l)’s balancing test applies in civil cases). . In Campbell, supra note 5, 831 F.2d 700, the Seventh Circuit held that, with regard to Rule 609(a), the “only prejudicial effect that the judge is to consider in ruling on the admissibility of a prior conviction is the prejudicial effect on the defendant in a criminal trial; as to all other witnesses, prior convictions are admissible for purposes of impeachment without any balancing test." Id. at 704. Other courts have similarly held. See Linskey v. Hecker, 753 F.2d 199, 201 (1st Cir.1985). See also United States v. Martin, 562 F.2d 673, 680-81 n. 16 (D.C.Cir.1977) (dictum). While we do not need to decide the issue, we find the Seventh Circuit’s reasoning to be very persuasive. .Evidence of prior convictions admissible after balancing under Rule 609(a)(1) would be admissible a fortiori under Rule 403 because 609(a)(1) permits admission of the evidence only when its probative value outweighs its prejudicial effect to the defendant, whereas 403 requires admission of the evidence unless its probative value is substantially outweighed by the danger of unfair prejudice. Question: What is the total number of respondents in the case? Answer with a number. Answer:

songer_respond1_3_3

J

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Your task is to determine which specific federal government agency best describes this litigant. SHOEMAKER v. BURKE, Postmaster, et al. No. 6895. United States Court of Appeals for the District of Columbia. Decided June 1, 1937. Frederick A. Ballard, of Washington, D. G, for appellant. Leslie C. Garnett and Howard Boyd, both of Washington, D. C., for appellees. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices. MARTIN, Chief Justice. This is an appeal from a decree of the District Court of the United States for the District of Columbia, dismissing the appellant’s bill of complaint upon a motion alleging lack of substance. The appellant was plaintiff below and filed a bill of complaint against the appellees Vincent C. Burke, as Postmaster of Washington, D. G, and James A. Farley, as Postmaster General of the United States, praying for an injunction to restrain the defendants from enforcing an order withdrawing from the mails,a letter tendered by the appellant for mailing, on the envelope of which was affixed a sticker bearing the words, “I don’t read Hearst,” these words being encircled by a curved line. The appellant undertook to mail this letter and similar letters but was denied mailing privileges by force of the Postmaster General’s determination that the letters were subject to the prohibition of the Act approved June 18, 1888, § 2, as amended, title 18 U.S.C.A. § 335, which provides as follows: “All matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which, or any postal card upon which, any delineations, epithets, terms, or language of an indecent, lewd, lascivious, obscene, libelous, scurrilous, defamatory, or threatening character, or calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another, may be written or printed or otherwise impressed or apparent, are hereby declared nonmailable matter, and shall not be conveyed in the mails nor delivered from any post office nor by any letter carrier, and shall be withdrawn from the mails under such regulations as the Postmaster General shall prescribe. . Whoever shall knowingly deposit or cause to be deposited, for mailing or delivery, anything declared by this section to be nonmailable matter, or shall knowingly take the same or cause the same to be taken from the mails for the purpose of circulating or disposing of or aiding in the circulation or disposition of the same, shall be fined not more than $5,000, or imprisoned not more than five years, or both.” This statute first prohibits the mailing of any matter otherwise mailable by law if upon the envelopes there is written or printed any delineations, epithets, terms, or language .of an indecent, lewd, lascivious, obscene, libelous, scurrilous, defamatory, or threatening character. It is not contended that the inscription in question is subject to condemnation under any of these provisions. The statute further prohibits the mailing of any matter otherwise mailable if upon the envelopes thereof there is written or printed any matter calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another. The Postmaster General held that the inscription upon the sticker, to wit, “I don’t read Hearst” fell within the provisions of the latter subdivision, for the reason that it was calculated by the terms and obviously intended to reflect injuriously upon the character or conduct of another. We are of the opinion that the decree of the lower court dismissing the appellant’s bill of complaint should be sustained. In the first place we may' say that in our opinion the inscription on the sticker which was attached to the envelope in question was “calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another.” It is clear that this inscription bore no relation to the information required by the Postmaster when receiving and sending the mail to the addressee. It was a purely gratuitous intrusion of an expression of opinion by the writer denunciatory in its nature of Hearst and the Hearst publications. It was an effort to induce others to join in the same opinion and to agree with the writer in condemning the character and conduct of Hearst. Accordingly, it was obviously intended to reflect injuriously upon the character and conduct of another, and it is plain that it could have no other purpose or effect. The appellant cites the case of American Civil Liberties Union v. Kiely (C.C.A.) 40 F.(2d) 451, 453, wherein it was held that matter otherwise defamatory when used with reference to a state does not come within the purview of the present statute, but that the statute applies only to reflections upon individual persons and not to reflections upon a state. The court said: “In our opinion, the, act relates to persons and not to systems of administration or other abstractions.” This reference does not seem to apply to the present case. The implied denunciation herein does not relate to a state or an abstraction, but to a well-known publisher and by innuendo to his publication. Moreover, it should be observed that the authority to pass upon such a subject is in the first instance intrusted by statute to the Postmaster General, and that his decision thereon is conclusive unless he has exceeded his authority or the court should be of the opinion that his action was clearly wrong. In Bates & Guild Co. v. Payne, 194 U.S. 106, 24 S.Ct. 595, 597, 48 L.Ed. 894, in a suit brought to compel the Postmaster General to transmit through the mails, as second-class matter, a publication alleged to be a periodical, the bill was discharged with the following statements: “ * * * where Congress has committed to the head of a department certain duties requiring the exercise of judgment and discretion, his action thereon, whether it involve questions of law or fact, will not be reviewed by the courts unless he has exceeded his authority or this court should be of opinion that his action was clearly wrong. * * * “The rule upon this subject may be summarized as follows: That where the decision of questions of fact is committed by Congress to the judgment and discretion of the head of a department, his decision thereon is conclusive; and that even upon mixed questions of law and fact, or of law alone, his action will carry with it a strong presumption of its correctness, and the courts will not ordinarily review it, although they may have the power, and will occasionally exercise the right of so doing. * * * , “ * * * While, as already observed, the question is one of doubt, we think the decision, of the Postmaster General, who is vested by Congress with the power to exercise his judgment and discretion in the matter, should be accepted as final.” See, also, Smith v. Hitchcock, 226 U.S. 53, 33 S.Ct. 6, 57 L.Ed. 119; Masses Publishing Co. v. Patten (C.C.A.) 246 F. 24, L.R.A.1918C, 79 Ann.Cas.l918B, 999. The decree of the lower court is affirmed. 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 "O" thru "R"". Which specific federal government agency best describes this litigant? A. Occupational Safety & Health Administration B. Occupational Safety & Health Review Commission C. Office of the Federal Inspector D. Office of Management & Budget E. Office of Personnel Management F. Office of Workers Compensation Program G. Parole board or parole commisssion, or prison official, or US Bureau of Prisons H. Patent Office I. Postal Rate Commission (U.S.) J. Postal Service (U.S.) K. RR Adjustment Board L. RR Retirement Board 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. UNITED STATES v. FLORIDA et al. No. 54, Orig. Argued January 17, 1977 Decided February 23, 1977 William F. Sheehan III argued the cause for the United States in support of the Report of the Special Master. With him on the brief were Solicitor General Bork, Assistant Attorney General Taft, Bruce C. Rashkow, and Ralph J. Gillis. Lee C. Clyburn, Assistant Attorney General of Texas, and Sidney H. McKenzie III, Assistant Deputy Attorney General of Florida, argued the cause for defendants on exceptions to the Report of the Special Master. With Mr. Clyburn on the briefs were John L. Hill, Attorney General of Texas, David M. Kendall, First Assistant Attorney General, Robert L. Shevin, Attorney General of Florida, and Donna B. Stinson, Assistant Attorney General. Per Curiam. The exceptions of the States of Florida and Texas to the Report of the Special Master, 429 U. S. 810 (1976), are overruled and the motion for leave to file a counterclaim is denied. So ordered. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:

songer_appnatpr

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. RIDER v. COMMISSIONER OF INTERNAL REVENUE. No. 14522. United States Court of Appeals, Eighth Circuit. Dec. 31, 1952. Stanley M. Rosenblum, St. Louis, Mo. (James V. Dunbar, St. Louis, Mo., on the brief), for appellant. Harry Marselli, Sp. Asst, to the Atty. Gen. (Charles S. Lyon, Asst. Atty. Gen. and Ellis N. Slack and Robert N. Anderson, Sp. Assts. to the Atty. Gen. on the, brief), for respondent. Before GARDNER, Chief Judge, and WOODROUGH and COLLET, Circuit Judges. GARDNER, Chief Judge. This is a petition to review a decision of the Tax Court redetermining deficiencies in petitioner’s income taxes for the years 1945, 1946 and 1947. The question presented to the Tax Court for decision was whether the income from certain contracts with book publishers received by the taxpayer was taxable as ordinary income or as capital gains. Taxpayer is a professor of mathematics at Washington University, located in St. Louis, Missouri, and has held that position since 1917, and as such has been engaged in the teaching profession. He has devoted all the time necessary in connection with his duties as a regularly employed full-time professpr. In his spare time he has composed .and written a number of books based upon notes which he had made from time to time and upon his experience as .a teacher of mathematics. He has prepared and sold manuscripts for a number of books, some nine in number, to various publishers. Some were copyrighted by him, while others were copyrighted by the publishers. From 1923 to 1935 he was accumulating material but not writing. In order to get a manuscript published the taxpayer would work over his notes which he had used in the classroom, prepare a manuscript, send it to a publishing company which would look it over and decide whether or not they would publish it. This was done with each manuscript in question here. On the average he required about three years to prepare a manuscript. Securing the publication of such a manuscript was beneficial to him in securing promotion as a teacher. In the taxable years here involved he maintained an office in his home which he used in his writing, although the University furnished him an office in connection with his teaching work, but he found it more convenient to work in preparation of his manuscripts at his home. In his income tax returns for the years here involved, he deducted expenses of maintaining this office in his home, and in these returns la-belled these deductions as expenses “for purpose of producing taxable income.” The expenses so claimed and deducted by the taxpayer were allowed by the Commissioner in the computation of the taxable income. During the years here involved he received from the sale of his manuscripts the total sum of $27,279.53. As compensation for teaching and for certain services rendered by him to the War Department during the same years, he received the sum of $21,103.07. He reported the income from publications as long term capital gains, while the Commissioner treated it as ordinary income. The Tax Court held that during the years involved taxpayer was in the trade or business of teacher-writer, and held that his manuscripts constituted property held primarily for sale to customers in the ordinary course of his trade or business. It was the contention of taxpayer before the Tax Court and he renews that contention here, that his occupation, trade, or profession was that of a teacher and that he indulged in writing for publication as a hobby or for the purpose of enhancing his position in his chosen work as a teacher. It is not the province of this court to retry the issues that were presented to the Tax Court. It was the province of that court to determine the facts. Whether petitioner’s manuscripts were held by him primarily for sale to customers in the ordinary course of his trade, business, or profession was a question of fact. Friend v. Commissioner, 10 Cir., 198 F.2d 285; Maul-din v. Commissioner, 10 Cir., 197 F.2d 714. The trial court having found this issue of fact in favor of the Commissioner we must accept that finding as presumptively correct and are not at liberty to set it aside unless it is clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.; Ætna Life Ins. Co. v. Kepler, 8 Cir., 116 F.2d 1; Builders Steel Co. v. Commissioner, 8 Cir., 197 F.2d 263. We are not impressed with the argument that petitioner in the preparation and sale of his manuscripts for publication was simply indulging in a hobby. He had published some nine books and in pursuit of this occupation of preparing manuscripts he maintained an office for the rent or upkeep of which he claimed and received deductions in the gross amount of $1,658.06 for the years here involved on the representation that the expense was “for purpose of producing taxable income.” These facts seem to us entirely inconsistent either with the theory that petitioner was following a hobby or that he was pursuing this occupation simply as an incident to his profession as a teacher. He was producing income and his manuscripts as prepared by bim were sold for the purpose of producing income. The mere fact that petitioner was a teacher certainly did not preclude him from indulging in other activities producing income. One may engage in more than one occupation, calling, or business at the same time. Friend v. Commissioner, supra; King v. Commissioner, 5 Cir., 189 F.2d 122. We conclude that the findings of the Tax Court are amply sustained by the evidence and they in turn sustain the judgment sought to be reviewed. The petition to review is therefore dismissed and the decision of the Tax Court 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_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. INTERSTATE COMMERCE COMMISSION, Appellee, v. George T. APPLEYARD, III, and James W. Cain, Appellants. No. 74-1342. United States Court of Appeals, Fourth Circuit. Argued Dec. 4, 1974. Decided April 3, 1975. Norman B. Smith, Greensboro, N. C. (Smith, Carrington, Patterson, Follín & Curtis, Greensboro, N. C., on brief), for appellants. J. Preston Proffitt, Jr., Regional Counsel, Interstate Commerce Commission (Bernard A. Gould and Robert S. Turk-ington, Attys., Interstate Commerce Commission, on brief), for appellee. Before BOREMAN, Senior Circuit Judge, and BUTZNER and FIELD, Circuit Judges. BUTZNER, Circuit Judge: In order to test the constitutionality of the Interstate Commerce Commission’s policies regulating interstate truck transportation, George T. Appleyard and James W. Cain deliberately violated Part II of the Interstate Commerce Act, 49 U.S.C. § 301 et seq. The district court enjoined them from further violations, as provided in 49 U.S.C. § 322. Appleyard and Cain appeal the injunction on the ground that the I.C.C.’s application of the Act deprives them of liberty without due process of law. We affirm the district court and deny them relief because they have not shown that Appleyard would be unlawfully refused an operating permit were he to seek one. The facts are simple. Except for businesses hauling their own goods and carriers of unprocessed farm products, every carrier of goods by truck in interstate commerce must have either a permit or a certificate of convenience and necessity issued by the I.C.C. 49 U.S.C. §§ 303(b)(7) and (c), 306(a), 309. Apple-yard, an independent truck owner who hauls farm products, and Cain, the editor of a magazine for truckers, contracted for Appleyard to carry a load of chipboard from North Carolina to Washington, D. C. Appleyard, who has neither a certificate nor a permit, carried the load and then reported the trip to the I.C.C., which subsequently obtained the injunction. Appleyard and Cain do not claim that the permit requirements of Part II of the Interstate Commerce Act are facially unconstitutional. Instead, they argue that the present criteria for permits irrationally restrict Appleyard’s liberty to engage in interstate trucking. In support of this contention, they presented expert testimony, mostly uncontradicted, to the effect that the present policy of restricted entry and limited competition favors established carriers over newcomers, leads to extravagant overcapacity, requires empty backhauls, increases operating costs, wastes fuel, and causes excessive freight .rates. Appleyard and Cain urge that by not instituting a policy of free entry and price competition, the I.C.C. has injured both the public and small truckers without corresponding public benefits and that it has failed to follow the statutory National Transportation Policy, which controls its discretion. Since, in their view, the present operating permit system is of no public benefit and is beyond the I.C.C.’s authority, they assert that Appleyard cannot be enjoined to comply with it. Despite the appellants’ economic arguments, we affirm the district court for two reasons. In the first place, the record does not show that Appleyard has ever been or would be refused an operating permit, or indeed that he has ever applied for one. Appleyard concedes that Congress may require permits for interstate motor carriers. Since he does not attack the statute as unconstitutional on its face, we cannot presume that a request for a permit would be futile. Until he has shown that he cannot obtain a permit under the existing regulations, he has suffered no legally cognizable injury from this injunction. Lehon v. Atlanta, 242 U.S. 53, 37 S.Ct. 70, 61 L.Ed. 145 (1916); see Smith v. Cahoon, 283 U.S. 553, 562, 51 S.Ct. 582, 75 L.Ed. 1264 (1931) (dictum). Secondly, the federal courts will not review legislation or administrative action on the basis of their views of reasonable economic policy. North Dakota State Board of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973); Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). The appellants’ reliance on United States Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973), and United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973), is misplaced. These cases do not review legislative policy objectives. Instead, they test the procedural due process of implementing policy by utilizing certain statutory presumptions. Appleyard’s claim is no more than a contention that the public would be better off if the I.C.C. modified its control of interstate motor transportation. This may well be true. Congress, however, has given the Commission the authority to reconcile the overlapping and conflicting goals of the National Transportation Policy. See Schaffer Transportation Co. v. United States, 355 U.S. 83, 92, 78 S.Ct. 173, 2 L.Ed.2d 117 (1957). Affirmed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_initiate

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. MIDDLETON v. NORFOLK & W. RY. CO. et al. No. 5665. Circuit Court of Appeals, Fourth Circuit. Jan. 31, 1948. Fred S. Hutchins, of Winston-Salem, N. C. (Roy L. Deal, of Winston-Salem, N. C., on the brief), for appellant. Kerr Craige Ramsay, of Winston-Salem, N. C. (W. W. Coxe, of Roanoke, Va., and Craige & Craige, of Winston-Salem, N. C., on the brief), for appellees. Before PARKER, SOPER and DOBIE, Circuit Judges. SOPER, Circuit Judge. Appeal is taken from the judgment of the District Court whereby the pending action was dismissed under Section 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, at the close of the plaintiff’s case on the ground that the evidence failed to show that the plaintiff was entitled to recover. John C. Middleton, twenty-one years of age, was struck and killed by a train of the defendant Railway Company at 8:45 P.M. Eastern Daylight Saving Time, on August 31, 1945, on the railroad track at or near the crossing of a dirt road four miles from Walkertown, North Carolina. It was charged in the complaint and the administrator endeavored to show that although the deceased was negligent in being upon the track at the time, it was obvious to the men in charge of the train that he was in a perilous position and that the engineer in the exercise of due care could have realized the situation in time to stop the train and avoid the accident but negligently failed to do so. In short, the plaintiff invoked the doctrine of the last clear chance under the circumstances hereinafter set forth in the light most favorable to the plaintiff. The railroad is single track in this vicinity and runs approximately north and south. Coming from the north it approaches the crossing at a slight down grade and in a straight line for approximately three-quarters of a mile. From this direction the crossing is visible at night in the rays of the engine’s headlight from a distance of 1200 feet. A concrete public highway runs parallel to the railroad track at a short distance to the west and about 8 or 10 feet below the track level. The deceased lived east of the railroad irack and 75 feet north of the crossing. He was a farm worker and had performed farm work during both the morning and afternoon of the day. He was tired from the day’s exertion and declined to attend a wedding in the family that was to be held that evening. He was subject to attacks of epilepsy, but there was no evidence of a seizure on the day of his death. About a half hour before the train passed he was seen sitting on the east rail of the track facing west about 30 feet north of the crossing with his feet between the ties, his elbows resting on his thighs and his head slightly tilted to one side. A motorist who was driving a passing truck going north on the paved road raised his fingers from the wheel in greeting to the deceased without response or motion from him; but the driver did not stop since the deceased did not seem to be in a helpless condition. Within 30 minutes thereafter, the train, consisting of an engine, a tender and three passenger coaches, came on from the north at the speed of 50 miles per hour. The engineer took a look down the track at the top of the grade about 1200 feet from the crossing, and seeing nothing on the track, began to look for a railroad signal located south of the crossing and not easily visible to him on account of trees growing alongside of the track until the engine had reached a point quite near the crossing. The signal is visible more readily on the fireman’s side of the engine and the fireman saw it and told the engineer that the signal was clear when the train had reached a point about 1200 feet from the crossing. When the engine reached a point about 250 ,or 300 feet from the crossing, the engineer noticed at the end of the cross ties on his left side of the track south of the crossing a low dark object as if a bundle had fallen from a passing truck. He did not think that it was a human being but he blew emergency signals and passed on. The engineer inquired whether the fireman had seen anything and the latter, who had been looking back at the fire box after registering the signal, caught a glimpse of something that looked like a piece of paper at the side of the track. The train could be stopped upon an emergency within a distance of 350 feet under the circumstances described. The emergency signals were heard by three persons in the neighborhood, two of them being at a filling station 600 or 700 feet from the crossing, and a third at a dwelling 450 feet from the crossing. They looked toward the crossing because of the signal and caught, a glimpse of some object near the crossing but could not determine what it was, and since the train passed on without stopping, they gave the matter no further thought. When the train made its first regular stop south of the crossing, the engineer and fireman noticed evidences of blood and flesh on the left front wheel of the engine as if a rabbit or dog had been struck, but made no report of the accident since they did not think that a human being had been struck by the engine. It was not until the next morning that the mangled body of the deceased was found beside the track 125 feet south of the crossing. The appellant contends in this state of the evidence that since the deceased was seated upon the track in the manner described less than 30 minutes before the train passsed and killed him, the engineer must have failed to keep a careful lookout as he approached the crossing and that if he had done so, he would have seen the deceased in a dangerous position and would have realized that he was helpless in time to stop the train and avoid the catastrophe. It has been repeatedly held by the Supreme Court of North Carolina in actions for the wrongful death of a person struck by a train, where the plaintiff relies upon the doctrine of last clear chance, that under the law of the state, by which we are bound, the plaintiff has the burden of showing: “1. That at the time the injured party was struck by the train he was down, or in an apparently helpless condition on the track; “2. That the engineer saw, or, by the exercise of ordinary care in keeping a proper lookout could have seen the injured party in such condition in time to have stopped the train before striking him; and “3. That the engineer failed to exercise such care, as the proximate result of which the injury occurred.” Mercer v. Powell, 218 N.C. 642, 649, 12 S.E.2d 227; Justice v. Southern R. R., 219 N.C. 273, 275, 13 S.E.2d 553. Thus it has been held that if the engineer sees a person sitting on the railroad track in a position that is not apparently helpless, the engineer need not check the speed of his train for he has the right to assume until the last moment that the man will get off the track and out of danger. For example, it was held, in Lemings v. Southern R. R., 211 N.C. 499, 191 S.E. 39, that the evidence was insufficient to support the submission of the issue of the last clear chance where the deceased was killed by an engine while sitting on the end of a cross tie of the railroad track in the daytime in substantially the same position as the deceased in the pending case. The engineer had a clear view of the track for 3000 feet before reaching the scene of the accident but the court exonerated him from negligence because there was no evidence that the deceased as he sat upon the cross tie, and as the train approached, was in a helpless condition or even in an apparently helpless condition, and therefore the engineer had the right to assume that he would get out of the way. Precisely similar were the circumstances and the rulings in Reep v. Southern Railroad, 210 N.C. 285, 186 S.E. 318, and Russ v. Atlantic Coast Line Railroad, 220 N.C. 715, 18 S.E.2d 130. In Mercer v. Powell, 218 N.C. 642, 648, 649, 12 S.E.2d 227, 230, it was said: “No presumption of negligence on the part of defendant railroad arises from the mere fact that the mangled body of plaintiff’s intestate was found on the track. This is the uniform holding in the decisions of this court. Upton v. South Carolina & G. E. R. R., 128 N.C. 173, 38 S.E. 736; Clegg v. Southern R. R., 132 N.C. 292, 43 S.E. 836; Austin v. Southern R. R., 197 N.C. 319, 148 S.E. 446; Henry v. Norfolk Southern R. R., 203 N.C. 277, 165 S.E. 698; Rountree v. Fountain, 203 N.C. 381, 166 S.E. 329; Ham v. Greensboro Ice & Fuel Co., 204 N.C. 614, 169 S.E. 180; Harrison v. Southern R. R., 204 N.C. 718, 169 S.E. 637; Fox v. Barlow, 206 N.C. 66, 173 S.E. 43; Cummings v. Atlantic Coast Line R. R., supra (217 N.C. 127, 6 S.E.2d 837). ****** “The doctrine of last clear chance does not apply in cases where the trespasser or licensee upon the track of a railroad, at the time, is in apparent possession of his strength and faculties, the engineer of the train which produces the injury having no information to the contrary. Under such circumstances the engineer is not required to stop the train or to even slacken its speed, for the reason he may assume until the very moment of impact that such person will use his faculties for his own protection and leave the track in time to avoid injury. Redmon v. Southern R. R., supra, 195 N.C. 764, 143 S.E. 829; Rimmer v. Southern R. R., 208 N.C. 198, 179 S.E. 753; Pharr v. Southern R. R., 133 N.C. 610, 45 S.E. 1021; Reep v. Southern R. R., 210 N.C. 285, 186 S.E. 318; Lemings v. Southern R. R., 211 N.C. 499, 191 S.E. 39; Sherlin v. Southern R. R., 214 N.C. 222, 198 S.E. 640.” See also Justice v. Southern R. R., 219 N.C. 273, 13 S.E.2d 553. In George v. Winston-Salem Southbound R. R., 215 N.C. 773, 3 S.E.2d 286; Id., 217 N.C. 684, 9 S.E.2d 373, second appeal, the engineer said that he did not see a man killed by his train although there was a clear view of the point of the accident from the engine for a long distance; and the court held that the evidence was insufficient to support the last clear chance doctrine since there was nothing to show that the man was down upon the track in a helpless condition when he was killed. The court quoted with approval (217 N.C. 686, 9 S.E.2d 375) the following passage from Cummings v. Atlantic Coast Line R. R., 217 N.C. 127, 131, 132, 6 S.E.2d 837; “* * * it may be inferred from the evidence as to the physical condition of the body and accompanying signs at the scene that the intestate was truck and killed by a train. Yet these physical facts present no reasonable theory to the exclusion of many others as to the circumstances under which the accident occurred. In what position was intestate when struck? The evidence is consonant with any of many theories which may be advanced with equal force, but all of which are speculative and rest in mere conjecture. The probabilities arising from a fair consideration of such evidence affords no reasonable certainty on which to ground a verdict upon an issue of last clear chance.” In the light of these decisions, we find no error in the dismissal of the pending case by the District Court; and it seems clear that the North Carolina courts, if the case had been submitted to them, would have taken the same course. Even if it be presumed that the deceased remained in the same position upon the track in which he was seen by the passing motorist, within one-half hour of his death, until he was hit, and that the engineer was not keeping a sufficiently careful lookout, there can be no recovery; for even if the engineer had seen the man in the indicated position, he could rightfully have assumed that the man would take himself out of the place of danger before it was too late. On the other hand, if the deceased did not remain seated on the rail, his place and his attitude, whether on or off the track, whether upright or prone, and whether or not recognizable as a human being during the period in which he could have been seen from the engine and it could have been stopped before injury, are matters of pure speculation as to which the plaintiff has failed to offer the proof which under the North Carolina law he must supply. Affirmed. The decisions on which the appellant especially relies do not differ in principle from those referred to above; see, Powell v. Southern R. R., 125 N.C. 370, 34 S.E. 530; Henderson v. Atlantic Coast Line R. R., 159 N.C. 581, 75 S.E. 1092; Hill v. Norfolk Southern R. R., 169 N.C. 740, 86 S.E. 609; Jenkins v. Southern R. R., 196 N.C. 466, 146 S.E. 83; Barnes v. Atlantic Coast Line R. Co., 168 N.C. 512, 84 S.E. 805; Carter v. Southern R. R., 135 N.C. 498, 47 S.E. 614; McArver v. Southern R. R., 129 N.C. 380, 40 S.E. 94; Pharr v. Southern R. R., 119 N.C. 751, 26 S.E. 149; Caudle v. Seaboard Air Line R. R., 202 N.C. 404, 163 S.E. 122; Smith v. Salisbury & S. R. R., 162 N.C. 29, 77 S.E. 966; Marks v. Atlantic Coast Line R. R., 133 N.C. 89, 45 S.E. 468. On the facts of the particular eases, some of the earlier decisions seem to apply the rules as to the duty of the railroad with greater strictness; but we must assume the responsibility of applying the law to the facts of the pending case, and we find the more recent cases cited in the body of this opinion more persuasive. 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_respond2_5_2

F

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. William L. FILLIPPINI, Petitioner, Appellant, v. Theodore RISTAINO et al., Respondents, Appellees. No. 78-1149. United States Court of Appeals, First Circuit. Argued Sept. 13, 1978. Decided Nov. 7, 1978. Richard K. Latimer, Boston, Mass., by appointment of court, with whom Owens & Associates, Boston, Mass., was on brief, for petitioner, appellant. Robert S. Potters, Asst. Atty. Gen., Crim. Div., Wellesley, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. De-linsky, Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for respondents, appellees. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. COFFIN, Chief Judge. Appellant filed a petition for a writ of habeas corpus presenting issues concerning his waiver of counsel at his state court trial and an eyewitness’s in-court identification. The district court dismissed the petition holding that some aspects of the Sixth Amendment claims had not been exhausted before the state courts, 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); that the remaining aspect failed to state a claim on which relief could be granted; and that allowing the in-court identification was not an error of constitutional dimension. The Sixth Amendment claims may be broken down into four allegations: (1) that the trial judge should have inquired into appellant’s mental competence to waive his right to counsel; (2) that the judge should have inquired into the reasons for appellant’s dismissal of his original trial counsel; (3) that the judge should have inquired into whether the waiver was intelligent, effective, and voluntary; and (4) that the waiver was not in fact intelligent, effective, and voluntary. Of these the district court ruled that only the third had been exhausted in the state courts. We can easily agree that appellant did not give the state courts “a fair opportunity to consider and to correct” the first two claims. Picard, supra, 404 U.S. at 276, 92 S.Ct. at 513. Though the facts on which these two claims are grounded were before the state courts, the constitutional theories now relied on were never brought forward. See id. at 277, 92 S.Ct. 509. “[T]he substance of a federal habeas corpus claim must first be presented to the courts.” Id. at 278, 92 S.Ct. at 513. The state concedes that the third issue was properly exhausted. If this were the only issue we would have trouble imagining what relief would be available even if we should decide there had not been an adequate inquiry. Therefore, we must first decide whether the fourth issue was adequately presented to the state courts. If so then meaningful relief would be available should Fillippini prevail on his Sixth Amendment claims. We have reviewed appellant’s brief to the Massachusetts Appeals Court and that court’s opinion. Commonwealth v. Fillippini, 2 Mass.App. 179, 310 N.E.2d 147 (1974) (application for further review denied by the Supreme Judicial Court). As the Appeals Court said, appellant contended his constitutional rights “were violated because his waiver was not intelligently and knowingly executed.” Indeed, appellant’s brief to that court presented the issue “[w]hether the defendant was deprived of his rights to due process and effective assistance of counsel because he was forced to proceed pro se.” To be sure, most of the discussion focussed on the adequacy of inquiry, but that issue is closely related. Appellant was trying to show that his waiver was not voluntary and intelligent because the court had failed to do all it should have before accepting the waiver. The two arguments are so closely linked, both factually and logically, that we cannot say the state court lacked a fair opportunity to consider either. Accordingly, we disagree with the district court on this point. We need not remand, however, because our examination of the merits of the claims shows that in fact an adequate inquiry was made and, therefore, the waiver was effective. Appellant initially retained counsel. His counsel appeared and argued various motions. Four days before the case first came to trial appellant told the court that he wished to fire his attorney because he disagreed with a conclusion the attorney had drawn from some evidence. At that time appellant declined representation by his co-defendants’ counsel, advised the court that he would not accept appointed counsel, and said that he had $900 and wanted to hire one of two private attorneys. On April 22, 1969, the case came on for trial. Appellant’s initial counsel was granted permission to withdraw. Appellant had not secured counsel. The one attorney contacted would not take the case on such short notice. Appellant refused to sign a waiver of counsel. Nonetheless the court proceeded with jury selection. After appellant had protested five times that he knew nothing about law and wanted an attorney, the court again offered to appoint one. This time appellant accepted, and the court appointed an attorney then in the courtroom. Appellant, however, discharged this attorney after a brief conference. Thereafter appellant remained mute during the empanelment process. During the trial appellant refused to cross-examine and requested counsel. “I’d like to get counsel. Don’t know nothing about cross examining. I only went to the fourth grade.” On April 24 the court declared a mistrial. The retrial was set for two to three weeks later. On April 28 the court brought Fillip-pini before it on the issue of counsel. The court learned from an attorney contacted on behalf of Fillippini that Fillippini did not have money available. The court recounted the history of the case and reminded appellant that he had repeatedly asked for counsel. Appellant again refused appointment of a public defender, and the court explained that it could not appoint a private attorney. Fillippini asserted that the money was available and that he had hired a lawyer, but he could not tell the court the lawyer’s name or when the lawyer would file an appearance. As the court began to explain the importance of having a lawyer, Fillippini cut him off and said, “I know how important it is. You tried me one time without a lawyer, you ain’t going to do it again.” The court persisted, “Now, what I want to tell you again is you are entitled to have an attorney represent you at this trial. You are entitled to have an attorney as of now, and I am ready to appoint a public defender to represent you if you want one. Now, what is your pleasure?” Appellant again refused, saying “I don’t want nothing from you or the state.” He reiterated that he had an attorney who would be present when trial commenced and again refused a public defender. Finally the court told appellant “that the public defenders are experienced and men who have more-or-less made the criminal law their career” and “that they are trying cases in this court almost every day on the criminal side”, but appellant was still unwilling to accept one. On May 6, appellant told the court he would be represented by the same attorney representing his co-defendants. The next day that attorney denied that he had been retained by Fillippini or had filed an appearance for him. The court again advised appellant of his right to a public defender, and appellant again refused, saying he would go forward without a lawyer as before. It came out that another attorney had been contacted, but had not yet agreed to take the case. The court again offered appointed counsel and was turned down. Fillippini assured himself that the court would assist in bringing in witnesses and offered to sign a waiver. The court repeated his praise of the public defenders, but appellant turned them down once more. Appellant signed a waiver of counsel before the case came on for retrial May 12, 1969. This case is controlled by the principles set down in Maynard v. Meachum, 545 F.2d 273 (1st Cir. 1976). There we said that a court reviewing a habeas petition cannot rely solely on the petitioner’s affirmative acquiescence in the trial procedure. “[T]he question remains whether this acquiescence was competent, intelligent and voluntary.” Id. at 277. We refused, however, to lay down specific warnings that must be given or to require a particular colloquy. Here the fact of waiver appears on the record. We need not rely on appellant’s silent acquiescence. Moreover, “the burden of proof rests upon [a habeas petitioner] to establish that he did not competently and intelligently waive his constitutional right to assistance of counsel.” Id. at 277 — 78, quoting Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Thus appellant faces significant obstacles. [A]n effective waiver must be the product of a free and meaningful choice.” 545 F.2d at 278. Here, though Fillippini might have preferred to secure counsel to replace his original counsel, the record reveals that he was unable to. The court repeatedly explained that he could have an appointed public defender specially trained in handling criminal cases, experienced, and competent. Fillippini repeatedly refused in no uncertain terms. The court was under no obligation to postpone trial indefinitely while Fillippini continued his ineffective efforts to secure private counsel. See id. at 278. In short, it was clearly appropriate to confront Fillippini with the choice of proceeding to trial on May 12, 1969, either with a public defender or pro se unless he could secure private counsel by that time. The deadlines were clearly communicated to Fil-lippini and gave him sufficient time to act. Nor can Fillippini maintain that his choice was not understanding and intelligent — that it was not made “with eyes open”. Id. at 279. See Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948). Appellant interrupted the court’s effort to explain the importance of counsel by assuring the court that he understood how important counsel would be. In the face of that assertion, supported by his efforts to obtain counsel, appellant can hardly argue in good faith that his waiver was not voluntary because the court did not explain the situation. In any case, “[t]he district court may properly consider, in addition to [Fillippini’s] background, experience and conduct, . . such factors as his involvement in previous criminal trials [and] his representation by counsel before trial.” Id., at 279 (citation omitted). Fillippini had been tried on another unrelated charge of the same crime in November of 1968 and had been sentenced to ten to fifteen years. He had an attorney in that trial and initially retained an attorney for this one. See Commonwealth v. Fillip-pini, supra, 310 N.E.2d at 150. He made it clear that he was aware of the existence of technical rules and that presenting his defense was more than just telling his story by, for instance, asking the judge to help him summon witnesses. We can infer from his general awareness of his situation and from his experience with the criminal process that he had “a general appreciation of the seriousness of the charge and of the penalties he may be exposed to”. 545 F.2d at 279. This is especially so since he had just gone through the mistrial. Appellant has failed to show by a preponderance of the evidence that his waiver of counsel was not made with knowledge and understanding. Id. The court did as much as was required of it under the circumstances. The district court correctly denied appellant’s requested “expansions of the record”. He sought information concerning conditions at the prison that allegedly made it difficult for him to contact potential counsel and records bearing on his intellectual capability. As to the first point, the record demonstrates that appellant’s friends and family were the ones trying to find counsel. He was not involved in the search himself. One attorney who was contacted was able to visit appellant in the prison. Moreover, appellant never suggested to the trial court that his failure to secure counsel had anything to do with conditions at the prison. Such information would be irrelevant, and its admission would go contrary to the policies served by the exhaustion rule. Secondly, as we held above, appellant failed to exhaust his claim that there was an inadequate inquiry into his competence to waive counsel. Therefore, the material relative to his mental capacity would be irrelevant. Appellant also claims that an in-court identification of him should have been excluded because it was tainted by a prior out-of-court photographic identification. The witness, who had been present at the robbery scene, was shown a spread of about 20 pictures one month after the March 21, 1968, robbery. She failed to identify any of them. In September she was shown another 20 pictures and again failed to identify any. In November she viewed another spread of about 20 pictures including a few that had been in the September selection. Again she did not make any identifications. Finally she was shown at least 20 pictures in January, 1969, and identified a picture of Fillippini. She testified, and the magistrate found, that his picture had not been included in any of the prior spreads. There was no evidence that the photographs were shown to the witness in an improper manner or that the spreads were in any way defective. Appellant’s claim is that we must conclude that his picture had in fact been included in the earlier spreads and that, therefore, the repeated showings were “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Appellant would have us base this conclusion on the fact that he was indicted and arraigned between the second and third showings so that it would have been illogical for his picture to have been omitted from the third and perhaps the second displays. We do not find these circumstances sufficient basis to overturn the magistrate’s contrary finding which was based on the witness’s unequivocal testimony that Fillippini’s picture first appeared in the last spread. Nor does the mere fact that she was shown several sets of photographs establish suggestiveness by itself. United States v. Sheehan, 583 F.2d 30, at 32 (1st Cir. 1978). There we rejected a similar claim where three displays were presented over a period of more than six months, and the last two both included a picture of the appellant. Since appellant has failed to show that the spreads were suggestive, we need not go on to inquire whether there are independent reasons to believe the in-court identification was reliable. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Affirmed. . Fillippini was convicted of armed robbery while masked. See Commonwealth v. Fillippi-ni, 2 Mass.App. 179, 310 N.E.2d 147 (1974). . Moreover the court had information that Fil-lippini did not have the funds to hire a private attorney. . We need not decide whether the trial court acted properly in requiring Fillippini to appear at his first trial pro se. The period between April 24 when the mistrial was declared and May 12 when the retrial began was certainly sufficient time for his friends to secure an attorney. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:

songer_treat

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. James Haynes CAMARILLO, Plaintiff-Appellee, v. Daniel J. McCARTHY, Director, et al., Defendants-Appellants. No. 92-15991. United States Court of Appeals, Ninth Circuit. Submitted Feb. 3, 1993. Memorandum April 2, 1993. Order and Opinion July 1, 1993. Allen R. Crown, Deputy Atty. Gen., Sacramento, CA, for defendants-appellants. James Haynes Camarillo, pro se. Before: FARRIS, POOLE, and WIGGINS, Circuit Judges. The panel unanimously found this case suitable for decision without oral argument. Fed. R.App.P. 34(a); 9th Cir.R. 34-4. ORDER The memorandum disposition filed April 2, 1993, is redesignated as an authored opinion by Judge Farris. OPINION FARRIS, Circuit Judge: Defendants, California state prison officials, appeal the denial of their motion for summary judgment in an action brought by former state prisoner James Haynes Camar-illo pursuant to 42 U.S.C. § 1983. While incarcerated, Camarillo, who is HIV-positive, was transferred to a housing unit for HIV-positive inmates. Camarillo’s suit alleged that his transfer violated his constitutional rights of: (1) equal protection; (2) privacy; (3) due process; (4) freedom from cruel and unusual punishment; and (5) freedom of association. On cross-motions for summary judgment, the district court held that qualified immunity barred suit against the officials for the first four of the alleged constitutional violations. On the freedom of association claim, the court did not address qualified immunity. Instead, it denied the defendants’ motion for summary judgment and ordered the matter to proceed to trial because a question remained as to whether Camarillo’s freedom to associate in fact was curtailed. We have jurisdiction over this interlocutory appeal pursuant to the collateral order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985); Romero v. Kitsap County, 931 F.2d 624, 626 (9th Cir.1991). We review de novo the denial of a defense based on qualified immunity. Romero, 931 F.2d at 627. I. Camarillo argues that the prison officials waived the defense of qualified immunity by failing to raise it as an affirmative defense in their answer to the complaint. Qualified immunity is an affirmative defense that should be pled by the defendant. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980); Fed. R.Civ.P. 8(c). In the absence of a showing of prejudice, however, an affirmative defense may be raised for the first time at summary judgment. See Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir.1984). Camarillo has not claimed prejudice; nor is any suggested by the record. The defense of qualified immunity was not waived. See id. II. Qualified immunity protects government officials performing discretionary functions from liability for civil damages, unless the official’s conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Romero, 931 F.2d at 627. The plaintiff in a § 1983 action bears the burden of proving that the right allegedly violated was clearly established at the time of the official’s allegedly impermissible conduct. Elder v. Holloway, 975 F.2d 1388, 1390 (9th Cir.1992), petition for cert. filed, — U.S. -, 113 S.Ct. 3033, 125 L.Ed.2d 721 (1993); Romero, 931 F.2d at 627. A law is “clearly established” when “the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). The magistrate judge, whose findings were adopted by the district court, canvassed relevant decisional law, see Wood v. Ostrander, 879 F.2d 583, 591 (9th Cir.1989), cert. denied, 498 U.S. 938, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990), and concluded that “[i]t was not clearly established by statute or case law that such segregation violated statutory or constitutional rights.” Nevertheless, the court denied in part the defendants’ motion for summary judgment because a factual dispute remained as to whether Camarillo’s freedom to associate was restricted. The district court should have ordered summary judgment for the defendants. Once it was determined that no clearly established constitutional right was violated, the factual dispute became immaterial. See Romero, 931 F.2d at 628. III. Camarillo argues that it was clearly established at the time he was segregated in the HIV unit that prison inmates have First Amendment rights, including freedom of association. Camarillo misapprehends the level of generality at which a law must be “clearly established.” See Anderson, 483 U.S. at 639, 107 S.Ct. at 3038. The operation of the “clearly established” standard, depends substantially upon the level of generality at which the relevant “legal rule” is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates the Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstone of Harlow. Id. The relevant, properly particularized question, see id. 483 U.S. at 640, 107 S.Ct. at 3039, is whether, at the time of the transfer, it was clearly established that inmates are entitled to be free from prison regulations that restrict their association with members of the general prison population. A prison regulation that impinges on uan inmate’s constitutional rights is valid if it is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). It was not clearly established at the relevant time-nor is it now-that a prison policy segregating HIV-positive inmates from the general prison population is unconstitutional. Camarillo failed to cite a single ease, either to the district court or on appeal, indicating otherwise. REVERSED and REMANDED for entry of summary judgment for defendants on the issue of freedom of association. . Several recent cases in other circuits have upheld as constitutional prison policies mandating segregation of HIV-positive inmates. See, e.g., Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) ("the identification and segregation of HIV-positive prisoners obviously serves a legitimate penological interest.”); Harris v. Thigpen, 941 F.2d 1495, 1521 (11th Cir.1991); Muhammad v. Carlson, 845 F.2d 175, 177 (8th Cir.1988), cert. denied, 489 U.S. 1068, 109 S.Ct. 1346, 103 L.Ed.2d 814 (1989); Cordero v. Coughlin, 607 F.Supp. 9, 11 (S.D.N.Y.1984). . This is not to say that any particular HIV-segregation policy-including that of the California Department of Corrections-is constitutional. That question is not before us. We hold only that the officials in this action are immune from suit under the doctrine of qualified immunity. .Although it is Camarillo's responsibility to "identify the universe of statutory or decisional law from which the court can determine whether the right allegedly violated was clearly established,” see Elder, 975 F.2d at 1392, we may undertake our own inquiry. See id. at 1396. Our research convinces us that the right Camarillo asserts was not clearly established in June 1987. 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_casetyp1_7-3-4

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 - bankruptcy, antitrust, securities". LILES v. PEISER et al. No. 10776. United States Court of Appeals Sixth Circuit. April 11, 1949. W. Wright Mitchell, of Memphis, Tenn. (Robert M. Nelson and W. Wright Mitchell, both of Memphis, Tenn., on the brief), for appellant. Charles M. Crump, Marx J. Borod and David Ballon, all of Memphis, Tenn. (Charles M. Crump, Rosenfield & Borod and David Ballon, all of Memphis, Tenn., on the brief), for appellees. Before HICKS, Chief Judge, and MARTIN and MILLER, Circuit Judges. MARTIN, Circuit Judge. The Referee in Bankruptcy disallowed thé petition of appellant, doing business as Liles Electric Company, for reclamation of certain machinery, material and equipment, and for the enforcement of liens for labor and materials supplied the bankrupt Independent Tool and Machinery Co. The claim of appellant was reduced $1,377.37 by the Referee and allowed as an unsecured claim in the amount of $9,962.82. The Referee filed no separate findings of fact and conclusions of law. He denied the petition of appellant by an order in which inadequate statements of fact were intertwined with the bare announcement of legal conclusions. He wrote no elucidating opinion and cited no interpretative decisions of the Tennessee courts, or any other authorities, but merely quoted in part section 7913 of the Tennessee Code. The District Judge confirmed the mixed findings and conclusions contained in the order of the Referee, denied petitioner’s prayer for review, and dismissed the petition. The Independent Tool and Machinery Company (the bankrupt) conducted a manufacturing business at two leased locations in Memphis, Tennessee. One location, the Ragsdale property, with three buildings thereon, was at 814 Scott Street and was known as Plant No. 1. From December 31, 1946, to February 25, 1947, the date of bankruptcy, Independent had no lease in writing on the Ragsdale premises. The other premises, the Klyce property at 921 Rayner Street, leased by Independent consisted of two buildings. The first, known as Plant No. 2, was occupied by Independent under demise in writing dated April 1, 1946, and extending into 1951. A right of re-entry by lessor in event of lessee’s bankruptcy was reserved in this lease. The other building at 921 Rayner Street, known as Plant No. 3, was occupied by the bankrupt as sub-tenant of the American Plating Works under a month-to-month tenancy. By agreements with the owners of' the ■leased premises, Independent was privileged to remove all electric wiring, switches, transformers, and the like, which it had placed on the property. The machinery installed and used by Independent on the leased premises belonged to it. Upon being notified by the City Inspection Department in December, 1945, that its plant on Scott Street was inadequate and would have to be rewired and put in shape, Inde-, pendent orally contracted with appellant to do the necessary work to that end. Liles, began performance forthwith. Also, he contracted orally to do certain work for Independent at its plants on Rayner Street. All contracts between Independent and Liles were oral except an ante-dated alleged conditional sales agreement and contract, to be hereinafter discussed. The work on the No. 3 Plant on Rayner Street consisted in rewiring machines which had been moved there from the plant on Scott Street. This work was completed before December 6, 1946. On December 13th of that year, Independent paid Liles in full for all labor and materials furnished by him up to December 6, 1946. Liles continued his work at the Scott Street plant until two days before Independent’s voluntary bankruptcy. Work of no consequence was done by Liles in Plant No. 2 on the Klyce property. Independent had executed a $100,000 promissory note, dated January 9, 1946, payable to the Union Planters National Bank and secured by chattel trust deed on its machinery and equipment. This note and security were later assigned to Arnold and Walter Klyce. The bankrupt being indebted to them in an amount in excess of $95,000, the Referee in Bankruptcy confirmed on April 21, 1947, a public sale to the Klyces of the dies, jigs and fixtures-located in Plant No. 1, certain machinery and equipment at Plant No. 3 listed on the trustee’s inventory, and the machinery and equipment in Plant No. 1, with the exception of certain items listed on that inventory. The consideration recited, in the Referee’s order was $95,000; and it was provided therein that the purchasers should pay in cash to the trustee sums equal in amount to any liens against the property which should be finally proved and allowed in the bankruptcy cause. On the same date, April 21, 1947, appellant filed a petition for reclamation and for enforcement of alleged liens for labor and materials. He averred that, on September 2, 1946, he had entered into a contract with the bankrupt- to furnish labor and material to rewire its plants; that the property at 814 Scott Street was owned by Mrs. Banks and Mrs. Ragsdale, and the property at 921 Rayner Street was owned by Mrs. Elise Klyce and Mrs. Mary Klyce; and that he was informed that the bankrupt was oc-' cupying these properties under a month-to-month oral lease. The petitioner alleged further that, by the same conditional sales contract dated September 2, 1946, preserved in the form of an attached memorandum letter, he retained title to the materials furnished by him to the bankrupt. He asserted; moreover, a lien by virtue of section 7914 of the official Code of Tennessee, hereinafter quoted. After praying for service, for an answer by the trustee, and for a show cause order, he prayed for the right to enter upon the premises and reclaim and take possession of all materials theretofore furnished by him and used in the work performed on the contract, for the purpose of “advertising and selling same” under the “Tennessee Conditional Sales Statute [Code, § 7286 et seq.]”, the proceeds to be applied “in the reduction of the costs and purchase price of. said materials.” He prayed further for the declaration and enforcement of a lien against all machinery and equipment listed in attached exhibits. - - Most of the machinery and equipment described was included in, the aforementioned property sold at public auction to the Klyces. In an amended petition, filed in May, 1947, he prayed that, pursuant to sections 7920 and 7921 of the Code of Tennessee, he be granted the same relief asked for in the original petition. On May 24, 1947, the Trustee in Bankruptcy filed exceptions to appellant’s petition for. reclamation and for enforcement of his alleged lien. The trustee denied’ that the alleged contract of September 2, 1946, was a valid conditional sales contract; and averred that the document was not actually executed until within ten days prior to the filing of the petition in bankruptcy, that the purported contract was prepared, executed and ante-dated in a fraudulent effort by appellant to claim retention of title to materials already furnished, and that “the purported contract is invalid insofar as. it purports to retain title to materials furnished as security for labor and services performed.” The contract was further attacked as invalid in failing to describe accurately the property to which title is stated to be retained. The exceptions of the trustee, moreover, denied that appellant is entitled to a lien by virtue of section 7914 of the Code of Tennessee, or any other statute, or by virtue of the common law. Upon the hearing before the Referee, Clement, president of the company, testified that the letter claimed to be a conditional sales contract' was executed, not upon the date appearing on its face — September 2, 1946 — but was in fact executed, to, the best of his recollection,' on February IS, 1947. The appellant admitted that the letter was ante-dated, and did not deny that it was executed shortly before the bankruptcy. The letter in question reads, as follows: “Mr. J. W. Clement: We propose to furnish the labor and materials to rewire plant located at 814 Scott Avenue, also No. 3 building, and Plant No. 2, located at 921 Rayner, as follows: Labor at rate of, electricians, three dollars per hour, helper, one dollar and a half; material, at the rate of cost plus forty per cent;- all wiring materials, including wire conduit, switches, motor controls and transformers, to remain the property of the Liles Electric Company until the work is completed, and fully paid for.” The letter was signed, ■“Liles Electric Company Glenn ■ Liles (Owner.)”; and was undersigned: “Accepted by Independent Tool and Machine Company. J. W. Clement, president.” There can be no doubt that the Referee, confirmed by the District Judge, was correct in holding this ante-dated letter invalid as a conditional sales contract. Indeed, appellant does not press upon us that this was erroneous; but bases his appeal upon alleged error in the refusal of the District Court to apply in his behalf the mechanics’ and furnishers’ lien laws of Tennessee as he construes them. .Ill his original petition, appellant based his right to a lien upon section 7914 of the official'Code of Tennessee, which provides: “There shall be a lien upon any lot of ground or tract of land upon which a house .or structure has been erected, demolished, altered, or repaired, or for fixtures or ma'chinery furnished or erected, or improvements made, by special contract with the owner or his agent, in favor of the contractor, mechanic, laborer, founder or machinist, who does the work or any part of the work, or furnishes the materials or any part of the materials, or puts thereon any fixtures,, machinery, or material, and in favor of all persons who do any portion of the work or furnish any portion of the materials for such building.” It should be noted that, in the preceding section, 7913, of the Tennessee Code, the word “owner” is thus defined: “ ‘Owner’ includes the owner in fee of real property, or of a less estate therein, a lessee for a term of years, a vendee in possession under a contract for the purchase of real property, and any person having any right, title or interest, legal or equitable, in real property, which may be sold under process.” The appellant contends that machines, such as heavy transformers, switches, conduits, bolted down and installed, and wiring installed, “in leased property by a tenant,” are “chattels real and therefore an interest in real property within the meaning of Sections 7913, 7914, 7916 and 7917 of the Tennessee Code” and are under such statutes subject to “mechanics lien for labor performed thereon and material added thereto at tenant’s request.” • The main authority upon which appellant depends is Burr v. Graves, 72 Tenn. 552, decided by the state Supreme Court in 1880. In that case, the complainants, who had erected a cotton-cleaning plant for a lessee upon land in lessee’s possession under an oral lease, filed their bill in chancery fifteen days before the expiration of one year of lessee’s term to enforce a mechanics’ lien “on the leasehold interest, building, machinery, and fixtures.” In affirming a decree of the chancellor in favor of complainants, the Supreme Court of Tennessee said, inter alia: “The complainants were, under the original contract, entitled to a lien as mechanics for the debt thereby created, on the leasehold interest in the land, the building, engines, machinery and fixtures furnished and erected, for twelve months from the completion of the work: Code, sec. 1981, [contained in sec. 7914 of the present Williams’ Code] ; Alley v. La-nier, 41 Tenn. 540. The lease, even if void as a letting for three years, because not in writing, was good for one year, and the bill was filed before the expiration of the year.” It would seem from the. opinion that machinery was not regarded by the court as “fixtures”, and that the lien could be imposed upon the machinery only if considered to be an “improvement”. But, under section 7913 of the existing Code, which was not in existence in 1880, “improvement” is now defined as “any building, structure, erection, alteration, demolition, excavation, or any part thereof, including ornamental shrubbery, on real property for its permanent benefit.” [Emphasis supplied.] Upon the facts of the instant case, the movable machinery could not be deemed a “permanent benefit”. When Burr v. Graves was decided, although the law in Tennessee was that a leasehold interest is subject to mechanics’ lien, (Alley & Bush v. Lanier, 41 Tenn. 540), the qualification to the rule had not been expressed, which now is found in section 7913, that the leasehold must be “for a term of years”, or one “which may be sold under process”. Construing Burr v. Graves most favorably to appellant’s position, that authority does not now support the argument that mechanics’ or furnishers’ liens embrace trade fixtures owned by lessee, situated upon property in possession of lessee under a month-to-month tenancy. It is true that, in Steger, Assignees, v. Arctic Refrigerating Company, 89 Tenn. 453, 14 S.W. 1087, 11 L.R.A. 580, cited by appellant, the court quotes with approval the language of Judge Cooper in Burr v. Graves, supra, that the “lien is favored by the Legislature, and should not be hazarded by dangerous niceties in its enforcement”; and reaffirms the doctrine that liens created for the benefit of those who have furnished labor or material for the erection of buildings or machinery should be liberally construed in favor of the lienor. Liberal construction, however, should not be over-strained. The highest Tennessee court has said: “The liberal construction spoken of in our cases refers to the subject-matter, that is, the property to which the lien attaches and against which it may be enforced; the rule is not applied to draw in those excluded from the benefit of the statute. Thompson v. Baxter, 92 Tenn. [305], 307, 21 S.W. 668, 36 Am.St.Rep. 85;, [Chickasaw] Hotel Company v. [C. B. Barker] Construction Co., 135 Tenn. 305, 186 S.W. 115, L.R.A.1916F, 106. The Court cannot extend the benefit of the Statute to either persons or objects not embraced in its terms, and in determining the breadth and scope of the Act we must be guided by both the words and context.” Pillow v. Kelly, 155 Tenn. 597, 599, 296. S.W. 11, 12. In Tuec Co. v. McKnight & Merz, 140 Tenn. 67, 69, 203 S.W. 238, holding a theater’s vacuum cleaning installation to be subject to mechanics’ lien, parts of the mechanism were permanently attached to the building and other parts were not but were loose and removable. The entire vacuum cleaning installation was held subject to the lien, it being “perfectly plain that a. vacuum cleaner, under modern conditions, is material used in the construction of the theater.” Halley v. Alloway, 78 Tenn. 523, was cited by the court as authority. In both the Steger case, supra, and the Tuec case, the improvements upon which the liens were held enforceable became a permanent part of the buildings in which they were placed. In the case at bar, the machinery upon which the lien is sought was not permanently attached to the building and was removable by the lessee at will. In Bank & Trust Co. v. Fred W. Wolf Co., 114 Tenn. 255, 265, 86 S.W. 310, 312, the Tennessee court thus quoted from its earlier opinion in Johnson v. Patterson, 81 Tenn. 626: “Modern authorities all agree that the most controlling test of the question whether property connected with real estate is to be deemed realty or a mere chattel, removable at the pleasure of the owner, is the intention and purpose of the erection.” In Hickman v. Booth, 131 Tenn. 32, 34, 173 S.W. 438, Mr. Justice (later Chief Justice) Green said: “In Tennessee only those chattels are fixtures which are so attached to the freehold that, from the intention of the parties and the uses to which they are put, they are presumed to be permanently annexed, or a removal thereof would cause serious injury to the freehold. {Citing authorities.] The usual test is said to be the intention with which a chattel is connected with realty. If it is intended to be removable at the pleasure of the owner, it is not a fixture.” Cf. Blue v. Gunn, 114 Tenn. 414, 425, 87 S.W. 408, 69 L.R.A. 892, 108 Am.St.Rep. 912, 4 Ann.Cas. 1157. By this test, the machinery involved in this case was certainly not a fixture. The old case of Grewar v. Alloway, 3 Cooper Tenn.Ch. 584, adds no force to appellant’s argument. There, the issue was between the owner of a theater and the mechanic who had installed therein chairs, balusters, railings, rollers and pulleys for shifting scenery, and the like. The articles furnished were for permanent use in the building. The court used the following language to distinguish such a- case from one which involved trade fixtures owned by a lessee: “Such fixtures, like other trade fixtures, are, as between landlord and tenant, removable by the tenant, but, as between the owner and the mechanic, are subject to the mechanic’s lien law.” [Emphasis supplied.] The following cases cited by appellee bear some weight against the contention of appellant; but, in our view of the case, are not crucial. Hart v. Appalachian Washed Coal Co., 139 Tenn. 204, 201 S.W. 515; Degraffenreid v. Scruggs, 23 Tenn. 451, 40 Am.Dec. 658; Allen v. Brown, 14 Tenn. App. 405, 408. Of all the Tennessee decisions which have been considered, we find Truxall & Dummeyer v. Williams & McCallie, 83 Tenn. 427, 428, most apposite. In that case, a mechanic, employed by the owner of a portable engine, boiler and appurtenances to take the same from one place and erect them temporarily upon the land of another, was held not to be entitled under the then existing statutes of Tennessee to a lien, either upon the land or upon the machinery. In denying the right of the mechanic to a lien, the Supreme Court said : “But here is no ownership of a term, or any interest in the land whatever, to be subjected to complainant’s claim, but only a permission to occupy with portable machinery another’s land for the purpose of sawing his timber. The party owning the machinery could remove it at any time he chose. It is not a fixture erected by the owner for the beneficial use of his own land, as contemplated in the first section of the statute. It is only the temporary occupation of a party’s land by the personal property of the owner, the property having no permanent connection whatever with his freehold. The only legal question is, then, whether a mechanics’ lien exists on mere personalty, as such, of another while being temporarily used on a third party’s land, by the permission of the land owner. The statute has not given such a lien, and we are not authorized to say it exists.” In the present controversy, likewise, we find that the statute has given no such lien as is claimed by appellant. There is no material difference between section 7914 and the operative Code section 2745 with which the Tennessee court was -concerned in the Truxpd case, supra. It is true that, in that case, there had been no lease 'of any kind, but merely a temporary permissive right to put and operate a mill and machinery on land for the phrpose of sawing timber, the owner of the land to receive one-half of the timber sawed; while, in the present case, the bankrupt was in possession of the property under a month-to-month tenancy. Inasmuch as this was not a lease for a term of years nor an interese which could be sold under process, the factual difference in the two cases does not distinguish them. The complainant here is not seeking a lien against a leasehold estate, but rather, as in the Truxall case, against machinery temporarily placed upon the leasehold. In view of our conclusion that appellant has not established a valid lien under Tennessee law, it is unnecessary to discuss his secondary argument that the Tennessee mechanics’ and furnishers’ lien statutes give him priority over the lien of the chattel trust deed involved herein. One issue remains. The District Judge sustained the Referee in Bankruptcy in reducing the unsecured claim of appellant by the sum of $1,377.37, constituting overtime improperly included in the claim. It was held that the cost of labor to be charged against the bankrupt in its cost plus contract with appellant had been' definitely fixed and was evidenced in writing by the contract letter of February 15, 1947, antedated September 2, 1946. The rate therein provided was three dollars per hour for electricians and one-dollar-and-a-half per hour for helpers. Appellant insists that it was erroneously refused the right to prove that union employees receive extra compensation for work in excess of forty hours in a single workweek and receive, also, extra compensation for work performed on Saturdays, Sundays and at night. Appellant refers to Faulkner v. Ramsey, 178 Tenn. 370, 158 S.W.2d 710, and Earle v. Illinois Cent. R. Co., 25 Tenn.App. 660, 167 S.W.2d 15. From our reading of the record and consideration of the evidence we find nothing substantial to justify a conclusion that Independent liad knowledge that appellant was paying over-time to employees in excess of the contract rate and charging such payments to it. In the absence of such proof, we are of opinion that the specified contract for labor was binding on the parties ; and that it was - not erroneous to refuse to receive the proffered evidence as to custom. In Sweeney v. Thomason, 77 Tenn. 359, 363, 364, 42 Am.Rep. 676, the Tennessee court found no reason for holding, in relation to a contract for the supplying of brick, that the purchaser had agreed to pay anything more than was expressed in the plain' language of the contract, or that he understood the contract “to mean anything'different from the plain and natural import of the language.” We think that in the instant case, likewise, there should be no departure from the agreement evidenced in writing. The order of the District Court from which this appeal was taken is affirmed. “Section 7913. Definitions.— [Blaterial excerpts.] ‘Improvement’ means any building, structure, erection, alteration, demolition, excavation, or any part there of, including ornamental shrubbery, on real property for its permanent benefit. * * * [“Owner” as defined in this section has been quoted heretofore in the body of this opinion.] * * * ‘Real property’ includes real estate, lands, tenements and hereditaments, corporeal and incorporeal, and fixtures.” Section 7914. [Heretofore .quoted in full in body of opinion.] “Section 7916. Extent of liens.- — Sucb lien shall extend to, and only to, the owner’s right, title or interest in the real property and improvements, existing at the time of the visible commencement of operation or thereafter acquired. If any part of the real property or improvements subject to such lien be removed by the owner or any other person at any time before discharge thereof, such removal shall not affect the rights of the lienor either in respect of the real property and improvements, or the part so removed.” “Section 7917. Comprehension and duration of lien. — The lien shall include the building, structure, fixture, or improvement as well as the lot or land, and continue for one year after the work is finished or materials are furnished, and until the final decision of any suit that may be brought within that time for its en- . forcement.” Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"? A. bankruptcy - private individual (e.g., chapter 7) B. bankruptcy - business reorganization (e.g., chapter 11) C. other bankruptcy D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman) E. antitrust - brought by government F. regulation of, or opposition to mergers on other than anti-trust grounds G. securities - conflicts between private parties (including corporations) H. government regulation of securities Answer:

songer_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. NAKUTIN v. UNITED STATES. (Circuit Court of Appeals, Seventh Circuit. May 21, 1925. Rehearing Denied September 28, 1925.) No. 3545. 1. Criminal law <@=3371(2) — Evidence of finding other stolen property in accused’s place of business than that involved in prosecution held admissible. In prosecution for possession of stolen property, part of interstate shipment, testimony of witness that he had sworn out and signed search warrant, and went with officers to accused’s place of business in search of stolen property, which was not part of interstate shipment, and that such property was found, together with property which was part of interstate shipment, helé admissible, in exception to rule against proof of extraneous offenses. 2. Receiving stolen goods <@=38(3)— Evidence held sufficient to show that property found in accused’s place of business was stolen from interstate shipment. In prosecution for having possession of stolen property, part of interstate shipment, evidence showing consignment of hosiery of same make as found in accused’s place of business, when delivered, was one case short, and which identified case in defendant’s possession as part of shipment, helé sufficient to show property was stolen. 3. Receiving stolen goods <@=38(4) — Evidence held sufficient to show knowledge on part of accused that property was stolen. In prosecution for possession of stolen property, part of interstate shipment, evidence of contradictory statements by accused as to where he got property, attempts at concealment’, and sale price helé sufficient to show knowledge that it was stolen. In Error to, the District Court of the United States for the Eastern Division of the Northern District of Illinois. Ralph Nakutin, alias Ralph Natkin, was convicted of having possession of property, part of interstate shipment, knowing it to have been stolen, and he brings error. Affirmed. Jacob Levy, of Chicago, 111., for plaintiff in error. ■ Edward J. Hess, of Chicago, 111., for the United States. Before ALSCIIULER, EVANS, and PAGE, Circuit Judges. PAGE, Circuit Judge. Plaintiff in error (called defendant) was convicted of having possession of “Onyx” and “Concordia” hosiery, parts of two interstate shipments, knowing it to have been stolen. The “Onyx” and “Concordia” hosiery was found in defendant’s place of business by police officers and others looking, under a search warrant, for “As You Like It” hosiery, which was no part of an interstate shipment, nor was it in any way related to the hosiery in question here. A witness, present when the search was made, was, over objection, permitted by the court to testify that he was manager for Beatum & Co., whose place had been robbed, that he had sworn out and signed the search warrant, and that he and the officers went to defendant’s place of business in search of, and found, “As You Like It” hosiery which had been stolen. There was no error in the admission of that evidence. Walsh v. United States, 174 F. 615, 98 C. C. A. 461; Bottomley v. United States, 3 Fed. Cas. 968, No. 1,688; Lincoln v. Claflin, 7 Wall. 132, 138, 19 L. Ed. 106; King v. Wylie, 4 Bosanquet & P. 91, 92; Irving et al. v. Motly, 7 Bingham, 543, 548; Sapir v. United States, 174 F. 219, 221, 98 C. C. A. 227; N. Y. Mutual Life Ins. Co. v. Armstrong, 117 U. S. 591, 599, 6 S. Ct. 877, 29 L. Ed. 997; Castle v. Bullard, 64 U. S. (23 How.) 172, 187, 16 L. Ed. 424. It should be noted that the cases state an exception to the general rule that evidence of other transactions is not admissible. The only other objection urged is that there was no evidence to show that the hosiery was stolen, or that defendant knew it was stolen. The evidence showed a shipment of “Concordia” hosiery from Philadelphia to Bullocks, Incorporated, a department store in Los Angeles, Cal., on June 27,1924, and that on their arrival, July 13, 1924, one ease was missing. Part of that shipment was positively identified in defendant’s possession on July 10th, three days before the car carrying the shipment arrived in Los Angeles. As to defendant’s knowledge that the hosiery was stolen, there was evidence before the jury showing contradictory statements by defendant as to where he got the hosiery, and of attempts at concealment of parts of the hosiery; that he bought it for one-half the wholesale price, and sold it at retail for a price that yielded him a good profit, and yet that was far below the wholesale price; that, he had large quantities of new goods in the original packages from three different, but recent, thefts. Prom this and other evidence there was clearly a question for the jury. The judgment is affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

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. STAPF et al., EXECUTORS AND TRUSTEES. No. 54. Argued October 23-24, 1963. —Decided December 2, 1963. Wayne G. Barnett argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Oberdorfer and Robert N. Anderson. W. M. Sutton argued the cause for respondents. With him on the brief was H. A. Berry. Mr. Justice Goldberg delivered the opinion of the Court. Respondents brought this suit against the Government in the District Court for the Northern District of Texas for a refund of estate taxes paid pursuant to an asserted deficiency. The Court of Appeals for the Fifth Circuit held that respondents were entitled to certain marital deductions under § 812 (e) of the Internal Revenue Code of 1939 and also to deductions for other payments as “claims against the estate” and “administration expenses” under § 812 (b) (3) and (2) of the 1939 Code. 309 F. 2d 592. We granted certiorari to consider questions of statutory interpretation important to the administration of the federal estate tax laws. 372 U. S. 928. Lowell H. Stapf died testate on July 29,1953, a resident and domiciliary of Texas, a community property jurisdiction. At the time of his death he owned, in addition to his separate estate, a substantial amount of property in community with his wife. His will required that his widow elect either to retain her one-half interest in the community or to take under the will and allow its terms to govern the disposition of her community interest. If Mrs. Stapf were to elect to take under the will, she would be given, after specific bequests to others, one-third of the community property and one-third of her husband’s separate estate. By accepting this bequest she would allow her one-half interest in the community to pass, in accordance with the will, into a trust for the benefit of the children. It was further provided that if she chose to take under the will the executors were to pay “all and not merely one-half” of the community debts and administration expenses. The relevant facts and computations are not in dispute. The decedent’s separate property was valued at $65,100 and the community property at $258,105. The only debts were community debts totalling $32,368. The administration expenses, including attorneys’ fees, were $4,073. If Mrs. Stapf had not elected to take under the will, she would have retained her fully vested one-half interest in the community property ($129,052) which would have been charged with one-half of the community debts ($16,184) and 35% of the administration expenses ($1,426). Thus, as the parties agree, she would have received a net of $111,443. In fact Mrs. Stapf elected to take under the will. She received, after specific bequests to others, one-third of the combined separate and community property, a devise valued at $106,268, which was $5,175 less than she would have received had she retained her community property and refused to take under the will. In computing the net taxable estate, the executors claimed a marital deduction under §812 (e)(1) of the Internal Revenue Code of 1939 for the full value of the one-third of decedent’s separate estate ($22,367) which passed to his wife under the will. The executors also claimed a deduction for the entire $32,368 of community debts as “claims against the estate” under § 812 (b)(3) and for the entire $4,073 of expenses as “administration expenses” under §812 (b)(2). The Commissioner of Internal Revenue disallowed the marital deduction and the deductions for claims and administration insofar as these represented debts (50%) and expenses (35%) chargeable to the wife’s one-half of the community. Respondents then instituted this suit for a tax refund. The District Court allowed the full marital deduction but disallowed the disputed claims and expenses. 189 F. Supp. 830. On cross-appeals the Court of Appeals, with one judge dissenting on all issues, held that each of the claimed deductions was allowable in full. 309 F. 2d 592. For reasons stated below, we hold that the Commissioner was correct and that none of the disputed deductions is allowable. I. The Marital Deduction. By electing to take under the will, Mrs. Stapf, in effect, agreed to accept the property devised to her and, in turn, to surrender property of greater value to the trust for the benefit of the children. This raises the question of whether a decedent’s estate is allowed a marital deduction under § 812 (e)(1) (E)(ii) of the 1939 Code where the bequest to the surviving spouse is on the condition that she convey property of equivalent or greater value to her children. The Government contends that, for purposes of a marital deduction, “the value of the interest passing to the wife is the value of the property given her less the value of the property she is required to give another as a condition to receiving it.” On this view, since the widow had no net benefit from the exercise of her election, the estate would be entitled to no marital deduction. Respondents reject this net benefit approach and argue that the plain meaning of the statute makes detriment to the surviving spouse immaterial. Section 812 (e)(1)(A) provides that “in general” the marital deduction is for “the value of any interest in property which passes . . . from the decedent to his surviving spouse.” Subparagraph (E) then deals specifically with the question of valuation: “(E) Valuation Of Interest Passing To Surviving Spouse. — In determining for the purposes of sub-paragraph (A) the value Of any interest in property passing to the surviving spouse for which a deduction is allowed by this subsection— “(ii) where such interest or property is incumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent with respect to the passing of such interest, such incum-brance or obligation shall be taken into account in the same manner as if the amount of a gift to such spouse of such interest were being determined.” The disputed deduction turns upon the interpretation of (1) the introductory phrase “any obligation imposed by the decedent with respect to the passing of such interest,” and (2) the concluding provision that “such . . . obligation shall be taken into account in the same manner as if the amount of a gift to such spouse of such interest were being determined.” The Court of Appeals, in allowing the claimed marital deduction, reasoned that since the valuation is to be “as if” a gift were being taxed, the legal analysis should be the same as if a husband had made an inter vivos gift to his wife on the condition that she give something to the children. In such a case, it was stated, the husband is taxable in the full amount for his gift. The detriment incurred by the wife would not ordinarily reduce the amount of the gift taxable to the husband, the original donor. The court concluded: “Within gift tax confines the community property of the widow passing under the will of the husband to others may not be ‘netted’ against the devise to the widow, and thus testator, were the transfer inter vivos, would be liable for gift taxes on the full value of the devise.” 309 F. 2d 592, 598. This conclusion, based on the alleged plain meaning of the final gift-amount clause of § 812 (e)(1)(E) (ii), is not supported by a reading of the entire statutory provision. First, § 812 (e) allows a marital deduction only for the decedent’s gifts or bequests which pass “to his surviving spouse.” In the present case the effect of the devise was not to distribute wealth to the surviving spouse, but instead to transmit, through the widow, a gift to the couple’s children. The gift-to-the-surviving-spouse terminology reflects concern with the status of the actual recipient or donee of the gift. What the statute provides is a “marital deduction” — a deduction for gifts to the surviving spouse — not a deduction for gifts to the children or a deduction for gifts to privately selected beneficiaries. The appropriate reference, therefore, is not to the value of the gift moving from the deceased spouse but to the net value of the gift received by the surviving spouse. Second, the introductory phrases of § 812 (e) (1) (E) (ii) provide that the gift-amount determination is to be made “where such interest or property is incumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent with respect to the passing of such interest . . . .” The Government, drawing upon the broad import of this language, argues: “An undertaking by the wife to convey property to a third person, upon which her receipt of property under the decedent’s will is conditioned, is plainly an 'obligation imposed by the decedent with respect to the passing of such interest.’ ” Respondents contend that “incumbrance or obligation” refers only to “a payment to be made out of property passing to the surviving spouse.” Respondents’ narrow construction certainly is not compelled by a literal interpretation of the statutory language. Their construction would embrace only, for example, an obligation on the property passing whereas the statute speaks of an obligation “with respect to the passing” gift. Finally, to arrive at the real value of the gift “such . . . obligation shall be taken into account . . . .” In context we think this relates the gift-amount determination to the net economic interest received by the surviving spouse. This interpretation is supported by authoritative declarations of congressional intent. The Senate Committee on Finance, in explaining the operation of the marital deduction, stated its understanding as follows: “If the decedent bequeaths certain property to his surviving spouse subject, however, to her agreement, or a charge on the property, for payment of $1,000 to X, the value of the bequest (and, accordingly, the value of the interest passing to the surviving spouse) is the value, reduced by $1,000, of such property.” S. Rep. No. 1013, 80th Cong., 2d Sess., Pt. 2, p. 6. (Emphasis added.) The relevant Treasury Regulation is directly based upon, if not literally taken from, such expressions of legislative intent. Treas. Reg. 106, § 81.47c (b) (1949). The Regulation specifically includes an example of the kind of testamentary disposition involved in this case: “A decedent bequeathed certain securities to his wife in lieu of her interest in property held by them as community property under the law of the State of their residence. The wife elected to relinquish her community property interest and to take the bequest. For the purpose of the marital deduction, the value of the bequest is to be reduced by the value of the community property interest relinquished by the wife.” We conclude, therefore, that the governing principle, approved by Congress and embodied in the Treasury Regulation, must be that a marital deduction is allowable only to the extent that the property bequeathed to the surviving spouse exceeds in value the property such spouse is required to relinquish. Our conclusion concerning the congressionally intended result under §812 (e)(1) accords with the general purpose of Congress in creating the marital deduction. The 1948 tax amendments were intended to equalize the effect of the estate taxes in community property and common-law jurisdictions. Under a community property system, such as that in Texas, the spouse receives outright ownership of one-half of the community property and only the other one-half is included in the decedent’s estate. To equalize the incidence of progressively scaled estate taxes and to adhere to the patterns of state law, the marital deduction permits a deceased spouse, subject to certain requirements, to transfer free of taxes one-half of the non-community property to the surviving spouse. Although applicable to separately held property in a community property state, the primary thrust of this is to extend to taxpayers in common-law States the advantages of “estate splitting” otherwise available only in community property States. The purpose, however, is only to permit a married couple’s property to be taxed in two stages and not to allow a tax-exempt transfer of wealth into succeeding generations. Thus the marital deduction is generally restricted to the transfer of property interests that will be includible in the surviving spouse’s gross estate. Respondents’ construction of §812 (e)(1) would, nevertheless, permit one-half of a spouse’s wealth to pass from one generation to another without being subject either to gift or estate taxes. We do not believe that this result, squarely contrary to the concept of the marital deduction, can be justified by the language of § 812 (e) (1). Furthermore, since in a community property jurisdiction one-half of the community normally vests in the wife, approval of the claimed deduction would create an opportunity for tax reduction that, as a practical matter, would be more readily available to couples in community property jurisdictions than to couples in common-law jurisdictions. Such a result, again, would be unnecessarily inconsistent with a basic purpose of the statute. Since in our opinion the plain meaning of § 812 (e)(1) does not require the interpretation advanced by respondents, the statute must be construed to accord with the clearly expressed congressional purposes and the relevant Treasury Regulation. We conclude that, for estate tax purposes, the value of a conditional bequest to a widow should be the value of the property given to her less the value of the property she is required to give to another. In this case the value of the property transferred to Mrs. Stapf ($106,268) must be reduced by the value of the community property she was required to relinquish ($111,443). Since she received no net benefit, the estate is entitled to no marital deduction. II. Claims Against the Estate and Administration Expenses. A. Claims Against the Estate. Section 812 (b)(3) of the 1939 Code provides for the deduction from the gross estate of “Such amounts . . . for claims against the estate ... as are allowed by the laws of the jurisdiction . . . under which the estate is being administered . . . The community debts in this case total $32,368, consisting largely of taxes due for past income. The decedent’s will directed that his executors pay “all and not merely one-half” of the community debts. Under Texas law, absent this provision, only one-half of the community debts would be charged to the decedent’s half of the community. The issue presented is whether, as a result of the testamentary direction, a deduction may be taken for the entire amount of the community debts as “claims against the estate . . . allowed by” state law. The first question to consider is whether the claim is of the type intended to be deductible. It cannot be denied that where the executors are directed to pay the debts of another party the substance of the direction is to confer a beneficial gift on that party. Respondents’ contentions in effect require that § 812 (b) — designed to allow deductions for “expenses, losses, indebtedness, and taxes” — be construed to authorize tax-free gifts despite the general policy that wealth not be transmitted tax free at death. The provisions of § 812 (b) demonstrate that it was not intended to allow deductions for voluntary transfers that deplete the estate merely because the testator described the transfers or payments as the settlement of “claims” or “debts.” This intent is evidenced by the treatment of claims or debts founded upon promises or agreements. The section carefully restricts the deductible amount “in the case of clairhs against the estate . . . or any indebtedness . . . , when founded upon a promise or agreement, ... to the extent that they were contracted bona fide and for an adequate and full consideration in money or money’s worth. . . .” Absent such an offset or augmentation of the estate, a testator could disguise transfers as payments in settlement of debts and claims and thus obtain deductions for transmitting gifts. As this requirement suggests, a deduction under § 812 (b) should not be predicated solely on the finding that a promise or claim is legally enforceable under the state laws governing the validity of contracts and wills. The claims referred to by the statute are those “claims against” the property of the deceased -which are allowed by and enforceable under the laws of the administering State and not those claims created by the deceased’s gratuitous assumption of debts attaching to the property of another. The pertinent Treasury Regulation states that the deductible claims are "such only as represent personal obligations of the decedent ...” We cannot agree with respondents’ contention that the debts chargeable to the wife’s community property are “personal obligations” of the decedent within the meaning of the Regulation. It is true, as the Court of Appeals stated, that under Texas law the husband, as manager of the community property, was personally liable for the full amount of community debts. 309 F. 2d 592, 596. His liability for the portion of debts chargeable to his wife’s community property was, however, accompanied by a right over against her half of the community. Ibid. The basic rule of Texas law is that the community is liable for its debts, and, accordingly, half the debts attach to the wife’s community property. Since the will of the decedent cannot be allowed to define what is an "obligation” or a "claim,” where, as in this case, the community is solvent, the debts chargeable to the wife’s property cannot realistically be deemed “personal obligations” of the decedent or “claims against” his estate. The provisions of § 812 (b), like those of § 812 (e) allowing marital deductions, must be analyzed in light of the congressional purpose of equalizing the incidence of taxation upon couples in common-law and community property jurisdictions. If the deductible “claims” were to include all community debts that might be, in a literal sense, “personal obligations” of the husband as surety, then a married couple in a community property State might readily increase their tax-free estate transfers. For example, by borrowing against the value of the community property and then requiring that his executors pay all community debts, the husband could obtain a tax deduction for what would in effect be a testamentary gift to his wife. That gift might or might not qualify for treatment as a marital deduction, but it certainly was not intended to be made deductible by § 812 (b). A contrary interpretation of § 812 (b)(3) would, in our opinion, generally tend to create unwarranted tax advantages for couples in community property States. B. Administration Expenses. The testator’s will provided that administration expenses, as well as community debts, should be paid entirely out of his half of the community property. The administration expenses totalled $4,073. Under Texas law an allocable share of these costs was chargeable to the surviving spouse’s community property. That allocable share was determined to be 35% or $1,426. The issue is whether the executors’ payment of the costs attributable to the wife’s property are deductible “administration expenses . . . allowed by” the law of the State under §812 (b)(2). The interpretation of “administration expenses” under §812 (b)(2) involves substantially the same considerations that determine the interpretation of “claims against the estate” under § 812 (b)(3). In both instances, the testator, by directing that payment be made of debts chargeable to another or to non-estate property, reduces his net estate and in effect confers a gift or bequest upon another. We believe that the provisions of § 812 (b), like those of § 812 (e) providing the marital deduction, must be read in light of the general policies of taxing the transmission of wealth at death and of equalizing the tax treatment of couples in common-law and in community property jurisdictions. We hold, therefore, that a deduction may not be allowed for administration costs chargeable to the surviving spouse’s community property. C. The Payment of Debts and Expenses as a Marital Gift. In our view the payments made as a result of the testator’s assumption of responsibility both for his wife’s share of the community debts and for her share of the administration expenses are more properly characterized as marital gifts rather than as “claims” or “expenses.” Since these gifts were to the surviving spouse, respondents contend that a marital deduction should be allowed. Our interpretation of § 812 (e) disposes of this argument, for under any view of the facts, even if these items are deemed to be gifts to the wife, the will required her to surrender property more valuable than the bequests she received. In the absence of a net benefit passing to the surviving spouse, no marital deduction is allowable. The judgment of the Court of Appeals for the Fifth Circuit is reversed and the case remanded for proceedings in accordance with this opinion. It is so ordered. 62 Stat. 117 (1948), now Int. Rev. Code of 1954, § 2056 (b) (4) (B). The provisions involved are § 812 (e) (1) (A) and (E) (ii): “(e) Bequests, Etc., to SURVIVING Spouse.— “(1) ALLOWANCE OR MARITAL DEDUCTION. — ■ “(A) In General. — An amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate. “(E) Valuation Of Interest Passing To Surviving Spouse. — In determining for the purposes of subparagraph (A) the value of any interest in property passing to the surviving spouse for which a deduction is allowed by this subsection'— “(ii) where such interest or property is incumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent with respect to the passing of such interest, such incum-brance or obligation shall be taken into account in the same manner as if the amount of a gift to such spouse of such interest were being determined.” 53 Stat. 123 (1939), now Int. Rev. Code of 1954, §2053 (a). Subsequent references will be to the 1939 Code under which the case arose. The pertinent provisions of § 812 (b) authorize deductions for: “(b) Expenses, Losses, Indebtedness, and Taxes. — Such amounts— “(1) for funeral expenses, “(2) for administration expenses, “(3) for claims against the estate, and “(4) for unpaid mortgages upon, or any indebtedness in respect to, property where the value of decedent’s interest therein, undiminished by such mortgage or indebtedness, is included in the value of the gross estate, “as are allowed by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered, but not including any income taxes upon income received after the death of the decedent, or property taxes not accrued before his death, or any estate, succession, legacy, or inheritance taxes. The deduction herein allowed in the case of claims against the estate, unpaid mortgages, or any indebtedness shall, when founded upon a promise or agreement, be limited to the extent that they were contracted bona fide and for an adequate and full consideration in money or money’s worth . . . .” The figures stated throughout are rounded to the nearer dollar. The apportionment of administration expenses was initially determined by a revenue examiner and was sustained by the District Court. 189 F. Supp. 830, 838. This includes $700 for an automobile specifically bequeathed to Mrs. Stapf. There is some question as to whether Mrs. Stapf should be credited with receiving the full value of the automobile ($1,400) or only a one-half interest ($700). For present purposes the difference is immaterial for it is insufficient to alter the basic fact that the widow did not receive a net benefit by electing to take under the will. We therefore accept the figures used by the courts below and consider Mrs. Stapf as receiving only a one-half interest ($700) in the automobile. The parties agree that the net effect of taking under the will may be computed by another method. As explained by the Court of Appeals, “Computed differently but with the same result, the widow retained a one-third interest out of the one-half of the community owned by her, thereby transferring only a one-sixth interest under the election to take. Under this method of computation she transferred property having a valuation of $27,541.16 and received property being the one-third interest in the separate property of the husband and the one-half interest in the automobile of the aggregate value of the $22,366.66, making a net loss to her of $5,174.50.” 309 F. 2d 592, 594. The Commissioner did in fact allow a marital deduction for $700, representing a one-half interest in the automobile. 309 F. 2d 592, 597, n. 5. That allowance was not challenged by the Government in the District Court. We therefore do not review the judgment of the Court of Appeals insofar as it allows this $700 deduction. See, e. g., Commissioner v. Wemyss, 324 U. S. 303. There the Court stated that under the Revenue Act of 1932 mere detriment to the transferee did not constitute the requisite “consideration in money or money’s worth” to the transferor so as to relieve him of gift tax liability. Respondents’ reliance on this ease ignores that it involved neither a determination of who was to be considered the beneficial donee nor a valuation of the gift received by such donee. The portion of the language relied upon provides that the valuation be “in the same manner as if the amount of a gift to such spouse of such interest were being determined.” Treas. Reg. 105, § 81.47c (b) (3) (1949), now Treas. Reg. § 20.2056 (b)-4 (b) (3) (1958). The Regulation provides another relevant illustration “of property interests which passed from the decedent to his surviving spouse subject to the imposition of an obligation by the decedent: (1) A decedent devised a residence valued at $25,000 to his wife, with a direction that she pay $5,000 to his sister. For the purpose of the marital deduction, the value of the property interest passing to the wife is only $20,000.” See Lowndes and Kramer, Federal Estate and Gift Taxes (1962), § 17.4: “[W]hat the Regulations are driving at seems to be this. If a decedent bequeaths property to his wife in lieu of her interest in community property, which is not part of his estate and which does not pass to her from him, it seems clear that the only thing which the surviving spouse actually receives from the decedent is the excess of the interest bequeathed to her over and above the value of her interest in the community property. Therefore, this should be the only amount which qualifies for the marital deduction . . . .” This Court has frequently “given considerable and in some cases decisive weight to . . . interpretative Regulations of the Treasury and of other bodies that were not of adversary origin.” Skidmore v. Swift & Co., 323 U. S. 134, 140. Although the weight to be given to an interpretative rule varies with its statutory and legislative context, a Treasury Regulation is particularly persuasive when, as in this case, it is supported by declarations of congressional intent. See H. R. Rep. No. 1274, 80th Cong., 2d Sess., pp. 24-26; S. Rep. No. 1013, 80th Cong., 2d Sess., pp. 26-29; Sugarman, Estate and Gift Tax Equalization — The Marital Deduction (1948), 36 Cal. L. Rev. 223, 228-230. The congressional concern with the eventual taxability of marital-deduction property is indicated by the terminable interest rule of § 812 (e) (1) (B). See S. Rep. No. 1013, supra, note 12, p. 28; Warren and Surrey, Federal Estate and Gift Taxation (1961), pp. 759-760. The Court of Appeals recognized the effect of its decision: “Here estate taxes are due now on the property of the husband with the devise to the widow excluded. It is a part of the marital deduction or exclusion on which taxes are deferred to the estate of the widow to be assessed on so much of it as survives on another day. The net of the transfer by the widow became subject to gift taxes at the time of the transfer. The property transferred by the widow will, to the extent of an amount equal to the devise to her, escape both gift and estate taxes.” 309 F. 2d 592, 598. For an illustration of the tax effects of the decision, see the dissent of Judge Wisdom. 309 F. 2d, at 608-609. See 76 Harv. L. Rev. 1671, 1675. See Morgan v. Commissioner, 309 U. S. 78, 80-81 (concerning the meaning of “general power of appointment” under a federal revenue act): “State law creates legal interests and rights. The federal revenue acts designate what interests or rights, so created, shall be taxed. Our duty is to ascertain the meaning of the words used to specify the thing'taxed. If it is found in a given case that an interest or right created by local law was the object intended to be taxed, the federal law must prevail no matter what name is given to the interest or right by state law.” See Hart and Wechsler, The Federal Courts and the Federal System (1953)., pp. 456-457. See, e. g„ Lowndes and Kramer, op. cit., supra, note 10, §§ 1.2, 2.2. The majority of the Court of Appeals passed over the adequate-consideration provision because “the debts here were in the main for income taxes and ad valorem taxes, debts imposed by law.” 309 F. 2d 592, 596. However, since one-half of the taxes were chargeable to the wife’s community property, the disputed claims were in fact imposed on the estate only by the terms of the will and the widow’s election to take under those terms. Treas. Reg. 105, §81.36 (1942), now Treas. Reg. §20.2053-4 (1958): “Claims against the estate. — The amounts that may be deducted under this heading are such only as represent personal obligations of the decedent existing at the time of his death, whether or not then matured, and interest thereon which had accrued at the time of death. . . . Only claims enforceable against the decedent’s estate may be deducted. . . .” With regard to the disputed deduction for the wife’s share of community debts, it has been suggested that: “because the decedent’s estate is not bound, even under state law, until after the widow elects, allowance of the deduction may be incompatible with the regulation requiring that the claims be in existence at the decedent’s death. This requirement could only be fulfilled by an election which would work retroactively.” 37 Tul. L. Rev. 297, 315. 3 09 F. 2d 592, 604 (Wisdom, J., dissenting): “For example, in the twilight of their years, a couple with community property worth $1,000,000 could borrow an additional $1,000,000 and invest it in securities, using the $2,000,000 as collateral. As a result, the community property would be increased from one million to two million dollars, and would have debts against it of one million dollars. If the husband provided by will that all community debts be paid out of his share of the community property, upon his death his share of the community property would be worth $1,000,000. All of this, however, would be matched by deductible community debts. Thus, under the Court’s holding, the entire 'net’ estate of $1,000,000 would pass, untaxed, to the wife.” See infra, p. 134. See 76 Harv. L. Rev. 1671, 1675. Respondents concede that “even with the benefit of the bequest of 1/3 of the separate property to her and the benefit of the debt and expense assumption provisions, Mrs. Stapf ended up with less than she would have owned had she elected to take against the will.” Her share of the gross community assets was $129,052. The portion of the debts ($16,184) and administration expenses ($1,426) chargeable to her was $17,610. When the assumption of the debts and expenses is viewed as a legacy, the effect of taking under the will may be summarized as follows: Mrs. Stapf, in effect retained one-third of the total community property remaining after certain bequests ($83,902; see note 5, supra) and allowed the balance of her community ($129,052 minus $83,902) to pass into the trust for the children. Thus she gave up property worth $45,151. In return she was given separate property valued at $22,367 (see note 6, supra) and the benefit of the debt and expense assumption, or $17,610, a total transfer of $39,976. Thus, the exchange produced a net loss to Mrs. Stapf of $5,175. 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_7-3-1

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 - taxes, patents, copyright". Clyde E. BANNISTER and wife, Alwylda M. Bannister, Appellants, v. UNITED STATES of America, Appellee. No. 17273. ±United States Court of Appeals Fifth Circuit. Dec. 23, 1958. Dougal C. Pope, Houston, Tex., for appellants. Davis Morton, Jr., Helen A. Buckley, Grant W. Wiprud, Lee A. Jackson, Washington, D. C., Charles K. Rice, Asst. Atty. Gen., William B. Butler, U. S. Atty., Newton B. Schwartz, Asst. U. S. Atty., Houston, Tex., for appellee. Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges. HUTCHESON, Chief Judge. This appeal from a judgment and decisión of the United States District Court for the Southern District of Texas, holding that amounts which the petitioners received during the taxable years 1949, 1950, and 1951, from a patent were royalty income, taxable as ordinary income and not, as petitioners had claimed, proceeds from the sale of the patent or an interest in it, taxable as long term capital gains, presents for decision a single question whether the appellants sold their patent, a capital asset, or an interest in it, or whether they merely granted a license to it. Putting it another way, the question presented for decision is whether, as was held below, “the interest which Bannister retained under the Schlumberger contract was not only substantial but was the major portion of the w^°^e • The district judge correctly stated in his opinion: “There is a stipulation of record covering many of the facts, and others appear without dispute in the ■evidence. The controlling question calls for the interpretation of an assignment or licensing agreement of certain patent rights, and the determination whether, under terms of 26 U-S.C.A. § 1235(a) the rights re-tamed by the assignor were ‘substantial.’ If so, the payments to the assignor-licensor constitute ordinary income (the basis on which the tax Z™ PaM) rigMs retaÍned f the assignor-hcensor were unsubstan,tiaI’ ^ transaction constituted a sale> and ^ Paymen1ts thereunder were ®ntltled to caPltal ^ams treat“ men ' It thus appears that the question decided below and to be decided here is not one °f fact but of law, and, since in the opinion the district judge states the facts with complete accuracy and sufficient fullness, it will be sufficient for us to adopt his statement of them and, without attempting a restatement of them here, to draw such attention to any particular fact as is pertinent to the argument, Petitioners-appellants, presenting their attack upon the judgment in six specifications of error,I. and bearing down heavily on the Ieading decision of Myers v. Commissioner, 6 T.C. 258 and the numer0us later cases which have followed its teaching urge upon us that the disti-ict judge has taken a too narrow and restrictive view of the law and too narrowly applied it to the undisputed facts, and that this is especially so as to the force and effect given in the decision to the recent statutory enactments. Pointing out that those enactments were declaratory of the controlling decisions and insisting that they must be liberally construed in the light of the circumstances of their enactment and the reports accompanying their passage, they argue that the district judge, instead of following the practical construction given by the courts and admonished by the statute, approached and decided the case from an unduly technical and restricted standpoint. For the reasons hereafter briefly stated, we agree that this is so, and that the judgment must be reversed and here rendered. For many years, indeed until the opinion in the Roe case, note 3, supra, the commissioner and the courts, in deciding the tax consequences of dealings with patents, held themselves to be strictly bound by the precise holding in Waterman v. MacKenzie, 138 U.S. 252, 11 S.Ct. 334, 34 L.Ed. 923, though the Waterman case dealt not at all with the taxation but with the infringement of patent rights and laid down a test for determining, for the purpose of the right to sue at law for infringement, whether there had been a license or an assignment thereof. United States v. Carruthers, 9 Cir., 219 F.2d 21, citing Allen v. Werner, 5 Cir., 190 F.2d 840, a pre-statute case. Cf. It took the decision of the tax court in the Roe case and the decisions following to change this and, but for the stubbornness in purpose along with the vacillation in action of the Treasury Department, there would have been no need for the recent legislation. Because, however, the Treasury for a time accepted the later decisions and then denied them, and then accepted and then denied them, leaving in a state of complete uncertainty the tax fate and fortunes of those undertaking to deal commercially with their patents, the Congress in Sec. 1235 of the 1954 Code enacted the first legislation in adoption and support of these decisions; and because thereafter the Treasury undertook to posit its acceptance of the declaratory rule of the statute, not on the fact that it was declaratory but on the assumption that it was derogatory of the controlling case law, and confined its acceptance of the rule to payments received after the passage of the statute, Congress then in 1956 amended Sec. 117 of the 1939 Code to add a subdivision “q” which in substance established the same rule for taxable years beginning after May 31, 1950, 26 U.S.C.A. § 117(q). While the district judge, reciting that the realities of the situation must control did cite many of the cases relied on by appellant, and did declare that the statute should receive a liberal interpretation, it seems to us that, because of the confusion brought on by the Treasury’s action, the court below fell into its error. This was that in endeavoring to find in the words of the statute alone the basis for appellants’ claim, whereas its real basis was in the case law, of which the statute was more or less declaratory, the court was led into a narrow, instead of a broad, construction, and thereby to deny to the undisputed facts in this case the results which, under the controlling decisions, followed from them. In other words, instead of viewing the transaction from the broad standpoint of case law and the reasons that lay behind that law, that a person having patent rights or claims to sell and dispose of ought to have the same benefit of capital gains treatment that persons having rights in any other capital asset had, notwithstanding the form in which such sales were cast, the court, over-emphasizing some of the apparently limiting words of the statute and under-emphasizing the declaratory and enabling ones, reached a conclusion as to the law of the case which we think is contrary to the facts on which that conclusion was based. Stating, “The interest which Bannister retained under the Schlumberger contract was not only substantial, but was the major portion of the whole”, the court went on to say: “First, the so-called ‘exclusive’ interest assigned to Schlumberger was not exclusive at all, save for a thirty-day period. The option lay with Bannister, on such notice, to cancel this feature of the contract, after which time he might have assigned to any number of third persons an equal or greater interest than Schlumberger held. Additionally, one characteristic, peculiar to the Bannister device, considered to be one of its principle advantages was its utility while the drill bit and pipe were in the well. Schlumberger was denied the right to use the Bannister device under these circumstances. And finally, when the contract, and the circumstances of the parties thereto, are examined from their four corners, the transaction has none of the characteristics of a sale of a patent. Schlumberger never intended to manufacture, to use, or in any way to exploit this device. Schlumberger intended only to continue using its own; but by means of acquiring seven of the twenty claims advanced for the Bannister tool (covering the aspects of similarity to their own), in effect, Schlum-berger bought its peace, in advance, against potential claims of patent infringement.” Instead, then, as we think he should have done, of attaching to the fact that Schlumberger did not intend to use the patent claims but bought them to obtain its peace, the significance, naturally attending such a transaction, that Schlumberger bought and Bannister sold every substantial or effective right which his claims afforded, the court seemed to think that because Bannister engaged in fruitless and costly efforts to make other phases of this patent work, and thus retained his right to those phases, this derogated from the sale of the claims to Schlumberger for the only purpose for which they had value to Schlumberger and, as it turned out, to Bannister himself. We think the court erred also in holding that because Bannister had the option to cancel on thirty days’ notice the exclusive interest feature of the contract, this defeated the sale. On the contrary, we think it clear that, as stated by Judge Bratton in Watson v. United States, 10 Cir., 222 F.2d 689, this reservation in no manner changed the fact that there was in fact and in law an effective sale, subject only to an optional condition which was never made effective. Cf. Allen v. Werner, 190 F.2d 840, at page 842, where the court states: “Nor does the existence in the grantee of the right of cancellation, or the prohibition of unlimited assignment require, under the circumstances here, determination that the agreement did not evidence a sale. Citing cases. tf We think that the necessary conclusion from the facts is not that which the court drew but the contrary, and that the judgment should be reversed and the cause remanded with directions to allow the claims. Reversed and remanded. . Bannister v. United States, 161 F.Supp. 298, 299. These are that- (1) The court erred in holding that the interest which appellant retained in the Bannister patent was substantial. (2) It erred in holding that the interest which appellant retained in the Bannister patent was the major portion of the whole. (3) It erred in failing to hold that appellant retained no substantial rights in the seven claims covered by the Schlumberger contract. (4) It erred in failing to hold that appellant retained no substantial rights in the seven claims covered by the Schlumberger contract in so far as the electrical side wall coring industry is concerned. (5) It erred in failing to hold that appellant retained no substantial rights m the Bannister patent in so far as the electrical side wall coring industry is concerned. n erred in faümS to hold that eaoh seS?rate claim m a patent is a separate invention. . Roe v. United States, D.C., 138 F.Supp. 567; United States v. Carruthers, 9 Cir., 219 F.2d 21; Allen v. Werner, 5 Cir., 190 F.2d 840; Watson v. United States, 10 Cir., 222 F.2d 689; Lawrence v. United States, 5 Cir., 242 F.2d 542; Storm v. United States, 5 Cir., 243 F.2d 708; Rollman v. Commissioner, 4 Cir., 244 F.2d 634; Dairy Queen of Okl., Inc. v. Commissioner, 10 Cir., 250 F.2d 503. . The case of Leonard Coplan, 28 T.C. 1189, thus correctly states the reasons why Congress passed the two statutes: “The problem in recent years has sometimes been identified with the Myers case, supra, and the varying administrative positions taken by Internal Revenue Service have revolved around its vacillating determination either to follow or not to follow the Myers case. Shortly after the decision in the Myers ease itself the Commissioner announced his acquiescence. 1946-1 Cum.Bull. 3. Thereafter, on March 20, 1950, he withdrew his acquiescence, and substituted a non-acquiescence, but announced that he would not apply the new ruling to royalties received during years beginning prior to June 1, 1950. Mim. 6490, 1950-1 Cum.Bull. 9. Congress thereupon undertook to deal with the problem legislatively in Sec. 1235 of the 1954 Code, which made clear that in certain types of situations an inventor or ‘holder’ of a patent might obtain capital gain treatment upon disposition of the patent. See Se.Rep. No. 1622, 83d Cong., 2d Sess., pp. 438-441. In effect, Congress approved the Myers decision in the circumstances set forth. Thereupon, tlie Commissioner issued another ruling, Rev.Rul. 55-58, 1955-1 Cum.Bull. 97, in which he announced that he would apply the new statute to payments received in 1954 and subsequent years, but that he would continue to apply his 1950 ruling to payments received in taxable years beginning after May 1, 1950, and before Jan. 1, 1954. This provoked Congress into taking further action in 1956, and it amended Sec. 117 of the 1939 Code so as to add a new subsection (q), which in substance established the same rule for taxable years beginning after May 31, 1950, as was applicable under the 1954 Code. See II.Rep. No. 1607, 84th Cong. 1st Sess.Int.Rev.Bull., supra, p. 117.” Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"? A. state or local tax B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates) C. federal tax - business income tax (includes corporate and parnership) D. federal tax - excess profits E. federal estate and gift tax F. federal tax - other G. patents H. copyrights I. trademarks J. trade secrets, personal intellectual property Answer:

songer_appel1_1_4

J

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant. ORENSTEIN & KOPPEL AKTIENGESELLSCHAFT v. KOPPEL INDUSTRIAL CAR & EQUIPMENT CO. No. 4937. Court of Appeals of District of Columbia. Submitted Dec. 2, 1929. Decided Feb. 4, 1930. D. H. Stanley, of Washington, D. C., and Sidney Struble, and A. G-. Hays, both of New York City, for appellant. C. H. Butler, J. A. Kratz, and Gr. L. Munter, all of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB and YAN ORSDEL, Associate Justices. VAN ORSDEL, Associate Justice. This case is here on special appeal from an order of the Supreme Court of the District of Columbia denying a motion by appellant, defendant below, to vacate an attachment against property belonging to the defendant. . It appears that, prior to the opening of the war, April 6, 1917, defendant, a joint-stock company organized under the laws o£ Germany, and having its principal place of business in this country, was transacting its business in the United States through various agencies. The business of defendant consisted principally in the manufacture and sale of industrial railway materials and equipment, and in the purchase and sale of merchandise on commission, including a large brokerage business. On June 15, 1918, the Alien Property Custodian seized the property of the defendant in the United States, and later sold the defendant’s property to plaintiff company for $1,312,000. It is alleged that the property sold consisted of real and personal tangible and intangible rights, claims, titles, and interests, including the business of defendant’s American branch as a going concern, together with the good will enjoyed by the defendant, including trade-names, trade-marks, symbols registered and unregistered, and patents. It is alleged that following the war defendant, in violation of the terns of its contract, opened offices and agencies in plaintiff’s territory, soliciting former customers to buy and sell merchandise of the kind previously dealt in by the American branch in competition with the plaintiff, using the names and symbols that had been transferred under the contract to the plaintiff. It is also alleged that defendant instituted vexatious and harassing suits and claims, not only in courts in this country, but in various foreign courts, and that it registered in territory where defendant carried on business the trade-marks, trade-names and symbols purchased by the plaintiff from the Alien Property Custodian. Plaintiff claims that by reason of these acts it has been damaged in the sum of $100,000, for which this suit was brought. In aid of its suit plaintiff attached $150,-000 of defendant’s money in the possession of the Alien Property Custodian; and we are asked to review the action of the court below in refusing to dissolve this attachment. Section 30 of Trading with the Enemy Act, as added by section 15 of the Settlement of War Claims Act of 1928, 45 Stat. 2,75 (50 USCA Appendix § 30), provides as follows : “Any money or other property returnable under subsection (b) or (n) of section 9 shall, at any time prior to such return, be subject to attachment in accordance with the provisions of the code of law for the District of Columbia, as amended, relating to attachments in suits at law and to attachments for the enforcement of judgments at law and decrees in equity, but any writ of attachment or garnishment issuing in any such suit, or for the enforcement of any judgment or decree, shall be served only upon the Alien Property Custodian, who shall for the purposes of this section be considered as holding credits in favor of the person entitled to such return to the extent of the value of the money or other property so returnable. Nothing in this section shall be construed as authorizing the taking of actual possession, by any officer of any court, of any money or other property held by the Alien Property Custodian or by the Treasurer of the United States.” Section 445 of the Code of the District of Columbia, among other things, provides: “In any action at law in the Supreme Court of the District of Columbia or the municipal court of said District, for the recovery of specific personal property, or a debt, or damages for the breach of a contract, express or implied, if the plaintiff, his agent or attorney, either at the commencement of the action or pending the same, shall file an affidavit showing the grounds of his claim and setting forth that the plaintiff has a just right to recover what is claimed in his declaration, * “ * and where the action is to recover damages for the breach of a contract setting out, specifically and in detail, the breach complained of and the actual damage resulting therefrom, ® ® ®' the clerk shall issue a writ of attachment,” etc. The question here is one of jurisdiction of the court to issue the attachment in question, and it must be decided solely upon the sufficiency of the declaration, regardless of any defenses available to the defendant, since these are waived by its motion to dissolve the attachment. We think the averments of the declaration, if ultimately sustained, establish plaintiff’s right to damages, if the Alien Property Custodian possessed the power to convey the property of defendant company in the manner alleged in the declaration, and thereby bind the defendant by the terms of the contract in an implied negative covenant not to engage in the future in business in the United States in violation of the terms of the conveyance. We are not impressed with the contention that, if defendant did business wrongfully, in violation of its contract, it would be guilty of the commission of a tort rather than a breach of contract. This brings us to the question of the power of the Alien Property Custodian with reference to the custody and disposition of alien property, coming into his possession as the result of the war. He occupied the relation to the owners of the property of a common-law trustee, and as such was vested with full power to act in compliance with the statutory authority vested in him by Congress. Under the provisions of section 30, supra, Congress was giving a remedy that did not before exist, by which contractual claimants might protect themselves against the funds in the custody of the Alien Property Custodian before the same should be removed from the jurisdiction of the courts of this country. The statute- is remedial, and is entitled to liberal construction, and, when the action is based upon or growing out of a contract express or implied, whether made with the alien or with the Alien Property Custodian, acting as his trustee and in his behalf, the remedy provided by the statute is available. In respect of the contract and the scope of its provisions as against defendant company, the Circuit Court of Appeals of the Second Circuit, in Koppel Industrial Car & Equipment Co. v. Orenstein & Koppel Aktiengesellschaft, 289 F. 446, 451, said: “We think this conveyed to the purchaser the exclusive right carry on the business in the United States, with the right of protection of a court of equity from interference by the German corporation; for, if the present interference be permitted, what was conveyed would in time he destroyed. The sale was as complete as if it were a voluntary convey-’ anee of its interests in the United States by the German corporation. It is not the case of a sale in invitum of the good will and business. Assuming a voluntary sale of its good will and business had been made by the German corporation, would it have been at liberty later to impair the good will by seeking the customers of the buyer and carrying on business, using substantially the same trade-name and trade symbol as they had theretofore used? We think not. * * * After the 'sale, in this instance, of the good will of the German corporation’s business, it had no right to represent itself as carrying on that business which had been sold or to use its trade-marks or symbols or to represent itself as a continuer of that business in this country. The avenue of relief to it for what it lost, through the fortunes of war, is some future action by the Congress, and this is made clean by the statute. This is the only relief the German corporation can look forward to. It had no right to change its name, and then have its representatives solicit the business in this country, using such name and such means as before described in seeking the business.” The contention of counsel for defendant that the declaration is not sufficiently explicit to sustain the cause of action is not well founded. We are here considering the sufficiency of the declaration on a motion to-dissolve the attachment. In view of the fact that the plaintiff is required, in order to secure the attachment, to give a bond in double the amount of his claim, the court would hesitate to place a technical construction upon the averments of the declaration, inasmuch as its terms may be enlarged or amplified in the future development of the issues in the ease. Speaking of the object of the attachment statute, this court, in Suter v. Lockwood Dental Co., 45 App. D. C. 92, 111, said: “We do not consider that the attachment statute is only meant to apply to those actions for damages for breach of contract which are precisely liquidated and ascertained. The object of the statute undoubtedly is to require such a statement of the damages suffered as will be informing to the defendant and enable him to prepare himself to meet the issue tendered.” It may be in future proceedings leading to a trial of the issues in this case that defendant will be entitled to a bill of particulars requiring the plaintiff to more specifically state the grounds upon which it is claimed that, damage has been sustained, hut these are matters with which we are not at this stage concerned, since, in our opinion, the declaration sufficiently states a case that will justify the issuing of an attachment as provided in the statute. Counsel for defendant attack the provisions of section 30, supra, as unconstitutional and void. This contention can be disposed of briefly in view of the power vested in the government to seize alien property in time of war. That this is alien property is not contested. Disposing of a similar contention, Mr. Justice Holmes, in White v. Mechanics’ Securities Corporation, 269 U. S. 283, 300, 46 S. Ct. 116, 118, 70 L. Ed. 275, said: “The funds were seized adversely by the United States in time of war. They are in its hands; it has declared by an Act of Congress what shall be done with them, and that is the end of the matter. There is no question that such a seizure and disposition are within its powers. * * * The United States seized the property in question from an enemy and of course could do with it what it liked.” This holding is supported in United States v. Chemical Foundation, 272 U. S. 1, 47 S. Ct. 1, 71 L. Ed. 131; Swiss National Insurance Co. v. Miller, 267 U. S. 42, 45 S. Ct. 213, 69 L. Ed. 504. The unlimited power of the government to provide for the disposition of alien property funds is also specifically ratified by the Treaty of Berlin, § 297, subsee. (d), and Annex to section 4, sub-secs. 1 and 3. The order is affirmed, with costs, and the cause is remanded for further proceedings. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant? A. auto, auto parts, auto repairs B. chemical C. drug D. food E. oil, natural gas, gasoline F. textile, clothing G. electronic H. alcohol or tobacco I. general merchandise J. other K. unclear Answer:

songer_genresp1

E

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. UNITED STATES of America ex rel. William G. CARROL, Petitioner-Appellant, v. Robert E. MURPHY, Warden of Auburn State Prison, Auburn, New York, Respondent-Appellee. No. 480, Docket 28764. United States Court of Appeals Second Circuit. Submitted June 2, 1964. Decided June 8, 1964. William G. Carrol, pro se. Amy Juviler, Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., of the State of New York (Samuel A. Hirshowitz, First Asst. Atty. Gen., Barry Mahoney, Deputy Asst. Atty. Gen., on brief), for appellee. Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges. PER CURIAM. William G. Carrol, now serving a New York sentence for burglary and grand larceny, petitioned the District Court for the Northern District of New York for a writ of habeas corpus on the ground that his conviction, affirmed by the Appellate Division in People v. Carrol, 18 A.D.2d 934, 238 N.Y.S.2d 558 (2d Dept.1963), resulted in part from the admission of a confession allegedly made in order to procure the release of his wife from custody. Judge Foley dismissed the petition, initially on the ground of failure to complete the New York appellate process and later, after a petition for reconsideration had disclosed that leave to appeal to the Court of Appeals had been denied on the merits, on the basis that coram ~n,obir might be available in New York. The proceedings in the New York courts subsequent to our decision, on rather similar grounds, in United States ex rel. Martin v. Murphy, 2 Cir., 319 F.2d 897 (1963), order vacated June 1, 1964, demonstrate the unavailability of corain noble in New York in cases where, as here, the voluntary character of a confession had been fully litigated at the criminal trial. See People v. Howard, 12 N.Y.2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113 (1962); People v. Liss, 14 N.Y.2d 570, 248 N.Y.S.2d 660, 198 N.E.2d 45 (1964). Indeed, the state does not dispute this. The issue on the merits is serious, relator contending that he had been held for 46 hours and confessed only in order to procure the release of his wife in whose car stolen goods had been planted, and the state responding that the delay in relator's arraignment was sought by his own counsel, that there were good grounds for suspecting the wife and taking her into custody, and that the confession was made on the advice of relator's lawyer. Although all this was developed in the state criminal trial, the general verdict of the jury is not conclusive. Haynes v. Washington, 373 U.S. 503, 515-516, 83 S.Ct. 1336, 10 L.Ed. 513 (1963). We do not wish to decide this issue without further proceedings before the district judge. Accordingly we reverse the order dismissing the petition and remand for appropriate findings and conclusions by the District Court, either on the basis of the state court record alone or on taking further evidence if the judge considers that this would be helpful in resolving disputed factual issues. Reversed and remanded. 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_habeas

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts. UNITED STATES ex rel. DANIKAS v. DAY, Commissioner of Immigration, and three other cases. Circuit Court of Appeals, Second Circuit. July 20, 1927. Nos. 240, 384, 385, 387. 1. Aliens <3=54(5) — Warrant for deportation of alien seaman unlawfully remaining in country must issue within three years, rather than five, under statute (Immigration Act 1917, §§ 19, 34 [Comp. St. §§ 4289'AÜ. 4289'/4s]). Under Immigration Act 1917, § 34 (Comp. St. § 4289%s), providing that any alien seaman landing contrary to provisions of such act shall be deemed to be unlawfully in the United States, “and shall at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody * * * for examination, and if not admitted shall be deported,” warrant for deportation of seaman unlawfully entering must issue within three years, notwithstanding section 19 (section 428914X1), establishing a five-year limitation as to other aliens. 2. Aliens <3=54(5) — Under statute, date when alien is taken Into custody, rather than date of issuance of warrant of arrest, determines whether proceedings were commenced within three-year period of limitation (Immigration Act 1917, § 34 [Comp. St. § 4289'/4s]). Under Immigration Act 1917, § 34 (Comp. St. § 428914s), providing that alien seaman landing contrary to provisions of such act shall be deemed unlawfully in the United State*, “and shall at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody” for examination, and if not admitted shall be deported, the date on which the alien is taken into custody, and not that on which the warrant of arrest is issued, determines whether proceedings are commenced within three-year period. 3. Appeal and error <3=345(1) — 'Time for appeal does not run until motion for rehearing is disposed of. Time within which an appeal must be taken does not begin to run until motion for rehearing has been disposed of. 4. Habeas corpus <@=II3(3) — Appeal from order denying roargument in habeas corpus proceeding held improperly taken, and dismissible. In habeas corpus proceeding on relation of alien held for deportation, appeal by government from order denying motion for reargument held improperly taken, and dismissible. 5. Appeal and error <S=77(I) — Order denying reargument in habeas corpus proceeding is not final and appealable. jn habeas corpus proceeding, order denying reargument is not final and appealable. Appeals from, the District Court of the United States for the Southern District of New York. Writs of habeas corpus were granted on the relation of Yasillios Danikas, of Yineenzo Di Giacomo, of George Depastas, and of Mauro Lorusso against Benjamin M. Day, Commissioner. Orders were granted in each ease, sustaining the writ and discharging the relator, and respondent appeals. Appeal in Danikas Case dismissed, and the orders in the other cases affirmed. Danikas. The relator, an alien, is a native and subject of Greece. On January 2, 1922, he arrived at the port of New York as a member of the crew of the steamship Constantinople and deserted his ship. He was not examined by the immigration authorities for permanent admission to the United States at the time of his arrival, nor was he charged to the quota allotted to Greece for the fiscal year ending June 30, 1922. After his desertion he remained in this country, and on October 30, 1924, voluntarily appeared at Ellis Island for inspection at the suggestion of his attorney, and requested that his entry be legalized. On the facts ascertained as to the manner and time of his entry, a warrant of arrest was issued November 13, 1924, but ho was not arrested under the warrant until January 22, 1926. He was charged in the warrant with being liable to deportation under the Immigration Act of May 26, 1924 (Comp. St. §§ 4289%-4289%nn), in that he was not in possession of an unexpired immigration visa, and that he had been found in the United States in violation of the Immigration Act of February 5, 1917, because he was likely to become a public charge at the time of his entry, and had entered at a time or place other than as designated by immigration officials. On January 22, 1926, the alien was brought before a Board of Special Inquiry for examination, pursuant to section 34 of the Act of February 5, 1917 (Comp. St. § 42891,4s). The board failed to sustain the charge that he was in the United States in violation of the act of 1924, hut a warrant of deportation was issued on the ground that he entered the United States without being admitted and charged to the quota allotted to the country of which he was a native for the fiscal year ended June 30, 1922, and because he entered by water at a place other than as designated by immigration officials and was a person likely to become a public charge at ' the time of his entry. A writ of habeas corpus was then sued out, whieh was sustained by order of March 31, 1926. The judge who made this order thereafter issued ap order to show cause why the order of March 31st should not be vacated, and the alien should not be allowed to amend his return. This motion was denied by order of June 11, 1926, and the Commissioner of Immigration filed a petition of appeal from the order of June 11. Di Giacomo. This relator is a native and subject of Italy. On October 14,1922, he arrived at the port of New York on the steamship Guglielmo Pierce as a member of the crew, and deserted his vessel and remained in the United States. On October 13, 1925, after an investigation that disclosed he was illegally in the country, a warrant of arrest issued on October 14, 1925, on the ground that he was in the country in excess of quota, and had entered at a time and place other than as designated by the immigration officials. As he had gone to Philadelphia he was not taken into custody under the warrant until January 6,1926, after his return. The alien stated that when his ship arrived he went to visit some relatives in Long-Island, became sick, and stayed there about two weeks. On his return he found his ship had gone, looked for another ship, and then looked for work. A warrant of deportation was then issued, after a hearing before a Board of Special Inquiry, because he entered the United States without being admitted and charged to the quota of the country of whieh he was a native for the fiscal year ending June 30, 1923, and because he entered by water at a time or place other than as designated by immigration officials. A writ of habeas corpus was thereafter sued out, whieh was sustained, and from the order sustaining the writ this appeal has been taken. Depastas. This relator is a native and subject of Greece. On January 30, 1922, he arrived at the port of New York on the steamship King Alexander as a member of the crew. Upon arrival he deserted the ship and entered this country, obtained employment, and has remained here ever since. On June 10, 1924, a warrant of arrest was issued, but he was not arrested until November, 1926. He was given a hearing before an immigrant inspector, and ordered deported by warrant dated November 29, 1926, on the ground that the quota for the year ended June 30, 1922, allotted to the country of whieh he was a native, was exhausted. A writ Of habeas corpus was thereafter sued out which was sustained, from the order sustaining whieh this appeal has been taken. Lorusso. This relator arrived in this country on the steamship Presidente Wilson as a member of the crew, on March 14,1923. He was reported as a deserter on March 18, 1923, but the warrant for his arrest did not issue until November 11, 1926, and was apparently not served until December 7, 1926, when he was brought to Ellis Island and given a hearing before an inspector of immigration. He was ordered deported, by warrant dated January 6, 1927, on the ground that he entered the United States without being admitted and charged to the quota allotted to the country of which he was a native, for the fiscal year ended June 30, 1923. A writ of habeas corpus was thereafter sued out, whieh was sustained, from the order sustaining which this appeal has been taken. Charles H. Tuttle, U. S. Atty., of New York City (Edward Eeldman, Asst. U. S. Atty., of New York City, of counsel), for appellant. Charles J. Gerlieh, Jr., of New York City, for appellees Danikas and Depastas. Harry H. Hoffnagle, of New York City (MeCready Sykes, of New York City, of counsel), for appellee Di Giacomo. - Isaac Shorr, of New York City (Carol Weiss King, of New York City, of counsel), for appellee Lorusso. James C. Thomas, of New York City, amicus curias. Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above). The main question discussed in each-of the foregoing eases is whether the warrant of deportation issued too late. Section 34 of the Immigration Act of 1917 provides: “That any alien seamen who shall land in a port of the United States contrary to the provisions of this act shall be deemed to be unlawfully in the United States, and shall, at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into eustody and brought before a board of special inquiry for examination as to his qualifications for admission to the United States, and if not admitted said alien seaman shall be deported at the expense of the appropriation for this act as provided in section twenty of this act.” This section, naturally read, would seem to require the Secretary of Labor to arrest a seaman within three years after unlawfully landing in the country, if he sought to deport him; but the government, in spite of the quite unqualified language, contends that the section only determines the admissibility of a seaman, as sections 12-17 (Comp. St. §§ 4289%g-4289%,ii) do of other classes, and that seamen, as well as all other persons, are subject to deportation under section 19 (Comp. St. § 42891/4jj), which contains a live-year statute of limitation for excludable persons, except in the ease of irregular entry, where the time is three years. Certainly this contention is not sound as to causes such as insufficiency of quota, which is an irregularity connected with entry, even if the provisions of section 19 may bo thought to apply to deportation of seamen for offenses subsequent to their arrival. One of the provisions of section 19 is that “ * * * at any time within three years after entry, any alien who shall have entered the United States by water at any time or place other than as designated by immigration officials, or by land at any place other than'one designated as a port of entry for aliens by the Commissioner General of Immigration, or at any time not designated by immigration officials, or who enters without inspection, shall, upon warrant of the Secretary of Labor, be taken into eustody and deported. * * * ” The government in its brief says that: “Section 34 is simply an exception to this provision of section 19. An alien seaman arrested within three years after an unlawful entry may not be deported on that ground. * * • In that respect, and in that respect only, we submit, is the status of an alien seaman in this country different from that of an ordinary alien.” We can, however, see nothing in section 34 which limits its purpose to giving a hearing to seamen as to their admissibility. Indeed, it is not true, as claimed, that persons, other than seamen, are in all cases denied belated hearings on their qualifications for admission. On April 20, 1926, the Bureau of Immigration promulgated upon the subject of “nunc pro tune examinations” a first amendment to General Order No. 37. That amendment provided for such hearings to determine the status of aliens, when entries were before July, 1921, and between July 1, 1921, and July 1, 1924, where the alien might have been admitted for permanfent residence as exempt from quota. It must be remembered that it had been held by the Supreme Court in Taylor v. United States, 207 U. S. 120, 23 S. Ct. 53, 52 L. Ed. 130, that deserting seamen did not come within the immigration laws. The provisions of the act of 1917, including section 34 under discussion, wore enacted to bring them within the law, and that was the only act prior to that of 1924 that' dealt with them in terms. Section 34 provides that seamen who land “contrary to the provisions of this act,” not merely those who land without inspection, can be deported within three years, if they cannot establish their qualifications for admission to the satisfaction of a Board of Special Inquiry. Indeed, section 19 provides for only a three-year limitation in respect to entry of any person without inspection, so that section 34 was not needed to cover mere irregular entry by seamen, if they were deportable under section 19. The view that section 34 alone regulates the deportation of seamen was taken by Judge Learned Hand in United States ex rel. Filippini v. Day, 18 F.(2d) 781, decided in the District Court December 3, 1926. There is strong ground for this, as nothing else dealt with them in terms, and prior to the act of 1917, by reason of the decision in Taylor v. United States, supra, they wore not deport-able. The Circuit Court of Appeals of the Ninth Circuit, in Nagel v. Hansen, 17 F.(2d) 557, seems to have reached the same result. We can in any event see no escape from the conclusion that section 34 regulates the deportation of seamen in all eases relating to improper entry sueh as entry in excess of quota. Moreover, if the strict language of section 19 be considered, it seems unlikely that a seaman can be regarded as a person “who at the time of entry was a member of one or more of the classes excluded by law.” It is his change of status by remaining which makes his presence here unlawful. Two other questions are said to have been decided erroneously by the court below. The first is that, even if the three-year statute1 of limitation be taken to apply to any of these eases, the proceedings in the Danikas, the Di Giacomo, and the Depastas Cases were all commenced within the three-year period. The date which the government insists is the eritical one is that when the warrant of arrest is issued, and not when the alien is taken into custody. The other point is raised by the relator Danikas, who contends that the appeal in his case was not timely, and that the order sustaining the writ is not brought up for review. The proceedings were in each case taken too late. As was said in United States ex rel. Filippini v. Day, supra, “it is now the arrest which counts,” and not the date of issue of the warrant or the time of the actual deportation. In United States ex rel. David v. Tod (C. C. A.) 289 F. 60, and United States ex rel. Patton v. Tod (C. C. A.) 297 F. 385, the proceedings were under sections 19 and 20 of the Immigration Act (Comp. St. §§ 4289%jj, 4289%k), and did not relate to seamen. In each case the arrest was within the statutory limit of five years from the date of entry. It was held that section 20, providing, as it did, “if deportation proceedings are instituted at any time within five years after the date of entry,” was satisfied where the warrant was issued and served within the five years. Section 34 is much plainer, for it says nothing about the institution of proceedings, but provides that “any alien seaman who shall land in a port of the.United States contrary to the provisions of this act, * * * and shall at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody, * * * shall be deported.” This, by the plainest language, makes the taking “into custody” within three years from landing the critical factor. In the Danikas Case the appeal was seasonable, because the time did not begin to run until the motion for a rehearing was disposed of (Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31, 14 S. Ct. 4, 37 L. Ed. 986; Northern Pacific R. R. v. Holmes, 155 U. S. 137, 15 S. Ct. 28, 39 L. Ed. 99), but there was no appeal from the order sustaining the writ, inasmuch as the petition on appeal referred only to the order denying the motion for a reargument. It is fortunate that we find no error in the disposition of the writ, for the appeal as taken does not cover the order sustaining it, and the order denying the motion for a reargument, from which alone the appeal has been taken, is not appealable, because it is not a final order. The appeal in the Danikas* Case must accordingly be dismissed. The orders sustaining the writs on behalf of Di Giacomo, Depastas, and Lorusso are affirmed. Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus? A. no B. yes, state habeas corpus (criminal) C. yes, federal habeas corpus (criminal) D. yes, federal habeas corpus relating to deportation Answer:

songer_source

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. JOHNSON v. RAILWAY EXPRESS AGENCY, Inc. No. 7994. Circuit Court of Appeals, Seventh Circuit. Nov. 27, 1942. Rehearing Denied Jan. 4, 1943. SPARKS, Circuit Judge, dissenting. John A. Dill, and Burt A. Crowe, both of Chicago, Ill., for appellant. Royal W. Irwin, of Chicago, Ill., for appellee. Before EVANS, SPARKS, and MAJOR, Circuit Judges. MAJOR, Circuit Judge. This is an appeal from a judgment in favor of the plaintiff, entered on February 27, 1942, in an action to recover damages for personal injury sustained as a result of a collision between a bicycle ridden by the plaintiff and a truck driven by defendant’s servant. The accident occurred at about ten o’clock at night on April 26, 1940, at the intersection of Jefferson and Michigan Streets in Joliet, Illinois. Jefferson Street at the point of intersection was about forty-five feet in width and extended east and west, while Michigan Street was about thirty-six feet in width and extended north and south. Both streets were paved with concrete, and there were four brightly burning electric lights at the intersection. Plaintiff, a boy thirteen years of age, was riding a bicycle in a westerly direction on the north side and near the curb on Jefferson Street. As he approached the intersection, he observed defendant’s truck traveling east on the south side of Jefferson, also approaching the intersection. The driver of defendant’s truck intended and did make a left turn at the intersection and headed north on Michigan Street. As the truck approached the intersection, it headed in a somewhat northeasterly direction toward the center of Jefferson Street, apparently preparatory to making a left turn. While there is some discrepancy in plaintiff’s testimony as to his exact location at the time defendant’s truck reached the intersection, his testimony fairly discloses that plaintiff and defendant’s driver arrived at the intersection at substantially the same time. Plaintiff, thinking that he could not with safety proceed in front of the truck, turned his bicycle to the left with the view of passing the truck at its rear. To do so, it was necessary for him to pass onto the south side of the center of Jefferson Street. He discovered, however, that there were cars approaching from the west and for this reason he could not pass the rear of the truck. Hence, plaintiff collided with the truck at a point near its rear end, either while the truck was making the left turn or after it had made the turn and was headed north. The sole error relied upon for reversal arises from the court’s refusal to direct a verdict in favor of the defendant. It is argued that the action of the court in this respect was erroneous for two reasons — ■ (1) that the plaintiff was guilty of such contributory negligence as to bar recovery, and (2) that there was a failure of proof as to negligence, with which the defendant was charged. Defendant’s argument as to plaintiff’s contributory negligence is predicated largely upon the contention that the bicycle ridden by the plaintiff was without a headlight in violation of the Illinois statute. Plaintiff contends that the statute makes no such requirement. The issue thus raised involves a construction of certain provisions of the Uniform Act Regulating Traffic on Highways, approved July 9, 1935. (Illinois Revised Statutes, 1939, Chap. 95%-) Defendant relies upon Section 107 of Article XV, entitled “Equipment”, which provides: “Lamps on other vehicles and equipment. All vehicles, including animal-drawn vehicles and including those referred to in Section 102(b) not hereinbefore specifically required to be equipped with lamps, shall at the times specified in section 103 hereof be equipped with at least one lighted lamp or lantern exhibiting a white light visible from a distance of 500 feet to the front of such vehicle and with a lamp or lantern exhibiting a red light visible from a distance of 500 feet to the rear.” Section 102(b) referred to in this section has to do with certain implements of husbandry and is not material. Section 103 referred to in this section provides, among other things: “When upon any highway in this State, during the period from sunset to sunrise, every motorcycle shall carry one lighted lamp and every motor vehicle two lighted lamps showing white lights, or lights of a yellow or amber tint, visible at least five hundred (500) feet in the direction toward which each motorcycle or motor vehicle is proceeding,” etc. It is at once apparent that if Section 107 is applicable, it must be because bicycles are included in the term “all vehicles”. That such is not the case, however, is definitely refuted by Section 2(a) of Article I of the Act, whereby the term “vehicle” as used in the Act is defined: “Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power, or used exclusively upon stationary rails or tracks.” A bicycle being a device “moved by human power”, is thus excluded from the term “vehicle”. It would seem to follow that the word “vehicle” used in Section 107 does not include bicycles. Defendant, however, further calls our attention to Section 24 of Article II of the Act, as follows: “Traffic laws apply to persons riding bicycles or animals or driving animal-drawn vehicles. Every person riding a bicycle or an animal or driving any animal drawing a vehicle upon a roadway shall be subject to the provision of this Act applicable to the driver of a vehicle, except those provisions of this Act which by their nature can have no application.” If this section sustains defendant’s contention, it is in direct conflict with the section excluding bicycles from the word “vehicle”. We are of the view that the requirements of Section 24 are directed at the conduct of persons and not the things therein enumerated. Under this view, there is no conflict between the two paragraphs. So far as we are advised, the question under discussion has not been decided by an Illinois court. We feel reasonably certain, however, that the statute which requires headlights upon certain vehicles when operated on the highway at night has no application to a bicycle. If it be assumed, however, that defendant’s contention in this respect is tenable, it would not necessarily follow that plaintiff’s failure to observe the statutory provision would bar recovery. It still might be a question for the jury, as to whether the alleged violation was the proximate cause of the injury. Jeneary v. Chicago & I. Traction Co., 306 Ill. 392, 395, 138 N.E. 203. The negligence charged against the defendant, so far as here material, was that its driver made a left hand turn into Michigan Street to the left of the center of the intersection of Michigan and Jefferson, and that the left hand turn was made without giving suitable, sufficient and proper notice, signal and warning. Plaintiff stresses the argument that the defendant, in making the left hand turn, “cut the corner”; that is, that the turn was made to the left of the center of the street intersection rather than to the right, as apparently is required by Section 62(b) of the Act heretofore referred to. On the other hand, the defendant insists that even though it “cut the corner,” which it denies, that this could not have been the proximate cause of the collision. The question thus' presented is a close one, but we are not prepared to deny plaintiff’s contention in this respect. We are of the view that it could have been the proximate cause. But whether so or not, a decision on this point is not determinative of the action of the court in submitting the cause to the jury. A more impressive 'argument is predicated upon defendant’s alleged failure to observe Section 69 of the Act, which provides: “Any driver of a vehicle approaching an intersection with the intent to make a left turn shall do so with caution and with due regard for traffic approaching from the opposite direction and shall not make such left turn until he can do so with safety.” This provision, no doubt, is applicable, irrespective of whether defendant made a left hand turn to the left or the right of the center of the street intersection. Again, no Illinois court has construed this section, but apparently it imposes a heavy responsibility upon a driver making a left hand turn. Defendant’s driver testified that in making the turn he stopped the truck at the center of Jefferson Street for the purpose of permitting the passage of two cars traveling west on Jefferson. Evidently, these were the same two cars referred to by the plaintiff as following him at the time he approached the intersection. There is room for argument that it was the duty of the driver to refrain from proceeding north on Michigan until the west-bound traffic on Jefferson (which included the plaintiff) had been given an opportunity to clear the intersection. After the two cars passed, however, defendant proceeded north on Michigan and blocked Jefferson street to west-bound traffic. It was under these circumstances that the collision occurred. Defendant’s driver testified, and perhaps truthfully, that he did not see plaintiff until after the collision. It may be that his vision was obstructed by the approaching cars or that he was blinded by their lights, just as plaintiff said he was blinded by the lights from defendant’s truck. If, by the exercise of ordinary care, however, he could have discovered plaintiff’s approach, he was charged with the duty not to make “such left hand turn until he can do so with safety.” We think a jury question was presented as to whether defendant’s driver should have been aware of plaintiff’s approach, and whether the blocking of plaintiff’s passage was the proximate cause of the collision.. Furthermore, if defendant was responsible for placing the plaintiff in a perilous situation, and we think it reasonably may be inferred that it was, it is in no position to contend that plaintiff, under such circumstances, should have done something different in order to avoid the collision. Obviously, he could not pass in front of the truck, and when he endeavored to pass to the rear discovered too late the cars approaching from the opposite direction. True, it appears that he might have stopped his bicycle in time to have avoided the collision, but it is not helpful to speculate on what might have been done. We are not prepared to hold as a matter of law either that there was such contributory negligence on the part of the plaintiff or such freedom from negligence on the part of the defendant as to bar a recovery. These were proper questions for a jury, and the court did not err in its submission. The judgment is Affirmed. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:

songer_usc1sect

1014

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 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES of America, Plaintiff-Appellee, v. Elmer RUEHRUP, Defendant-Appellant. No. 14542. United States Court of Appeals Seventh Circuit. June 24, 1964. Rehearing Denied July 27, 1964. Certiorari Denied Nov. 9, 1964. See 85 S.Ct. 194. Emerson Baetz, Alton, Ill., G. Gordon Burroughs, Edwardsville, Ill., for appellant. Edward R. Phelps, U. S. Atty., Leon G. Scroggins, Asst. U. S. Atty., Springfield, Ill., Thomas F. Londrigan, Asst. U. S. Atty., Springfield, Ill., for appellee. Before HASTINGS, Chief Judge, and SCHNACKENBERG and SWYGERT, Circuit Judges. HASTINGS, Chief Judge. Defendant Elmer Ruehrup is appealing from a judgment of conviction and sentence imposed thereunder for making false statements for the purpose of influencing an agency of the Farm Credit Administration, in violation of 18 U.S. C.A. § 1014. The prosecution was by information, defendant having waived an indictment. The information was in three counts, alleging the making of overstatements on October 20, 1959, April 25, 1960 and December 13, 1960 as to the quantity of soybeans held in the elevators of the Alhambra Grain and Feed Company (company), Alhambra, Illinois. Defendant entered a plea of not guilty and trial was had by jury in the Southern District of Illinois. The jury verdict found defendant guilty on all three counts. Defendant was sentenced to the custody of the Attorney General for imprisonment for a period of two years on each count, the sentences to run concurrently. The sentence stated that defendant would become eligible for parole upon serving a term of four months. No fine was imposed. In 1948, defendant became manager of the company, which had for years been a borrower from the St. Louis Bank of Cooperatives (bank) at St. Louis, Missouri, an agency of the Farm Credit Administration. The company, through defendant, periodically filed statements for purposes of credit with the bank showing the quantity of grain on hand. The company, in connection with its grain storage business, engaged in processing soybeans into soybean oil and soybean meal by the so-called “expeller process.” This process squeezed the beans between rollers and was less efficient than the “solvent extraction process,” used by some competitors, which applied a chemical to the beans. The company met the prices of competitors who used the more efficient method. In order not to show losses on its books, defendant did not enter the actual quantity of soybeans processed, rather, he entered the quantity which would have been processed if the more efficient method had been used. This practice resulted in recording a greater quantity of soybeans on the books than were in storage. In January, 1961, the bank sent inspectors to the company to measure the amount of soybeans in storage. Defendant admitted, prior to such measurement, that there were approximately 100,000 fewer bushels in storage than recorded on the books. This approximation proved to be substantially correct. The company was adjudicated a bankrupt. On January 10, 1964, defendant was convicted and sentenced. On appeal, defendant contends that the district court committed reversible error by denying motions for acquittal due to improper venue; permitting a self-incriminatory statement signed by defendant to be admitted into evidence; refusing to expunge a portion of this statement from evidence; and improperly ruling on objections to testimony. I. Defendant urges that since the alleged false statements and reports were submitted to the St. Louis Bank of Cooperatives in St. Louis, Missouri, venue was solely in the Eastern District of Missouri and that the trial court erred in denying his motions for acquittal. Defendant contends that the offense proscribed in 18 U.S.C.A. § 1014, fn. 1 supra, is the delivery or communication of the false statement, and this occurred only in St. Louis. He relies on U.S. Const, art. Ill, § 2, U.S.Const. amend. VI and Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961). In Travis, “petitioner was charged * * * with the making and filing of false non-Communist affidavits required by § 9(h) of the National Labor Relations Act.” Id. 364 U.S. at 632, 81 S.Ct. at 359. Petitioner executed and mailed the alleged false writings in Colorado and they were filed with the National Labor Relations Board in Washington, D. C. Petitioner was indicted and convicted in the United States District Court for the District of Colorado. The Supreme Court reversed the conviction and held that venue lay only in the District of Columbia. The Supreme Court stated in Travis that: “Section 9(h) of the National Labor Relations Act, with which we are concerned, did not require union officers to file non-Communist affidavits. If it had, the whole process of filing, including the use of the mails, might logically be construed to constitute the offense. But this statutory design is different. It requires that the Board shall make no investigation nor issue any complaint in the matters described in § 9(h) ‘unless there is on file with the Board’ a non-Communist affidavit of each union officer. The filings are conditions precedent to a union’s use of the Board’s procedures. * * * The words of the Act — ‘unless there is on file with the Board’ — suggest to us that the filing must be completed before there is a ‘matter within the jurisdiction’ of the Board within the meaning of the false statement statute. When § 9(h) provides the criminal penalty, it makes the penal provisions applicable ‘to such affidavits,’ viz., to those ‘on file with the Board.’ ” Id. 364 U.S. at 635, 636, 81 S.Ct. at 361, 362. We agree with the Tenth Circuit that Travis is not controlling and is limited to the statute there involved. Imperial Meat Company v. United States, 10 Cir., 316 F.2d 435, 440 (1963). We conclude, as did the district court, that 18 U.S.C.A. § 3237(a) is controlling. The following events occurred in Illinois in the instant case. Defendant prepared rough drafts of the statements in issue. A stenographer typed the statements and submitted them to defendant for approval. The stenographer deposited the statements in the mail. These events were the beginning of the offenses charged and the offenses were completed when the statements were received by the bank. See De Rosier v. United States, 5 Cir., 218 F.2d 420, 422 (1955), cert. denied, 349 U.S. 921, 75 S.Ct. 660, 99 L.Ed. 1253. We find no merit in defendant’s contention that the wording of the information was so vague that defendant could now be subsequently prosecuted in the Eastern District of Missouri on charges arising from the same written statements in issue here We hold that venue was properly-laid in the Southern District of Illinois and the trial court’s denial of motions for acquittal was not error. II. Defendant asserts that the district court committed prejudicial error in overruling his objection to the admission in evidence of a statement signed by him in the absence of his attorney. On August 8, 1962, Robert Trout, a Special Agent of the Federal Bureau of Investigation, called at defendant’s farm home to question him concerning possible criminal aspects of the soybean shortage. Trout testified at the trial that, “at the beginning of the interview * * * I explained the nature of my visit to * * * [defendant] and informed him that he was under no obligation to discuss the matter * * * unless he desired to do so and that prior to discussing it, if he wished, he had the right to consult an attorney.” Defendant informed Trout that his attorney was out of town. Trout told him that it was not necessary the attorney be present. Defendant stated that he had made several statements to others and had no objection to discussing the matter. At the conclusion of their talk, Trout told defendant he desired to reduce the information to a written statement to be signed by defendant. Defendant replied he would sign such a statement. Trout prepared a statement in the first person and the following morning defendant signed it in the presence of Trout and defendant’s wife, who signed as witnesses.. Defendant testified as follows concerning his signing the statement: “The Court: And the very first paragraph [of the signed statement] said this, T, Elmer H. Ruehrup, make the following voluntary statement to Special Agent Robert B. Trout, who has identified himself to me as a Special Agent of the Federal Bureau of Investigation, United States Department of Justice. No threats, promises, or duress of any kind have been used to induce me to make this statement. I realize that I have the right to consult an attorney prior to making any statement, and I also realize that any statement made by me may be used against me in a court of law.’ “Now that paragraph was in there, and you read it, is that correct? “The Witness [Defendant]: Yes, sir. “The Court: And you signed it after you read it, is that correct? “The Witness [Defendant]: Yes, sir.” Defendant cites Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) and argues his constitutional rights were violated in that he was denied effective representation of counsel. He asserts that he “occupied the same position as one under arrest,” since “[w]ithin eleven days * * * [of the signing of the statement] the government was ready to initiate prosecution, and it is fair to infer that prosecution was in mind when Trout was questioning the defendant and preparing a statement for him to sign.” We find no similarity between Spano and the instant case. In Spano, petitioner had been indicted for first-degree murder. He retained counsel who instructed him to answer no questions. Petitioner was thereafter subjected to persistent and continuous questioning. He repeatedly requested and was denied an opportunity to consult his attorney. After eight hours of constant questioning he confessed. The Supreme Court reversed petitioner’s conviction and stated that “petitioner’s will was overborne by official pressure, fatigue and sympathy falsely aroused,” id. 360 U.S. at 323, 79 S.Ct. at 1207, and as a result his confession was not voluntary. In the present case, defendant had full knowledge of his right to consult an attorney prior to signing the statement and that the statement could be used against him in court. With this knowledge, he voluntarily signed the statement. No constitutional right of defendant was violated and the district court did not err in admitting the statement in evidence. III. Defendant contends that, assuming the signed statement was admissible, the district court erred in refusing to expunge from such statement recitations of wrongdoing unconnected with the filing of false grain inventory reports. These recitations concerned nonexistent oil contracts and were, inter alia, as follows: “In addition to the inventory shortage as indicated above, there is another shortage of $96,779.55 consisting of nonexistent oil contracts which were shown on the company books as assets. These oil contracts accumulated through the years 1956 to 1960 and were included in the records of the company in order that the company books would show a profit for the years in question even though there were actual losses during those years. * * * ” The trial court refused to expunge these recitations and held them admissible for two purposes: “I’ll say that this is being admitted for two purposes: One, in response to a question that he did not know in the inventory what the oil contracts were. And, secondly, that the jury might take this into consideration for the sole and only purpose of arriving at intent, and not for the purpose of finding this man guilty under the charge on the indictment.” Judge Knoch, speaking for the court in United States v. McCartney, 7 Cir., 264 F.2d 628, 631 (1959), cert. denied, 361 U.S. 845, 80 S.Ct. 98, 4 L.Ed.2d 83, said, “As a general rule, of course, evidence of another offense, wholly independent of the one charged is inadmissible. However, in this case, the conversation was part of the res gestae. * * * Evidence even of other criminal acts is admissible when so blended or connected with the crime of which defendant is accused that proof of one incidentally involves the other or explains the circumstances thereof.” The misrepresentation of the soybean inventory and the making of nonexistent oil contracts had the same effect and purpose, in part, viz., increasing the assets on the company’s books and enabling the company to show a “paper” profit. Part of the requisite intent with which defendant was charged (18 U.S.C.A. § 1014, fn. 1 supra) was knowingly making a false statement or willfully overvaluing property. This same intent would be present if false contracts were drawn up by defendant to misrepresent the assets of the company. Proof that defendant drew up false contracts and had them entered as assets on the company’s books would be evidence tending to show his intent to make false statements and overvalue property. The two misrepresentations grew out of the same financial problems. We hold the district court did not err in refusing to expunge the oil contract portions of the statement. IV. Finally, defendant charges prejudicial error in the cross-examination of defendant and comment by the court. Defendant and the witness who testified prior to him, Betty Volz, bookkeeper for the company, were asked questions on direct examination concerning the inventory kept by the company. Betty Volz was questioned about the accuracy of the inventory as shown on the company’s books and whether she could explain the “great difference as appears purportedly between what the auditor for the Government has worked out here and what you reported on your inventory sheets?” Defendant, on direct examination, was asked whether the books “were kept accurately insofar as sales and purchases were concerned ?” Thus, the issue of the accuracy of the company’s books and the inventory as recorded thereon was raised by defendant on direct examination. On cross-examination, defendant was questioned concerning how the company compiled a balance sheet. He was asked, “You wouldn’t know what this figure, future trade oil would indicate?” He answered, “Not as such, no, sir.” In an apparent attempt to discredit this answer, Government counsel confronted defendant with defendant’s signed written statement and directed defendant’s attention to the portions pertaining to the nonexistent oil contracts. The district court in overruling an objection said, in part, “I’ll say that this is being admitted for two purposes: One, in response to a question that * * * [defendant] did not know in the inventory what the oil contracts were.” Upon further cross-examination, defendant admitted that the item entitled “future trade oil” on the balance sheet represented nonexistent oil contracts. Defendant urges this cross-examination improperly went beyond matters touched upon in direct examination and that the statement of the district court in overruling defendant’s objection was highly prejudicial since it implied that defendant had lied. The extent of cross-examination is within the sound discretion of the trial judge who is in the best position to determine how far it should proceed. United States of America v. Alfred Joseph Keig, Sr., 7 Cir., 334 F.2d 823, (1964); United States v. Keegan, 7 Cir., 331 F.2d 257 (1964); United States v. Lawinski, 7 Cir., 195 F.2d 1, 7-8 (1952) ; Garber v. United States, 6 Cir., 145 F.2d 966, 970 (1944). We hold this cross-examination was properly within the matters inquired into upon direct examination and that there was no abuse of discretion by the trial court. We find no prejudice to defendant in the court's comment. The judgment appealed from is affirmed. Affirmed. . “§ 1014. Loan and credit applications generally; renewals and discounts; crop insurance “Whoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of the * * * Farm Credit Administration, * * * or any division, officer, or employee thereof, * * * shall be fined not more than $5,000 or imprisoned not more than two years, or both.” . “ * * * “The Trial of all Crimes * * * shall be held in the State where the said crimes shall have been committed * * . “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * . “§ 3237. Offenses begun in one district and completed in another “ (a) Except as otherwise expressly provided by enactment of Congress, any of-feuse against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.” . The information charged that on October 20, 1959, April 25, 1960, and on December 13, 1960, the defendant, “in the City of Alhambra, County of Madison, State of Illinois, in the Southern Division of the Southern District of Illinois, and within the jurisdiction of this court, * * * did knowingly make a false statement and report and wilfully overvalue property and security, that is, the defendant did file a grain inventory statement * * * by submitting said false statement to the St. Louis Bank of Co-operatives, well knowing the same to be false when made; in violation of Section 1014, Title 18, U.S.Code.” 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 18? Answer with a number. Answer:

sc_casesource

028

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. ASTRA USA, INC., et al. v. SANTA CLARA COUNTY, CALIFORNIA No. 09-1273. Argued January 19, 2011 — Decided March 29, 2011 Ginsbukg, J., delivered the opinion of the Court, in which all other Members joined, except Kagan, I, who took no part in the consideration or decision of the case. Lisa S. Blatt argued the cause for petitioners. With her on the briefs were Jeffrey L. Handwerker, Anthony J. Frame, James P. Muehlberger, Robert J. McCully, Ina D. Chang, Paul J. Riehle, Lyndon M. Tretter, Richard D. Raskin, Scott D. Stein, Kirke M. Hasson, Brian W. Shaffer, Jennifer Beth Jordan, R. Ted Cruz, Allyson N. Ho, Peter N. Larson, Fletcher C. Alford, and Kelly J. Davidson. Ginger D. Anders argued the cause for the United States as amicus curiae in support of petitioners. With her on the brief were Acting Solicitor General Katyal, Assistant Attorney General West, Deputy Solicitor General Kneedler, Michael S. Raab, Benjamin M. Shultz, Janice L. Hoffman, and Mark D. Polston. David C. Frederick argued the cause for respondent. With him on the brief were Scott H. Angstreich, Scott K. Attaway, Greta S. Hansen, Juniper L. Downs, Sanford, Svetcov, Jeffrey W. Lawrence, Susan K. Alexander, and Aelish M. Baig Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States of America by Kannon K Shanmugam and Robin S. Conrad; for the Pharmaceutical Research and Manufacturers of America by Paul D. Clement and Jeffrey S. Bucholtz; and for the Washington Legal Foundation by Daniel J. Popeo and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the State of Kansas et al. by Steve Six, Attorney General of Kansas, and Stephen R. McAllister, Solicitor General, and by the Attorneys General for their respective jurisdictions as follows: Terry Goddard of Arizona, Peter J. Nickles of the District of Columbia, Chris Koster of Missouri, and Darrell V. McGraw, Jr., of West Virginia; for AARP et al. by Rochelle Bobroff, Stacy Ganan, and Michael Schuster; for A Coalition of 340B Entity Groups by Joel M. Hamme; for Contract Law Professors by Stephen M. Tillery; and for Federal Courts Professors by Michael J. Brickman, James C. Bradley, Nina H. Fields, and Lumen N. Mulligan. Lawrence J. Joseph filed a brief for APA Watch as amicus curiae. Justice Ginsburg delivered the opinion of the Court. Section 340B of the Public Health Services Act, 42 U. S. C. §256b (2006 ed. and Supp. IV), imposes ceilings on prices drug manufacturers may charge for medications sold to specified health-care facilities. Those facilities, here called “340B” or “covered” entities, include public hospitals and community health centers, many of them providers of safety-net services to the poor. The §340B ceiling-price program (340B Program) is superintended by the Health Resources and Services Administration (HRSA), a unit of the Department of Health and Human Services (HHS). Drug manufacturers opt into the 340B Program by signing a form Pharmaceutical Pricing Agreement (PPA) used nationwide. PPAs are not transactional, bargained-for contracts. They are uniform agreements that recite the responsibilities § 340B imposes, respectively, on drug manufacturers and the Secretary of HHS. Manufacturers’ eligibility to participate in State Medicaid programs is conditioned on their entry into PPAs for covered drugs purchased by 340B entities. It is conceded that Congress authorized no private right of action under §340B for covered entities who claim they have been charged prices exceeding the statutory ceiling. This case presents the question whether 340B entities, though accorded no right to sue for overcharges under the statute itself, may nonetheless sue allegedly overcharging manufacturers as third-party beneficiaries of the PPAs to which the manufacturers subscribed. We hold that suits by 340B entities to enforce ceiling-price contracts running between drug manufacturers and the Secretary of HHS are incompatible with the statutory regime. Congress placed the Secretary (acting through her designate, HRSA) in control of § 340B’s drug-price prescriptions. That control could not be maintained were potentially thousands of covered entities permitted to bring suits alleging errors in manufacturers’ price calculations. If 340B entities may not sue under the statute, it would make scant sense to allow them to sue on a form contract implementing the statute, setting out terms identical to those contained in the statute. Though labeled differently, suits to enforce § 340B and suits to enforce PPAs are in substance one and the same. Their treatment, therefore, must be the same, “[n]o matter the clothing in which [340B entities] dress their claims.” Tenet v. Doe, 544 U. S. 1, 8 (2005). I A The 340B Program is tied to the earlier-enacted, much larger Medicaid Drug Rebate Program. Adopted by Congress in 1990, the Medicaid Rebate Program covers a significant portion of drug purchases in the United States. See GAO, J. Dicken, Prescription Drugs: Oversight of Drug Pricing in Federal Programs 1 (GAO-07-481T, 2007) (testimony before the Committee on Oversight and Government Reform, House of Representatives). To gain payment under Medicaid for covered drugs, a manufacturer must enter a standardized agreement with HHS; in the agreement, the manufacturer undertakes to provide rebates to States on their Medicaid drug purchases. 104 Stat. 1388-143, as amended, 124 Stat. 3290, 42 U. S. C. § 1396r-8(a). The amount of the rebates depends on the manufacturer’s “average” and “best” prices, as defined by legislation and regulation. § 1396r-8(c), (k). Calculation of a manufacturer’s “average” and “best” prices, undertaken by the pharmaceutical company, is a complex enterprise requiring recourse to detailed information about the company’s sales and pricing. §1396r-8(k); 42 CFR §447.500-520 (2010). To enable HHS to calculate the rebate rate for each drug, manufacturers submit the relevant data to HHS on a quarterly basis. § 1396r-8(b)(3). With exceptions set out in the legislation, HHS is prohibited from disclosing the submitted information “in a form which discloses the identity of a specific manufacturer . . . [or] prices charged for drugs by such manufacturer.” § 1396r-8(b)(3)(D). Under §340B, added in 1992, 106 Stat. 4967, as amended, 124 Stat. 823, manufacturers participating in Medicaid must offer discounted drugs to covered entities, dominantly, local facilities that provide medical care for the poor. See § 256b(a); § 1396r-8(a)(l) (2006 ed.). The 340B Program, like the Medicaid Drug Rebate Program, employs a form contract as an opt-in mechanism. The 340B Program also draws on the larger scheme’s pricing methodology. In their 340B Program contracts with HHS, called Pharmaceutical Pricing Agreements (PPAs), see supra, at 113, manufacturers agree to charge covered entities no more than predetermined ceiling prices, derived from the “average” and “best” prices and rebates calculated under the Medicaid Drug Rebate Program. § 256b(a)(l) (2006 ed., Supp. IV); see App. to Pet. for Cert. 165a-171a (PPA §I-II). If a manufacturer overcharges a covered entity, HRSA may require the manufacturer to reimburse the covered entity; HRSA may also terminate the manufacturer’s PPA, § 1396r-8(b)(4)(B)(i), (v) (2006 ed.); App. to Pet. for Cert. 174a (PPA § IV(c)), which terminates as well the manufacturer’s eligibility for Medicaid coverage of its drugs, § 1396r-8(a)(1), (5). Currently, HRSA handles overcharge complaints through informal procedures. Manufacturer Audit Guidelines and Dispute Resolution Process, 61 Fed. Reg. 65412 (1996). The 2010 Patient Protection and Affordable Care Act (PPACA), Pub. L. 111-148, 124 Stat. 119, provides for more rigorous enforcement. The PPACA directs the Secretary to develop formal procedures for resolving overcharge claims. Id., at 826, 42 U. S. C. § 256b(d)(3)(A) (2006 ed., Supp. IV). Under those procedures, which are not yet in place, HRSA will reach an “administrative resolution” that is subject to judicial review under the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq. See 124 Stat. 827, 42 U. S. C. § 256b(d)(3)(C). In addition to authorizing compensation awards to overcharged entities, the PPACA provides for the imposition of monetary penalties payable to the Government. Id., at 824-825, 42 U. S. C. § 256b(d)(l)(B)(ii), (vi). B Respondent Santa Clara County (County), operator of several 340B entities, commenced suit against Astra and eight other pharmaceutical companies, alleging that the companies were overcharging 340B health-care facilities in violation of the PPAs to which the companies subscribed. The County styled its suit a class action on behalf of both 340B entities in California and the counties that fund those entities. Asserting that the 340B entities and the counties that fund them are the intended beneficiaries of the PPAs, the County sought compensatory damages for the pharmaceutical companies’ breach of contract. The District Court dismissed the complaint, concluding that the PPAs conferred no enforceable rights on 340B entities. Reversing the District Court’s judgment, the Ninth Circuit held that covered entities, although they have no right to sue under the statute, could maintain the action as third-party beneficiaries of the PPAs. 588 F. 3d 1237, 1241 (2009). We granted certiorari, 561 U. S. 1057 (2010), and now reverse the Ninth Circuit’s judgment. II As the County conceded below and before this Court, see 588 F. 3d, at 1249; Tr. of Oral Arg. 45, covered entities have no right of action under § 340B itself. “[Recognition of any private right of action for violating a federal statute,” currently governing decisions instruct, “must ultimately rest on congressional intent to provide a private remedy.” Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083, 1102 (1991). See also Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U. S. 148, 164 (2008); Alexander v. Sandoval, 532 U. S. 275, 286 (2001). Congress vested authority to oversee compliance with the 340B Program in HHS and assigned no auxiliary enforcement role to covered entities. Notwithstanding its inability to assert a statutory right of action, the County maintains that the PPAs implementing the 340B Program are agreements enforceable by covered entities as third-party beneficiaries. A nonparty becomes legally entitled to a benefit promised in a contract, the County recognizes, only if the contracting parties so intend. Brief for Respondent 31 (citing Restatement (Second) of Contracts § 302(l)(b) (1979)). The PPAs “specifically nam[e]” covered entities as the recipients of discounted drugs, the County observes; indeed the very object of the agreements is to ensure that those entities would be “charge[d] ... no more than the ceiling price.” Brief for Respondent 33. When the Government uses a contract to secure a benefit, the County urges, the intended recipient acquires a right to the benefit enforceable under federal common law. Id., at 30. But see 9 J. Murray, Corbin on Contracts § 45.6, p. 92 (rev. ed. 2007) (“The distinction between an intention to benefit a third party and an intention that the third party should have the right to enforce that intention is emphasized where the promisee is a governmental entity.”). The County’s argument overlooks that the PPAs simply incorporate statutory obligations and record the manufacturers’ agreement to abide by them. The form agreements, composed by HHS, contain no negotiable terms. Like the Medicaid Drug Rebate Program agreements, see supra, at 1Í4-115, the 340B Program agreements serve as the means by which drug manufacturers opt into the statutory scheme. A third-party suit to enforce an HHS-drug manufacturer agreement, therefore, is in essence a suit to enforce the statute itself. The absence of a private right to enforce the statutory ceiling-price obligations would be rendered meaningless if 340B entities could overcome that obstacle by suing to enforce the contract’s ceiling-price obligations instead. The statutory and contractual obligations, in short, are one and the same. See Grochowski v. Phoenix Construction, 318 F. 3d 80, 86 (CA2 2003) (when a government contract confirms a statutory obligation, “a third-party private contract action [to enforce that obligation] would be inconsistent with ... the legislative scheme ... to the same extent as would a cause of action directly under the statute” (internal quotation marks omitted)). Telling in this regard, the County based its suit on allegations that the manufacturers charged more than the § 340B ceiling price, see, e. g., Third Amended Complaint in No. 3:05-cv-03740 (ND Cal), ¶¶ 1, 65, not that they violated any independent substantive obligation arising only from the PPAs. Repeatedly, the County acknowledged that §340B is the source of the contractual term allegedly breached. See, e. g., id,., ¶ 28 (“[Section] 340B requires pharmaceutical manufacturers to ensure that § 340B Participants pay no more than the 'ceiling price’... for any pharmaceutical product.”); id., ¶36 (“Under both §340B and the PPA, [drug manufacturers] are required to ensure that the § 340B Participants ... pay no more for any product than the § 340B ceiling price.”). The Ninth Circuit determined that “[p]ermitting covered entities to sue as intended beneficiaries of the PPA is . . . wholly compatible with the Section 340B program’s objectives” to ensure “that drug companies comply with their obligations under the program and provide [the required] discounts.” 588 F. 3d, at 1251. Suits like the County’s, the Court of Appeals reasoned, would spread the enforcement burden instead of placing it “[entirely] on the government.” Ibid, (citing Price v. Pierce, 823 F. 2d 1114, 1121 (CA7 1987)). But spreading the enforcement burden, the United States stressed, both in the Ninth Circuit and in this Court, is hardly what Congress contemplated when it “centralized enforcement in the government.” Brief for United States as Amicus Curiae 32; see Brief for United States as Amicus Curiae in No. 09-15216 (CA9), p. 13 (County’s challenge is at odds with Congress’ unitary administrative and enforcement scheme). Congress made HHS administrator of both the Medicaid Drug Rebate Program and the 340B Program, the United States observed, Brief for United States as Amicus Curiae 33-34, and “[t]he interdependent nature of the two programs’ requirements means that an adjudication of rights under one program must proceed with an eye towards any implications for the other,” id., at 34. Far from assisting HHS, suits by 340B entities would undermine the agency’s efforts to administer both Medicaid and §340B harmoniously and on a uniform, nationwide basis. Recognizing the County’s right to proceed in court could spawn a multitude of dispersed and uncoordinated lawsuits by 340B entities. With HHS unable to hold the control rein, the risk of conflicting adjudications would be substantial. As earlier noted, see supra, at 115, the Medicaid Rebate Program’s statute prohibits HHS from disclosing pricing information in a form that could reveal the prices a manufacturer charges for drugs it produces. § 1396r-8(b)(3)(D). This ban on disclosure is a further indication of the incompatibility of private suits with the statute Congress enacted. If Congress meant to leave open the prospect of third-party beneficiary suits by 340B entities, it likely would not have barred the potential suitors from obtaining the very information necessary to determine whether their asserted rights have been violated. It is true, as the Ninth Circuit observed, that HHS’s Office of the Inspector General (OIG) has published reports finding that “HRSA lacks the oversight mechanisms and authority to ensure that [covered] entities pay at or below the . . . ceiling price.” 588 F. 3d, at 1242 (quoting OIG, D. Levinson, Deficiencies in the Oversight of the 340B Drug Pricing Program, p. ii (OEI-05-02-00072, Oct. 2005)). See also 588 F. 3d, at 1242-1243 (citing OIG, D. Levinson, Review of 340B Prices 11 (OE1-05-02-00073, July 2006) (estimating that covered entities overpaid $3.9 million in June 2005 alone)). But Congress did not respond to the reports of inadequate HRSA enforcement by inviting 340B entities to launch lawsuits in district courts across the country. Instead, in the PPACA, Congress directed HRSA to create a formal dispute resolution procedure, institute refund and civil penalty systems, and perform audits of manufacturers. 124 Stat. 823-827, 42 U. S. C. § 256b(d). Congress thus opted to strengthen and formalize HRSA’s enforcement authority, to make the new adjudicative framework the proper remedy for covered entities complaining of “overcharges and other violations of the discounted pricing requirements,” id., at 823, 42 U. S. C. § 256b(d)(1)(A), and to render the agency’s resolution of covered entities’ complaints binding, subject to judicial review under the APA, id., at 827, 42 U. S. C. § 256b(d)(3)(C). * * * For the reasons stated, the judgment of the U. S. Court of Appeals for the Ninth Circuit is Reversed. Justice Kagan took no part in the consideration or decision of this case. “In 2004, Medicaid ... prescription drug spending reached $31 billion,” GAO, J. Dicken, Prescription Drugs: Oversight of Drug Pricing in Federal Programs 4 (GAO-07-481T, 2007) (testimony before the Committee on Oversight and Government Reform, House of Representatives), while in 2003, 340B entities “spent an estimated $3.4 billion on drugs,” id., at 5. The 340B Program also covers over-the-counter medications for which there are no Medicaid rebates. 42 U. S. C. §256b(a)(2)(B) (2006 ed. and Supp. IV). For such drugs, §340B prescribes a substitute calculation method. § 256b(a)(2)(B)(i). U. S. Courts of Appeals have divided on the circumstances under which suits may be brought by alleged third-party beneficiaries of Government contracts. Compare 588 F. 3d 1237, 1244 (CA9 2009) (case below) (“Any intended beneficiary has the right to enforce the obligor’s duty of performance ....”), with Grochowski v. Phoenix Construction, 318 F 3d 80, 85-86 (CA2 2003) (“there is no presumption in favor of a right to bring suit” as third-party beneficiary of a government contract), and Dewakuku v. Martinez, 271 F. 3d 1031, 1042 (CA Fed. 2001) (rejecting third-party suit). Whether a contracting agency may authorize third-party suits to enforce a Government contract is not at issue in this case. Cf. Brief for United States as Amicus Curiae 22. We can infer no such authorization where a contract simply incorporates statutorily required terms and otherwise fails to demonstrate any intent to allow beneficiaries to enforce those terms. Permitting such a suit, it is evident, would “allo[w] third parties to circumvent Congress’s decision not to permit private enforcement of the statute.” Id., at 23-24; cf. Brief for United States as Amicus Curiae in No. 09-15216 (CA9), p. 21 (“In drafting and entering into [PPAs], HHS never imagined that a 340B entity could bring a third-party beneficiary lawsuit like [the County]’s.”). The County notes that in In re Pharmaceutical Industry Average Wholesale Price Litigation, 263 F. Supp. 2d 172 (Mass. 2003), the United States urged that the statute establishing the Medieaid Drug Rebate Program, §1396r-8, does not preempt States from maintaining state-law fraud claims based on fraudulent reporting of “best prices” to HHS. Brief for Respondent 22-23. See Brief for United States as Amicus Curiae in No. l:01-ev-12257 (D Mass.), pp. 6-9 (observing that States make their own payments to manufacturers and have long played a role in identifying and prosecuting Medicaid fraud). We take no position on this issue. Because the Ninth Circuit focused on the 340B Program in isolation, it failed to recognize that the interests of States under the Medicaid Drug Rebate Program and covered entities under the 340B Program may conflict. For example, “average” prices are used both to set the amount manufacturers must pay in Medicaid rebates and to establish §340B ceiling prices. §1396r-8(c); §256b(a)(l). Typically, the lower the “average” price, the lower a product’s price to a 340B entity. Brief for United States as Amicus Curiae in No. 09-15216, p. 31. But the higher the “average” price, the more a State Medicaid agency typically receives in rebates from the manufacturers. Ibid. HHS can use its expertise to ascertain and balance the competing interests. Id., at 31-32. Courts as first-line decisionmakers are not similarly equipped to deal with the whole picture. HHS interprets this provision, the United States informs us, as prohibiting the agency from disclosing to covered entities the ceiling prices calculated based on information submitted by the manufacturers. Brief for United States as Amicus Curiae 28. Going forward, the 2010 Patient Protection and Affordable Care Act, Pub. L. 111-148,124 Stat. 119, in conjunction with the new administrative adjudication process .directed by the Act, will require HHS to give covered entities access to some of the information submitted by manufacturers. Id., at 826, 42 U. S. C. §256b(d)(3)(B)(iii). 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. 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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:

sc_certreason

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. BOULWARE v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 06-1509. Argued January 8, 2008 Decided March 3, 2008 Souter, J., delivered the opinion for a unanimous Court. John D. Cline argued the cause for petitioner. With him on the briefs was C. Kevin Marshall. Deanne E. Maynard argued the cause for the United States. With her on the brief were Solicitor General Clement, Acting Assistant Attorney General Morrison, Deputy Solicitor General Dreeben, Alan Hechtkopf Karen Quesnel, and S. Robert Lyons. John L. Pollok and Joshua L. Dratel filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae. Justice Souter delivered the opinion of the Court. Sections 301 and 316(a) of the Internal Revenue Code set the conditions for treating certain corporate distributions as returns of capital, nontaxable to the recipient. 26 U. S. C. §§ 301, 316(a) (2000 ed. and Supp. V). The question here is whether a distributee accused of criminal tax evasion may-claim return-of-capital treatment without producing evidence that either he or the corporation intended a capital return when the distribution occurred. We hold that no such showing is required. I “[T]he capstone of [the] system of sanctions ... calculated to induce ... fulfillment of every duty under the income tax law,” Spies v. United States, 317 U. S. 492, 497 (1943), is 26 U. S. C. § 7201, making it a felony willfully to “attemp[t] in any manner to evade or defeat any tax imposed by” the Code. One element of tax evasion under § 7201 is “the existence of a tax deficiency,” Sansone v. United States, 380 U. S. 343, 351 (1965); see also Lawn v. United States, 355 U. S. 339, 361 (1958), which the Government must prove beyond a reasonable doubt, see ibid. (“[0]f course, a conviction upon a charge of attempting to evade assessment of income taxes by the filing of a-fraudulent return cannot stand in the absence of proof of a deficiency”). Any deficiency determination in this case will turn on §§ 301 and 316(a) of the Code. According to § 301(a), unless another provision of the Code requires otherwise, a “distributton of property” that is “made by a corporation to a shareholder with respect to its stock shall be treated in the manner provided in [§ 301(c)].” Under § 301(c), the portion of the distribution that is a “dividend,” as defined by § 316(a), must be included in the recipient’s gross income; and the portion that is not a dividend is, depending on the shareholder’s basis for his stock, either a nontaxable return of capital or a gain on the sale or exchange of stock, ordinarily taxable to the shareholder as a capital gain. Finally, § 316(a) defines “dividend” as “any distribution of property made by a corporation to its shareholders— “(1) out of its earnings and profits accumulated after February 28, 1913, or “(2) out of its earnings and profits of the taxable year (computed as of the close of the taxable year without diminution by reason of any distributions made during the taxable year), without regard to the amount of the earnings and profits at the time the distribution was made.” Sections 301 and 316(a) together thus make the existence of “earnings and profits” the decisive fact in determining the tax consequences of distributions from a corporation to a shareholder with respect to his stock. This requirement of “relating the tax status of corporate distributions to earnings and profits is responsive to a felt need for protecting returns of capital from tax.” 4 Bittker & Lokken ¶ 92.1.1, at 92-3. II In this criminal tax proceeding, petitioner Michael Boulware was charged with several counts of tax evasion and filing a false income tax return, stemming from his diversion of funds from Hawaiian Isles Enterprises (HIE), a closely held corporation of which he was the president, founder, and controlling (though not sole) shareholder. At trial, the United States sought to establish that Boulware had received taxable income by “systematically diverting] funds from HIE in order to support a lavish lifestyle.” 384 F. 3d 794, 799 (CA9 2004). The Government’s evidence showed that “[Boulware] gave millions of dollars of HIE money to his girlfriend . . . and millions of dollars to his wife . . . without reporting any of this money on his personal income tax returns. . . . [H]e siphoned off this money primarily by writing checks to employees and friends and having them return the cash to him, by diverting payments by HIE customers, by submitting fraudulent invoices to HIE, and by laundering HIE money through companies in the Kingdom of Tonga and Hong Kong.” Ibid. In defense, Boulware sought to introduce evidence that HIE had no retained or current earnings and profits in the relevant taxable years, with the consequence (he argued) that he in effect received distributions of property that must have been returns of capital, up to his basis in his stock. See § 301(c)(2). Because the return of capital was nontaxable, the argument went, the Government could not establish the tax deficiency required to convict him. The Government moved in limine to bar evidence in support of Boulware’s return-of-capital theory, on the grounds of “irrelevance] in [this] criminal tax case,” App. 20. The Government relied on the Ninth Circuit’s decision in United States v. Miller, 545 F. 2d 1204 (1976), in which that court held that in a criminal tax evasion case, a diversion of funds may be deemed a return of capital only after “some demonstration on the part of the taxpayer and/or the corporation that such [a distribution was] intended to be such a return,” id., at 1215. Boulware, the Government argued, had offered to make no such demonstration. App. 21. The District Court granted the Government’s motion, and when Boulware sought “to present evidence of [HIE’s] alleged over-reporting of income, and an offer of proof relating to the issue of. . . dividends,” id., at 135, the District Court denied his request. The court said that “[n]ot only would much of [his proffered] evidence be excludable as expert legal opinion, it is plainly insufficient under the Miller case,” id., at 138, and accordingly declined to instruct the jury on Boulware’s return-of-capital theory. The jury rejected his alternative defenses (that the diverted funds were nontaxable corporate advances or loans, or that he used the moneys for corporate purposes), and found him guilty on nine counts, four of tax evasion and five of filing a false return. The Ninth Circuit affirmed. 470 F. 3d 931 (2006). It acknowledged that “imposing an intent requirement creates a disconnect between civil and criminal liability,” but thought that under Miller, “the characterization of diverted corporate funds for civil tax purposes does not dictate their characterization for purposes of a criminal tax evasion charge.” 470 F. 3d, at 934. The court held the test in a criminal case to be “whether the defendant has willfully attempted to evade the payment or assessment of a tax.” Ibid. Because Boulware “‘presented no concrete proof that the amounts were considered, intended, or recorded on the corporate records as a return of capital at the time they were made,’ ” id., at 935 (quoting Miller, supra, at 1215), the Ninth Circuit held that Boulware’s proffer was “properly rejected ... as inadequate,” 470 F. 3d, at 935. Judge Thomas concurred because the panel was bound by Miller, but noted that “Miller — and now the majority opinion — hold that a defendant may be criminally sanctioned for tax evasion without owing a penny in taxes to the government.” 470 F. 3d, at 938. That, he said, not only “indicate[s] a logical fallacy, but is in flat contradiction with the tax evasion statute’s requirement ... of a tax deficiency.” Ibid, (internal quotation marks omitted). We granted certiorari, 551 U. S. 1191 (2007), to resolve a split among the Courts of Appeals over the application of §§ 301 and 316(a) to informally transferred or diverted corporate funds in criminal tax proceedings. We now vacate and remand. III A The colorful behavior described in the allegations requires a reminder that tax classifications like “dividend” and “return of capital” turn on “the objective economic realities of a transaction rather than ... the particular form the parties employed,” Frank Lyon Co. v. United States, 435 U. S. 561, 573 (1978); a “given result at the end of a straight path is not made a different result ... by following a devious path,” Minnesota Tea Co. v. Helvering, 302 U. S. 609, 613 (1938). As for distributions with respect to stock, in economic reality a shareholder’s informal receipt of corporate property “may be as effective a means of distributing profits among stockholders as the formal declaration of a dividend,” Palmer v. Commissioner, 302 U. S. 63, 69 (1937), or as effective a means of returning a shareholder’s capital, see ibid. Accordingly, “[a] distribution to a shareholder in his capacity as such . . . is subject to §301 even though it is not declared in formal fashion.” B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders ¶ 8.05[1], pp. 8-36 to 8-37 (6th ed. 1999) (hereinafter Bittker & Eustice); see also Gardner, The Tax Consequences of Shareholder Diversions in Close Corporations, 21 Tax L. Rev. 223, 239 (1966) (hereinafter Gardner) (“Sections 316 and 301 do not require any formal path to be taken by a corporation in order for those provisions to apply”). There is no reason to doubt that economic substance remains the right touchstone for characterizing funds received when a shareholder diverts them before they can be recorded on the corporation’s books. While they “never even pass through the corporation’s hands,” Bittker & Eustice ¶ 8.05[9], at 8-51, even diverted funds may be seen as dividends or capital distributions for purposes of §§301 and 316(a), see Truesdell v. Commissioner, 89 T. C. 1280 (1987) (treating diverted funds as “constructive” distributions in civil tax proceedings). The point, again, is that “taxation is not so much concerned with the refinements of title as it is with actual command over the property taxed — the actual benefit for which the tax is paid.” Corliss v. Bowers, 281 U. S. 376, 378 (1930); see also Griffiths v. Commissioner, 308 U. S. 355, 358 (1939). B Miller’s view that a criminal defendant may not treat a distribution as a return of capital without evidence of a eorresponding contemporaneous intent sits uncomfortably not only with the tax law’s economic realism, but with the particular wording of §§ 301 and 316(a), as well. As those sections are written, the tax consequences of a “distribution by a corporation with respect to its stock” depend, not on anyone’s purpose to return capital or to get it back, but on facts wholly independent of intent: whether the corporation had earnings and profits, and the amount of the taxpayer’s basis for his stock. Cf. Truesdell v. Commissioner, Internal Revenue Service (IRS) Action on Decision 1988-25, 1988 WL 570761 (Sept. 12, 1988) (recommendation regarding acquiescence), IRS Non Docketed Service Advice Review, 1989 WL 1172952 (Mar. 15,1989) (reply to request for reconsideration) (“[Ijntent is irrelevant. . . . [E]very distribution made with respect to a shareholder’s stock is taxable as ordinary income, capital gain, or not at all pursuant to section 301(c) dependent upon the corporation’s earnings and profits and the shareholder’s stock basis. The determination is computational and not dependent upon intent”). When the Miller court went the other way, needless to say, it could claim no textual hook for the contemporaneous intent requirement, but argued for it as the way to avoid two supposed anomalies. First, the court thought that applying §§301 and 316(a) in criminal cases unnecessarily emphasizes the exact amount of deficiency while “completely ignoring] one essential element of the crime charged: the willful intent to evade taxes . . . .” 545 F. 2d, at 1214. But there is an analytical mistake here. Willfulness is an element of the crimes charged because the substantive provisions defining tax evasion and filing a false return expressly require it, see § 7201 (“[a]ny person who willfully attempts . . . ”); § 7206(1) (“[w]illfully makes and subscribes . . . ”). The element of willfulness is addressed at trial by requiring the Government to prove it. Nothing in §§ 301 and 316(a) as written (that is, without an intent requirement) relieves the Government of this burden of proving willfulness or impedes it from doing so if evidence of willfulness is there. Those two sections as written simply address a different element of criminal evasion, the existence of a tax deficiency, and both deficiency and willfulness can be addressed straightforwardly (in jury instructions or bench findings) without tacking an intent requirement onto the rule distinguishing dividends from capital returns. Second, the Miller court worried that if a defendant could claim capital treatment without showing a corresponding and contemporaneous intent, “[a] taxpayer who diverted funds from his close corporation when it was in the midst of a financial difficulty and had no earnings and profits would be immune from punishment (to the extent of his basis in the stock) for failure to report such sums as income; while that very same taxpayer would be convicted if the corporation had experienced a successful year and had earnings and profits.” 545 F. 2d, at 1214. “Such a result,” said the court, “would constitute an extreme example of form over substance.” Ibid. The Circuit thus assumed that a taxpayer like Boulware could be convicted of evasion with no showing of deficiency from an unreported dividend or capital gain. But the acquittal that the author of Miller called form trumping substance would in fact result from the Government’s failure to prove an element of the crime. There is no criminal tax evasion without a tax deficiency, see supra, at 424, and there is no deficiency owing to a distribution (received with respect to a corporation’s stock) if a corporation has no earnings and profits and the value distributed does not exceed the taxpayer-shareholder’s basis for his stock. Thus the fact that a shareholder distributee of a successful corporation may have different tax liability from a shareholder of a corporation without earnings and profits merely follows from the way §§301 and 316(a) are written (to distinguish dividend from capital return), and from the requirement of tax deficiency for a § 7201 crime. Without the deficiency there is nothing but some act expressing the will to evade, and, under § 7201, acting on “bad intentions, alone, [is] not punishable,” United States v. D’Agostino, 145 F. 3d 69, 73 (CA2 1998). It is neither here nor there whether the. Miller court was justified in thinking it would improve things to convict more of the evasively inclined by dropping the deficiency requirement and finding some other device to exempt returns of capital. Even if there were compelling reasons to extend § 7201 to cases in which no taxes are owed, it bears repeating that “[t]he spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute,” Morissette v. United States, 342 U. S. 246, 263 (1952) (opinion for the Court by Jackson, J.) (footnote omitted). If §301, § 316(a), or § 7201 could stand amending, Congress will have to do the rewriting. C Not only is Miller devoid of the support claimed for it, but it suffers the demerit of some anomalies of its own. First and most obviously, §§ 301 and 316 are odd stalks for grafting a contemporaneous intent requirement, given the fact that the correct application of their rules will often become known only at the end of the corporation’s tax year, regardless of the shareholder’s or corporation’s understanding months earlier when a particular distribution may have been made. Section 316(a)(2) conditions treating a distribution as a constructive dividend by reference to earnings and profits, and earnings and profits are to be “computed as of the close of the taxable year . . . without regard to the amount of the earnings and profits at the time the distribution was made.” A corporation may make a deliberate distribution to a shareholder, with everyone expecting a profitable year and considering the distribution to be a dividend, only to have the shareholder end up liable for no tax if the company closes out its tax year in the red (so long as the shareholder’s basis covers the distribution); when such facts are clear at the time the reporting forms and returns are filed, the shareholder does not violate § 7201 by paying no tax on the moneys received, intent being beside the point. And since intent to make a distribution a taxable one cannot control, it would be odd to condition nontaxable return-of-capital treatment on contemporaneous intent, when the statute says nothing about intent at all. The intent interpretation is strange for another reason, too (a reason in some tension with the Ninth Circuit’s assumption that an unreported distribution without contemporaneous intent to return capital will support a conviction for evasion). The text of § 301(a) ostensibly provides for all variations of tax treatment of distributions received with respect to a corporation’s stock unless a separate provision of the Code requires otherwise. Yet Miller effectively converts the section into one of merely partial coverage, with the result of leaving one class of distributions in a tax status limbo in criminal cases. That is, while § 301(a) expressly provides that distributions made by a corporation to a shareholder with respect to its stock “shall be treated in the manner provided in [§ 301(c)],” under Miller, a distribution from a corporation without earnings and profits would fail to be a return of capital for lack of contemporaneous intent to treat it that way; but to the extent that distribution did not exceed the taxpayer’s basis for the stock (and thus become a capital gain), § 301(a) would leave the distribution unaccounted for. It is no answer to say that § 61(a) of the Code would step in where § 301(a) has been pushed out. Although § 61(a) defines gross income, “[e]xcept as otherwise provided,” as “all income from whatever source derived,” the plain text of § 301(a) does provide otherwise for distributions made with respect to stock. So using § 61(a) as a stopgap would only sanction yet another eccentricity: § 301(a) would be held not to cover what its text says it “shall” (the class of distributions made with respect to stock for which no other more specific provision is made), while § 61(a) would need to be applied to what by its terms it should not be (a receipt of funds for which tax treatment is “otherwise provided” in § 301(a)). The implausibility of a statutory reading that either creates a tax limbo or forces resort to an atextual stopgap is all the clearer from the Ninth Circuit’s discussion in this case of its own understanding of the consequences of Miller’s rule: the court openly acknowledged that “imposing an intent requirement creates a disconnect between civil and criminal liability,” 470 F. 3d, at 934. In construing distribution rules that draw no distinction in terms of criminal or civil consequences, the disparity of treatment assumed by the Court of Appeals counts heavily against its contemporaneous intent construction (quite apart from the Circuit’s understanding that its interpretation entails criminal liability for evasion without any showing of a tax deficiency). Miller erred in requiring a contemporaneous intent to treat the receipt of corporate funds as a return of capital, and the judgment of the Court of Appeals here, relying on Miller, is likewise erroneous. IV The Government has raised nothing that calls for affirmance in the face of the Court of Appeals’s reliance on Miller. The United States does not defend differential treatment of criminal and civil cases, see Brief for United States 24, and it thus stops short of fully defending the Ninth Circuit’s treatment. The Government’s argument, instead, is that we should affirm under the rule that before any distribution may be treated as a return of capital (or, by a parity of reasoning, a dividend), it must first be distributed to the shareholder “with respect to . . . stock.” Id., at 19 (internal quotation marks omitted). The taxpayer’s intent, the Government says, may be relevant to this limiting condition, and Boulware never expressly claimed any such intent. See ibid. (“[I]ntent is . . . relevant to whether a payment is a ‘distribution... with respect to [a corporation’s] stock’ ”); but see Tr. of Oral Arg. 44 (“[J]ust to be clear, the Government is arguing for an objective test here”). The Government is of course correct that “with respect to . . . stock” is a limiting condition in § 301(a). See supra, at 424-425. As the Government variously says, it requires that “the distribution of property by the corporation be made to a shareholder because of his ownership of its stock,” Brief for United States 16; and that “ ‘an amount paid by a corporation to a shareholder [be] paid to the shareholder in his capacity as such,”’ ibid,, (quoting 26 CFR §1.301-l(c) (2007); emphasis deleted). This, however, is not the time or place to home in on the “with respect to ... stock” condition. Facts with a bearing on it may range from the distribution of stock ownership to conditions of corporate employment (whether, for example, a shareholder’s efforts on behalf of a corporation amount to a good reason to treat a payment of property as salary). The facts in this case have yet to be raked over with the stock ownership condition in mind, since Miller seems to have pretermitted a full consideration of the defensive proffer, and if consideration is to be given to that condition now, the canvas of evidence and Boulware’s proffer should be made by a court familiar with the whole evidentiary record. As a more specific version of its “with respect to ... stock” position, the Government says that the diversions of corporate funds to Boulware were in fact unlawful, see Brief for United States 34-37; see also n. 5, supra, and it argues that §§301 and 316(a) are inapplicable to illegal transfers, see Brief for United States 34—37; see also D’Agostino, 145 F. 3d, at 73 (“[T]he 'no earnings and profits, no income’ rule would not necessarily apply in a case of unlawful diversion, such as embezzlement, theft, a violation of corporate law, or an attempt to defraud third party creditors” (emphasis in original)); see also n. 8, supra. The Government goes so far as to claim that “[t]he only rational basis for the jury’s judgment was a conclusion that [Boulware] unlawfully diverted the funds.” Brief for United States 37. But we decline to take up the question whether an unlawful diversion may ever be deemed a “distribution . . . with respect to [a corporation’s] stock,” a question which was not considered by the Ninth Circuit. We do, however, reject the Government’s current characterization of the jury verdict in Boulware’s case. True, the jurors were not moved by Boulware’s suggestion that the diversions were corporate advances or loans, or that he was using the funds for corporate purposes. But the jury was not asked, and cannot be said to have answered, whether Boulware breached any fiduciary duty as a controlling shareholder, unlawfully diverted corporate funds to defraud his wife, or embezzled HIE’s funds outright. V Sections 301 and 316(a) govern the tax consequences of constructive distributions made by a corporation to a shareholder with respect to its stock. A defendant in a criminal tax case does not need to show a contemporaneous intent to treat diversions as returns of capital before relying on those sections to demonstrate no taxes are owed. The judgment of the Court of Appeals is vacated, and the ease is remanded for further proceedings consistent with this opinion. It is so ordered. A related provision, 26 U. S. C. §7206(1), criminalizes the willful filing of a tax return believed to be materially false. See n. 9, infra. “[T]he elements of § 7201 are willfulness[,] the existence of a tax deficiency,... and an affirmative act constituting an evasion or attempted evasion of the tax.” Sansone v. United States, 380 U. S. 343, 351 (1965). The Courts of Appeals have divided over whether the Government must prove the tax deficiency is “substantial,” see United States v. Daniels, 387 F. 3d 636, 640-641, and n. 2 (CA7 2004) (collecting cases); we do not address that issue here. Although the Code does not “comprehensively define ‘earnings and profits,’ ” 4 B. Bittker & L. Lokken, Federal Taxation of Income, Estates and Gifts ¶ 92.1.3, p. 92-6 (3d ed. 2003) (hereinafter Bittker & Lokken), the “[provisions of the Code and regulations relating to earnings and profits ordinarily take taxable income as the point of departure,” id,., at 92-9. The trial at issue in this case was actually Boulware’s second trial on §§ 7201 and 7206(1) charges, his convictions on those counts in an earlier trial having been vacated by the Ninth Circuit for reasons not at issue here, see 384 F. 3d 794 (2004). In that earlier trial, Boulware was also convicted of conspiracy to make false statements to a federally insured financial institution, in violation of 18 U. S. C. § 371. The Ninth Circuit affirmed Boulware’s conspiracy conviction that first time around, however, so the present trial did not include a conspiracy charge. Judge Thomas went on to say that the Government would prevail even without Miller’s rule because, in his view, Boulware’s diversions were “unlawful,” and the return-of-eapital rules would not apply to diversions made for unlawful purposes. See 470 F. 3d, at 938-939. As noted, the Ninth Circuit holds that §§301 and 316(a) are not to be consulted in a criminal tax evasion case until the defendant produces evidence of an intent to treat diverted funds as a return of capital at the time it was made. See 470 F. 3d 931 (2006) (case below). By contrast, the Second Circuit allows a criminal defendant to invoke §§301 and 316(a) without evidence of a contemporaneous intent to treat such moneys as returns of capital. See United States v. Bok, 156 F. 3d 157, 162 (1998) (“[I]n return of capital eases, a taxpayer’s intent is not determinative in defining the taxpayer’s conduct”). Meanwhile, the Third, Sixth, and Eleventh Circuits arguably have taken the position that §§ 301 and 316(a) are altogether inapplicable in criminal tax eases involving informal distributions. See United States v. Williams, 875 F. 2d 846,850-852 (CA11 1989); United States v. Goldberg, 330 F. 2d 30, 38 (CA3 1964); Davis v. United States, 226 F. 2d 331, 334-335 (CA6 1955); but see Brief for Petitioner 16 (“[T]hese cases can be read to address the allocation of the burden of proof on the return of capital issue, rather than the applicable substantive principles”). We have also recognized that “[t]he legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” Gregory v. Helvering, 293 U. S. 465, 469 (1935). The rule is a two-way street: “while a taxpayer is free to organize his affairs as he chooses, nevertheless, once having done so, he must accept the tax consequences of his choice, whether contemplated or not,... and may not enjoy the benefit of some other route he might have chosen to follow but did not,” Commissioner v. National Alfalfa Dehydrating & Milling Co., 417 U. S. 134, 149 (1974); see also id., at 148 (referring to “the established tax principle that a transaction is to be given its tax effect in accord with what actually occurred and not in accord with what might have occurred”); Founders Gen. Corp. v. Hoey, 300 U. S. 268, 275 (1937) (“To make the taxability of the transaction depend upon the determination whether there existed an alternative form which the statute did not tax would create burden and uncertainty”). The question here, of course, is not whether alternative routes may have offered better or worse tax consequences, see generally Isenbergh, Review: Musings on Form and Substance in Taxation, 49 U. Chi. L. Rev. 859 (1982); rather, it is “whether what was done . . . was the thing which the statute[, here §§301 and 316(a),] intended,” Gregory, supra, at 469. Thus in the period between this Court’s decisions in Commissioner v. Wilcox, 327 U. S. 404 (1946) (holding embezzled funds to be nontaxable to the embezzler), and James v. United States, 366 U. S. 213 (1961) (overruling Wilcox, holding embezzled funds to be taxable income), the Government routinely argued that diverted funds were “constructive distributions,” taxable to the recipient as dividends. See generally Gardner 237 (‘While Wilcox was good law, the safest way to insure that both the corporation and the shareholder would be taxed on their respective gain from the diverted funds was to label them dividends”); 4 Bittker & Lokken ¶ 92.2(7), at 92-23, n. 37. Boulware was also convicted of violating § 7206(1), which makes it a felony “[w]illfully [to] mak[e] and subscribe] any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which [the taxpayer] does not believe to be true and correct as to every material matter.” He argues that if the Ninth Circuit erred, its error calls into question not only his § 7201 conviction, but his § 7206(1) conviction as well. Brief for Petitioner 15-16. Although the Courts of Appeals are unanimous in holding that § 7206(1) “does not require the prosecution to prove the existence of a tax deficiency,” United States v. Tarwater, 308 F. 3d 494, 504 (CA6 2002); see also United States v. Peters, 153 F. 3d 445, 461 (CA7 1998) (collecting cases), it is arguable that “the nature and character of the funds received can be critical in determining whether . . . §7206(1) has been violated, [even if] proof of a tax deficiency is unnecessary,” 11. Comisky, L. Feld, & S. Harris, Tax Fraud & Evasion ¶ 2.03[5], p. 21 (2007); see also Brief for Petitioner 15-16. The Government does not argue that Boulware’s §§ 7201 and 7206(1) convictions should be treated differently at this stage of the proceedings, however, and we will accede to the Government’s working assumption here that the §§ 7201 and 7206(1) convictions stand or fall together. “A better [method of exempting returns of capital from taxation] could no doubt be devised.” 4 Bittker & Lokken ¶ 92.1.1, at 92-3; see ibid. (suggesting, for example, that “all receipts from a corporation could be treated as taxable income, and a correction for any resulting overtaxation could be made in computing gain or loss when stock is sold, exchanged, or becomes worthless”); see also Andrews, “Out of its Earnings and Profits”: Some Reflections on the Taxation of Dividends, 69 Harv. L. Rev. 1403, 1439 (1956) (criticizing the earnings and profits concept “[a]s a device for separating income from return of capital,” and suggesting that “[distributions which ought to be treated as return of capital [could] be brought within the concept of a partial liquidation by special provision”). Sometimes these facts are not clear, and in certain circumstances a corporation may be required to assume it is profitable. For example, the instructions to IRS Form 1099-DIV provide that when a corporation is unsure whether it has sufficient earnings and profits at the end of the taxable year to cover a distribution to shareholders, “the entire payment must be reported as a dividend.” See http://www.irs.gov/pub/irs-pdf/ il099div.pdf (as visited Feb. 15, 2008, and available in Clerk of Court’s ease file). Another limiting condition is that the diversion of funds must be a “distribution” in the first place (regardless of the “with respect to stock” limitation), see supra, at 429-430, though the Government is content to assume that § 301(a)’s “distribution” language is capacious enough to cover the diversions involved here, and that if Boulware bears the burden of production in going forward with the defense that the funds he received constituted a “distribution” within the meaning of § 301(a), see n. 14, infra, that burden has been met. Nor does the Government dispute that Boulware offered sufficient evidence of his basis and HIE’s lack of earnings and profits. See Brief for United States 34, n. 11. See, e. g., Truesdell v. Commissioner, IRS Non Docketed Service Advice Review, 1989 WL 1172952 (Mar. 15, 1989) (“We believe a corporation and its shareholders have a common objective — to earn a profit for the corporation to pass onto its shareholders. Especially where the corporation is wholly owned by one shareholder, the corporation becomes the alter ego of the shareholder in his profit making capacity. . . . [B]y passing corporate funds to himself as shareholder, a sole shareholder is acting in pursuit of these common objectives”). We note, however, that although Boulware was not a sole shareholder, the Tax Court has taken it as “well settled that a distribution of corporate earnings to shareholders may constitute a dividend,” and so a return of capital as well, “notwithstanding that it is not in proportion to stockholdings.” Dellinger v. Commissioner, 32 T. C. 1178, 1183 (1959); see ibid, (noting that because other stockholders did not complain when a taxpayer received unequal property, “under the circumstances they must be deemed to have ratified the distribution”); see also Crowley v. Commissioner, 962 F. 2d 1077 (CA1 1992); Lengsfield v. Commissioner, 241 F. 2d 508 (CA5 1957); Baird v. Commissioner, 25 T. C. 387 (1955); Thielking v. Commissioner, 53 TCM 746 (1987), ¶ 87,227 P-H Memo TC. Boulware does not dispute that he bears the burden of producing some evidence to support his return-of-capital theory, including evidence that the corporation lacked earnings and profits and that he had sufficient basis in his stock to cover the distribution. See Tr. of Oral Arg. 53. He instead argues that, as to the “with respect to . . . stock” requirement, it suffices to show “[t]hat he is a stockholder, and that he did not receive this money in any nonstockholder capacity.” Id., at 57. The Government, for its part, on the authority of Holland v. United States, 348 U. S. 121 (1954), and Bok, 156 F. 3d, at 163-164, argues that Boulware must offer more evidence than that. We express no view on that issue here, just as we decline to consider the more general question whether the Second Circuit’s rule in Bok, which places on the criminal defendant the burden to produce evidence in support of a return-of-capital theory, is authorized by Holland and consistent with Sandstrom v. Montana, 442 U. S. 510 (1979), and related cases. 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_appbus

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES v. BATRE. No. 7124. Circuit Court of Appeals, Ninth Circuit. March 12, 1934. Clifton Mathews, U. S. Atty., and K. Berry Peterson, both of Phomix, Ariz., for appellant. Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges, GARRECHT, Circuit Judge. Appeal from judgment and decree of District Court adjudging a prior contractual lien, held by the mortgagee of an airplane, to be superior and paramount to a lien created by statute for violation of section 11 of the Air Commerce Act of 1926 (49' USCA § 181). There is no dispute as to the facts which were found by the District Court to be substantially as follows: One Clair K. Seholey, the owner of a certain biplane, flew the same from Mesdeo into the United States, landing near Florence, Ariz., which had not been designated as an airport of entry by the Secretary of the Treasury. Seholey reported no circumstances of a forced landing to the collector of customs for the District of Arizona, as would be required to avoid penalty. About three days after his landing in Florence the airplane was seized by inspectors of customs and was placed in the custody of the collector. Alma R. Batre, appellee, was the holder of a duly recorded chattel mortgage in the sum of $4,000, secured by said airplane. A libel in rem to collect the penalty was filed against the airplane, as provided by statute (49' US CA § 181). Thereupon appellee filed an “In-tervener’s Cross Bill” alleging existence of a chattel mortgage; that it remained unpaid; and that the intervener had no knowledge that the aircraft was being used in violation of the Air Commerce Act. The prayer in intervention was for a declaration that the lien of the chattel mortgage be adjudged superior to the lien for the penalty and that if the airplane he ordered sold the proceeds he first applied to payment of the mortgage. The judgment of the lower court imposed the penalty required, declared the same to he a lien upon the airplane, and ordered the airplane sold with the proceeds to be applied as follows: First, to costs and expenses of seizing, holding, and sale; second, to payment of amount of mortgage; and, third, to payment of the penalty. From this judgment the government appeals. The record comes to us on the undisputed facts, the sole point urged as error upon appeal being the action of the court in giving the lien of the chattel mortgage priority to the penalty lien of the statute. By the statute the Secretary of the Treasury is authorized to designate places as ports of entry at which airplanes crossing the international border must land, and te make such regulations as may be deemed necessary. 49 USCA § 177. For the violation of this statute penalties were imposed, among others being a civil penalty of $506 upon any person violating any regulation, and in case the violation he by the owner or the person in command of the airplane the penalty shall he a lien against the aircraft collectible by proceedings in rem, against the aircraft, conformable to civil suits in admiralty. 49 US CA § 181. In conformity to this statute regulations were promulgated by the Department of Commerce and by the Secretary of the Treasury, making it incumbent upon the person in command of aircraft contemplating entry into the United States from any foreign port or place to inform the collector of customs at the place of intended first landing of the proposed flight; to immediately report upon landing to said collector; and providing for declaration of contents. Should there he a forced landing the regulations make provision for immediate report and inspection. There is also provision exempting regular carriers from certain of the regulations. This is the first time this court has been called upon to construe the penalty provisions of the Air Commerce Act, and we have applied thereto the recognized rules of construction. “Cardinal rules for the construction of a statute are that the intention of the legislative body which enacted it should he ascertained and given effect, if possible, regardless of technical rules of construction and the dry words of the enactment; that that intention must he deduced not from a part but from the entire law; that the object which the enacting body sought to attain and the evil which it was endeavoring to remedy may always be considered for the purpose of ascertaining its intention; that the statute must he given a rational, sensible construction; and that, if this be consonant with its terms, it must have an interpretation which will advance the remedy and repress the wrong.” Stevens v. Nave-MeCord Merc. Co. (C. C. A.) 150 F. 71, 75. See U. S. v. Ninety-Nine Diamonds (C. C. A.) 139 F. 961, 965, 2 L. R. A. (N. S.) 185; Interstate Drainage & Inv. Co. v. Board of Com’rs, etc. (C. C. A.) 158 F. 270, 273; U. S. v. Hogg et al. (C. C. A.) 112 F. 909, 912. Generally speaking: “Statutes are construed strictly against forfeiture. A statute which subjects one man’s property to be affected by, charged or forfeited for the acts of another, on grounds of public policy, should be strictly construed; it cannot he done by implication.” Lewis’ Sutheiiand, Statutory Construction (2d Ed.) vol. 2, p. 1020. However, there is a long line of eases which hold that: “Statutes to prevent frauds upon the revenue are considered as enacted for the public good and to suppress a publie wrong, and therefore, although they impose penalties and forfeitures are not to be construed like penal laws generally, strictly in favor of tbe defendant; but they are to be fairly and reasonably construed, so as to carry out the intention of: the legislature.” U. S. v. Stowell, 133 U. S. 1, 12, 10 S. Ct, 244, 33 L. Ed. 555, and eases there cited. See, also, Goldsmith, Jr. Grant Co. v. U. S., 254 U. S. 505, 510, 41 S. Ct. 189, 65 L. Ed. 376; U. S. v. Ryau, 281 U. S. 167, 172, 52 S. Ct. 65, 76 L. Ed. 221; U. S. v. One Black Horse (D. C.) 129 F. 167. The power of Congress to enact this legislation must be conceded — it is a fundamental idea of sovereignty that a nation may say who shall cross its borders and when and in what manner. The International Convention for the Regulation of Air Navigation (1919) provided in article 1 of its rules that: “The high contracting parties recognize that every power has complete and exclusive sovereignty over the air space above its territory.” The purpose of the Congress in enacting the Air Commerce Act of 1926 is revealed in the language of the accompanying report of the Committee on Interstate and Foreign Commerce as follows: “The enforcement of the foreign-commerce regulations by the civil penalties collectible in administrative or admiralty proceedings is the same principle as is used in the enforcement of the customs, immigration, narcotic drug, and navigation laws, and the provisions of the bill are based upon the provisions of those laws.” Another pertinent consideration is whether the thing or only the person can be considered the offender. The fact that the statute provides that the proceeding be “in rem” is an indication that the airplane can properly be considered the offender, and this without straining the words of the statute. The Palmyra, 12 Wheat. (25 U. S.) 1, 14, 6 L. Ed. 531. If the penalty is incapable of enforcement, which is the result if the decision of the lower court is affirmed, then this provision affords no aid in preventing violation of the law. It can readily be seen that if a lien created by a chattel mortgage is held superior to this penally lien those so disposed can always evade it by inortgaging the airplane up to or beyond its actual value, with the result that the government could never collect the penalty and the law would be without force. Its object would not be accomplished. Ordinarily, the word “penalty” is regarded as being substantially synonymous with the word “forfeiture,” both indicating a punishment, and no reason here appears for making a distinction. While the statute does not in terms declare a forfeiture, still the enforcement of the penalty lien, in effect, operates to bring about such a result. Jf this was not intended the remedy must he sought from Congress, not the courts. An inspection of the act and the regulations pursuant thereto further indicates that revenue alone is not the sole purpose of the law. A firm hold upon immigration, narcotic drug trade, and protection to the public health is also contemplated. There are cases to the effect that it is not necessary that the act be one in aid of the public revenue in order to work a forfeiture. Forfeiture has been decreed in eases of vessels failing to have the name displayed in a conspicuous manner. The Lewellen, 15 Fed. Gas. 444, No. 8307, and in eases where vessels have carried more passengers than permitted by law, Hatch v. The Steam-Boat Boston (D. C.) 3 F. 807. In the latter case the court held the penalty lien was not divested by subsequent sale to a bona fide purchaser. Nor are we here dealing with an innocent owner who has been injured by the act of some third person, without his knowledge or consent. Here the owner was in possession and command of the aircraft; he was the one who violated the regulation. True if the penalty lien is adjudged paramount, a hardship falls upon the mortgagee; but the mortgage w~as entered into after passage of the Air Commerce Act and the mortgagee know, or should have known, of the provisions of the act. In the circumstances, the Air Commerce Act became a part of the mortgage. The airplane was permitted to remain in the possession of the owner without restriction upon the use and the mortgagee having' left it within the power of the owner to- violate the la,w cannot now complain. The Live Oak (D. C.) 30 F. 78. The Supreme Court of the United States, speaking through Mr. Justice Story, says in Harmony v. United States (U. S. v. Brig Ma-lek Adhél, etc.), 2 How. (43 U. S.) 210, 233, 11 L. Ed. 239: “The next question is, whether the innocence of the owners can withdraw the ship from the penalty of confiscation under the act of Congress. Here, again, it may be remarked that the act makes no exception whatsoever, whether the aggression bo with or without the co-operation of the owners. The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to -which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner. * * * It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, “ * * a wrong or offence has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof. And this is done from the necessity of the case, as the only adequate means of suppressing the offence or wrong. * * * The doctrine also is familiarly applied to cases of smuggling and other misconduct under our revenue laws; and has been applied to other kindred eases, such as cases arising on embargo and non-intercourse acts.” Had the Congress desired an exemption from penalty under this act to apply to innocent third parties, it would have been so stated, as has been done in other enactments. 27 USCA § 40. Judgment of the lower court is reversed, and cause remanded, with directions to enter a judgment granting the penalty lien priority to the lien of the chattel mortgage. 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_state

48

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". UNITED STATES of America, Appellant, v. TACOMA GRAVEL AND SUPPLY CO., Inc., et al., Appellees. No. 20218. United States Court of Appeals Ninth Circuit. Jan. 25, 1967. Rehearing Denied April 3, 1967. John W. Douglas, Asst. Atty. Gen., Alan S. Rosenthal, Atty., Florence Wag-man Roisman, Atty., Dept, of Justice, Washington, D. C., William N. Goodwin, U. S. Atty., Dale L. Carlisle, Asst. U. S. Atty., Tacoma, Wash., for appellant. James E. O’Hern, Warren J. Dahiem, of Blair, Thomas, Nicks, O’Hern & Hokan-son, Tacoma, Wash., for appellees. Before BARNES, KOELSCH and BROWNING, Circuit Judges. KOELSCH, Circuit Judge. In 1953 the Reconstruction Finance Corporation, predecessor to the Small Business Administration, an agency of plaintiff United States of America, obtained a deficiency judgment against respondents in a superior court of the State of Washington. Ten years later, the United States brought this action in a federal district court to renew the Washington judgment. On cross-motions the district court rendered summary judgment for respondents. This appeal followed. Jurisdiction below was based on 28 U.S.C. § 1345. This court has jurisdiction under 28 U.S.C. § 1291. . The district court rested decision on the ground that the United States, having voluntarily put itself into the state forum in order to have the benefit of a state judgment, was on no better footing than any other litigant availing itself of the state judicial processes. Accordingly, the United States was denied relief because under R.C.W. 4.56.210 a Washington state judgment is not renewable more than six years after it has been entered. R.C.W. 4.56.210 provides: “After the expiration of six years from the date of the entry of any judgment heretofore or hereafter rendered in this state, it shall cease to be a lien or charge against the estate or person of the judgment debtor, and no suit, action or other proceeding shall ever be had on any judgment rendered in this state by which the lien or duration of such judgment, claim or demand, shall be extended or continued in force for any greater or longer period than six years from the date of the entry of the original judgment, except as in R.C.W. 4.56.225 provided.” Appellant argues that this is a statute of limitations and “[i]t is well settled that the United States is not bound by state statutes of limitation or subject to the defense of laches in enforcing its rights.” United States v. Summerlin, 310 U.S. 414, 416, 60 S.Ct. 1019, 1020, 84 L.Ed. 1283 (1940); United States v. Nashville, C. & St. L. Ry. Co., 118 U.S. 120,125, 6 S.Ct. 1006, 30 L.Ed. 81 (1886). However, in interpreting this statute the decisions of the Washington State Supreme Court are controlling. In re Levinson, 5 F.2d 75 (D.C.Wash.1925). That court has consistently held that this is a statute not of limitations but of extinguishment; after six years a Washington judgment has no further force or effect — it ceases to exist. Bettman v. Cowley, 19 Wash. 207, 53 P. 53, 40 L.R. A. 815 (1898); Palmer v. Laberee, 23 Wash. 409, 63 P. 216 (1900); Ball v. Bussell, 119 Wash. 206, 205 P. 423 (1922); Roche v. McDonald, 136 Wash. 322, 239 P. 1015, 44 A.L.R. 444 (1925), rev’d on other grounds, 275 U.S. 449, 48 S.Ct. 142, 72 L.Ed. 365 (1928); St. Ger-main v. St. Germain, 22 Wash.2d 744, 157 P.2d 981 (1945). “This statute * * * is not a mere statute of limitation * * Roche v. McDonald, supra, 136 Wash, at 326, 239 P. at 1016. “It goes directly to the obligation [of the judgment] itself, and destroys it.” Palmer v. Labe-ree, supra, at 415, 63 P. at 218. Consequently, the “judgment becomes inoperative for any purpose after the expiration” of six years. Hinckley v. Seattle, 37 Wash. 269, 270, 79 P. 779 (1905). We are convinced that this statute operates against the United States equally with private creditors. In Custer v. McCutcheon, 283 U.S. 514, 51 S.Ct. 530, 75 L.Ed. 1239 (1913), the Court had under consideration a state statute •fixing a five year limit on the time within which execution must issue on a judgment. The rationale implicit in the •Court’s opinion is: execution is a state granted right; a state can control by condition what it grants; the time element is a valid condition inherent in the right of execution; the right terminates upon expiration of the time so limited; this consequence attaches even though the judgment is in favor of the United States. The Court was careful to note that “[t]he time limited for issuing executions is, strictly speaking, not a statute of limitations.” 283 U.S. at 519, 51 S.Ct. at 532. Rather the lapse of more than five years from the date of entry of the judgment served to extinguish the government’s right to execution altogether. So here the United States, having elected to pursue this claim in a court of the State of Washington, could obtain no more than what that state provides in the way of a judgment. R.C.W. 4.56.210 is as much a part of a Washington judgment as if fully incorporated therein. In re Levinson, 5 F.2d 75 (1925). Thus, since ten years have elapsed, appellant’s judgment is not merely dormant, it is dead. Appellant has no judgment left to renew. We note in passing that this case is readily distinguishable from United States v. Summerlin, 310 U.S. 414, 60 S. Ct. 1019, 84 L.Ed. 1283 (1940), where the Supreme Court ruled that no state can invalidate a claim of the United States. Here we are concerned only with a judgment of the State of Washington. We do not decide whether R.C.W. 4.56.210 also operates to cut off the claim underlying that judgment. 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_interven

B

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case. SANGAMON VALLEY TELEVISION CORPORATION, Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents. American Broadcasting-Paramount Theatres, Inc., Signal Hill Telecasting Corporation, Plains Television Corporation, Intervenors. No. 13992. United States Court of Appeals District of Columbia Circuit. Argued June 5, 1961. Decided July 27, 1961. Mr. D. M. Patrick, Washington, D. C., with whom Messrs. Lester Cohen and Stanley S. Harris, Washington, D. C., were on the brief, for petitioner. Mr. Richard A. Solomon, Atty., Dept, of Justice for respondent United States. Mr. Daniel M. Friedman, Atty., Dept, of Justice, also entered an appearance for respondent United States of America. Mrs. Ruth V. Reel, Counsel, F. C. C., with whom Messrs. Max D. Paglin, Gen. Counsel, F. C. C., and Daniel R. Ohlbaum, Asst. Gen. Counsel, F. C. C., were on the brief, for respondent Federal Communications Commission. Mr. Monroe Oppenheimer, Washington, D. C., with whom Mr. Isadore G. Aik, Washington, D. C., was on the brief, for intervenor Signal Hill Telecasting Corp. Mr. Abraham J. Harris, Washington, D. C., also entered an appearance for intervenor Signal Hill Telecasting Corp. Mr. Vernon L. Wilkinson and Mr. James A. McKenna, Jr., Washington, D. C., were on the brief for intervenors American Broadcasting-Paramount Theatres, Inc. and Plains Television Corp. Before Edgerton, Fahy and Bastían, Circuit Judges. EDGERTON, Circuit Judge. On May 8, 1959, on remand from the Supreme Court. we vacated the Commission’s order released March 1, 1957. We held that “private approaches to the members of the Commission vitiated its action and the proceeding must be reopened.” Sangamon Valley Television Corp. v. United States and Federal Communications Commission, 106 U.S.App.D. C. 30, 33, 269 F.2d 221, 224. We did not order an entirely new proceeding but remanded the case to the Commission with instructions to hold, with the aid of a specially appointed examiner, an evidential hearing to determine the nature and scope of the ex parte approaches to Commissioners that had been made while the former proceeding was pending, and any other factors that might be thought to disqualify some Commissioners or some parties. Id. 106 U.S.App.D.C. at page 34, 269 P.2d 221. A hearing was held on those and certain other issues. The Commission found that the many ex parte approaches of Tenenbaum on behalf of the applicant Signal Hill rendered the former proceeding voidable but did not disqualify any Commissioner and, in view of what were then somewhat common practices, did not absolutely disqualify Signal Hill. The Commission left open the question whether Tenenbaum’s activities should reflect on Signal Hill’s comparative qualifications in any future proceeding. The Commission released its Report and Recommendation on February 16, 1961. It proposed to give interested parties “the opportunity to respond to any matter revealed in the instant proceeding to have been presented privately to the Commissioners or any of them, and not otherwise made a part of the public record while the former proceeding was pending, and to comment upon the effect such matter should have upon the Commission’s ultimate determination on the merits; and * * * to thereafter reevaluate its Report and Order released March 1, 1957 in the light of such comments. The Commission does not desire, nor would it consider, comment on matters occurring subsequent to March 1, 1957.” The Department of Justice, on the other hand, contends on behalf of the United States “that the ‘basic fairness [which] requires that such a proceeding * * * be carried on in the open’ can only be achieved by starting afresh.” In all the circumstances, we think a fresh start is necessary. The Commission’s former order was issued over four years ago. Three of its then members have been succeeded by others. In all the circumstances we think it would not be appropriate for the Commission to determine in 1961 on the basis of a somewhat supplemented 1957 record where - and to whom VHF Channel 2 ought to be assigned. We remand the case to the Commission with instructions to conduct an entirely new proceeding;' provided that, as the United States recognizes, it is unnecessary for the Commission to reconsider the conclusions expressed in its Report and Recommendation of February 16, 1961, that no Commissioner is disqualified and no party is absolutely disqualified. But we do not doubt that conduct of the type Tenenbaum engaged in, occurring since the Commission’s earlier decision on this point in this case, would be grounds for disqualification. In the discretion of the Commission, existing services may be maintained. Remanded. . Sangamon Valley Television Corp. v. United States, 358 U.S. 49, 79 S.Ct. 94, 3 L.Ed.2d 47. Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case? A. no intervenor in case B. intervenor = appellant C. intervenor = respondent D. yes, both appellant & respondent E. not applicable Answer:

songer_appel2_1_3

J

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. 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. HARRIS TRUST & SAVINGS BANK et al. v. EARL et al. Circuit Court of Appeals, Eighth Circuit. May 16, 1928. No. 7707. 1. Taxation <§=390(2) — Railroad’s valuation for taxation purposes involves consideration of original cost, cost of reproduction, less depreciation, bonded indebtedness, market value of securities, and earning capacity. Valuation of railroad property for taxation purposes involves consideration of original cost, cost of reproduction, less depreciation, bonded indebtedness, and current market value of stock and bonds, as well as earning capacity; market value of securities and earning capacity being of greatest significance. 2. Taxation <§=390(2) — “Earning capacity,” for taxation purposes, is amount railroad should earn under efficient management. “Earning capacity” of railroad, for purpose of determining valuation for taxation purposes, is amount which property should have earned, if efficiently managed, and not actual earnings under incompetent operation. [Ed. Note, — For other definitions, see Words and Phrases, Second Series, Earning Capacity.] 3. Taxation <§=611 (6) — Plaintiffs, in foreclosure suit against railroad, had burden to prove excessive valuation in assessment of railroad property for taxes. In suit to foreclose deed of trust against railroad, in which county asserted prior lien for taxes, holders of deed of trust, who claimed that the tax valuation was grossly excessive, had burden to prove the valuation was excessive, and that it was so excessive as to indicate constructive fraud. 4. Taxation <§=505 — County’s valuation of railroad property for tax purposes at $448,274 held not illegal, as affecting priority of tax lien, where average operating surplus from property for previous years was over 10 per cent, thereof, notwithstanding railroad’s decreased earning capacity. Where original cost of railroad property in county was approximately $897,500, and percentage_ of outstanding bonded indebtedness proportionate to share of property in county was approximately $700,000, and proportionate share'of the authorized capital was $1,450,000, county’s valuation of property for taxation purposes at $448,274 was not so excessive as to indicate constructive fraud, requiring denial of priority of tax lien as illegal, in suit against railroad to foreclose trust deed, notwithstanding sudden decrease in railroad’s earning capacity, partly due to poor management, where proportionate share of average operating surplus for seven preceding years was more than 10 per cent, of valuation fixed by county. Appeal from tbe District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge. Suit by the Harris Trust & Savings Bank and others against Will Earl and others to foreclose a deed of trust, in which the Board of County Commissioners of Cherokee County, Kan., and the Treasurer of that county, intervened. From a judgment granting priority to the interveners, plaintiffs appeal. Affirmed. John E. Tracy, of Chicago, Ill. (James H. Harkless, of Kansas City, Mo., Chapman, Cutler & Parker, of Chicago, Ill., and Harkless & Histed, of Kansas City, Mo., on the brief), for appellants. Don H. Elleman, of Columbus, Kan. (Williams & Elleman, of Columbus, Kan., on the brief), for appellees. Before STONE, Circuit Judge, and REEVES and OTIS, District Judges. OTIS, District Judge. The board of county commissioners of Cherokee county, Kan., and the treasurer of that county, appellees here, intervened below in a suit brought by appellants to foreclose a deed of trust against the Joplin & Pittsburg Railroad Company. The. interveners assert a prior lien for taxes. The trial court found in their favor, gave judgment against the railway company for the taxes claimed to be due, with interest and penalties, and decreed that that judgment should be a first lien upon the company’s assets. The appellants contest that judgment. The taxes involved are for the years 1923, 1924, and 1925. For the year 1923 the tax claimed is $13,874.09, on' a valuation assessed by the tax commission of Kansas at $448,274; for the year 1924 the tax claimed is $14,751.22, on a valuation of $448,274; for the year 1925 the tax claimed is $8,346.-72, on a valuation of approximately $250,-000. No part of these taxes has been either paid or tendered. The sole consideration now urged by appellants is that the valuations were excessive so grossly as for that reason alone to show constructive fraud and consequent illegality. No actual fraud is charged. It is earnestly urged upon us by the appellants that valuation of railroad property for taxation, at least under the circumstances in this ease, should be determined, if not altogether, at least most largely, from a consideration of the earning capacity of the property, and it is urged that the earning capacity of the property involved here for the year 1923 was such as to justify at most a valuation of about one-fourth of that fixed by the state. But it is not the law that the valuation of railroad or other property for taxation purposes is to be determined from any single factor. As bearing upon the proper result, many facts have evidential value. Certainly, among others, are to be considered original cost, cost of reproduction less depreciation, bonded indebtedness, current market value of stock and bonds, and earning capacity. Of these the two last named are of the greatest significance. Chicago & Northwestern Railway Co. v. Eveland (C. C. A.) 13 F.(2d) 442. But earning capacity and actual earnings are by no means identical. What the property efficiently managed should have earned, and not what it has earned under incompetent operation, is the earning capacity that throws light on value. The burden was on appellants to show excessive valuation, and to show that it was so excessive as to indicate constructive fraud. Now, in this ease the evidence introduced by the appellants (there was no other evidence) touching the value of this property in Cherokee county in 1923, for which year, as. we have noted, the value fixed by the taxing authorities was $448,274, was as follows: That its original cost was approximately $897,500; that one-fourth of the outstanding bonded indebtedness (one-fourth of the whole property being in' Cherokee county) was approximately-$700,000; that one-fourth of the authorized capital was $1,450,000; that one-fourth of its operating surplus for 1923, as shown on its books, .was more than $20,000, and for 1922 was-more than $40,000; 'that one-fourth of the average operating surplus for the seven years preceding 1923, as shown on the company’s books, was more than 10 per cent, on a valuation of $448,274; that a sudden decrease in earning capacity began in 1923, antd was the result of increased competition by automobiles, following the construction of hard-surfaced roads, and of loss of public confidence caused by inefficient operation. There was other evidence, to which reference shortly will be made, but there was no evidence tending to show for 1923 the cost of reproduction less depreciation, or the then current market value of the stocks and bonds. That the facts just stated of themselves do not justify the contention of excessive valuation in 1923 must be apparent. Some of these facts themselves would have warranted an even higher valuation than that fixed. Moreover, if all of them are excluded, except the one factor of earning capacity, even that does not indicate for that year a valuation clearly excessive, in -view of the showing as to the previous earning capacity of the property, and of the further showing that the decreased earning capacity was in part, at least, due to poor management. The other evidence above referred to, in so far' as it has any bearing upon the result here, may be boiled down to this: That whereas the books of the company show for the year 1923 upon the property located in Cherokee county earnings of $20,000, and larger earnings for the year preceding, that showing is inaccurate, and that, if proper allowance had been made for maintenance and depreciation, the actual earnings would have been for the whole property $35,834.77, only one-fourth of which, or $8,958.69, is attributable to the property located in Cherokee county. The contention is that the valuation of $448,274 was obviously excessive in view of such moderate earnings, and reliance is placed upon the decision of this court in the case .cited supra, Chicago & Northwestern Railway Co. v. Eveland. So the question is, if it be conceded, for present purposes, that-the earnings for 1923 were only $8,958.69, does that' fact, having in view also the other facts shown, and the absence of any evidence as to factors proper to be considered, justify a conclusion of excessive valuation, under the authority of the case cited. We think not. The ease cited by no means holds that earning capacity is completely to overshadow other factors. Indeed, in that very ease other factors were given such consideration as that a $29,000,000 valuation was inferentially held fair on railroad property producing substantially no net earnings whatsoever. In the present case, moreover, ■ as distinguished from that ease, low earning capacity loses something of its persuasiveness in comparison with other factors, when it is shown in part to have resulted from inefficiency and incompetence. Our conclusion is that it has not been proved 'that the valuation for 1923 was excessive to such an extent as to warrant a finding of constructive fraud. The same is true as to the valuations fixed for the years 1924 and 1925. The facts as to those years were not different, with the exception that as to both years there was evidence tending to show that there were no earnings, and that in the last-mentioned year the whole property at a foreclosure sale brought but $350,000. Even if it be conceded that a close and scientific inquiry demonstrates that during a period of two years earnings disappeared entirely (the books of the company, however, as to 1924 showing an operating surplus), that fact by itself does not make the valuations fixed unquestionably and beyond all bounds excessive; it being also conceded that proper management of the property might have produced substantial earnings. And, of course, a price obtained at a forced sale is but a poor index of real value, even if it could be urged that the taxing authorities could anticipate what price would be realized at such a sale. In any event, it is seriously to'be doubted if appellants (the company having tendered nothing while conceding something to be due) are in a position to urge that the valuations were excessive, and to obtain a reduction of those valuations in this case. State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 663; People’s National Bank v. Marye, 191 U. S. 272, 24 S. Ct. 68, 48 L. Ed. 180; Raymond v. Chicago Union Traction Co., 207 U. S. 20, 28 S. Ct. 7, 52 L. Ed. 78, 12 Ann. Cas. 757. But that point it is unnecessary to decide in this ease, in view of our conclusion as to the failure to show that the valuations were excessive to the extent claimed. The judgment is affirmed. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:

sc_lcdisposition

C

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES v. CAMPBELL No. 81-1983. Argued February 28, 1983 Decided May 16, 1983 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, Rehnquist, Stevens, and O’Con-nor, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 470. Marshall, J., filed an opinion concurring in part and dissenting in part, post, p. 473. John H. Garvey argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Getter, and Anne Buxton Sobol. Ruben Nazario argued the cause for respondent. With him on the brief were Toby Golick and Jane Greengold Stevens Briefs of amici curiae urging affirmance were filed by Eileen P. Sweeney for the Gray Panthers; and by Dan Stormer for Tulare/Kings Counties Legal Services et al. Justice Powell delivered the opinion of the Court. The issue is whether the Secretary of Health and Human Services may rely on published medical-vocational guidelines to determine a claimant’s right to Social Security disability benefits. I The Social Security Act defines “disability” in terms of the effect a physical or mental impairment has on a person’s ability to function in the workplace. It provides disability benefits only to persons who are unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.” 81 Stat. 868, as amended, 42 U. S. C. § 423(d)(1)(A). And it specifies that a person must “not only [be] unable to do his previous work but [must be unable], considering his age, education, and work experience, [to] engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U. S. C. § 423(d)(2)(A). In 1978, the Secretary of Health and Human Services promulgated regulations implementing this definition. See 43 Fed. Reg. 55349 (1978) (codified, as amended, at 20 CFR pt. 404, subpt. P (1982)). The regulations recognize that certain impairments are so severe that they prevent a person from pursuing any gainful work. See 20 CFR § 404.1520(d) (1982) (referring to impairments listed at 20 CFR pt. 404, subpt. P, app. 1). A claimant who establishes that he suffers from one of these impairments will be considered disabled without further inquiry. Ibid. If a claimant suffers from a less severe impairment, the Secretary must determine whether the claimant retains the ability to perform either his former work or some less demanding employment. If a claimant can pursue his former occupation, he is not entitled to disability benefits. See §404.1520(e). If he cannot, the Secretary must determine whether the claimant retains the capacity to pursue less demanding work. See §404.1520(f)(1). ■ The regulations divide this last inquiry into two stages. First, the Secretary must assess each claimant’s present job qualifications. The regulations direct the Secretary to consider the factors Congress has identified as relevant: physical ability, age, education, and work experience. See 42 U. S. C. § 423(d)(2)(A); 20 CFR § 404.1520(f) (1982). Second, she must consider whether jobs exist in the national economy that a person having the claimant’s qualifications could perform. 20 CFR §§ 404.1520(f), 404.1566-404.1569 (1982). Prior to 1978, the Secretary relied on vocational experts to establish the existence of suitable jobs in the national economy. After a claimant’s limitations and abilities had been determined at a hearing, a vocational expert ordinarily would testify whether work existed that the claimant could perform. Although this testimony often was based on standardized guides, see 43 Fed. Reg. 9286 (1978), vocational experts frequently were criticized for their inconsistent treatment of similarly situated claimants. See Santise v. Schweiker, 676 F. 2d 925, 930 (CA3 1982); J. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil, & M. Carrow, Social Security Hearings and Appeals 78-79 (1978). To improve both the uniformity and efficiency of this determination, the Secretary promulgated medical-vocational guidelines as part of the 1978 regulations. See 20 CFR pt. 404, subpt. P, app. 2 (1982). These guidelines relieve the Secretary of the need to rely on vocational experts by establishing through rulemaking the types and numbers of jobs that exist in the national economy. They consist of a matrix of the four factors identified by Congress — physical ability, age, education, and work experience — and set forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy. Where a claimant’s qualifications correspond to the job requirements identified by a rule, the guidelines direct a conclusion as to whether work exists that the claimant could perform. If such work exists, the claimant is not considered disabled. t — I HH In 1979, Carmen Campbell applied for disability benefits because a back condition and hypertension prevented her from continuing her work as a hotel maid. After her application was denied, she requested a hearing de novo before an Administrative Law Judge. He determined that her back problem was not severe enough to find her disabled without further inquiry, and accordingly considered whether she retained the ability to perform either her past work or some less strenuous job. App. to Pet. for Cert. 28a. He concluded that even though Campbell’s back condition prevented her from returning to her work as a maid, she retained the physical capacity to do light work. Ibid. In accordance with the regulations, he found that Campbell was 52 years old, that her previous employment consisted of unskilled jobs, and that she had a limited education. Id., at 28a-29a. He noted that Campbell, who had been born in Panama, experienced difficulty in speaking and writing English. She was able, however, to understand and read English fairly well. App. 42. Relying on the medical-vocational guidelines, the Administrative Law Judge found that a significant number of jobs existed that a person of Campbell’s qualifications could perform. Accordingly, he concluded that she was not disabled. App. to Pet. for Cert. 29a. This determination was upheld by both the Social Security Appeals Council, id., at 16a, and the District Court for the Eastern District of New York, id., at 15a. The Court of Appeals for the Second Circuit reversed. Campbell v. Secretary of Dept. of Health and Human Services, 665 F. 2d 48 (1981). It accepted the Administrative Law Judge’s determination that Campbell retained the ability to do light work. And it did not suggest that he had classified Campbell’s age, education, or work experience incorrectly. The court noted, however, that it “has consistently required that ‘the Secretary identify specific alternative occupations available in the national economy that would be suitable for the claimant’ and that ‘these jobs be supported by “a job description clarifying the nature of the job, [and] demonstrating that the job does not require” exertion or skills not possessed by the claimant.’” Id., at 53 (quoting Decker v. Harris, 647 F. 2d 291, 298 (CA2 1981)). The court found that the medical-vocational guidelines did not provide the specific evidence that it previously had required. It explained that in the absence of such a showing, “the claimant is deprived of any real chance to present evidence showing that she cannot in fact perform the types of jobs that are administratively noticed by the guidelines.” 665 F. 2d, at 53. The court concluded that because the Secretary had failed to introduce evidence that specific alternative jobs existed, the determination that Campbell was not disabled was not supported by substantial evidence. Id., at 54. We granted certiorari to resolve a conflict among the Courts of Appeals. Schweiker v. Campbell, 457 U. S. 1131 (1982). We now reverse. III The Secretary argues that the Court of Appeals’ holding effectively prevents the use of the medical-vocational guidelines. By requiring her to identify specific alternative jobs in every disability hearing, the court has rendered the guidelines useless. An examination of both the language of the Social Security Act and its legislative history clearly demonstrates that the Secretary may proceed by regulation to determine whether substantial gainful work exists in the national economy. Campbell argues in response that the Secretary has misperceived the Court of Appeals’ holding. Campbell reads the decision as requiring only that the Secretary give disability claimants concrete examples of the kinds of factual determinations that the administrative law judge will be making. This requirement does not defeat the guidelines’ purpose; it ensures that they will be applied only where appropriate. Accordingly, respondent argues that we need not address the guidelines’ validity. A The Court of Appeals held that “[i]n failing to show suitable available alternative jobs for Ms. Campbell, the Secretary’s finding of ‘not disabled’ is not supported by substantial evidence.” 665 F. 2d, at 54. It thus rejected the proposition that “the guidelines provide adequate evidence of a claimant’s ability to perform a specific alternative occupation,” id., at 53, and remanded for the Secretary to put into evidence “particular types of jobs suitable to the capabilities of Ms. Campbell,” id., at 54. The court’s requirement that additional evidence be introduced on this issue prevents the Secretary from putting the guidelines to their intended use and implicitly calls their validity into question. Accordingly, we think the decision below requires us to consider whether the Secretary may rely on medical-vocational guidelines in appropriate cases. The Social Security Act directs the Secretary to “adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same” in disability cases. 42 U. S. C. § 405(a). As we previously have recognized, Congress has “conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the [Social Security] Act.” Schweiker v. Gray Panthers, 453 U. S. 34, 43 (1981); see Batterton v. Francis, 432 U. S. 416, 425 (1977). Where, as here, the statute expressly entrusts the Secretary with the responsibility for implementing a provision by regulation, our review is limited to determining whether the regulations promulgated exeeded the Secretary's statutory authority and whether they are arbitrary and capricious. Herweg v. Ray, 455 U. S. 265, 275 (1982); Schweiker v. Gray Panthers, supra, at 44. We do not think that the Secretary’s reliance on medical-vocational guidelines is inconsistent with the Social Security Act. It is true that the statutory scheme contemplates that disability hearings will be individualized determinations based on evidence adduced at a hearing. See 42 U. S. C. § 423(d)(2)(A) (specifying consideration of each individual’s condition); 42 U. S. C. § 405(b) (1976 ed., Supp. V) (disability determination to be based on evidence adduced at hearing). But this does not bar the Secretary from relying on rulemaking to resolve certain classes of issues. The Court has recognized that even where an agency’s enabling statute expressly requires it to hold a hearing, the agency may rely on its rulemaking authority to determine issues that do not require case-by-case consideration. See FPC v. Texaco Inc., 377 U. S. 33, 41-44 (1964); United States v. Storer Broadcasting Co., 351 U. S. 192, 205 (1956). A contrary holding would require the agency continually to relitigate issues that may be established fairly and efficiently in a single rulemaking proceeding. See FPC v. Texaco Inc., supra, at 44. The Secretary’s decision to rely on medical-vocational guidelines is consistent with Texaco and Storer. As noted above, in determining whether a claimant can perform less strenuous work, the Secretary must make two determinations. She must assess each claimant’s individual abilities and then determine whether jobs exist that a person having the claimant’s qualifications could perform. The first inquiry involves a determination of historic facts, and the regulations properly require the Secretary to make these findings on the basis of evidence adduced at a hearing. We note that the regulations afford claimants ample opportunity both to present evidence relating to their own abilities and to offer evidence that the guidelines do not apply to them. The second inquiry requires the Secretary to determine an issue that is not unique to each claimant — the types and numbers of jobs that exist in the national economy. This type of general factual issue may be resolved as fairly through rulemaking as by introducing the testimony of vocational experts at each disability hearing. See American Airlines, Inc. v. CAB, 123 U. S. App. D. C. 310, 319, 359 F. 2d 624, 633 (1966) (en banc). As the Secretary has argued, the use of published guidelines brings with it a uniformity that previously had been perceived as lacking. To require the Secretary to relitigate the existence of jobs in the national economy at each hearing would hinder needlessly an already overburdened agency. We conclude that the Secretary’s use of medical-vocational guidelines does not conflict with the statute, nor can we say on the record before us that they are arbitrary and capricious. B We now consider Campbell’s argument that the Court of Appeals properly required the Secretary to specify alternative available jobs. Campbell contends that such a showing informs claimants of the type of issues to be established at the hearing and is required by both the Secretary’s regulation, 20 CFR §404.944 (1982), and the Due Process Clause. By referring to notice and an opportunity to respond, see 665 F. 2d, at 53-54, the decision below invites the interpretation given it by respondent. But we do not think that the decision fairly can be said to present the issues she raises. The Court of Appeals did not find that the Secretary failed to give sufficient notice in violation of the Due Process Clause or any statutory provision designed to implement it. See 42 U. S. C. §405(b) (1976 ed., Supp. V) (requiring that disability claimants be given “reasonable notice and [an] opportunity for a hearing”). Nor did it find that the Secretary violated any duty imposed by regulation. See 20 CFR § 404.944 (1982) (requiring the administrative law judge to “loo[k] fully into the issues”). Rather the court’s reference to notice and an opportunity to respond appears to be based on a principle of administrative law — that when an agency takes official or administrative notice of facts, a litigant must be given an adequate opportunity to respond. See 5 U. S. C. § 556(e); McDaniel v. Celebrezze, 331 F. 2d 426 (CA4 1964). This principle is inapplicable, however, when the agency has promulgated valid regulations. Its purpose is to provide a procedural safeguard: to ensure the accuracy of the facts of which an agency takes notice. But when the accuracy of those facts already has been tested fairly during rulemaking, the rulemaking proceeding itself provides sufficient procedural protection. See, e. g., Rivers v. Schweiker, 684 F. 2d 1144, 1156 (CA5 1982); Broz v. Schweiker, 677 F. 2d 1351, 1362 (CA11 1982); Torres v. Secretary of Health and Human Services, 677 F. 2d 167, 169 (CA1 1982). > HH The Court of Appeals’ decision would require the Secretary to introduce evidence of specific available jobs that respondent could perform. It would limit severely her ability to rely on the medical-vocational guidelines. We think the Secretary reasonably could choose to rely on these guidelines in appropriate cases rather than on the testimony of a vocational expert in each case. Accordingly, the judgment of the Court of Appeals is Reversed. The regulations state that the Secretary will inquire into each of these factors and make an individual assessment of each claimant’s abilities and limitations. See 20 CFR §§404.1545-404.1565 (1982); cf. 20 CFR § 404.944 (1982). In determining a person’s physical ability, she will consider, for example, the extent to which his capacity for performing tasks such as lifting objects or his ability to stand for long periods of time has been impaired. See §404.1545. The Social Security hearing system is “probably the largest adjudicative agency in the western world.” J. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil, & M. Carrow, Social Security Hearings and Appeals xi (1978). Approximately 2.3 million claims for disability benefits were filed in fiscal year 1981. Department of Health and Human Services, Social Security Annual Report to the Congress for Fiscal Year 1981, pp. 32, 35 (1982). More than a quarter of a million of these claims required a hearing before an administrative law judge. Id., at 38. The need for efficiency is self-evident. Each of these four factors is divided into defined categories. A person’s ability to perform physical tasks, for example, is categorized according to the physical exertion requirements necessary to perform varying classes of jobs — i. e., whether a claimant can perform sedentary, light, medium, heavy, or very heavy work. 20 CFR §404.1567 (1982). Each of these work categories is defined in terms of the physical demands it places on a worker, such as the weight of objects he must lift and whether extensive movement or use of arm and leg controls is required. Ibid. For example, Rule 202.10 provides that a significant number of jobs exist for a person who can perform light work, is closely approaching advanced age, has a limited education but who is literate and can communicate in English, and whose previous work has been unskilled. The regulations recognize that the rules only describe “major functional and vocational patterns.” 20 CFR pt. 404, subpt. P, app. 2, § 200.00(a) (1982). If an individual’s capabilities are not described accurately by a rule, the regulations make clear that the individual’s particular limitations must be considered. See app. 2, §§ 200.00(a), (d). Additionally, the regulations declare that the administrative law judge will not apply the age categories “mechanically in a borderline situation,” 20 CFR § 404.1563(a) (1982), and recognize that some claimants may possess limitations that are not factored into the guidelines, see app. 2, § 200.00(e). Thus, the regulations provide that the rules will be applied only when they describe a claimant’s abilities and limitations accurately. The Social Security Act provides each claimant with a right to a de novo hearing. 42 U. S. C. § 405(b) (1976 ed., Supp. V); §421(d). The regulations specify when a claimant may exercise this right. See 20 CFR §§404.929-404.930 (1982). The Administrative Law Judge did not accept Campbell’s claim that her hypertension constituted an impairment. He found that this claim was not documented by the record and noted that her current medication appeared sufficient to keep her blood pressure under control. See App. to Pet. for Cert. 27a. Campbell later reapplied for disability benefits and was found disabled as of January 1,1981. See Brief for Petitioner 8, n. 7. The Secretary’s subsequent decision does not moot this case since Campbell is claiming entitlement to benefits prior to January 1, 1981. Every other Court of Appeals addressing the question has upheld the Secretary’s use of the guidelines. See Rivers v. Schweiker, 684 F. 2d 1144, 1157-1158 (CA5 1982); McCoy v. Schweiker, 683 F. 2d 1138, 1144-1146 (CA8 1982); Torres v. Secretary of Health and Human Services, 677 F. 2d 167, 169 (CA1 1982); Santise v. Schweiker, 676 F. 2d 925, 934-936 (CA3 1982); Cummins v. Schweiker, 670 F. 2d 81, 82-83 (CA7 1982); Kirk v. Secretary of Health and Human Services, 667 F. 2d 524, 529-535 (CA6 1981); Frady v. Harris, 646 F. 2d 143, 145 (CA4 1981). One Court of Appeals has agreed that the Secretary may use medical-vocational guidelines but has found that with respect to age the guidelines are arbitrary. See Broz v. Schweiker, 677 F. 2d 1351, 1359-1361 (CA11 1982), cert. pending, No. 82-816. The instant case does not present the issue addressed in Broz. The Courts of Appeals have read the decision below as implicitly invalidating the guidelines. See McCoy v. Schweiker, supra, at 1145; Torres v. Secretary of Health and Human Services, supra, at 169; Santise v. Schweiker, supra, at 937, and n. 25. Since Congress amended the Social Security Act in 1954 to provide for disability benefits, Pub. L. 761, § 106, 68 Stat. 1079, it repeatedly has suggested that the Secretary promulgate regulations defining the criteria for evaluating disability. See, e. g., Subcommittee on the Administration of the Social Security Laws of the House Committee on Ways and Means, Administration of Social Security Disability Insurance Program: Preliminary Report, 86th Cong., 2d Sess., 17-18 (Comm. Print 1960) (requesting Secretary to develop “specific criteria for the weight to be given nonmedical factors in the evaluation of disability”); House Committee on Ways and Means, Committee Staff Report on the Disability Insurance Program, 93d Cong., 2d Sess., 6 (Comm. Print 1974) (recommending that the Secretary promulgate regulations defining disability to ease accelerating caseload); Subcommittee on Social Security of the House Committee on Ways and Means, H. R. 8076 — Disability Insurance Amendment of 1977, 95th Cong., 1st Sess., 7 (Comm. Print 1977) (comments of Rep. Burke) (noting with approval that the Secretary had promised to promulgate medical-vocational guidelines to define disability). While these sources do not establish the original congressional intent, they indicate that later Congresses perceived that regulations such as the guidelines would be consistent with the statute. Both FPC v. Texaco Inc., 377 U. S. 33, 40 (1964), and United States v. Storer Broadcasting Co., 351 U. S. 192, 205 (1956), were careful to note that the statutory scheme at issue allowed an individual applicant to show that the rule promulgated should not be applied to him. The regulations here provide a claimant with equal or greater protection since they state that an administrative law judge will not apply the rules contained in the guidelines when they fail to describe a claimant’s particular limitations. See n. 5, supra. Respondent did not raise either her due process or her regulatory argument below. See Brief for Appellant in Campbell v. Schweiker, No. 81-6108 (CA2); Tr. of Oral Arg. 30. Nor has respondent filed a cross-petition. As she prevailed below, we could consider grounds supporting her judgment different from those on which the Court of Appeals rested its decision. See Dandridge v. Williams, 397 U. S. 471, 475-476, n. 6 (1970). But where the ground presented here has not been raised below we exercise this authority “only in exceptional cases.” McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430, 434 (1940). We do not think this is such a case. Alternatively, respondent suggests that if the Administrative Law Judge had inquired conscientiously and fully into the relevant facts, as required by 20 CFR § 404.944 (1982), he would have concluded that she was not capable of performing light work. The Secretary concedes that § 404.944 requires such an inquiry, see Brief for Petitioner 42, but argues that the inquiry undertaken by the Administrative Law Judge satisfied any regulatory duty. Again respondent appears not to have presented her § 404.944 argument to the Court of Appeals, and we decline to reach it here. The Court of Appeals did not identify any basis for imposing this requirement other than its earlier decision in Decker v. Harris, 647 F. 2d 291 (CA2 1981). Decker, however, identified the source of this requirement more clearly. It stated: “This requirement of specificity . . . assures the claimant of adequate notice of the grounds on which his claim may be denied, providing him with an opportunity to present rebuttal evidence. See generally 3 K. Davis, Administrative Law Treatise § 15.18, at 198-206 (2d ed. 1980).” Id., at 298. In § 15.18 of his treatise, Professor Davis addresses the question of administrative or official notice of material facts in disability cases and the need for an adequate opportunity to respond. He states that an administrative law judge may take administrative notice of jobs in the national economy. He emphasizes, however, that “[a] quick remark by an ALJ that he takes official notice of availability of jobs in the national economy that would be suitable for the claimant could be unfair for lack of sufficient specificity. The jobs should be identified, their characteristics should be stated. . . .” § 15.18, at 204 (emphasis added). Decker’s reference to this treatise makes clear that the requirement of specificity derives from a principle of administrative law. Respondent does not challenge the rulemaking itself, and, as noted above, respondent was accorded a de novo hearing to introduce evidence on issues, such as physical and mental limitations, that require individualized consideration. See supra, at 462-468. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:

songer_othadmis

A

What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES v. MINNEC. No. 6697. Circuit Court of Appeals, Seventh Circuit. April 27, 1939. Rehearing Denied June 6, 1939. Arthur H. Jones, of Chicago, Ill., for appellant. William J. Campbell, U. S. Atty., Thomas B. Hart, and Roy D. Keehn, Jr., Asst. U. S. Atty., all of Chicago, Ill., for the United States. Before EVANS, SPARKS, and MAJOR, Circuit Judges. MAJOR, Circuit Judge. Appellant was charged in a sixteen-count indictment with use of the United States mails in furtherance of a scheme to defraud by means of false pretenses, representations and promises in violation of Section 338, Title 18, U.S.C., 18 U.S.C.A. § 338. He was tried by a jury, found guilty upon all counts and from the judgment pronounced thereon this appeal is taken. While numerous errors are assigned, the ones principally relied upon, and in fact, the only ones argued and discussed by appellant are: (1) The trial court erred in overruling the appellant’s general and special demurrer to the indictment and each count thereof. (2) That the court erred in overruling the appellant’s motion asking the court to instruct the jury to return a verdict of not guilty at the close of the appellee’s- evidence, and also at the close of all of the evidence, and in overruling the appellant’s motion for a new trial. (3) That the court erred in admitting prejudicial and incompetent evidence. The indictment, as is usual in such cases, describes at great length, the scheme and artifice devised. In substance, it is alleged that the appellant devised a scheme to defraud and to obtain money by means of false and fraudulent pretenses, representations and promises from certain named persons, as well as those unnamed, residing in divers states, by the incorporation of the Cosmopolitan Mutual Benefit Association and the Lincoln National Aid Association, the avowed object of which was for charitable and beneficial purposes; to assist and provide for the sick, needy and disabled members and for the wants of the widows, orphans and dependents; that Certificates were issued to members, conferring benefits, less than promised, by literature and statements made by the appellant and his agents; the manner of soliciting members and of operating the business, the forms of the Certificates and the provisions therein are set forth in detail, and the indictment particularly specified wherein such provisions are misleading and fraudulent; that a large portion of the contributions received from the members was appropriated by the appellant to his own use; that false and deceptive information was conveyed to the public, and particularly to prospective members by means of the circulars, pamphlets, catalogs, folders and letters by which persons were induced to become members; that no medical examination was required and that persons were solicited, who, by reason of advanced age and physical infirmities would be likely to die from certain diseases which precluded them from receiving anything more than nominal benefits; that the appellant, by reason of proxies obtained from members, was in the absolute control and management of the associations and used his power and authority in compelling members and their beneficiaries to settle claims against the associations without regard to the legality of such claims under the terms and conditions of the Certificates, thus enabling him to appropriate to his own use a large portion of the assessments received from members. The alleged fraudulent provisions of the Certificates are set forth in detail, as well as the fraudulent claims and statements made in pamphlets ánd literature prepared and distributed by the appellant as a means of inducing persons to become members and pay assessments. In brief, it is charged that the associations were operated for the benefit of the appellant rather than for the benefit of the members of the associations, and the details in support of that allegation are set forth. Following the description of the scheme and artifice to defraud, each count of the indictment contains a verbatim description or copy of a document or instrument which it is charged the appellant placed, or caused to be placed in the United States mail as a means of executing the alleged scheme and artifice. That the mails were used in the manner charged is not in dispute. The attack on the indictment is directed at the alleged scheme and the criticism in this respect has to do with a number of allegations, which, it is argued, are indefinite and merely represent the conclusion of the pleader. Authorities are cited to the effect that every necessary allegation in an indictment must be directly and affirmatively alleged, and that charges by implication, intendment or conclusion are insufficient. No doubt, the rule in this respect is well established, but we think it has no application in the instant situation. True, as pointed out by the appellant, there are numerous statements in the indictment, which, if considered by themselves, might properly be termed as conclusions and in some respects, uncertain and indefinite. It can not be held, however, that an indictment which goes into great detail in describing the scheme or artifice to defraud, is bad merely because it contains some statements which may properly be termed as conclusions. In the instant case, such statements may be ignored and yet we find direct and positive averments, which, in our judgment are sufficient to charge a violation of the statute. In fact, it appears the various elements of the scheme are charged with greater prolixity than the circumstances require. While the scheme to defraud is a necessary element of the offense charged, yet the gist of the offense is the use of the mails, and it is only essential that the scheme be charged with such particularity as will enable the accused to know what he may be expected to meet on trial. That the appellant was so informed, there can be no doubt. We now give consideration to the alleged error of the trial court in its refusal to direct a verdict for the appellant. With the voluminous record before us, containing several hundred exhibits it is somewhat difficult to discuss the evidence in an opinion of reasonable length. In the beginning, we think it is not inappropriate to call attention to the fact that this court recently in United States v. Littlejohn, 7 Cir., 96 F.2d 368, considered and decided a similar case where the facts were almost identical with those of the instant case. The facts, as set forth in our opinion in that case, insofar as they relate to the scheme charged, could very well be incorporated here without doing injustice to either side. Counsel for the appellant, in the oral argument before this court, when inquiry was made as to what distinction could be made between the facts in the two cases, pointed out only one minor distinction, which was of no consequence. We shall, briefly, we hope, considering the circumstances, relate what we regard as the more material facts and circumstances. Prior to the organization of the associations in question, appellant had been active in the operation of similar associations, among .them being the Bankers Insurance Corporation, The American Peoples League and the American Peoples Mutual Benefit Association, all of which at or. prior to the time of the organization of the associations in question, ceased to do business. On May 29, 1933, appellant and others obtained a charter for the Cosmopolitan under the laws of the State of Indiana, authorizing a society not for pecuniary profit. On February 28, 1934, the appellant obtained a charter under the laws of the State of Delaware for the Lincoln National Aid Association, the objects of which were the same .as those of the Cosmopolitan. .The two associations proceeded thereafter to solicit members and to issue Certificates. Appellant was President of both and acted in that capacity throughout the entire period involved in this case. No person other than he had any voice in the organization, operation, control or management of such .associations. His situation was thus by reason of the fact that when a member .joined the association he was required, by proxy, to authorize the appellant to act for .such member in all matters pertaining to the associations. Solicitation for memberships, as well as .for representatives to solicit the same, was carried on by means of advertisements in various periodicals and magazines. Salesmen’s kits were mailed to those who evidenced any interest. The advertisements, salesmen’s kits, periodicals, and in fact, all literature mailed 'in connection with the .operation of these associations, appealed to the representatives and to those to whom .'literature was mailed to become members, and solicited all members to become representatives for the associations. No discrimination was used in the selection of representatives. They were authorized to collect $5 initiation fee, and $1 registration fee from each applicant, to be .retained by them'as their commission, and to solicit the application of eligible persons from one to eighty years of age. The business of both associations was actually transacted in an office in Berwyn, Illinois, with the same personnel and officers. An office of nominal character was maintained in Hammond, Indiana. Appellant was the only salaried officer. We think it necessary to refer to some of the statements found in the numerous exhibits which the Government relies upon in part as disclosing the fraudulent means employed in inducing persons to become members of the associations and as a part of the scheme with which appellant was charged. In a pamphlet entitled “True Riches,” copyrighted by the appellant, the associations are described as “rendering humanitarian service.” The maximum benefits provided by the Certificate are set forth without any reference to the exceptions and limitations contained in the Certificate. Referring to the result which follows from illness or death of the head of a family, it is stated: “The perfect tribute any man can give to his family is a lasting guarantee that such tragedy can .never be theirs. It is all so easy, if you only. will. At a cost of only $1 per month, less than the price of one moving picture show per week, you can have the protecting arm of the National Certificate issued by this Association spread over yourself and your family. * * * “If death .should result from your illness, your family will receive up to $1000 cash — and all for this small $1 per month payment. At such a low cost, you cannot afford to be without National Certificate Protection. Think of it! You could pay on a ‘National Certificate’ over 80 years before the amount put in would equal the benefits derived. Prepare today to face anything the future can offer, unafraid and protected.” Again: “The ‘National Certificates’ issued by this Association are simple, plainly worded promises to pay DEFINITE amounts in case of sickness, disability, or death. Just plain, everyday English that you' can understand without the aid of a Philadelphia lawyer. You are the sole judge — no one will call. You study the ‘National Certificate’ in the quiet of your home without any obligation on your part. * * * “After you have your Certificate in your possession, you can look forward to the time when you no longer are able to carry on your work on account of old age; and then you can retire and live in comfort, while others not so fortunate to make application now are unable to make a living. Just think how wonderful it is to be able to play with your grandchildren on the lawn of your son or daughter, and be able to feel that you are not a burden to them, because today you have signed this statement, how terrible it is for old men and women, who, unable to support themselves, are forced to accept any kind of a nasty job, because they must take anything they can get; for the average employer will not give good jobs to old men and old women. This is not right, but nevertheless is the truth. These people should have protected themselves when they were young.” In a letter accompanying “True Riches,” is found this statement: “The ‘National Certificate’ is the most complete, all-coverage benefit certificate ever issued. Study the large benefits this Association offers for the small monthly payment of $1.00. Particularly analyze the Maximum Benefits offered by the ‘National Certificate.’ Note that it provides up to $3000 for Travel Accidental Death. Note that it provides up to $2000 for every known Accident. Note that it provides up to $1000 for Natural Death or old age. Note that it provides up to $30.00 weekly for Travel Accidental Disability. Note that it provides up to $20.00 weekly for Accident Disability and up to $10.00 weekly for Sickness.” In another pamphlet entitled “Mutual Crusaders’ Messenger,” also copyrighted by appellant, we find this statement: “Again, let me call your attention to the fact that you do not have to get sick or die to receive the Benefits of this Association, because when you have an old man on your hands, which is yourself, you should receive benefits that should take care of yourself the rest of your life. So, you see, when you join this Association and you will receive its ‘National Certificate,’ you virtually have made provision to take care of yourself and your loved ones in the event of your sickness, disability, old age, and death. * * * * So you see, Mr. -, the necessity of making application now; because as long as we live, we need food, we need shelter, and we need clothes; and as we get older, disease appears, and we require medical attention. This Association furnishes these Benefits for you, if you will fill this application now, and pay the small monthly payment of one dollar per month, to keep your Membership in good standing.” In another exhibit we find: “The ‘National Certificate’ is issued by this Association which is Chartered and. Operates 'not for profit under State Laws. It operates under the Mutual Benefit plan, which has over 760 years of successful experience, giving safe sound, and economical protection to its, members at cost. The ‘National Certificate’ will protect you.” In a letter to members it is said: “This Association issues the very best of protective mutual benefit certificates for the small sum of $1.00 per month.” In a form letter which accompanied Certificates to new members, it is stated: “Always maintain your ‘National Certificate’ in force. Tell your relatives, friends, and neighbors, how easy it is for them to receive the protection of the ‘National Certificate.’ Thus you will help them to secure for themselves the best protection available for only one dollar ($1.00) per month.” Also, this statement appears: “Today you have no excuse to do without life protection any longer, when, at a cost of less than 3%^ a day, Cosmopolitan Mutual will protect you.” In this letter the protection offered is described as an adequate and “amazing value in life protection.” Again, we find a Certificate described— “As the Liberty Policy is a masterpiece of protection it is to your interest and the interest of your loved ones to maintain this Policy in force at all times.” In another pamphlet we find: “Thousands of members everywhere welcome the ‘National Certificate’; hundreds of letters have reached us praising this all-coverage contract. Lawyers, Doctors, Insurance Men, Priests, Ministers, Pastors, Mayors, Sheriffs, Policemen, Carpenters, Mason, Miners, etc., etc., all welcome the ‘National Certificate.’ ” These statements are merely typical of the many alluring representations made by the appellant in every conceivable form of advertising for the purpose, of course, of inducing persons to become members. A person desiring to become a member was required to sign an application and to answer certain questions, the most important of which was “Are you in good and vigorous health?” In numerous instances, as disclosed, there was a failure on the part of the applicant to give any answer to this question and in numerous other instances the answer was such as to disclose that no claim to good health was made on the part of the applicant. Little, if any, attention, however, was given to' the answer to this question and regardless of the manner in which it was answered, the applicant invariably was accepted as a member. The failure to answer, or an answer disclosing the applicant was not in good health, was, however, frequently used by the appellant as a means of evading liability. A four-page Certificate, attractive in appearance, was issued to the member. On the first page appears the picture of Abraham Lincoln. (This refers to the Lincoln National Association, but the terms of the Certificate were similar in' each instance.) In the upper right-hand corner in bold type it is stated: “Maximum Benefits $3000.001 $2000.001 Death Benefits $1000.00j $30.001 $20.001 Weekly Benefits.” $io.ooj Commencing about the middle of the face of the policy, appears the following (Size and type of print, same as here): It appears from the evidence that 97% of all people who die in the age group, 40 to 80, die from one of the diseases or causes mentioned in this latter provision of the Certificate, and in the age group, 1 to 80 years, 90%. On page 2 are found further limitations upon the benefits provided as shown in the schedule of benefits on the face of the Certificate. On page 3, in extremely fine print are found the conditions and by-laws of the Association. They consist of 40 articles or paragraphs. Time and space forbid more than brief reference to the same. Article 5 gives the President the control and management of the business; Article 8 provides that the President may receive 100% of the Expense Fund, 100% of all membership fees, 100% of all registration fees to use for expenses and that the remainder shall become his compensation; Article 9 makes the by-laws a part of the Certificate, and Article 23 provides for a Guarantee Benefit Fund out of which to pay benefits and an Expense Fund, such funds to be created _ from payments received from members. The moneys thus received are to be allocated as follows: First year, 10% to Guarantee Fund and 90% to Expense Fund; Second year, 20% to Guarantee Fund and 80% to the Expense Fund; Third and subsequent years, 30% to the former and 70% to the latter. This article also provides that in the event in any month that contributions are less than liabilities on account of claims payable, then the member shall receive proportionately less than he would be otherwise entitled. It is also provided that if the total net proceeds of one monthly contribution amount to more than is necessary to pay the. claims and obligations, then the balance shall be deposited to the Expense Fund. It was disclosed that the receipts of the Cosmopolitan for the period from August 1, 1933 to August 31, 1937, were $57,143. 61; for the Lincoln for the same period, $18,153.50, or total receipts by the two Associations of $75,297.11. During the same period, the disbursements amounted to $56,335.67, of which the sum of $4112.45 was paid out by both Associations on all claims, both for death and disability. There was a balance in the bank as of August 31, 1937, of $3,033.62, which leaves an amount of something less than $16,000, the disposition of which is not explained by the record. One, Edward Fackler, testified on behalf of the Government, as an expert actuary, regarding the Certificates issued by each of the Associations. His testimony was to the effect that the assessments provided to pay for $1000 worth of insurance for a person aged 18, for natural death alone would be 59% deficient; at age 35 the assessments would be 78% deficient and at age 54 they would be 90% deficient. The deficiency of assessments for other classes and ages, according to his testimony, would vary from 46 to 89%, and he gave as his opinion that neither Association could operate successfully. We have no hesitancy in concluding that the verdict of the jury and judgment of the court were justified — in fact, it is difficult to ascertain how a different conclusion could have been reached. It would serve no useful purpose for us to indulge further in a recitation of the many facts appearing in the record, or a reiteration of those to which we -have already referred, in support of our conclusion. Appellant argues at length in an effort at demonstration and that the certificate constituted a contract between the appellant and the member, and that it was the intention of the appellant to provide for the latter or his beneficiary, benefits according to the terms thereof. It is further argued that the appellant was in a position to pay such benefits and as a matter of fact, made such payments in conformity with the terms of the Certificate, and, therefore, no fraud was involved. After reading the many complicated restrictions and limitations provided in the Certificate, as well as the numerous loopholes which are provided by which the Associations might and did escape liability, we are inclined to think that appellant’s argument in this respect is tenable. In other words, if we are able to understand all the terms and conditions imposed by the Certificate, which we find difficult to do, we think it may be said that the appellant possessed the ability to pay such benefits as promised. The reason we are able to countenance such an argument is that a study of the Certificate convinces us that he came as near to promising nothing as it would be possible for a man to do, skilled in this line of work, as appellant was. A study of the Certificate itself is convincing that it was designed as an entrapment for the ignorant and unwary and operated successfully as a snare and a delusion. We have heretofore set forth the schedule of maximum benefits as appears on the face of the Certificate, and also the very small italicized print which follows this schedule, and which limits any benefits provided to such an extent that they become practically, nil. It is impossible, with the means at our disposal, to portray the manner in which this particular limitation is embedded in the Certificate. Not only is the type so small as to make it difficult to read with the naked eye, but the reading of it is made more difficult by a blending of mottled colors constituting the background on which these restrictions are printed. The situation thus created must have been for the purpose of keeping a member “in the dark” as to the .restrictions contained therein. Benefits by this clause were reduced to 2% of the maximum benefits in case the member died during the first 90 days the Certificate was in force of any disease or ailment mentioned therein and which, according to medical testimony is the cause of death in 97% of the people. The benefits are increased 2% each 90 days thereafter until the maximum benefit is reached. To make certain, however, that no member escape the devastating effect of this limitation, it was further provided that if any person die with any chronic or undetermined disease or ailment, that the benefit should likewise be 2% of the stated maximum benefit. Further conditions and limitations found on the inside pages of the Certificate, as well as the constitution and by-laws, are equally confusing and deceptive. Instead of containing “plain, everyday F.nglish that you can understand without the aid of a Philadelphia lawyer,” the language employed would tax the ingenuity of layman and lawyer alike. While we think, as stated, that fraud is apparent from the Certificate itself, there can be no doubt of the fraudulent scheme when the Certificate is taken into consideration with the many false, enticing and alluring statements and promises which were made by the appellant for the purpose of inducing persons to become members. We have heretofore made reference to some of such statements and we need not repeat. It is sufficient to state that the evidence in this respect establishes fraud of a vicious character, the consequences of which resulted in disappointment, hardships and financial loss to those who relied upon and gave credence thereto. While we .recognize. that some latitude is allowable to a person engaged in business in extolling the virtues of that which he offers to the public (sometimes referred to as “puffing”) yet there must be a limit, which in this case was reached far short of the false, misleading and fake promises made by the appellant, or at any rate made under his direction and with his approval as a means of inducing persons to become members of these Associations and thereby obtain their money. Complaint is also made concerning the admission of evidence. Our attention is called particularly to the testimony of the witness, Fackler, who qualified as an expert actuary and testified as such. The witness was permitted to read or describe various provisions of the Certificate and to express an opinion as to their effect and as to the effect of the Certificate as a whole. We do not think the court committed error in this respect. The Certificates were written in language complicated and confusing, so 'much so that the jury could not have been expected to obtain an intelligent conception of the same without such testimony. In addition, our review of the record convinces us that the charge was so thoroughly established that even if there be error in this respect, it was inconsequential. The judgment is affirmed. Brady v. United States, 8 Cir., 24 F.2d 399, 402; Worthington v. United States, 7 Cir., 64 F.2d 936, 938; Hass v. United States, 8 Cir., 93 F.2d 427, 429. Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

songer_two_issues

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Early C. COOPER, Plaintiff-Appellant, v. Angus WILSON, Defendant-Appellee. No. 14827. United States Court of Appeals Sixth Circuit. Oct. 12, 1962. George Bailes, Cincinnati, Ohio, Richard L. Hinton, Flemingsburg, Ky., for plaintiff-appellant. Robert G. McIntosh, Cincinnati, Ohio, McIntosh & McIntosh, Cincinnati, Ohio, Robert G. McIntosh, Cincinnati, Ohio, of counsel, for defendant-appellee. Before CECIL, Chief Judge, Mc-ALLISTER, Circuit Judge, and DARR, Senior District Judge. ORDER The appellant brought this action based on Section 1983, Title 42 U.S.C.A., jurisdiction being asserted under Section 1343, Title 28 U.S.C.A., for deprivation of his alleged civil rights by his commitment to and confinement in a mental institution. The claim is made that the appel-lee, a private practicing attorney, by his fraudulent conduct in the sanity proceedings resulted in appellant’s confinement in a mental institution. The District Court sustained appellee’s motion to dismiss the action. Appellee, acting as a private lawyer, charged with making false statements in sanity proceedings which resulted in appellant’s commitment to Longview State Hospital, a mental institution, was not amenable to action based on civil rights statute. Kenny v. Fox, 232 F.2d 288 (1956) C.A. 6. It is, therefore, ordered and adjudged that the District Court’s judgment dismissing the action is in all things affirmed. Question: Are there two issues in the case? A. no B. yes Answer:

songer_indict

E

What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the indictment was defective?" 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". ÆTNA INS. CO. OF HARTFORD, CONN., v. LICKING VALLEY MILLING CO. Circuit Court of Appeals, Sixth Circuit. May 13, 1927. No. 4750. 1. Exceptions, bill of <@=>60(l) — Failure to observe rule requiring filing assignment of errors before settling bill of exceptions held not to invalidate bill settled without objection (Circuit Court rule 10). Failure to observe Circuit Court rule 10, requiring filing assignment of errors at or before settling bill of exceptions, will not invalidate bill of exceptions, where bill was settled without objection on that score, and was included by stipulation of counsel in list of papers which should constitute entire record on writ of error. 2. Trial <@=>177 — Court was empowered to pass on facts, where each party at conclusion of trial by jury asked for directed verdict. Where, at conclusion of trial by jury, each party without reservation asked court for direction of verdict in its favor on all of the issues, court was empowered to pass on facts. 3. Appeal and error <@=>997(3) — Appellate court must accept fact conclusions of trial court, after motion by both parties for directed verdict, supported by substantial testimony. Circuit Court of Appeals is bound to accept the fact conclusions of trial court, after motion for directed verdict by both parties, so far as supported by any substantial testimony. 4. Insurance <@=>665(2) — Evidence held to support conclusion that there was previous valid oral contract pursuant to which policy was issued. Evidence helé to support conclusion of trial judge, in action on alleged policy of fire insurance, that there was a . previous valid oral contract of insurance pursuant to which policy was issued. .5. Appeal and error <@=>1012 (2) — Weight of testimony is net for consideration by appellate court, where conclusions of trial judge are supported by evidence. Where there is substantial evidence to support conclusions of trial judge, the weight of testimony given at trial is not for consideration by Circuit Court of Appeals. 6. Appeal and error <@=>499(1) — Error cannot be predicated on overruling objection, ground of which does not appear in record. No error can be predicated on overruling of objection, where ground of objection does not appear in record. 7. Evidence <@=>121 (2) — Agent’s statement to plaintiff, after telephoning Insurer’s agent that insurance was in effect, held admissible as res gestae. In action on alleged policy of fire insurance, statement of agent, after telephoning agent for insurer relative to securing policy, that insurance was in effect, helé aduissible as part of res gestae. 8. Insurance <@=>131 (I) — Oral insurance contract held not void for lack of express agreement as to company, duration of risk, amount of premium, and credit therefor. Oral contract of insurance held'• not void for lack of express agreement as to company in which insurance was to be placed, duration of risk, amount of premium, and subject of credit to insured therefor. 9. Insurance <@=>I3I>(I) — Insurance' contract need not be in writing, unless required' by statute or other positive regulation. Unless forbidden by statute or other positive regulation, it is not necessary to validity of contract to insure that it be in writing. 10. Insurance <@=>130(1) — Minds of parties must have in some way met relative to elements of insurance contract, in order that it constitute valid contract. In order that contract to insure constitute a valid contract, it is necessary that minds of parties be shown to have in some way met in regard to elements of contract. In Error • to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. Action by the Licking Valley Milling Company against the ¿Etna Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendant brings error. Affirmed. Joseph S. Laurent, of Louisville, Ky. (Robert G. Gordon, of Louisville, Ky., on the brief), for plaintiff in error. Robert C. Simmons, of Covington, Ky. (Shelley D. Rouse and Wm. A. Price, both of Covington, Ky., and L. P. Fryer, of Butler, Ky., on the brief), for defendant in error. Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges. KNAPPEN, Circuit Judge. This writ is to review a judgment for defendant in error (plaintiff below) upon an alleged policy of fire insurance on plaintiff’s mill, machinery, grain, etc., therein. 1. On the threshold we are met with the suggestion, in the brief of plaintiff in error on the merits, that the bill of exceptions be stricken from the record or disregarded because the assignment of errors was not filed “at or before the settling of the bill of exceptions,” as directed by the .first para- • graph of our rule 10, entitled “Bills of Exceptions.” We are disposed to treat the nonobservanee of this provision as not invalidating the bill of exceptions, for the reason, if for no other, that the bill seems to' have been settled without objection on that score, and was included by stipulation of counsel in the list of papers which “should constitute the entire record on writ of error.” 2. At the conclusion of trial by jury each party (without reservation) asked the court for direction of verdict in its favor upon all of the issues. The court was thus empowered to pass upon the facts necessary to decision, and this court is bound to accept the fact conclusions' of the trial court, so far as supported by any substantial testimony. Beuttell v. Magone, 157 U. S. 154, 15 S. Ct. 566, 39 L. Ed. 654; Williams v. Vreeland, 250 U. S. 295, 298, 39 S. Ct. 438, 63 L. Ed. 989, 3 A. L. R. 1038; Minaban v. Gd. Trunk Western Ry. Co. (C. C. A. 6) 138 F. 37, 41; ThomasBonner Co. v. Hooven, etc., Co. (C. C. A. 6) 284 F. at page 392. Judgment was entered for plaintiff for the amount of the loss. 3. Coming to the merits: Plaintiff was the owner of the mill in question, located at Boyd, Ky. .It desired $5,000. insurance on the mill building, etc., $5,000 on engine, boilers, machinery, etc., and $2,000 on grain and seeds and had agreed to place the insurance with one Bennett, an insurance agent at Boyd, who had no agency for defendant. Bennett made application for the insurance by telephone to one Stone, defendant’s agent at Cynthiana, who as defendant’s representative took applications for, wrote and countersigned policies (blanks for which were provided him with the signature of the president already stamped or printed on them). Thereupon Stone, on September 11, 1923, wrote in favor of plaintiff a uniform standard fire insurance policy for $12,000 upon the property in question, divided as applied for, for a term of six months next ensuing, on a stated premium therefor of $193.20, sending (in connection with his daily report) one copy to defendant and another to the actuarial bureau at Louisville. The fire occurred January 26, 1924. Defendant denies that the policy written by Stone ever became operative. The premium was not in fact paid or tendered before the fire, but it was tendered by plaintiff and refused by defendant after the fire. Until that time the original policy had apparently remained in Stone’s possession. After the fire defendant furnished plaintiff blank proofs of loss, together with copy of the policy which Stone had written. Defendant contends that, as matter of law, no valid written contract of insurance was made for lack of delivery and no valid oral contract for lack of agreement as to (a) the company in which the insurance was to be placed; (b) the duration of the risk; (e) the amount of the premium; and (d) the subject of credit to plaintiff for the premium. Stone testified that he represented two companies besides defendant, that he had previously brokered one or two policies for and divided commissions with Bennett on insurance which the latter could not write in companies he represented; that he had at one time written $10,000 on the contents of the building in Hartford, but had never written any insurance upon the building; that in his conversation with Bennett the latter asked him if he could place $12,000 of insurance for plaintiff, $5,000 on building, $5,000 on machinery and $2,000 on contents; that he told Bennett that the latter knew that sort of insurance was extremely hard to place, but he would endeavor to place it for him, but for him (Bennett) not to regard it insured until he (Bennett) heard from him (Stone); that after this he had his business associate “issue” the policy, which he left in his office until he could get returns from the company as to whether the latter would accept, “as we frequently do with our customers on a hazardous risk”; that he thereupon made out his daily report, and that when defendant received copy of that report from the actuarial bureau it wired him “not to accept” the application; that he thereupon immediately called up Bennett and told him that defendant had declined the risk; and that that closed the incident. He further said that when he wrote the poliey he gent no communication to the actuarial < bureau or to defendant, other than his usual daily report; that he sent no letter of explanation. On the other hand, plaintiff’s business manager, who had applied to Bennett for the insurance, testified that he was in the room when Bennett went to the telephone and called up some one, adding, “I couldn’t tell who it was, but he afterwards told me it was Stone;” that he heard Bennett “mention the $10,000 and the $2,000; this was all I heard in the conversation of Bennett;” that the name of the company was not mentioned (presumably this was the conversation to which Stone referred), and that “after the conversation over the ’phone he [Bennett] told me the insurance was in effect. I asked him about when this would go into effect, but I am not positive whether he said at noon, or the following day at noon, but it was one of the two. So I went off, assured that the insurance was on.” The manager further testified that Bennett did not notify Mm the insurance was af-terwards canceled, nor did he receive notice from any one that such cancellation had taken place; that two days after the fire he called on Stone and asked about the policy, and received the reply, “Well, you haven’t got any insurance,” saying further that “they had written the insurance, but that the policy was canceled in four days after he sent the policy,” that he (Stone) “had told Mr. Bennett to notify us and that he [Stone] had put our policy in the 2Etna Insurance Company.” Bennett did not testify. Defendant’s counsel complains that “the' district court brushed aside, as not worthy of any consideration, the testimony of Mr. Stone in this case,” and argues in favor of his credibility. Questions of credibility are not for our determination. The court was not bound to believe Stone’s statement that he had told Bennett that defendant had declined the risk. Stone does not say he told Bennett the policy had been canceled. Plaintiff’s president testified that on the morning after the fire he asked Stone “if he wrote the insurance on the mill, and he said ■he did; he said he insured it and wrote the policy, but he said he got word immediately to cancel. I told him that he did not tell us anything about it; that we thought it was insured. He said he insured it and wrote the policy, but he said the company wired him to cancel it. I told him he did not notify us of any cancellation. So he said he didn’t know who the owners were.” Stone, in addition to disputing certain statements of plaintiff’s manager and president referred to, said he did not agree to deliver the policy, nor did he agree with any one that it was to become effective prior to the time he should hear from the company. Manifestly defendant’s alleged direction that the policy be canceled could not, without notice to plaintiff, destroy an immediate effect policy such as Stone had power to issue. The trial judge did not believe Stone’s testimony that the policy was not issued to take present effeet, but was to take effect only if the company, after a lapse of a week or 10 days, failed to object. The judge held that, “notwithstanding Stone’s testimony to the contrary, the evidence preponderates in favor of the position that there was a previous valid oral contract of insurance pursuant to which the policy was issued,” and that “it is difficult, if not impossible, to account for Stone issuing the policy and reporting its issuance to the defendant and the actuarial bureau at Louisville, on the basis that there was not a previous oral contract of insurance entered into by the communication of Stone with plaintiff through Bennett. That he did so was inconsistent with the [asserted] fact that he had said to Bennett that he would endeavor to place the insurance and let him know if he succeeded, and that he should not regard the property as insured until he had heard from him definitely. The defendant and the actuarial bureau did not understand that no contract of insurance had been entered into. On the contrary, they were made to understand that there had.” We think that, independently of the testimony as to Bennett’s statement following his telephone -conversation with Stone, there was substantial evidence tending to support the above-stated conclusion of the trial judge. The weight of the testimony is not for our consideration. Kentucky Coal Lands Co. v. Mineral Development Co. (C. C. A. 6) 295 F. 257. The testimony as to Bennett’s statement above mentioned was received against defendant’s objection and exception. It would seem enough to say that the ground of the objection does not appear in the record (Pennsylvania Co. v. Whitney [C. C. A. 6] 169 F. 572, 575; Robinson v. Van Hooser [C. C. A. 6] 196 F. 620, 624), and that thus no error could be predicated upon the overruling of the objection. However, we are disposed to think that the statement whs admissible as part of the res gesta, for we interpret the manager’s testimony as a whole as meaning that Bennett’s statement was made at the'close of the telephone conversation. Defendant contends that a res gestee statement made by a person who is not a party to a suit (Bennett represented plaintiff) “is allowable only when it is made on an exciting occasion while the speaker is influenced by external circumstances of physical shock or stress of nervous excitement which stills the reflective faculties and removes their control.” We cannot assent to this proposition, which is opposed to numerous decisions, among which are Tuekerman v. United States (C. C. A. 6) 291 F. 958, 970 (where the person whose statement was admitted was neither a party nor the representative of a party to the suit), certiorari denied 263 U. S. 716, 44 S. Ct. 137, 68 L. Ed. 522; Richmond v. Foreman (C. C. A. 4) 267 F. 363, 365 (where the statements in question were of a representative of the party); In re Bradley (D. C.) 263 F. at page 447, affirmed (C. C. A. 2) 269 F. 784; Baron v. United States (C. C. A. 6) 286 F. 822, 826, certiorari denied 262 U. S. 749, 43 S. Ct. 524, 67 L. Ed. 1213. The above comment on the Tucker-man Case is substantially applicable. Chicago, M. & St. P. Ry. Co. v. Chamberlain (C. C. A. 9) 253 F. 429, 430 (where the statement in question was made by plaintiff before the accident, and in the absence of shock,. stress, or excitement, and was described by the court as being “in immediate causal relation to the act — a relation not broken by the interposition of a voluntary individual wariness seeking to manufacture evidence for itself”; St. Clair v. United States, 154 U. S. 134, 149, 14 S. Ct. 1002, 38 L. Ed. 936, where the court cites with approval the definition of res geste found in 1 Wharton on Evidence (2d Ed.) § 259, 1879. The judgment must therefore be affirmed, unless defendant is right in its contention that the oral contract of insurance was void for lack of agreement as to the company in which the insurance was to be placed, the duration of the risk, the amount of the premium, and the subject of credit to plaintiff therefor. We are unable to agree with this broad contention. Unless forbidden by statute or other positive regulation, it is not necessary to tbe validity of a contract to insure that it be in writing. Hartford Fire Ins. Co. v. Tatum (C. C. A.) 5 F.(2d) 169, 171; Fireman’s Fund Ins. Co. v. Norwood (C. C. A. 8) 69 F. 71, 75, and cases cited; Lee v. Lewelling (C. C. A. 8) 281 F. at page 960. While the broad general rule is that a contract to insure is invalid, unless its elements are agreed upon expressly or by implication, or means are provided for their determination, the controlling authorities do not imperatively require express proof of definite agreement thereon. The better rule is that the minds of the parties must be shown to have in some way met in regard to those subjects. Eames v. Home Insurance Co., 94 U. S. 621, 626, 629, 24 L. Ed. 298, 630. In that ease lack of agreement as to duration- of risk was disregarded, upon the testimony of the insured that he supposed (as he had a right to suppose) that he would get the same kind of a policy which had been issued on the property before. In that ease (the application was in writing) the property was fully described (as here), the amount of the insurance was named (as here), and the insured proposed a certain premium, the agent requiring a higher rate. The court thought the insured later agreed to modification in this respeet. He had not paid the premium, nor had the duration of the risk been mentioned (the printed application did not call for it). In sustaining the validity of the contract to insure the court said (page 629): “It is sufficient if one party proposes to be insured, and the other party agrees to insure, and the subject, the period, the amount, and the rate of insurance is ascertained or understood, and the premium paid, if demanded In that case' the insured had had a previous policy for one year. Upon the subject of the premium it was said: “He had not paid the premium, it is true; but it is shown that this was not required until the policy was made out and delivered. * * * If parties’ could not be made secure until all the formal documents were executed and delivered * * * the beneficial effect of this benign contract of insurance would often be defeated and rendered unavailable.” In Hartford Fire Insurance Co. v. Tatum, supra, it was held that the duration and amount of premium payable under a parol contract of insurance were sufficiently established where it was obvious that the parties intended the contract should be the same as a prior builder’s risk insurance contract between the same parties and at the same rate; also that in an action on a parol insurance policy evidence that the defendant’s local agent customarily kept 90 per cent, of the policies written by him in his safe was held admissible upon plaintiff’s failure to call for and insist upon possession of the policy. These cases illustrate the liberal tendency of the courts in sustaining oral contracts for insurance. Upon the subject of delivery, in El Dia Insurance Co. v. Sinclair (C. C. A. 2) 228 F. 833, 838, it is said: “If there is a binding contract of insurance, the fact that the policy is not delivered until after the loss has occurred does not defeat the insured’s right to a recovery under it. Mich. Pipe Co. v. Mich. F. & M. Insurance Co., 92 Mich. 482, 52 N. W. 1070, 20 L. R. A. 277 ; Commercial Insurance Co. v. Hallock, 27 N. J. Law, 645, 72 Am Dec. 379. Indeed, the courts have held that a policy drawn up and signed by the proper officers wants no further delivery. It is a valid policy as soon as signed, and becomes then the property of the insured, and is held by the insurer for his use.” Certiorari denied, 241 U. S. 661, 36 S. Ct. 449, 60 L. Ed. 1226; and see Donnelly v. Ætna Life Insurance Co., 222 Mich. 214, 219, 221, 192 N. W. 585. In the instant ease the trial judge said: “I think, in the matter of the duration of the risk and the premium, that it must be •taken that it was the understanding that defendant was to fix them, which it did by the policy of insurance which it issued.” As to the failure to name the company issuing the policy, the court said: “Then as to the defendant not being named, and plaintiff not knowing that it was the party which had insured his property until after the fire, I think it must be taken that the oral contract of insurance was made by Stone on behalf of defendant, and it was liable thereon on the doctrine of undisclosed principal. Tf not liable on this ground, its liability may be based on the ground set forth in Mich. Pipe Co. v. Mich. F. & M. Insurance Co., 92 Mich. 482 [52 N. W. 1070, 20 L. R. A. 277].” The District Judge was of opinion that the Kentucky statute did not make Bennett defendant’s agent. He found it unnecessary (as we do) to determine whether Stone constituted Bennett a subagent to advise plaintiff of defendant’s aetion regarding the policy, for the reason that it seemed to him that the evidence preponderates in favor of the position that there was' a previous oral valid contract of insurance. As to the failure to pay premium and collect for the policy, the court said: “There was testimony tending to show a more or less general custom to give credit for the premium;” also “as to its not calling for the policy itself, the custom in that neighborhood seems to have been for the agent to hold the policy. Its failure to call for the amount of the premium and to pay it may be accounted for by negligence, but more likely by the desire to get all the credit possible.” In our opinion the court below reached the correct conclusion, and its judgment for recovery upon the policy must be affirmed. As the trial judge said: “The effect of this testimony was that defendant had entered into a contract of insurance with plaintiff, but had subsequently canceled it.” In view of Stone’s office records, this statement, if made, could not well have been, justified. The “res geste may be, therefore, defined as those circumstances which are the unde-signed incidents of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of any one concerned, whether participant or bystander; they may compromise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of a litigated act; necessary in this sense, that they are part of the immediate preparations for or emanations of such act, and are not produced hy the calculating policy of the actors. In other words, they must stand in immediate casual [causal] relation to the act — a relation not broken by the interposition of voluntary individual wariness seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act.” This definition is in substance the opening paragraph of the definition of res gestas in Words and Phrases. All italics in this opinion ours. In Mich. Pipe Co. v. Mich. F. & M. Insurance Co., supra, at page 498 (52 N. W. 1074), it is said: “The name of the company, the location and amount of the risk, in each ease, had been committed to Schmeck [the local insurance agent]. The rate of premium not having been paid or fixed by the parties, plaintiff became liable to pay the usual or ‘going rate. The policies contained no provision that they should not become operative until the premiums were paid [such is the ease here]. Schmeck had written other policies for the same parties, and had afterwards, in the usual course, collected his premiums, and no demand was made for the premiums at the time that the insurance was applied for. In determining such matters, consideration must be had for the manner in which the business has been usually carried on. To lay down the rule that in all cases the premiums must expressly be agreed upon and paid, or credit expressly given, would be contrary to the general understanding among business men, and contrary to prevailing methods.” True, the rate inserted in the policy by Stone was not the published rate, but it apparently was not corrected by the bureau. It would seem a not unnatural or illogical inference that the six-months period as to the duration of the insurance was inserted as the usual period for nonpreferred risks. In that case the insurance agent represented “several companies. He was directed to place a given amount of insurance. It was not expected that he would place the entire risk in any one company. It was perhaps known that no one company would assume the whole amount of insurance. The companies were not mentioned.” It was held that no liability attached to any of the companies until something further was done, but that in the selection of the companies, and in the location and distribution of the risk, Schmeck [the local agent] acted as agent for the plaintiff. Question: Did the court rule that the indictment was defective? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

songer_state

54

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". UNITED STATES of America v. Norman Dennis SMITH, Appellant. No. 74-2000. United States Court of Appeals, District of Columbia Circuit. Submitted without argument June 9, 1975. Decided Dec. 22, 1975. Noel H. Thompson, Washington, D. C. (appointed by this Court), for appellant. Earl J. Silbert, U. S. Atty., John A. Terry, Stuart M. Gerson, Eugene M. Propper, Charles E. Wagner and Robert E. Hauberg, Jr., Asst. U. S. Attys., were on the brief for appellee. Before LEVENTHAL and WILKEY, Circuit Judges, and MERHIGE, United States District Judge for the Eastern District of Virginia. Sitting by designation pursuant to 28 U.S.C. § 292(d). PER CURIAM: Defendant Smith was convicted of three counts of unlawful distribution of heroin in violation of 21 U.S.C. § 841(a) (1970), and sentenced to 1 — 3 years on each count, the sentences to run concurrently. The convictions arose out of three sales made at 10:15 p. m. on April 16, 1974; at 10:30 p. m. on the following night, April 17th; and at 10:10 p. m. on April 22d. Defendant claims that the trial judge erred in failing to grant him a continuance to comply with the alibi notice rule, Rule 2-5(b) of the Criminal Rules of the United States District Court for the District of Columbia, and in refusing to allow the defendant to present alibi witnesses because of his failure to comply with the rule. On July 16, 1974, the prosecutor served a demand for notice under Rule 2-5(b) upon Smith. No response was received prior to August 13th. At a status hearing on that day, defense counsel told the court that defendant proposed to present an alibi for the evening of April 16th, but that counsel had not been able to supply the necessary names and addresses to the prosecution. In fact, at that time defense counsel had only one name, which had been supplied by defendant for the first time the morning of the hearing. (Pretrial Hrg. Tr. 2). The trial court, noting that the ten days specified in the rule and in the demand sent to defendant had long since expired, ruled that defendant’s alibi witnesses would not be allowed to testify in his behalf. A one week’s continuance was granted, at defense counsel’s request, to allow him to prepare other aspects of his case. At trial defendant was not allowed to put on alibi witnesses, although he was allowed to testify on his own behalf that he was in Baltimore with his wife’s family on the night of April 16th, and an alibi instruction was given to the jury. Under Rule 2 — 5(b) as then in effect, the trial judge must exclude alibi testimony (other than that by the defendant himself) if the notice rule is not complied with, unless there is “good cause shown.” The only reason offered here for the lack of compliance was defendant’s failure to provide his counsel with the requisite names. The defendant had been informed by his counsel of the Government’s notice “and I have got to have those names.” The proposed witnesses were members of defendant’s wife’s family who lived only an hour away, and no explanation is given for defendant’s delay. However, defendant claims that, even where failure to comply with the rule may be attributable to a defendant’s negligence, the sanction of refusing to grant a continuance or to allow a late tender of the information is excessive, and in violation of defendant’s right, guaranteed by the Fifth and Sixth Amendments to the Constitution, to present a defense. Defendant did not present to the trial court his contention that the sanction was excessive to the point of being unconstitutional, or any suggestion of a lesser sanction for enforcement of the objective of the rule. In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Supreme Court upheld a similar state rule against an attack under the Fourteenth Amendment, rejecting inter alia the contention that the rule violates the due process right to a fair trial. In Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), the court held that such due process validity depends on provision of reciprocal discovery rights for the defendant against the government — a feature contained in the district court rule before us. Subsequent to the trial and appellate argument in the case at bar the Supreme Court held that a court may consistently with the Sixth Amendment, enforce a preclusion sanction against a defendant who insists on offering testimony of a witness while resisting disclosure of his prior (and possibly inconsistent) statements and reports. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 2171, 45 L.Ed.2d 141 (1975). Exclusion of testimony by an alibi witness for lack of advance notice was upheld in Rider v. Crouse, 357 F.2d 317, 318 (10th Cir. 1966). There is as yet no Supreme Court precedent on that point, and we know of no precedent at all as to a late pretrial tender. The evolution of sound rules and doctrines to govern the question of alibi witnesses is a matter that has occupied the courts and legislatures. As of December 1, 1975, Rule 12.1(d) of the Rules of Federal Criminal Procedure, as proposed by the Supreme Court and approved by Congress, gives the trial judge discretion to admit alibi testimony notwithstanding the failure to give timely notice to the prosecution. Experience under the rule will likely give rise to helpful guidelines, as to when alibi witnesses may be excluded, how evidentiary questions arising from the exclusion should be handled, and whether there should be any comment on the absence of the alibi witnesses. This case is governed by an earlier rule that also provided some flexibility, for though it speaks in one sentence in mandatory language, in the next it admits exceptions for good cause shown. But the new rule would go further, for it would apparently permit the trial judge to admit alibi testimony even where there was no excuse for delay if convinced that this was necessary to avoid injustice. Our judicial function must be exercised in the light of the record as a whole. The later proffered alibi witnesses are family friends. Defendant did not give their names to his counsel when timely asked. They related to only the first of three occasions in April 1974 covered by the undercover officer who testified he had thrice bought narcotics of defendant. This is not a case of mistaken identity. The undercover officer identified defendant in a pretrial lineup (Tr. 17). Defendant admitted being at the pertinent location on the other two nights — his explanation being that he was there as a user, not a seller, of heroin (Tr. 81-82). While conceivably, a convincing alibi for April 16th might have cast doubt on the testimony of the undercover officer, who identified defendant as the person who sold him drugs on all three nights, this is offset not only by the strong evidence on identification but by the officer’s testimony, on cross-examination, that he gave a description of the narcotics seller after the first buy (Tr. 78). Defense counsel abstained from any followup questions as to the nature of that identification — a course that many would regard as reflecting commendable prudence. The jury deliberated only 33 minutes. The trial judge entered concurrent sentences. Even clearly presented constitutional claims are subject to rules of harmless error. In view of the solid identification evidence, it seems most unlikely that the alibi testimony of relatives would have raised a doubt in the minds of the jury. While no single point is logically conclusive, the case as a whole leaves us with the conviction that there is no substantial prejudice, and that substantial justice will not be denied by our ruling that the judgment is Affirmed. . Rule 2-5(b), as in effect at the time of trial, provided that, upon demand by the prosecutor, a defendant must produce, within ten days, a notice of his intention to offer an alibi defense. ^ The Notice must specify the place at which defendant claims to have been and the names and addresses of witnesses upon whom he intends to rely. The prosecution must reciprocate by providing the defense with the names and addresses of the witnesses upon whom it intends to rely in establishing the defendant’s presence at the scene of the crime or in rebutting defendant’s alibi. If either party fails to provide this information within the specified time periods, the court is required, unless good cause is shown, to exclude the testimony of that party’s alibi witnesses. . Later, at trial, counsel asserted that he had had three names ready to give the prosecution at the earlier hearing (Tr. 86). . The proposed Federal Rule of Criminal Procedure 12.1, slated to become effective December 1, 1975 (Pub.L.No.94-64, (July 31, 1975)) makes exclusion of alibi witnesses for noncompliance discretionary. However, appellant fails to point out, and the record on appeal does not reveal, any circumstances which would make the exclusion here an abuse of discretion. . “I explained to my client that the Government served a notice requesting alibi witnesses on us, and I told my client to give me their names and addresses.” (Pre-trial Hrg. Tr. 2). “That is correct, your Honor. And I have advised my client I have got to have those names.” (Pre-trial Hrg. Tr. 3). “[M]y client did not get the names of those people to me in time for me to stay within the ten-day rule . . . ” (Tr. 85). . (d) Failure To Comply. — Upon the failure of either party to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify in his own behalf. The rule as finally formulated is identical (except for its section number), to the original version submitted by the Supreme Court to Congress. Compare, Communication From the Chief Justice of the United States, Proposed Amendments to the Federal Rules of Criminal Procedure, H.R.Doc.No.292, 93d Cong., 2d Sess. 42-43 (1974), with Pub.L.No. 94^64, § 3 (July 31, 1975). The House Bill submitted to the Committee on the Judiciary would have made exclusion of alibi witnesses mandatory upon non-compliance with the disclosure requirements. H.R. 6799, 94th Cong., 1st Sess. (May 7, 1975). However, in the Bill reported out by the Judiciary Committee, rule 12.1(d) was returned to its original discretion^ ary form. H.R.Rep.No.247, 94th Cong., 1st Sess. (May 29, 1975), U.S.Code Cong. & Admin.News 1975, p. 1358 (Pamphlet No. 7). . In the case at bar, the prosecutor was allowed to comment on their absence in argument (Tr. 97), but the court refused to give a missing witness instructions upon which the jury might have drawn an inference from their absence. Previously, after prosecutor asked defendant the names of the people he stayed with on April 16 (Mary Simmons and Jane Simmons) he followed-up, without objection “Now, did you see them in court today?” “A. No, sir.” (Tr. 84). 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_lcdisagreement

A

What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. BOARD OF EDUCATION OF KIRYAS JOEL VILLAGE SCHOOL DISTRICT v. GRUMET No. 93-517. Argued March 30, 1994 Decided June 27, 1994 Souter, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-B, II-C, and III, in which Blackmun, Stevens, O’Connor, and Ginsburg, JJ., joined, and an opinion with respect to Parts II (introduction) and II-A, in which Blackmun, Stevens, and Ginsburg, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 710. Stevens, J., filed a concurring opinion, in which Blackmun and Ginsburg, JJ., joined, post, p. 711. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, post, p. 712. Kennedy, J., filed an opinion concurring in the judgment, post, p. 722. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 732. Nathan Lewin argued the cause for petitioners in Nos. 93-517 and 93-527. With him on the briefs was Lisa D. Burget. Julie S. Mereson, Assistant Attorney General of New York, argued the cause for petitioners in No. 93-539. With her on the briefs were G. Oliver Koppell, Attorney General, Jerry Boone, Solicitor General, and Peter H. Schiff, Deputy Solicitor General. Lawrence W Reich and John H. Gross filed briefs for petitioner Board of Education of the MonroeWoodbury Central School District. Jay Worona argued the cause for respondents in all cases. With him on the brief was Pilar Sokol Together with No. 93-527, Board of Education of Monroe-Woodbury Central School District v. Grumet et al., and No. 93-539, Attorney General of New York v. Grumet et al., also on certiorari to the same court. Briefs of amici curiae urging reversal in No. 93-517 were filed for the Archdiocese of New York by Richard J Concannon; for the American Center for Law and Justice et al. by Jay Alan Sekulow, James Matthew Henderson, Sr., Mark N. Troobnick, Keith A. Fournier, Nancy J. Gannon, and Robert A. Destro; for the Christian Legal Society et al. by Michael W. McConnell, Thomas C. Berg, and Steven T. McFarland; and for the Knights of Columbus by William P. Barr, Michael A. Carvin, and Carl A. Anderson. Briefs of amici curiae urging reversal in all cases were filed for Agudath Israel of America by David Zwiebel; for the Institute for Religion and Polity by Ronald D. Maines; for the National Jewish Commission on Law and Public Affairs (COLPA) by Julius Berman and Dennis Rapps; for the Southern Baptist Convention by Michael K. Whitehead; and for the United States Catholic Conference by Mark E. Chopko and Phillip H. Harris. Briefs of amici curiae urging affirmance in all cases were filed for the American Jewish Congress et al. by Norman Redlich, Marc D. Stern, and Elliot Mincberg; for Americans United for Separation of Church and State et al. by Steven K. Green, Steven R. Shapiro, Jeffrey P. Sinensky, Steven M. Freeman, and Samuel Rabinove; for the Committee for the Well-Being of Kiryas Joel by Joan E. Goldberg and Michael H. Sussman; for the General Council on Finance and Administration of the United Methodist Church by Samuel W Witwer, Jr.; for the National Coalition for Public Education and Religious Liberty et al. by David B. Isbell; for the National Council of Churches of Christ in the U. S. A. et al. by Douglas haycock; for the National School Boards Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A Shannon; for the New York State United Teachers et al. by Bernard F. Ashe and Gerard John De Wolf; and for the Council on Religious Freedom by Lee Boothby, Walter E. Carson, and Robert W. Nixon. Briefs of amici curiae in all cases were filed for the New York Committee for Public Education and Religious Liberty by Stanley Getter; and for the Rutherford Institute by John W. Whitehead and James J. Knicely. Justice Souter delivered the opinion of the Court, except as to Parts II (introduction) and II-A. The village of Kiryas Joel in Orange County, New York, is a religious enclave of Satmar Hasidim, practitioners of a strict form of Judaism. The village fell within the MonroeWoodbury Central School District until a special state statute passed in 1989 carved out a separate district, following village lines, to serve this distinctive population. 1989 N. Y. Laws, ch. 748. The question is whether the Act creating the separate school district violates the Establishment Clause of the First Amendment, binding on the States through the Fourteenth Amendment. Because this unusual Act is tantamount to an allocation of political power on a religious criterion and neither presupposes nor requires governmental impartiality toward religion, we hold that it violates the prohibition against establishment. I The Satmar Hasidic sect takes its name from the town near the Hungarian and Romanian border where, in the early years of this century, Grand Rebbe Joel Teitelbaum molded the group into a distinct community. After World War II and the destruction of much of European Jewry, the Grand Rebbe and most of his surviving followers moved to the Williamsburg section of Brooklyn, New York. Then, 20 years ago, the Satmars purchased an approved but undeveloped subdivision in the town of Monroe and began assembling the community that has since become the village of Kiryas Joel. When a zoning dispute arose in the course of settlement, the Satmars presented the Town Board of Monroe with a petition to form a new village within the town, a right that New York’s Village Law gives almost any group of residents who satisfy certain procedural niceties. See N. Y. Village Law, Art. 2 (McKinney 1973 and Supp. 1994). Neighbors who did not wish to secede with the Satmars objected strenuously, and after arduous negotiations the proposed boundaries of the village of Kiryas Joel were drawn to include just the 320 acres owned and inhabited entirely by Satmars. The village, incorporated in 1977, has a population of about 8,500 today. Rabbi Aaron Teitelbaum, eldest son of the current Grand Rebbe, serves as the village rov (chief rabbi) and rosh yeshivah (chief authority in the parochial schools). The residents of Kiryas Joel are vigorously religious people who make few concessions to the modern world and go to great lengths to avoid assimilation into it. They interpret the Torah strictly; segregate the sexes outside the home; speak Yiddish as their primary language; eschew television, radio, and English-language publications; and dress in distinctive ways that include headcoverings and special garments for boys and modest dresses for girls. Children are educated in private religious schools, most boys at the United Talmudic Academy where they receive a thorough grounding in the Torah and limited exposure to secular subjects, and most girls at Bais Rochel, an affiliated school with a curriculum designed to prepare girls for their roles as wives and mothers. See generally W. Kephart & W. Zellner, Extraordinary Groups (4th ed. 1991); I. Rubin, Satmar, An Island in the City (1972). These schools do not, however, offer any distinctive services to handicapped children, who are entitled under state and federal law to special education services even when enrolled in private schools. Individuals with Disabilities Education Act, 20 U. S. C. § 1400 et seq. (1988 ed. and Supp. IV); N. Y. Educ. Law, Art. 89 (McKinney 1981 and Supp. 1994). Starting in 1984 the Monroe-Woodbury Central School District provided such services for the children of Kiryas Joel at an annex to Bais Rochel, but a year later ended that arrangement in response to our decisions in Aguilar v. Felton, 473 U. S. 402 (1985), and School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985). Children from Kiryas Joel who needed special education (including the deaf, the mentally retarded, and others suffering from a range of physical, mental, or emotional disorders) were then forced to attend public schools outside the village, which their families found highly unsatisfactory. Parents of most of these children withdrew them from the Monroe-Woodbury secular schools, citing “the panic, fear and trauma [the children] suffered in leaving their own community and being with people whose ways were so different,” and some sought administrative review of the public-school placements. Board of Ed. of Monroe-Woodbury Central School Dist. v. Wieder, 72 N. Y. 2d 174, 180-181, 527 N. E. 2d 767, 770 (1988). Monroe-Woodbury, for its part, sought a declaratory judgment in state court that New York law barred the district from providing special education services outside the district’s regular public schools. Id., at 180, 527 N. E. 2d, at 770. The New York Court of Appeals disagreed, holding that state law left Monroe-Woodbury free to establish a separate school in the village because it gives educational authorities broad discretion in fashioning an appropriate program. Id., at 186-187, 527 N. E. 2d, at 773. The court added, however, that the Satmars’ constitutional right to exercise their religion freely did not require a separate school, since the parents had alleged emotional trauma, not inconsistency with religious practice or doctrine, as the reason for seeking separate treatment. Id., at 189, 527 N. E. 2d, at 775. By 1989, only one child from Kiryas Joel was attending Monroe-Woodbury’s public schools; the village’s other handicapped children received privately funded special services or went without. It was then that the New York Legislature passed the statute at issue in this litigation, which provided that the village of Kiryas Joel “is constituted a separate school district,. . . and shall have and enjoy all the powers and duties of a union free school district. . . .” 1989 N. Y. Laws, ch. 748. The statute thus empowered a locally elected board of education to take such action as opening schools and closing them, hiring teachers, prescribing textbooks, establishing disciplinary rules, and raising property taxes to fund operations. N. Y. Educ. Law § 1709 (McKinney 1988). In signing the bill into law, Governor Cuomo recognized that the residents of the new school district were “all members of the same religious sect,” but said that the bill was “a good faith effort to solve th[e] unique problem” associated with providing special education services to handicapped children in the village. Memorandum filed with Assembly Bill Number 8747 (July 24, 1989), App. 40-41. Although it enjoys plenary legal authority over the elementary and secondary education of all school-aged children in the village, N. Y. Educ. Law §3202 (McKinney 1981 and Supp. 1994), the Kiryas Joel Village School District currently runs only a special education program for handicapped children. The other village children have stayed in their parochial schools, relying on the new school district only for transportation, remedial education, and health and welfare services. If any child without a handicap in Kiryas Joel were to seek a public-school education, the district would pay tuition to send the child into Monroe-Woodbury or another school district nearby. Under like arrangements, several of the neighboring districts send their handicapped Hasidic children into Kiryas Joel, so that two thirds of the full-time students in the village’s public school come from outside. In all, the new district serves just over 40 full-time students, and two or three times that many parochial school students on a part-time basis. Several months before the new district began operations, the New York State School Boards Association and respondents Grumet and Hawk brought this action against the State Education Department and various state officials, challenging Chapter 748 under the National and State Constitutions as an unconstitutional establishment of religion. The State Supreme Court for Albany County allowed the Kiryas Joel Village School District and the Monroe-Woodbury Central School District to intervene as parties defendant and accepted the parties’ stipulation discontinuing the action against the original state defendants, although the attorney general of New York continued to appear to defend the constitutionality of the statute. See N. Y. Exec. Law § 71 (McKinney 1993). On cross-motions for summary judgment, the trial court ruled for the plaintiffs (respondents here), finding that the statute failed all three prongs of the test in Lemon v. Kurtzman, 403 U. S. 602 (1971), and was thus unconstitutional under both the National and State Constitutions. Grumet v. New York State Ed. Dept., 151 Misc. 2d 60, 579 N. Y. S. 2d 1004 (1992). A divided Appellate Division affirmed on the ground that Chapter 748 had the primary effect of advancing religion, in violation of both constitutions, 187 App. Div. 2d 16, 592 N. Y. S. 2d 123 (1992), and the State Court of Appeals affirmed on the federal question, while expressly reserving the state constitutional issue, 81 N. Y. 2d 518, 618 N. E. 2d 94 (1993). Judge Smith wrote for the court in concluding that because both the district’s public-school population and its school board would be exclusively Hasidic, the statute created a “symbolic union of church and State” that was “likely to be perceived by the Satmarer Hasidim as an endorsement of their religious choices, or by nonadherents as a disapproval” of their own. Id., at 529, 618 N. E. 2d, at 100. As a result, said the majority, the statute’s primary effect was an impermissible advancement of religious belief. In a concurring opinion, Judge Hancock found the effect purposeful, so that the statute violated the first as well as the second prong of Lemon. 81 N. Y. 2d, at 540, 618 N. E. 2d, at 107. Chief Judge Kaye took a different tack, applying the strict scrutiny we have prescribed for statutes singling out a particular religion for special privileges or burdens; she found Chapter 748 invalid as an unnecessarily broad response to a narrow problem, since it creates a full school district instead of simply prescribing a local school for the village’s handicapped children. Id., at 532, 618 N. E. 2d, at 102 (concurring opinion). In dissent, Judge Bellacosa objected that the new district was created to enable the village’s handicapped children to receive a secular, public-school education; that this was, indeed, its primary effect; and that any attenuated benefit to religion was a reasonable accommodation of both religious and cultural differences. Id., at 550-551, 618 N. E. 2d, at 113. We stayed the mandate of the Court of Appeals, 509 U. S. 938 (1993), and granted certiorari, 510 U. S. 989 (1993). II “A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion,” Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 792-793 (1973), favoring neither one religion over others nor religious adherents collectively over nonadherents. See Epperson v. Arkansas, 393 U. S. 97, 104 (1968). Chapter 748, the statute creating the Kiryas Joel Village School District, departs from this constitutional command by delegating the State’s discretionary authority over public schools to a group defined by its character as a religious community, in a legal and historical context that gives no assurance that governmental power has been or will be exercised neutrally. Larkin v. Grendel’s Den, Inc., 459 U. S. 116 (1982), provides an instructive comparison with the litigation before us. There, the Court was requested to strike down a Massachusetts statute granting religious bodies veto power over applications for liquor licenses. Under the statute, the governing body of any church, synagogue, or school located within 500 feet of an applicant’s premises could, simply by submitting written objection, prevent the Alcohol Beverage Control Commission from issuing a license. Id., at 117. In spite of the State’s valid interest in protecting churches, schools, and like institutions from “ ‘the hurly-burly’ associated with liquor outlets,” id., at 123 (internal quotation marks omitted), the Court found that in two respects the statute violated “[t]he wholesome ‘neutrality’ of which this Court’s cases speak,” School Dist. of Abington Township v. Schempp, 374 U. S. 203, 222 (1963). The Act brought about a “ ‘fusion of governmental and religious functions’” by delegating “important, discretionary governmental powers” to religious bodies, thus impermissibly entangling government and religion. 459 U. S., at 126, 127 (quoting School Dist. of Abington Township v. Schempp, supra, at 222); see also Lemon v. Kurtzman, supra, at 613. And it lacked “any ‘effective means of guaranteeing’ that the delegated power ‘[would] be used exclusively for secular, neutral, and nonideological purposes,’ ” 459 U. S., at 125 (quoting Committee for Public Ed. & Religious Liberty v. Nyquist, supra, at 780); this, along with the “significant symbolic benefit to religion” associated with “the mere appearance of a joint exercise of legislative authority by Church and State,” led the Court to conclude that the statute had a “ ‘primary* and ‘principal’ effect of advancing religion,” 459 U. S., at 125-126; see also Lemon v. Kurtzman, supra, at 612. Comparable constitutional problems inhere in the statute before us. A Larkin presented an example of united civic and religious authority, an establishment rarely found in such straightforward form in modern America, cf. Wolman v. Walter, 433 U. S. 229, 263 (1977) (Powell, J., concurring in part, concurring in judgment in part, and dissenting in part), and a violation of “the core rationale underlying the Establishment Clause,” 459 U. S., at 126. See also Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 590-591 (1989) (Establishment Clause prevents delegating governmental power to religious group); id., at 660 (Kennedy, J., concurring in judgment in part and dissenting in part) (same); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947) (Establishment Clause prevents State from “participat[ing] in the affairs of any religious organizations or groups and vice versa”); Torcaso v. Watkins, 367 U. S. 488, 493-494 (1961) (same). The Establishment Clause problem presented by Chapter 748 is more subtle, but it resembles the issue raised in Larkin to the extent that the earlier case teaches that a State may not delegate its civic authority to a group chosen according to a religious criterion. Authority over public schools belongs to the State, N. Y. Const., Art. XI, § 1, and cannot be delegated to a local school district defined by the State in order to grant political control to a religious group. What makes this litigation different from Larkin is the delegation here of civic power to the “qualified voters of the village of Kiryas Joel,” 1989 N. Y. Laws, ch. 748, as distinct from a religious leader such as the village rov, or an institution of religious government like the formally constituted parish council in Larkin. In light of the circumstances of these cases, however, this distinction turns out to lack constitutional significance. It is, first, not dispositive that the recipients of state power in these cases are a group of religious individuals united by common doctrine, not the group’s leaders or officers. Although some school district franchise is common to all voters, the State’s manipulation of the franchise for this district limited it to Satmars, giving the sect exclusive control of the political subdivision. In the circumstances of these cases, the difference between thus vesting state power in the members of a religious group as such instead of the officers of its sectarian organization is one of form, not substance. It is true that religious people (or groups of religious people) cannot be denied the opportunity to exercise the rights of citizens simply because of their religious affiliations or commitments, for such a disability would violate the right to religious free exercise, see McDaniel v. Paty, 435 U. S. 618 (1978), which the First Amendment guarantees as certainly as it bars any establishment. But McDaniel, which held that a religious individual could not, because of his religious activities, be denied the right to hold political office, is not in point here. That individuals who happen to be religious may hold public office does not mean that a State may deliberately delegate discretionary power to an individual, institution, or community on the ground of religious identity. If New York were to delegate civic authority to “the Grand Rebbe,” Larkin would obviously require invalidation (even though under McDaniel the Grand Rebbe may run for, and serve on, his local school board), and the same is true if New York delegates political authority by reference to religious belief. Where “fusion” is an issue, the difference lies in the distinction between a government’s purposeful delegation on the basis of religion and a delegation on principles neutral to religion, to individuals whose religious identities are incidental to their receipt of civic authority. Of course, Chapter 748 delegates power not by express reference to the religious belief of the Satmar community, but to residents of the “territory of the village of Kiryas Joel.” 1989 N. Y. Laws, ch. 748. Thus the second (and arguably more important) distinction between these cases and Larkin is the identification here of the group to exercise civil authority in terms not expressly religious. But our analysis does not end with the text of the statute at issue, see Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 534 (1993); Wallace v. Jaffree, 472 U. S. 38, 56-61 (1985); Gomillion v. Lightfoot, 364 U. S. 339, 341-342 (1960), and the context here persuades us that Chapter 748 effectively identifies these recipients of governmental authority by reference to doctrinal adherence, even though it does not do so expressly. We find this to be the better view of the facts because of the way the boundary lines of the school district divide residents according to religious affiliation, under the terms of an unusual and special legislative Act. It is undisputed that those who negotiated the village boundaries when applying the general village incorporation statute drew them so as to exclude all but Satmars, and that the New York Legislature was well aware that the village remained exclusively Satmar in 1989 when it adopted Chapter 748. See Brief for Petitioner in No. 93-517, p. 20; Brief for Respondents 11. The significance of this fact to the state legislature is indicated by the further fact that carving out the village school district ran counter to customary districting practices in the State. Indeed, the trend in New York is not toward dividing school districts but toward consolidating them. The thousands of small common school districts laid out in the early 19th century have been combined and recombined, first into union free school districts and then into larger central school districts, until only a tenth as many remain today. Univ. of State of N. Y. and State Education Dept., School District Reorganization, Law Pamphlet 14, pp. 8-12 (1962) (hereinafter Law Pamphlet); Woodward, N. Y. State Education Dept., Legal and Organizational History of School District Reorganization in New York State 10-11 (Aug. 1986). Most of these cover several towns, many of them cross county boundaries, and only one remains precisely coterminous with an incorporated village. Law Pamphlet, at 24. The object of the State’s practice of consolidation is the creation of districts large enough to provide a comprehensive education at affordable cost, which is thought to require at least 500 pupils for a combined junior-senior high school. Univ. of State of N. Y. and State Education Dept., Master Plan for School District Reorganization in New York State 10-11 (rev. ed. 1958). The Kiryas Joel Village School District, in contrast, has only 13 local, full-time students in all (even including out-of-area and part-time students leaves the number under 200), and in offering only special education and remedial programs it makes no pretense to be a full-service district. The origin of the district in a special Act of the legislature, rather than the State’s general laws governing school district reorganization, is likewise anomalous. Although the legislature has established some 20 existing school districts by special Act, all but one of these are districts in name only, having been designed to be run by private organizations serving institutionalized children. They have neither tax bases nor student populations of their own but serve children placed by other school districts or public agencies. See N. Y. Educ. Law §3601-a (Statutory Notes), §§4001 and 4005 (McKinney Supp. 1994); Law Pamphlet, at 18 (“These districts are school districts only by way of a legal fiction”). The one school district petitioners point to that was formed by special Act of the legislature to serve a whole community, as this one was, is a district formed for a new town, much larger and more heterogeneous than this village, being built on land that straddled two existing districts. See 1972 N. Y. Laws, ch. 928 (authorizing Gananda School District). Thus the Kiryas Joel Village School District is exceptional to the point of singularity, as the only district coming to our notice that the legislature carved from a single existing district to serve local residents. Clearly this district “cannot be seen as the fulfillment of [a village’s] destiny as an independent governmental entity,” United States v. Scotland Neck City Bd. of Ed., 407 U. S. 484, 492 (1972) (Burger, C. J., concurring in result). Because the district’s creation ran uniquely counter to state practice, following the lines of a religious community where the customary and neutral principles would not have dictated the same result, we have good reasons to treat this district as the reflection of a religious criterion for identifying the recipients of civil authority. Not even the special needs of the children in this community can explain the legislature’s unusual Act, for the State could have responded to the concerns of the Satmar parents without implicating the Establishment Clause, as we explain in some detail further on. We therefore find the legislature’s Act to be substantially equivalent to defining a political subdivision and hence the qualification for its franchise by a religious test, resulting in a purposeful and forbidden “fusion of governmental and religious functions.” Larkin v. Grendel’s Den, 459 U. S., at 126 (internal quotation marks and citation omitted). B The fact that this school district was created by a special and unusual Act of the legislature also gives reason for concern whether the benefit received by the Satmar community is one that the legislature will provide equally to other religious (and nonreligious) groups. This is the second malady the Larkin Court identified in the law before it, the absence of an “effective means of guaranteeing” that governmental power will be and has been neutrally employed. Id., at 125 (internal quotation marks and citation omitted). But whereas in Larkin it was religious groups the Court thought might exercise civic power to advance the interests of religion (or religious adherents), here the threat to neutrality occurs at an antecedent stage. The fundamental source of constitutional concern here is that the legislature itself may fail to exercise governmental authority in a religiously neutral way. The anomalously case-specific nature of the legislature’s exercise of state authority in creating this district for a religious community leaves the Court without any direct way to review such state action for the purpose of safeguarding a principle at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligión. See Wallace v. Jaffree, 472 U. S., at 52-54; Epperson v. Arkansas, 393 U. S., at 104; School Dist. of Abington Township v. Schempp, 374 U. S., at 216-217. Because the religious community of Kiryas Joel did not receive its new governmental authority simply as one of many communities eligible for equal treatment under a general law, we have no assurance that the next similarly situated group seeking a school district of its own will receive one; unlike an administrative agency’s denial of an exemption from a generally applicable law, which “would be entitled to a judicial audience,” Olsen v. Drug Enforcement Admin., 878 F. 2d 1458, 1461 (CADC 1989) (R. B. Ginsburg, J.), a legislature’s failure to enact a special law is itself unreviewable. Nor can the historical context in these cases furnish us with any reason to suppose that the Satmars are merely one in a series of communities receiving the benefit of special school district laws. Early on in the development of public education in New York, the State rejected highly localized school districts for New York City when they were promoted as a way to allow separate schooling for Roman Catholic children. R. Church & M. Sedlak, Education in the United States 162, 167-169 (1976). And in more recent history, the special Act in these cases stands alone. See supra, at 701. The general principle that civil power must be exercised in a manner neutral to religion is one the Larkin Court recognized, although it did not discuss the specific possibility of legislative favoritism along religious lines because the statute before it delegated state authority to any religious group assembled near the premises of an applicant for a liquor license, see 459 U. S., at 120-121, n. 3, as well as to a further category of institutions not identified by religion. But the principle is well grounded in our case law, as we have frequently relied explicitly on the general availability of any benefit provided religious groups or individuals in turning aside Establishment Clause challenges. In Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 673 (1970), for example, the Court sustained a property tax exemption for religious properties in part because the State had “not singled out one particular church or religious group or even churches as such,” but had exempted “a broad class of property owned by nonprofit, quasi-public corporations.” Accord, id., at 696-697 (opinion of Harlan, J.). And Bowen v. Kendrick, 487 U. S. 589, 608 (1988), upheld a statute enlisting a “wide spectrum of organizations” in addressing adolescent sexuality because the law was “neutral with respect to the grantee’s status as a sectarian or purely secular institution.” See also Texas Monthly, Inc. v. Bullock, 489 U. S. 1 (1989) (striking down sales tax exemption exclusively for religious publications); id., at 14-15 (plurality opinion); id., at 27-28 (Blackmun, J., concurring in judgment); Estate of Thornton v. Caldor, Inc., 472 U. S. 703, 711 (1985) (O’Connor, J., concurring in judgment) (statute impermissibly “singles out Sabbath observers for special... protection without according similar accommodation to ethical and religious beliefs and practices of other private employees”); cf. Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481, 492 (1986) (Powell, J., concurring). Here the benefit flows only to a single sect, but aiding this single, small religious group causes no less a constitutional problem than would follow from aiding a sect with more members or religion as a whole, see Larson v. Valente, 456 U. S. 228, 244-246 (1982), and we are forced to conclude that the State of New York has violated the Establishment Clause. C In finding that Chapter 748 violates the requirement of governmental neutrality by extending the benefit of a special franchise, we do not deny that the Constitution allows the State to accommodate religious needs by alleviating special burdens. Our cases leave no doubt that in commanding neutrality the Religion Clauses do not require the government to be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice. Rather, there is “ample room under the Establishment Clause for ‘benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference,’” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 334 (1987) (quoting Walz v. Tax Comm’n, supra, at 673); “government may (and sometimes must) accommodate religious practices and . . . may do so without violating the Establishment Clause.” Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136, 144-145 (1987). The fact that Chapter 748 facilitates the practice of religion is not what renders it an unconstitutional establishment. Cf. Lee v. Weisman, 505 U. S. 577, 627 (1992) (Souter, J., concurring) (“That government must remain neutral in matters of religion does not foreclose it from ever taking religion into account”); School Dist. of Abington Township v. Schempp, 374 U. S., at 299 (Brennan, J., concurring) (“[Hjostility, not neutrality, would characterize the refusal to provide chaplains and places of worship for prisoners and soldiers cut off by the State from all civilian opportunities for public communion”). But accommodation is not a principle without limits, and what petitioners seek is an adjustment to the Satmars’ religiously grounded preferences that our cases do not countenance. Prior decisions have allowed religious communities and institutions to pursue their own interests free from governmental interference, see Corporation of Presiding Bishop v. Amos, supra, at 336-337 (government may allow religious organizations to favor their own adherents in hiring, even for secular employment); Zorach v. Clauson, 343 U. S. 306 (1952) (government may allow public schools to release students during the schoolday to receive off-site religious education), but we have never hinted that an otherwise unconstitutional delegation of political power to a religious group could be saved as a religious accommodation. Petitioners’ proposed accommodation singles out a particular religious sect for special treatment, and whatever the limits of permissible legislative accommodations may be, compare Texas Monthly, Inc. v. Bullock, supra (striking down law exempting only religious publications from taxation), with Corporation of Presiding Bishop v. Amos, supra (upholding law exempting religious employers from Title VII), it is clear that neutrality as among religions must be honored. See Larson v. Valente, supra, at 244-246. This conclusion does not, however, bring the Satmar parents, the Monroe-Woodbury school district, or the State of New York to the end of the road in seeking ways to respond to the parents’ concerns. Just as the Court in Larkin observed that the State’s interest in protecting religious meeting places could be “readily accomplished by other means,” 459 U. S., at 124, there are several alternatives here for providing bilingual and bicultural special education to Satmar children. Such services can perfectly well be offered to village children through the Monroe-Woodbury Central School District. Since the Satmars do not claim that separatism is religiously mandated, their children may receive bilingual and bicultural instruction at a public school already run by the Monroe-Woodbury district. Or if the educationally appropriate offering by Monroe-Woodbury should turn out to be a separate program of bilingual and bicultural education at a neutral site near one of the village’s parochial schools, this Court has already made it clear that no Establishment Clause difficulty would inhere in such a scheme, administered in accordance with neutral principles that would not necessarily confine special treatment to Satmars. See Wolman v. Walter, 433 U. S., at 247-248. To be sure, the parties disagree on whether the services Monroe-Woodbury actually provided in the late 1980’s were appropriately tailored to the needs of Satmar children, but this dispute is of only limited relevance to the question whether such services could have been provided, had adjustments been made. As we understand New York law, parents who are dissatisfied with their handicapped child’s program have recourse through administrative review proceedings (a process that appears not to have run its course prior to resort to Chapter 748, see Board of Ed. of Monroe-Woodbury Central School Dist. v. Wieder, 72 N. Y. 2d, at 180, 527 N. E. 2d, at 770), and if the New York Legislature should remain dissatisfied with the responsiveness of the local school district, it could certainly enact general legislation tightening the mandate to school districts on matters of special education or bilingual and bicultural offerings. Ill Justice Cardozo once cast the dissenter as “the gladiator making a last stand against the lions.” B. Cardozo, Law and Literature 34 (1931). Justice Scalia’s dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining. We do not disable a religiously homogeneous group from exercising political power conferred on it without regard to religion. Cf. post, at 735-736. Unlike the States of Utah and New Mexico (which were laid out according to traditional political methodologies taking account of lines of latitude and longitude and topographical features, see U. S. Dept. of Interior, F. Van Zandt, Boundaries of the United States and the Several States 250-257 (Geological Survey Bulletin 1212,1966)), the reference line chosen for the Kiryas Joel Village School District was one purposely drawn to separate Satmars from non-Satmars. Nor do we impugn the motives of the New York Legislature, cf. post, at 737-740, which no doubt intended to accommodate the Satmar community without violating the Establishment Clause; we simply refuse to ignore that the method it chose is one that aids a particular religious community, as such, see App. 19-20 (Assembly sponsor thrice describes the Act’s beneficiaries as the “Hasidic” children or community), rather than all groups similarly interested in separate schooling. The dissent protests it is novel to insist “ ‘up front’ ” that a statute not tailor its benefits to apply only to one religious group, post, at 747-748, but if this were so, Texas Monthly, Inc., would have turned out differently, see 489 U. S., at 14-15 (opinion of Brennan, J.); id., at 28 (Blackmun, J., concurring in judgment), and language in Walz v. Tax Comm’n of New York City, 397 U. S., at 673, and Bowen v. Kendrick, 487 U. S., at 608, purporting to rely on the breadth of the statutory schemes would have been mere surplusage. Indeed, under the dissent’s theory, if New York were to pass a law providing school buses only for children attending Christian day schools, we would be constrained to uphold the statute against Establishment Clause attack until faced by a request from a non-Christian family for equal treatment under the patently unequal law. Cf. Everson v. Board of Ed. of Ewing, 330 U. S., at 17 (upholding school bus service provided all pupils). And to end on the point with which Justice Scalia begins, the license he takes in suggesting that the Court holds the Satmar sect to be New York’s established church, see post, at 732, is only one symptom of his inability to accept the fact that this Court has long held that the First Amendment reaches more than classic, 18th-century establishments. See Torcaso v. Watkins, 367 U. S., at 492-495. Our job, of course, would be easier if the dissent’s position had prevailed with the Framers and with this Court over the years. An Establishment Clause diminished to the dimensions acceptable to Justice Scalia could be enforced by a few simple rules, and our docket would never see cases requiring the application of a principle like neutrality toward religion as well as among religious sects. But that would be as blind to history as to precedent, and the difference between Justice Scalia and the Court accordingly turns on the Court’s recognition that the Establishment Clause does comprehend such a principle and obligates courts to exercise the judgment necessary to apply it. In these cases we are clearly constrained to conclude that the statute before us fails the test of neutrality. It delegates a power this Court has said “ranks at the very apex of the function of a State,” Wisconsin v. Yoder, 406 U. S. 205, 213 (1972), to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism. It therefore crosses the line from permissible accommodation to impermissible establishment. The judgment of the Court of Appeals of the State of New York is accordingly Affirmed. The statute provides in full: “Section 1. The territory of the village of Kiryas Joel in the town of Monroe, Orange county, on the date when this act shall take effect, shall be and hereby is constituted a separate school district, and shall be known as the Kiryas Joel village school district and shall have and enjoy all the powers and duties of a union free school district under the provisions of the education law. “§ 2. Such district shall be under the control of a board of education, which shall be composed of from five to nine members elected by the qualified voters of the village of Kiryas Joel, said members to serve for terms not exceeding five years. “§3. This act shall take effect on the first day of July next succeeding the date on which it shall have become a law.” Messrs. Grumet and Hawk sued in both their individual capacities and as officers of the State School Boards Association, but New York’s Appellate Division ruled that the Association and its officers lacked standing to challenge the constitutionality of Chapter 748. 187 App. Div. 2d 16, 19, 592 N. Y. S. 2d 123, 126 (1992). Thus, as the case comes to us, respondents are simply citizen taxpayers. See N. Y. State Fin. Law § 123 (McKinney 1989). The Commissioner of Education updates this Master Plan as school districts consolidate, see N. Y. Educ. Law §314 (McKinney 1988), but has not published a superseding version. State law allows consolidation on the initiative of a district superintendent, N. Y. Educ. Law §1504 (McKinney 1988), local voters, §§ 1510— 1513, 1522-1524, 1902, or the Commissioner of Education, §§ 1526, 1801-1803-a, depending on the circumstances. It also authorizes the district superintendent to “organize a new school district,” §1504, which may allow secession from an existing district, but this general law played no part in the creation of the Kiryas Joel Village School District. Although not dispositive in this facial challenge, the pattern of interdistrict transfers, proposed and presently occurring, tends to confirm that religion rather than geography is the organizing principle for this district. Cf. United States v. Scotland Neck City Bd. of Ed., 407 U. S., at 490 (Burger, C. J., concurring in result). When Chapter 748 was passed, the understanding was that if a non-Hasidic child were to move into the village, the district would pay tuition to send the child to one of the neighboring school districts, since Kiryas Joel would have no regular education program. Although the need for such a transfer has not yet arisen, there are 20 Hasidic children with handicapping conditions who transfer into Kiryas Joel’s school district from the nearby East Ramapo and MonroeWoodbury school districts. Because it is the unusual circumstances of this district’s creation that persuade us the State has employed a religious criterion for delegating political power, this conclusion does not imply that any political subdivision that is coterminous with the boundaries of a religiously homogeneous community suffers the same constitutional infirmity. The district in these cases is distinguishable from one whose boundaries are derived according to neutral historical and geographic criteria, but whose population happens to comprise coreligionists. This contrasts with the process by which the village of Kiryas Joel itself was created, involving, as it did, the application of a neutral state law designed to give almost any group of residents the right to incorporate. See supra, at 691. The Court used “sectarian” to refer to organizations akin to this school district in that they were operated in a secular manner but had a religious affiliation; it recognized that government aid may not flow to an institution “ ‘in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission,’” 487 U. S., at 610 (quoting Hunt v. McNair, 413 U. S. 734, 743 (1973)). The Board of Education of the Kiryas Joel Village School District explains that the Satmars prefer to live together “to facilitate individual religious observance and maintain social, cultural and religious values,” but that it is not “‘against their religion’ to interact with others.” Brief for Petitioner in No. 93-517, p. 4, n. 1. In this respect, it goes beyond even Larkin, transferring political authority to a single religious group rather than to any church or school. Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:

sc_issue_1

22

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. HENDERSON, CORRECTIONAL SUPERINTENDENT v. KIBBE No. 75-1906. Argued March 1, 1977 Decided May 16, 1977 Lillian Zeisel Cohen, Assistant Attorney General of New York, argued the cause for petitioner. With her on the briefs were Louis J. Lefkowitz, Attorney General, Samuel A. Hirsho* witz, First Assistant Attorney General, and Margery Evans Reifler, Assistant Attorney General. Sheila Ginsberg argued the cause for respondent. With her on the brief were William E. Hellerstein and Phylis Skloot Bamberger Lawrence T. Kurlander filed a brief for Monroe County, N. Y., as amicus curiae. Mr. Justice Stevens delivered the opinion of the Court. Respondent is in petitioner’s custody pursuant to a conviction for second-degree murder. The question presented to us is whether the New York State trial judge’s failure to instruct the jury on the issue of causation was constitutional error requiring a Federal District Court to grant habeas corpus relief. Disagreeing with a divided panel of the Court of Appeals for the Second Circuit, we hold that it was not. On the evening of December 30, 1970, respondent and his codefendant encountered a thoroughly intoxicated man named Stafford in a bar in Rochester, N. Y. After observing Stafford display at least two $100 bills, they decided to rob him and agreed to drive him to a nearby town. While in the car, respondent slapped Stafford several times, took his money, and, in a search for concealed funds, forced Stafford to lower his trousers and remove his boots. They then abandoned him on an unlighted, rural road, still in a state of partial undress, and without his coat or his glasses. The temperature was near zero, visibility was obscured by blowing snow, and snow banks flanked the roadway. The time was between 9:30 and 9:40 p. m. At about 10 p. m., while helplessly seated in a traffic lane about a quarter mile from the nearest lighted building, Stafford was struck by a speeding pickup truck. The driver testified that while he was traveling 50 miles per hour in a 40-mile zone, the first of two approaching cars flashed its lights — • presumably as a warning which he did not understand. Immediately after the cars passed, the driver saw Stafford sitting in the road with his hands in the air. The driver neither swerved nor braked his vehicle before it hit Stafford. Stafford was pronounced dead upon arrival at the local hospital. Respondent and his accomplice were convicted of grand larceny, robbery, and second-degree murder. Only the conviction of murder, as defined in N. Y. Penal Law § 125.25 (2) (McKinney 1975), is now challenged. That statute provides that “[a] person is guilty of murder in the second degree" when “[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” (Emphasis added.) Defense counsel argued that it was the negligence of the truckdriver, rather than the defendants’ action, that had caused Stafford’s death, and that the defendants could not have anticipated the fatal accident. On the other hand, the prosecution argued that the death was foreseeable and would not have occurred but for the conduct of the defendants who therefore were the cause of death. Neither party requested the trial judge to instruct the jury on the meaning of the statutory requirement that the defendants’ conduct “thereby cause [d] the death of another person,” and no such instruction was given. The trial judge did, however, read the indictment and the statute to the jury and explained the meaning of some of the statutory language. He advised the jury that a “person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense ivhen he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.” App. 89 (emphasis added). The Appellate Division of the New York Supreme Court affirmed respondent’s conviction. People v. Kibbe, 41 App. Div. 2d 228, 342 N. Y. S. 2d 386 (1973). Although respondent did not challenge the sufficiency of the instructions to the jury in that court, Judge Cardamone dissented on the ground that the trial court’s charge did not explain the issue of causation or include an adequate discussion of the necessary mental state. That judge expressed the opinion that “the jury, upon proper instruction, could have concluded that the victim’s death by an automobile was a remote and intervening cause.” The New York Court of Appeals also affirmed. 35 N. Y. 2d 407, 321 N. E. 2d 773 (1974). It identified the causation issue as the only serious question raised by the appeal, and then rejected the contention that the conduct of the driver of the pickup truck constituted an intervening cause which relieved the defendants of criminal responsibility for Stafford’s death. The court held that it was “not necessary that the ultimate harm be intended by the actor. It will suffice if it can be said beyond a reasonable doubt, as indeed it can be here said, that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused.” The court refused to consider the adequacy of the charge to the jury because that question had not been raised in the trial court. Respondent then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of New York, relying on 28 U. S. C. § 2254. The District Court held that the respondent’s attack on the sufficiency of the charge failed to raise a question of constitutional dimension and that, without more, “the charge is not reviewable in a federal habeas corpus proceeding.” App. 21. The Court of Appeals for the Second Circuit reversed, 534 F. 2d 493 (1976). In view of the defense strategy which consistently challenged the sufficiency of the proof of causation, the majority held that the failure to make any objection to the jury instructions was not a deliberate bypass precluding federal habeas corpus relief, but rather was an “obviously inadvertent” omission. Id., at 497. On the merits, the court held that since the Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime, In re Winship, 397 U. S. 358, 364, the failure to instruct the jury on an essential element as complex as the causation issue in this case created an impermissible risk that the jury had not made a finding that the Constitution requires. Because the Court of Appeals decision appeared to conflict with this Court's holding in Cupp v. Naughten, 414 U. S. 141, we granted certiorari, 429 U. S. 815. Respondent argues that the decision of the Court of Appeals should be affirmed on either of two independent grounds: (1) that the omission of an instruction on causation created the danger that the jurors failed to make an essential factual determination as required by Winship; or (2) assuming that they did reach the causation question, they did so without adequate guidance and might have rendered a different verdict under proper instructions. A fair evaluation of the omission in the context of the entire record requires rejection of both arguments. I The Court has held “that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, supra, at 364. One of the facts which the New York statute required the prosecution to prove is that the defendants’ conduct caused the death of Stafford. As the New York Court of Appeals held, the evidence was plainly sufficient to prove that fact beyond a reasonable doubt. It is equally clear that the record requires us to conclude that the jury made such a finding. There can be no question about the fact that the jurors were informed that the case included a causation issue that they had to decide. The element of causation was stressed in the arguments of both counsel. The statutory language, which the trial judge read to the jury, expressly refers to the requirement that defendants’ conduct “cause [d] the death of another person.” The indictment tracks the statutory language; it was read to the jurors and they were given a copy for use during their deliberations. The judge instructed the jury that all elements of the crime must be proved beyond a reasonable doubt. Whether or not the arguments of counsel correctly characterized the law applicable to the causation issue, they surely made it clear to the jury that such an issue had to be decided. It follows that the objection predicated on this Court's holding in Winship is without merit. II An appraisal of the significance of an error in the instructions to the jury requires a comparison of the instructions which were actually given with those that should have been given. Orderly procedure requires that the respective adversaries' views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. It is thé rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court. The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing réquired to establish plain error on direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Cupp v. Naughten, 414 U. S., at 147, not merely whether “the instruction is undesirable, erroneous, or even 'universally condemned,' " id., at 146. In this case, the respondent’s burden is especially heavy because no erroneous instruction was given; his claim of prejudice is based on the failure to give any explanation — beyond the reading of the statutory language itself — of the causation element. An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law. Since this omission escaped notice on the record until Judge Cardamone filed his dissenting opinion at the intermediate appellate level, the probability that it substantially affected the jury deliberations seems remote. Because respondent did not submit a draft instruction on the causation issue to the trial judge, and because the New York courts apparently had no previous occasion to construe this aspect of the murder statute, we cannot know with certainty precisely what instruction should have been given as a matter of New York law. We do know that the New York Court of Appeals found no reversible error in this case; and its discussion of the sufficiency of the evidence gives us guidance about the kind of causation instruction that would have been acceptable. The New York Court of Appeals concluded that the evidence of causation was sufficient because it can be said beyond a reasonable doubt that the “ultimate harm” was “something which should have been foreseen as being reasonably related to the acts of the accused.” It is not entirely clear whether the court’s reference to “ultimate harm” merely required that Stafford’s death was foreseeable, or, more narrowly, that his death by a speeding vehicle was foreseeable. In either event, the court was satisfied that the “ultimate harm” was one which “should have been foreseen.” Thus, an adequate instruction would have told the jury that if the ultimate harm should have been foreseen as being reasonably-related to defendants’ conduct, that conduct should be regarded as having caused the death of Stafford. The significance of the omission of such an instruction may be evaluated by comparison with the instructions that were given. One of the elements of respondent’s offense is that he acted “recklessly,” supra, at 148, 149. By returning a guilty verdict, the jury necessarily found, in accordance with its instruction on recklessness, that respondent was “aware of and consciously disregard[ed] a substantial and unjustifiable risk” that death would occur. A person who is “aware of and consciously disregards” a substantial risk must also foresee the ultimate harm that the risk entails. Thus, the jury’s determination that the respondent acted recklessly necessarily included a determination that the ultimate harm was foreseeable to him. In a strict sense, an additional instruction on foreseeability would not have been cumulative because it would have related to an element of the offense not specifically covered in the instructions given. But since it is logical to assume that the jurors would have responded to an instruction on causation consistently with their determination of the issues that were comprehensively explained, it is equally logical to conclude that such an instruction would not have affected their verdict. Accordingly, we reject the suggestion that the omission of more complete instructions on the causation issue “so infected the entire trial that the resulting conviction violated due process.” Even if we were to make the unlikely assumption that the jury might have reached a different verdict pursuant to an additional instruction, that possibility is too speculative to justify the conclusion that constitutional error was committed. The judgment is reversed. It is so ordered. Mr. Justice Rehnquist took no part in the consideration or decision of this case. A pathologist testified that the alcohol content in Stafford’s blood was indicative of a “very heavy degree of intoxication.” App. 58. Tr. 723. Respondent was sentenced to concurrent terms of 15 years to life on the murder conviction; 5-15 years on the robbery conviction; and an indeterminate term of up to four years on the grand larceny conviction. “Let’s look at this indictment. Count 1 says and I will read the important part. That the defendant, ‘Felon[i] ously and under circumstances evincing a depraved indifference to human life recklessly engaged in conduct which created a grave risk of death to another person, to wit, George Stafford and thereby caused the death of George Stafford.’ So, you can see by the accent that I put on reaching that, the elements of this particular crime, and which must be proven beyond a reasonable doubt. “. . . [YJou are going to have to honestly come to the conclusion that here is three people, all three drinking, and that these two, or at least my client were in a position to perceive this grave risk, be aware of it and disregard it. Perceive that Mr. Stafford would sit in the middle of the northbound lane, that a motorist would come by who was distracted by flashing lights in the opposite lane, who then froze at the wheel, who then didn’t swerve, didn’t brake, and who was violating the law by speeding, and to make matters worse, he had at that particular time, because of what the situation was, he had low beams on, that is a lot of anticipation. That is a lot of looking forward. Are you supposed to anticipate that somebody is going to break the law when you move or do something? I think that is a reasonable doubt.” App. 68. “As I mentioned not only does the first count contain reference to and require proof of a depraved indifference to a human life, it proves that the defendant recklessly engaged in conduct which created a risk of death in that they caused the death of George Stafford. Now, I very well know, members of the jury, you know, that quite obviously the acts of both of these defendants were not the only the direct or the most preceding cause of his death. If I walked with one of you downtown, you know, and we went across one of the bridges and you couldn’t swim and I pushed you over and you drowned because you can’t swim, I suppose you can say, well, you drowned because you couldn’t swim. But of course, the fact is that I pushed you over. The same thing here. Sure, the death, the most immediate, the most preceding, the most direct cause of Mr. Stafford’s death was the motor vehicle .... But how did he get there ? Or to put it differently, would this man be dead had it not been for the acts of these two defendants? And I submit to you, members of the jury, that the acts of these two defendants did indeed cause the death of Mr. Stafford. He didn’t walk out there on East River Road. He was driven out there. His glasses were taken and his identification was taken and his pants were around his ankles.” Id,., at 75-76. 41 App. Div. 2d, at 231, 342 N. Y. S. 2d, at 390. He added: “There are no statutory provisions dealing with intervening causes — nor is civil case law relevant in this context. The issue of causation should have been submitted to the jury in order for it to decide whether it would be unjust to hold these appellants liable as murderers for the chain of events which actually occurred. Such an approach is suggested in the American Law Institute Model Penal Code (see Comment, § 2.03, pp. 133, 134 of Tentative Draft No. 4).” Id., at 231-232, 342 N. Y. S. 2d, at 390. The dissent did not cite any New York authority describing the causation instruction that should have been given. 35 N. Y. 2d, at 412, 321 N. E. 2d, at 776. The New York court added: “We subscribe to the requirement that the defendants’ actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability, and recognize, of course, that this standard is greater than that required to serve as a basis for tort liability. Applying these criteria to the defendants’ actions, we conclude that their activities on the evening of December 30, 1970 were a sufficiently direct cause of the death of George Stafford so as to warrant the imposition of criminal sanctions. In engaging in what may properly be described as a despicable course of action, Kibbe and KralL left a helplessly intoxicated man without his eyeglasses in a position from which, because of these attending circumstances, he could not extricate himself and whose condition was such that he could not even protect himself from the elements. The defendants do not dispute the fact that their conduct evinced a depraved indifference to human life which created a grave risk of death, but rather they argue that it was just as likely that Stafford would be miraculously rescued by a good [SJamaritan. We cannot accept such an argument. There can be little doubt but that Stafford would have frozen to death in his state of undress had he remained on the shoulder of the road. The only alternative left to him was the highway, which in his condition, for one reason or another, clearly foreboded the probability of his resulting death.” Id., at 413, 321 N. E. 2d, at 776. Cf. Humphrey v. Cady, 405 U. S. 504, 517; Fay v. Noia, 372 U. S. 391, 427-428, 438-439. “The omission of any definition of causation, however, permitted the jury to conclude that the issue was not before them or that causation could be inferred merely from the fact that Stafford’s death succeeded his abandonment by Kibbe and Krall. “. . . The possibility that jurors, as laymen, may misconstrue the evidence before them makes mandatory in every case instruction as to the legal standards they must apply. . . . Error in the omission of an instruction is compounded where the legal standard is complex and requires that fine distinctions be made. That is most assuredly the situation in this case. It has been held that where death is produced by an intervening force, such as Blake’s operation of his truck, the liability of one who put an antecedent force into action will depend on the difficult determination of whether the intervening force was a sufficiently independent or supervening cause of death. See W. LaFave & A. Scott, Criminal Law 257-263 (1972) (collecting cases). The few cases that provide similar factual circumstances suggest that the controlling questions are whether the ultimate result was foreseeable to the original actor and whether the victim failed to do something easily within his grasp that would have extricated him from danger.” 534 F. 2d, at 498-499 (footnotes omitted). In dissent, Judge Mansfield reasoned that the arguments of counsel, the reading of the statutory definition of the crime, and the general instructions made it clear to the jury that they had to find beyond a reasonable doubt that defendants’ conduct was a direct cause of Stafford’s death and that the death was not attributable solely to the truckdriver. Even though instructions on intervening cause might have been helpful, Judge Mansfield concluded that the omission was not constitutional error. “In determining the effect of this instruction on the validity of respondent’s [state] conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U. S. 104, 107 (1926). While this does not mean that an instruction by itself may never rise to the level of constitutional error, see Cool v. United States, 409 U. S. 100 (1972), it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.” Cupp v. Naughten, 414 U. S. 141, 146-147. Allis v. United States, 155 U. S. 117, 122-123; Harvey v. Tyler, 2 Wall. 328, 339; see, e. g., Lopez v. United States, 373 U. S. 427, 436. In Namet v. United States, 373 U. S. 179, 190, the Court characterized appellate consideration of a trial court error which was not obviously prejudicial and which the defense did not mention during the trial as “extravagant protection.” See Boyd v. United States, 271 U. S. 104, 108. The strong interest in preserving the finality of judgments, see, e. g., Blackledge v. Allison, ante, p. 83 (Powell, J., concurring); Schneckloth v. Bustamonte, 412 U. S. 218, 256-266 (Powell, J., concurring), as well as the interest in orderly trial procedure, must be overcome before collateral relief can be justified. For a collateral attack may be made many years after the conviction when it may be impossible, as a practical matter, to conduct a retrial. 35 N. Y. 2d, at 412-413, 321 N. E. 2d, at 776. The passage of the opinion quoted in n. 7, supra, emphasizes the obvious risk of death by freezing, suggesting that defendants need not have foreseen the precise manner in which the death did occur. Supra, at 149. In charging the jury on recklessness the trial judge quoted the statutory definition of that term in N. Y. Penal Law § 15.05 (3) (McKinney 1975). In fact, it is not unlikely that a complete instruction on the causation issue would actually have been favorable to the prosecution. For example, an instruction might have been patterned after the following example given in W. LaFave & A. Scott, Criminal Law 260 (1972): “A, with intent to kill B, only wounds B, leaving him lying unconscious in the unlighted road on a dark night, and then C, driving along the road, runs over and kills B. Here C’s act is a matter of coincidence rather than a response to what A has done, and thus the question is whether the subsequent events were foreseeable, as they undoubtedly were in the above illustration.” Such an instruction would probably have been more favorable to the prosecution than the instruction on recklessness which the court actually gave. Question: What is the issue of the decision? 01. involuntary confession 02. habeas corpus 03. plea bargaining: the constitutionality of and/or the circumstances of its exercise 04. retroactivity (of newly announced or newly enacted constitutional or statutory rights) 05. search and seizure (other than as pertains to vehicles or Crime Control Act) 06. search and seizure, vehicles 07. search and seizure, Crime Control Act 08. contempt of court or congress 09. self-incrimination (other than as pertains to Miranda or immunity from prosecution) 10. Miranda warnings 11. self-incrimination, immunity from prosecution 12. right to counsel (cf. indigents appointment of counsel or inadequate representation) 13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty) 14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts) 15. line-up 16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations) 17. double jeopardy 18. ex post facto (state) 19. extra-legal jury influences: miscellaneous 20. extra-legal jury influences: prejudicial statements or evidence 21. extra-legal jury influences: contact with jurors outside courtroom 22. extra-legal jury influences: jury instructions (not necessarily in criminal cases) 23. extra-legal jury influences: voir dire (not necessarily a criminal case) 24. extra-legal jury influences: prison garb or appearance 25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment) 26. extra-legal jury influences: pretrial publicity 27. confrontation (right to confront accuser, call and cross-examine witnesses) 28. subconstitutional fair procedure: confession of error 29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy) 30. subconstitutional fair procedure: entrapment 31. subconstitutional fair procedure: exhaustion of remedies 32. subconstitutional fair procedure: fugitive from justice 33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case) 34. subconstitutional fair procedure: stay of execution 35. subconstitutional fair procedure: timeliness 36. subconstitutional fair procedure: miscellaneous 37. Federal Rules of Criminal Procedure 38. statutory construction of criminal laws: assault 39. statutory construction of criminal laws: bank robbery 40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy) 41. statutory construction of criminal laws: escape from custody 42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury) 43. statutory construction of criminal laws: financial (other than in fraud or internal revenue) 44. statutory construction of criminal laws: firearms 45. statutory construction of criminal laws: fraud 46. statutory construction of criminal laws: gambling 47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951 48. statutory construction of criminal laws: immigration (cf. immigration and naturalization) 49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation) 50. statutory construction of criminal laws: Mann Act and related statutes 51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol 52. statutory construction of criminal laws: obstruction of justice 53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements) 54. statutory construction of criminal laws: Travel Act, 18 USC 1952 55. statutory construction of criminal laws: war crimes 56. statutory construction of criminal laws: sentencing guidelines 57. statutory construction of criminal laws: miscellaneous 58. jury trial (right to, as distinct from extra-legal jury influences) 59. speedy trial 60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure) Answer:

songer_typeiss

D

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. Oscar H. MATUTE, Appellant, v. PROCOAST NAVIGATION LTD., Maritime Services G.m.b.h., Appellees. No. 90-5362. United States Court of Appeals, Third Circuit. Resubmitted Under Rule 12(6) March 11, 1991. Decided March 22, 1991. Francis J. Dooley, Orange, N.J., for appellant. George J. Koelzer, Clarkson S. Fisher, Jr., Ober, Kaler, Grimes & Shriver, Edison, N.J., for appellees. Before COWEN, ALITO, and ROSENN, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. This appeal presents two serious questions. The first is whether the district court had subject matter jurisdiction under the Jones Act, 46 U.S.C.App. § 688, of a suit brought for damages by Oscar H. Ma-tute, a Honduran citizen, who was a crew-member of a vessel registered in the Republic of Cyprus. The ship was owned at the time of the alleged injury by a corporation whose officers, director, and stockholders were citizens and residents of West Germany. The alleged injury occurred outside the United States. The second question is whether the appellant’s failure to follow the rules of this court constituted a jurisdictional bar to hear his appeal or, alternatively, whether this court in the exercise of its discretion should summarily dispose of the appeal by dismissal. The district court granted the motion of the defendant, Procoast Navigation Ltd. (Procoast), to dismiss the suit for lack of subject matter jurisdiction because the points of contact of this dispute with the United States were minimal. We conclude that the district court did not err in dismissing the plaintiff’s complaint for lack of subject matter jurisdiction and in denying the plaintiff’s motion for reconsideration. I. At the time of plaintiff’s injury the vessel LLOYD BERMUDA was on regular liner service between Bermuda and Newark, New Jersey. According to an affidavit of the vessel’s chief mate, Walter Gonzalez, Matute developed an eye irritation while employed on the LLOYD BERMUDA in 1986 which, because he failed to receive prompt medical attention, developed into a serious condition. In July 1987, Matute brought this action under the Jones Act against Procoast and another West German corporation, Maritime Services G.m.b.h., for damages arising out of his eye injury. At Procoast’s request, and with the consent of Matute, the suit was transferred from the United States District Court for the Southern District of New York to the United States District Court for the District of New Jersey, where, on November 30, 1989, the court dismissed the action against Procoast for lack of subject matter jurisdiction. In its memorandum order, the district court analyzed the contacts of this dispute with the United States and held that they were insufficient to establish jurisdiction under the Jones Act. The court declared: [T]he points of contact of this dispute with the United States are minimal, in that the law of the ship’s flag is Cyprus; the allegiance of the injured seaman is Honduras; the allegiance of the ship owner is West German; other forums are available to the injured seaman; and the shipowner’s base of operations is outside the United States____ The district court might also have mentioned another factor which argued against jurisdiction: the injury occurred outside the United States on the high seas. Following the dismissal, Matute filed a timely motion for reconsideration based largely on the submission of a new affida- vit by Gonzalez claiming that Procoast had an agent acting on its behalf in the United States. The district court considered this new information, but nevertheless reaffirmed its earlier holding that contacts with the United States were too minimal to establish subject matter jurisdiction. Following denial of his motion to reconsider, Matute timely filed a notice of appeal which stated in part: Please take notice that the plaintiff appeals from the Order of the Hon. Maryanne Trump Barry, U.S.D.J. denying plaintiffs Motion For Reconsideration filed on March 30, 1990 and docketed on April 4, 1990, which Order affirmed the Order Dismissal of November 30, 1989. Procoast contends in its brief that this notice provided appellate jurisdiction only over the denial of the motion for reconsideration, but was insufficient to provide appellate jurisdiction over the original dismissal. Furthermore, Procoast maintains that Matute’s brief and appendix were filed out of time and that the Clerk of this court denied Matute’s motion to file them late. II. A. Failure to Designate Underlying Order Obviously, counsel for appellant did not pay careful attention to the Federal Rules of Appellate Procedure and the rules of this court in several important respects. Rule 3(c) of the Federal Rules of Appellate Procedure designates the content of the Notice of Appeal, which “shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken____ An appeal shall not be dismissed for informality of form or title of the notice of appeal.” Compliance with Federal Rules of Appellate Procedure 3 and 4, providing for the timely and proper filing of a notice of appeal, has been interpreted to be “mandatory and jurisdictional.” United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960). Here, Matute failed in his notice of appeal to designate that the order appealed from included the original order of dismissal. He merely appealed from the order denying the motion for reconsideration. Therefore, Procoast argues that this failure does not raise on appeal the underlying order of dismissal. This court has in the past liberally construed the content of notices of appeal and generally it has not interpreted them to bar an appeal unless the notice of appeal is so inadequate as to prejudice the opposing party. Thus, the court has held it proper to exercise appellate jurisdiction “over orders not specified in the notice of appeal if there is a connection between the specified and unspecified order, the intention to appeal the unspecified order is apparent and the opposing party is not prejudiced and has a full opportunity to brief the issue.” Williams v. Guzzardi, 875 F.2d 46, 49 (3rd Cir.1989). See also Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3rd Cir.1990). Thus, in Williams, this court held that the appellants’ notice of appeal which specified only the trial court’s post-judgment order dismissing their motion for judgment notwithstanding the verdict did not preclude an appellate court from considering the original order entering judgment against appellants. This holding is in accord with the United States Supreme Court which, in one case, reversed an appellate court for dismissing an appeal because the notice of appeal specified the denial of a motion for a new trial but did not specify the underlying judgment. See State Farm Mutual Auto. Ins. Co. v. Palmer, 225 F.2d 876 (9th Cir.1955), rev’d 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823 (1956). See also Wheatley v. Beetar, 637 F.2d 863 (2nd Cir. 1980) (filing of notice of appeal from an order denying a new trial rather than from the underlying judgment was harmless error). Moore’s Federal Practice states: The rule is now well settled that a mistake in designating the judgment, or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake. 9 Moore’s Federal Practice 11203.18 at 3-76-77 (citations omitted). Therefore, in the absence of a showing of prejudice by Procoast, it appears that Ma-tute’s mistake in failing to state specifically that he was appealing from the underlying dismissal should be viewed as harmless error and not a jurisdictional bar to his appeal. Indeed, Matute did mention the Order of Dismissal in his notice of appeal; the intent to appeal from that Order, thus, can be inferred fairly from the notice. B. Failure to Timely File Brief and Appendix Rule 31 of the Federal Rules of Appellate Procedure provides that the appellant shall file a brief within 40 days after the date on which the record is filed. Failure to file a brief on time is not a jurisdictional bar to hearing the appeal. Marcaida v. Rascoe, 569 F.2d 828 (5th Cir.1978). However, failure to file a brief on time may provide the cause for summary disposition of the appeal in the court’s discretion. This court’s Rules provide sanctions for a party’s failure to adhere to the Federal Rules of Appellate Procedure, including Rule 31 providing for the timely filing of briefs. Appropriate sanctions may include “dismissal of the appeal, imposition of costs or disciplinary sanctions upon counsel.” Third Circuit Rule 21(4). See Spartacus, Inc. v. Borough of McKees Rocks, 694 F.2d 947, 951 (3rd Cir.1982) (Garth, J., dissenting) (Rule 21(4) permits dismissal of an appeal when adherence has not been had to this court’s established procedures). In the instant case, Matute’s brief was due initially on June 26, 1990. The Clerk of the Court informs us that she received a request for an extension of time and in response extended the filing time to July 17, 1990. However, counsel for the appellant failed to file his brief during this extended period and instead, on July 18,1990, submitted another motion for an extension of time. The docket sheet shows that the Clerk granted this second motion for extension of time until July 30, 1990; however, the Clerk warned appellant that no further extensions would be granted beyond that date. Counsel submitted a third request on August 2, 1990, for an extension of time until August 6, 1990 to file his brief. According to the docket sheet, the Acting Clerk extended the filing date until August 6, 1990, but notified appellant that if his brief was not filed by that date, the case would be dismissed; counsel again failed to submit his brief in time. On August 21, 1990, almost two months after the initial filing date, counsel for Matute filed his brief and simultaneously moved for permission to file his brief out of time, which motion was denied. In Kushner v. Winterthur Swiss Insurance Co., 620 F.2d 404 (3rd Cir.1980), we took great pains to inform the bar of the importance and necessity of complying with court rules respecting the content and filing of briefs. In that case, we expressed our reluctance to dismiss an appeal for failure to comply with rules of court but we made the importance of compliance very clear. We noted that we would not expend valuable judicial time in performing the work of errant counsel with respect to the failure to properly prepare the contents of briefs and appendices. We therefore dismissed the appeal for failure to file an appendix that conformed to the rules of court and specifically gave notice that the failure “to observe the Federal Rules of Appellate Procedure and the rules of this court may also result in dismissal of appeals.” Id. at 407. Although that case dealt with disregard of the court rule relating to the content of the brief and appendix, the rule and its reasons apply with equal, if not greater, force to the failure to file timely a brief and appendix. In Winterthur we explained the practical reasons for the court’s action and the jurisprudential justification for the decision. Our Rules, which have been in effect since September 1, 1978, were designed to enable this court to process effectively and judiciously an ever-increasing workload. Since the passage of our Rules, the number of appeals filed per judge has swelled dramatically. In 1979, this court, consisting of nine active judges, decided 1,702 appeals. In the year ending June 30, 1990, this court, with twelve active judges considered 2,943 appeals, a significant increase in filings per judge. Thus, the pragmatic considerations which motivated this court’s dismissal of the appeal in Winterthur are even more compelling in 1991. Our ongoing efforts to provide speedy and just dispositions of all appeals for every litigant are hindered by a party which fails to abide by our rules for the timely filing of briefs and appendices. As noted in Winterthur, jurisprudential considerations also justify dismissing an appeal where the appellate rules have not been observed. There, we stated, Each appellant in this court must of necessity allege that the district court violated some rule of substantive or procedural law____ The litigant, then, who charges that the rules were not followed in the district court should himself follow the rules when he applies for relief in this court. Sauce for the goose is sauce for the gander. Winterthur, 620 F.2d at 407. Thus, the principle of consistent and mutual respect for the supremacy of rules in our system of law counsels for sanctions against a participant who fails to abide by those rules without good cause. Dismissal of an appeal will not be appropriate in every case of an untimely filing, but a showing of “extraordinary and compelling circumstances” may give the court cause to excuse the violation. Barber v. American Security Bank, 841 F.2d 1159, 1160 (D.C.Cir.1988). Here, counsel for Matute has brought to our attention in a petition for rehearing extraordinary and compelling personal circumstances excusing his neglect in failing to file on time; namely, serious injuries to his son while on sea duty with the United States Merchant Marines and the hospitalization of both his wife and son during the 40-day period for preparing his brief and appendix. Thus, we will not dismiss Matute’s appeal for counsel’s failure to file his brief on time. III. Although we do not dismiss this appeal on procedural grounds, we nevertheless affirm the district court’s dismissal of the complaint for lack of subject matter jurisdiction. In rejecting Matute’s motion for reconsideration and in dismissing his claim under the Jones Act the district court considered each of the factors announced in the Lauritzen-Romero-Rhoditis triad. Subject matter jurisdiction in the district court existed only if Matute’s claim fell within the Jones Act because he had not made a claim under the General Maritime Law of the United States. The district court considered the seven factors originally announced in the Lauritzen case and weighed each factor “in light of the national interests served by the assertion of Jones Act jurisdiction.” Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). The factors announced in Lauritzen were: (1) the place of injury, (2) the country of the ship’s flag, (3) the allegiance or the domicile of the injured seaman, (4) the allegiance of the shipowner, (5) where the shipping articles were signed, (6) the inaccessibility of a foreign forum, and (7) the law of the forum. Lauritzen, 345 U.S. at 583-591, 73 S.Ct. at 928-933. Rhoditis added an eighth factor: the location of the defendant’s “base of operations.” The factors are not to be weighed equally. This court exercises plenary review of a district court’s decision to dismiss a complaint for lack of subject matter jurisdiction. York Bank and Trust v. Federal Savings and Loan Ins. Corp., 851 F.2d 637, 638 (3rd Cir.1988). We have reviewed the district court’s analysis of each element and the weight to be given each of the factors in the Lauritzen-Romero-Rhoditis equation. We have also considered as well Matute’s effort to extend the Rhoditis factor to take into account the LLOYD BERMUDA’S weekly visits to the United States. We conclude that the district court correctly held that the plaintiff has not met his burden of proving jurisdiction under the Jones Act, Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir.), cert. denied, 474 U.S. 945, 106 S.Ct. 311, 88 L.Ed.2d 288 (1985), and that the district court properly dismissed the action for lack of subject matter jurisdiction. IV. Thus, the judgment of the district court dismissing Matute’s action will be affirmed. . See also, In re Universal Minerals, Inc., 755 F.2d 309, 313 (3rd Cir.1985) (unprofessional conduct of appellant’s counsel in failing to respond to this court’s repeated inquiries required dismissal); Brooks v. Fitch, 642 F.2d 46, 48 (3rd Cir.1981) (failure to state in appeal brief the basis for appellate jurisdiction and the standard of review in violation of Rule 21 alone justified dismissal of the appeal). Furthermore, other courts of appeal have dismissed appeals for the precise conduct at issue here, failure to file a brief on time. See, e.g., Julien v. Zeringue, 864 F.2d 1572, 1574 (Fed.Cir.) cert. denied — U.S. —, 110 S.Ct. 276, 107 L.Ed.2d 256 (1989); Barber v. American Security Bank, 841 F.2d 1159 (D.C.Cir.1988); Stotler and Company v. Able, 837 F.2d 1425 (7th Cir.1988). . Table X-6, "Appeals Commenced in the U.S. Courts of Appeals," Annual Report of the Director, Administrative Office of the United States Courts, at A-174 (1979). . "1990 Federal Court Management Statistics,” Annual Report of the Director, Administrative Office of the United States Courts, at 8 (1990). . Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953); Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959); Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). 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_direct1

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Jae Myung LEE, Jung Sook Lee, Hee Jung Lee, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 81-7204. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 2, 1982. Decided Aug. 26, 1982. James T. Stroud, Rezae, Stroud & Suhr, Los Angeles, Cal., for petitioners. Katherine V. Tooks, Asst. U. S. Atty., Los Angeles, Cal., for respondent. Before ELY, GOODWIN, and WALLACE, Circuit Judges. PER CURIAM: The Lees petition for review of a Board of Immigration Appeals (BIA) decision finding them deportable because of a fraudulent labor certification. We dismiss the petition for want of jurisdiction because the petition for review in this court was untimely filed. The BIA’s dismissal of petitioners’ appeal from the Immigration Judge’s deportation order was dated June 27, 1980. The Lees’ petition for review in this court, filed April 3, 1981, was clearly untimely under 8 U.S.C. § 1105a(a)(l), which provides that a petition for review may be filed not later than six months from the date of the final deportation order. This requirement is mandatory and jurisdictional. See Chudschevid v. INS, 641 F.2d 780, 783-84 (9th Cir. 1981); Loza-Bedoya v. INS, 410 F.2d 343, 345-46 (9th Cir. 1969). Petitioners contend, however, that the appeal is nevertheless timely because the BIA failed properly to serve a copy of the decision on them as required by 8 C.F.R. §§ 3.1(f), 292.5(a), and because they did not learn of the BIA’s decision until March 16, 1981. The record shows, however, that the BIA mailed a copy of its decision to the address of record for petitioners’ attorney and that the Post Office returned the decision indicating that the attorney had moved. Petitioners’ attorney had notified the Deportation Branch of the Immigration and Naturalization Service (INS) of his change of address in January 1980, but he never notified the BIA of his new address. We are satisfied that the BIA complied with the requirements of 8 C.F.R. §§ 3.1(f), 292.5(a). The notification by petitioners’ attorney to the INS was insufficient to constitute notification to the. BIA that his address had changed. The BIA is a quasi-judicial body independent of the INS, established by the United States Attorney General under 8 C.F.R. § 3.1 to adjudicate cases brought before it. See Mehta v. INS, 574 F.2d 701, 705 (2d Cir. 1978). Petitioners’ attorney should have undertaken the minimal effort necessary to notify the BIA, a tribunal separate from and independent of the INS, petitioners’ adversary in this case, of his correct address. The petition for review is hereby dismissed for want of jurisdiction. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:

sc_lcdisposition

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. JACKSON v. TAYLOR, ACTING WARDEN. No. 619. Argued April 30, 1957. Decided June 3, 1957. Urban P. Van Susteren argued the cause and filed a brief for petitioner. Ralph S. Spritzer argued the cause for respondent. With him on the brief were Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and James W. Booth. Mr. Justice Clark delivered the opinion of the Court. This is a habeas corpus proceeding in which petitioner, a soldier, attacks the validity of a sentence of 20 years he is now serving as the result of his conviction by an Army court-martial of the offense of attempted rape. While serving in the United States Army in Korea, he was found guilty by a general court-martial of the separate offenses of premeditated murder and attempted rape of a Korean woman. He was given an aggregate sentence of life imprisonment for both offenses. The Army board of review found “incorrect in law and fact” the court-martial finding of guilty on the murder charge, but it approved the guilty finding for attempted rape. As to the sentence, the board found “that only so much of the approved sentence as provides for dishonorable discharge, total forfeitures, and confinement at hard labor for 20 years is correct in law and fact.” As so modified, it approved the sentence. United States v. Fowler, 2 C. M. R. 336. The petitioner makes no attack on his original conviction on the attempted rape charge and its affirmance by the board. But he attacks the sentence of the board alleging that “the action of the Review Board in reserving twenty (20) years of the life sentence imposed by the Court-Martial for the crime of murder, even though it had reserved and set aside the conviction, was null and void.” The District Court denied the writ and discharged the rule to show cause, Jackson v. Humphrey, 135 F. Supp. 776, holding that the board of review on reversing the murder conviction, properly modified the sentence and was not required to order a new trial or to remand the case for resentencing by the general court-martial. The Court of Appeals, in a unanimous opinion, affirmed. Jackson v. Taylor, 234 F. 2d 611. It held that the board of review upon affirming the attempted rape conviction was authorized to “affirm . . . such part or amount of the sentence, as it finds correct,” citing Article 66 (c) of the Uniform Code of Military Justice, 64 Stat. 128, 50 U. S. C. § 653 (c). We believe the sentence must stand. Petitioner was tried with two other soldiers and each was convicted of the same offenses, premeditated murder and attempted rape. Each was also sentenced to life imprisonment. The record of the trial was then forwarded to the convening authority where the convictions and sentences were approved. In accordance with military procedure, the record was then forwarded with the convening authority’s approval to a board of review in the office of the Judge Advocate General of the Army. That board, as already stated, found the murder convictions unsupported by the record and set them aside, but sustained the convictions for attempted rape and modified the sentences. The soldiers then sought further review by petition before the United States Court of Military Appeals. No question regarding the authority of the review board to modify the sentences was raised and the petition was denied without opinion. United States v. Fowler, 1 U. S. C. M. A. 713. The soldiers, having started to serve their sentences, were held in different prisons. Each filed a writ of habeas corpus in the district in which he was imprisoned and each raised the same issue of the authority of the board of review to sentence in the manner described. A conflict between the Circuits has resulted and we granted certiorari, limited to the gross sentence question, not only to resolve this conflict but to settle an important question in the administration of the Uniform Code. 352 U. S. 940. Petitioner claims no deprivation of constitutional rights. He argues only that under military law the board of review should have ordered either a rehearing or that he be released because it was without authority to impose the 20-year sentence. The review board derives its power from Article 66 of the Uniform Code of Military Justice, 64 Stat. 128, 50 U. S. C. § 653. We are concerned more particularly with subsection (c) of that section. It provides: “(c) In a case referred to it, the board of review shall act only with respect to the findings and sentence as approved by the convening authority. It shall affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record it shall have authority to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.” Here the board relied on its power to “affirm . . . such part or amount of the sentence, as it finds correct . . . .” Petitioner argues, however, that the 20-year sentence was not a “part or amount” of the sentence imposed by the court-martial. He supports this by reference to the action of the law officer of the court-martial who, after the findings of guilt were returned, advised its members in open court of the punishment it might impose. In view of the finding on the murder charge, he told the court-martial it had only two alternatives, a death sentence or life imprisonment. Art. of War 92, 62 Stat. 640. He made no reference to the punishment for attempted rape, the maximum for which is 20 years. Since the court-martial was required to impose a single sentence covering both of the guilty findings, it entered a life sentence. Petitioner claims there was no sentence on the attempted rape conviction and, therefore, the entry of a 20-year sentence thereon by the board was an entirely new and independent imposition which was beyond its power. He bases this conclusion wholly on deduction. He contends that since the law officer advised the court-martial only as to the punishment for murder it follows that it did not sentence him on the attempted rape charge. But why should the officer go through the useless motion of instructing on the attempted rape when the court-martial by law was required to impose a sentence of death or life imprisonment? The sentence could have been no heavier unless it were death. What possible good would it have done for the court-martial, if it had been authorized, to add 20 or any other number of years onto a life sentence? In addition to the fact that the Uniform Code authorizes no such sentence we should not construe the Act of Congress to require the doing of a useless act. But, the petitioner says, simple arithmetic shows that no sentence was imposed on the attempted rape finding. He reasons that the offense of premeditated murder carries a minimum punishment of life imprisonment, the exact sentence he received. The sentence therefore included no punishment covering the attempted rape finding he claims. It is true that the sentence was not broken down as to offenses. That is not permitted. However, the petitioner in his analysis overlooks entirely the requirement of military law that only the entry of a single gross sentence for both of the offenses is permitted. This Court has approved this practice. Carter v. McClaughry, 183 U. S. 365, 393 (1902). See also McDonald v. Lee, 217 F. 2d 619, 622 (1954); Winthrop, Military Law and Precedents (2d ed. 1920), 404. The sentence here was a gross sentence. It covered both the convictions. What the petitioner would have us do is to strike down this long practice, not only approved over the years by the Congress but by our cases. This we cannot do. The question remains whether the board had the authority to modify the life sentence to 20 years after the murder conviction was set aside. Reviewing authorities have broad powers under military law. Unlike a civilian trial in most jurisdictions, the initial sentence under military law is imposed by the members of the court-martial. Otherwise the court-martial performs functions more like those of a jury than a court. It is composed of laymen. See Art. 25 of the Uniform Code, 64 Stat. 116, 50 U. S. C. § 589. The powers of review, modification, and sentence-adjustment under the Uniform Code rest elsewhere than on this body of laymen. Review of a court-martial conviction is first provided by the convening authority — the commanding officer who directed that the case bé tried before a court-martial. He is empowered to reduce a sentence though he cannot increase it. He can weigh facts, determine credibility of witnesses, disapprove findings of guilt which he believes erroneous in law or fact, and determine sentence appropriateness without regard to what the court-martial might have done had it considered only the approved findings. Art. 64 of the Uniform Code, 64 Stat. 128, 50 U. S. C. §651. He has other broad powers. See Manual for Courts-Martial, United States (1951), c. 17. Here the convening authority approved the action of the court-martial. The next stage of review is that with which we are particularly concerned. It is conducted by the board of review composed of legally-trained officers. Such boards first received statutory recognition in 1920. Art. of War 50%, 41 Stat. 797-799. At that time Congress gave them power to review, with the Judge Advocate General, records for legal sufficiency. By 1949 this power was increased to weigh facts, though, as petitioner argues, these boards still did not have power to determine sentence appropriateness. Art. of War 50 (g), 62 Stat. 637. Such power was, however, given to the Judge Advocate General and a Judicial Council. Against this background of broad powers of review under military law, Congress began the drafting of the new Uniform Code of Military Justice. Their work culminated, so far as we are here concerned, with Article 66 (c), supra. Petitioner finds the language of this section ambiguous and argues that any ambiguity must be resolved in favor of the accused. That would be true if there were ambiguity in the section. But the words are clear. The board may “affirm ... such part or amount of the sentence, as it finds correct . . . That is precisely what the review board did here. It affirmed such part, 20 years, of the sentence, life imprisonment, as it found correct in fact and law for the offense of attempted rape. Were the words themselves unclear, the teachings from the legislative history of the section would compel the same result. The Uniform Code was drafted by a committee chair-manned by Professor Edmund M. Morgan, Jr. In testifying before the Senate Subcommittee which considered the bill, Professor Morgan stated with reference to the review board that it now “has very extensive powers. It may review law, facts, and practically, sentences; because the provisions stipulate that the board of review shall affirm only so much of the sentence as it finds to be justified by the whole record. It gives the board of review . . . the power to review facts, law and sentence . . . Hearings before a Subcommittee of the Senate Committee on Armed Services on S. 857 and H. R. 4080, 81st Cong., 1st Sess. 42. Military officials opposed giving the review boards power to alter sentences. Id., at 262, 285. The Subcommittee nevertheless decided the boards should have that power. Id., at 311. The Committee Report to the Senate augments the conclusion that the boards of review were to have the power to alter sentences. A study of the legislative history of the Code in the House of Representatives leads to the same conclusion. See H. R. Rep. No. 491, 81st Cong., 1st Sess. 31; 95 Cong. Rec. 5729. Article 66 was enacted in the language approved by the committees. It is manifest then that it was the intent of Congress that a board of review should exercise just such authority as was exercised here. Boards of review have been altering sentences from the inception of the Code provision. These alterations have been attacked but have found approval in the courts as is shown by the list of cases collected in the opinion of Judge Hastie in the Court of Appeals. 234 F. 2d, at 614, n. 3. Petitioner objects, however, that the board of review should not have imposed the maximum sentence for attempted rape because the court-martial might have imposed a lesser sentence had it considered the matter initially. But this is an objection that might properly be addressed to Congress. It has laid down the military law and it can take it away or restrict it. The Congress could have required a court-martial to enter a sentence on each separate offense just as is done in the civilian courts. The board of review would then know the attitude of the court-martial as to punishment on each of its findings of guilt. But this the Congress did not do. The argument, therefore, falls since it is based on pure conjecture. No one could say what sentence the court-martial would have imposed if it had found petitioner guilty only of attempted rape. But Congress avoided the necessity for conjecture and speculation by placing authority in the board of review to correct not only the findings as to guilt but the sentence as well. Likewise the apportionment of the sentence that the court-martial intended as between the offenses would be pure speculation. But because of the gross sentence procedure in military law we need not concern ourselves with these problems. Military law provides that one aggregate sentence must be imposed and the board of review may modify that sentence in the manner it finds appropriate. To say in this case that a gross sentence was not imposed is to shut one’s eyes to the realities of military law and custom. Finally the petitioner suggests that the case should be remanded for a rehearing before the court-martial on the question of the sentence. We find no authority in the Uniform Code for such a procedure and the petitioner points to none. The reason is, of course, that the Congress intended that the board of review should exercise this power. This is true because the nature of a court-martial proceeding makes it impractical and unfeasible to remand for the purpose of sentencing alone. See United States v. Keith, 1 U. S. C. M. A. 442, 451, 4 C. M. R. 34, 43 (1952). Even petitioner admits that it would now, six years after the trial, be impractical to attempt to reconvene the court-martial that decided the case originally. A court-martial has neither continuity nor situs and often sits to hear only a single case. Because of the nature of military service, the members of a court-martial may be scattered throughout the world within a short time after a trial is concluded. Recognizing the impossibility of remand to the same court-martial, petitioner suggests as an alternative that the case should be remanded for a rehearing before a new court-martial. He admits that it would now be impractical for such a new court-martial to hear all of the evidence, and that the court would have to make its sentence determination on the basis of what it could learn from reading the record. Such a procedure would merely substitute one group of nonparticipants in the original trial for another. Congress thought the board of review could modify sentences when appropriate more expeditiously, more intelligently, and more fairly. Acting on a national basis the board of review can correct disparities in sentences and through its legally-trained personnel determine more appropriately the proper disposition to be made of the cases. Congress must have known of the problems inherent in rehearing and review proceedings for the procedures were adopted largely from prior law. It is not for us to question the judgment of the Congress in selecting the process it chose. Affirmed. The Manual for Courts-Martial, United States (1951), App. 8, at 521, specifically provides, inter alia: “The court will adjudge a single sentence for all the offenses of which the accused was found guilty.” This sentence is known as an “aggregate” or “gross” sentence. A court-martial may not impose separate sentences for each finding of guilt, but may impose only a single, unitary sentence covering all of the guilty findings in their entirety, no matter how many such findings there may be. Carl De Coster, one of the codefendants with petitioner, was released on an order of the Court of Appeals for the Seventh Circuit. See De Coster v. Madigan, 223 F. 2d 906 (1955). The other code-fendant, Harriel Fowler, was denied release by the Court of Appeals for the Fifth Circuit. See Wilkinson v. Fowler, 234 F. 2d 615 (1956). While no petition was filed in the De Coster case, we granted certio-rari in both the petitioner’s and Fowler’s cases. Since this action was filed this section has been revised and recodi-fied as 70A Stat. 59, 10 U. S. C. (Supp. IV) § 866. The changes in language are not pertinent to this case. Other sections of the Uniform Code are cited in the form and source in which they appeared during the course of this litigation. The Uniform Code now appears in 70A Stat. 36-78, 10 U. S. C. (Supp. IV) §§ 801-934. See note 1, supra. For a detailed analysis and history of review powers under military law see Fratcher, Appellate Review in American Military Law, 14 Mo. L. Rev. 15 (1949). Art. 66(a) of the Uniform Code, 64 Stat. 128, 50 U. S. C. § 653 (a) provides: “(a) The Judge Advocate General of each of the armed forces shall constitute in his office one or more boards of review, each composed of not less than three officers or civilians, each of whom shall be a member of the bar of a Federal court or of the highest court of a State of the United States.” See Art. of War 51 (a), 62 Stat. 638, and Art. of War 49, 62 Stat. 635. “The Board of Review shall affirm a finding of guilty of an offense or a lesser included offense ... if it determines that the finding conforms to the weight of the evidence and that there has been no error of law which materially prejudices the substantial rights of the accused. . . . The Board may set aside, on the basis of the record, any part of a sentence, either because it is illegal or because it is inappropriate. It is contemplated that this power will be exercised to establish uniformity of sentences throughout the armed forces.” S. Rep. No. 486, 81st Cong., 1st Sess. 28. Commentators have recognized this power of sentence review since the enactment of the Code. See, e. g., Currier and Kent, The Boards of Review of the Armed Services, 6 Vand. L. Rev. 241 (1953). “The greatest single change brought about in the powers and duties of the boards of review by the Uniform Code of Military Justice is the power of the board to affirm only so much of the sentence in a given case as it finds appropriate.” Id., at 242. See also 65 Yale L. J. 413. Petitioner complains that the 20-year sentence for attempted rape was excessive. He argues that because the court-martial gave him the minimum sentence for premeditated murder, it would not have given the maximum sentence for attempted rape. We need not speculate on what the court-martial would have done, nor will we interfere with the discretion exercised by the board of review. It held that in the “vicious circumstances of this case,” 20 years was an appropriate sentence. Furthermore, since the sentence was legally imposed, its severity is not reviewable on habeas corpus in the civil courts. Carter v. McClaughry, 183 U. S. 365, 401 (1902). The United States Court of Military Appeals in United States v. Field, 5 U. S. C. M. A. 379, 18 C. M. R. 3 (1955), hesitatingly suggested in dictum that a convening authority might return a case to a court-martial solely for the purpose of a reassessment of sentence on the findings of guilt affirmed by him. The court indicated that such a practice would be unlikely for “obvious and compelling reasons of a practical character.” Id., at 385, 18 C. M. R., at 9. It explicitly refused to express an opinion concerning the desirability of the practice. There, of course, was no suggestion that the practice was mandatory for the convening authority has, just as has the board of review, the power to modify a sentence to make it appropriate. See also United States v. Voorhees, 4 U. S. C. M. A. 509, 543, 16 C. M. R. 83, 117 (1954). It is well to point out that the Uniform Code permits the convening authority under limited circumstances to return a case for “reconsideration and revision” to a court-martial composed of “only ... the members of the court who participated in the findings and sentence.” See Art. 62 of the Uniform Code, 64 Stat. 127, 50 U. S. C. § 649, and Manual for Courts-Martial, United States (1951), at 130. This would be impossible after the passage of time in nearly every case since the original court-martial could not be reassembled. On the other hand, if resentencing is a limited type of rehearing, the Uniform Code requires the rehearing to “take place before a court-martial composed of members not members of the court-martial which first heard the case.” (Emphasis added.) Art. 63 of the Uniform Code, 64 Stat. 127, 50 U. S. C. § 650. Such a court-martial would be no more capable — if as capable — as a board of review. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:

songer_district

E

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". UNITED STATES of America ex rel. David DARCY, Appellant, v. Earl D. HANDY, Warden of Bucks County Prison, Dr. Fred S. Baldi, Warden of the Western State Penitentiary, Rockview, and Carl H. Fleckenstine, United States Marshal for the Middle District of Pennsylvania. No. 11564. United States Court of Appeals Third Circuit. Argued April 4, 1955. Decided June 9, 1955. Rehearing Denied July 11, 1955. Biggs, Chief Judge, and Kalodner and McLaughlin, Circuit Judges, dissented. J. Dress Pannell, Harrisburg, Pa. (Charles J. Margiotti, Morton Witkin, Philadelphia, Pa., on the brief), for appellant. Frank P. Lawley, Jr., Deputy Atty. Gen. of Pennsylvania (Donald W. Van-Artsdalen, Dist. Atty., Doylestown, Pa., Herbert B. Cohen, Atty. Gen., on the brief), for appellees. Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges. HASTIE, Circuit Judge. In this habeas corpus proceeding the relator, a Pennsylvania state prisoner under sentence of death for murder, is contending that he was tried under such prejudicial circumstances and improper influences that it becomes the duty of a federal court to invalidate the state conviction as a denial of due process of law and to order a new trial. The district court originally dismissed the petition without permitting relator to introduce evidence in support of his contentions. 97 F.Supp. 930. But on appeal this court ruled “that the relator must be afforded the opportunity to prove the allegations set out in his petition for habeas corpus insofar as they relate to the alleged atmosphere of hysteria and prejudice prevailing at his trial, including any issues raised by Judge Boyer’s asserted visits to the courtroom during Darcy’s trial, since the undisputed and incontrovertible facts as shown by the record do not countervail the allegations of hysteria and prejudice.” 3 Cir., 203 F.2d 407, 409. Accordingly, the case was remanded to the district court for a full hearing on the indicated issues. In compliance with our mandate the district court permitted the parties to make an elaborate showing of the circumstances under which the relator was tried in Bucks County, Pennsylvania, for felonious homicide in the commission of an armed robbery. Although the relator had been contesting his conviction for more than six years, this was the first opportunity given him to introduce evidence to establish facts not apparent on the face of the original trial record which, in his view, would make clear that the trial was fundamentally unfair. In affording this opportunity, the district court devoted eight days to the testimony of more than thirty witnesses and the introduction of much documentary evidence. As a result, that court and this reviewing court now for the first time have been able to exercise fully informed judgment as to the essential fairness of the murder trial. It was specially important that this be done because there had been no taking of testimony on the relevant circumstances of the trial before any Pennsylvania state court in which the conduct of relator’s trial had been challenged as essentially unfair. We emphasize this because we believe it is a virtue of our system of justice, as implemented by the due process clause of the Fourteenth Amendment, that it does not send a convicted person to his death without according him one full opportunity to prove charges of unfair trial which are not patently frivolous. The important thing here is that relator has now had that chance. After full hearing and consideration of all of the evidence the district court was satisfied that relator's new proof was insufficient to establish that his trial had been fundamentally unfair. 130 F.Supp. 270. We agree with that conclusion. Relator has attempted to show that he was tried in a community so aroused against him that a fair trial was impossible, or at best so unlikely that a decent legal system must permit a second trial. Such a conclusion has been reached where the physical presence of a mob or a threat of mob violence has dominated a criminal trial. Frank v. Mangum, 1915, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; Moore v. Dempsey, 1923, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. But on the evidence adduced in the district court it is clear, as that court found, that relator’s trial was conducted with dignity and decorum and without any hostile congregation or demonstration at or near the place of trial. Indeed, during much of the trial the courtroom was not crowded. Certainly, the trial was not attended by any threat of violence or manifestation of mass hysteria. Moreover, a clear and elaborate showing was made to the district court that throughout relator’s trial the jury was kept under strict guard, apart from other persons and without access to newspapers, radio, television or any other source of news or opinion. However, the relator suggests that even though the jury was segregated and the community was outwardly calm during the trial, antagonism and hostility toward him were so great and widespread ■ during thé period immediately preceding the trial, that the probability of a prejudiced verdict from any jury of the vicinage was a greater risk than a society which insists upon equal justice under law can take. A combination of unchallenged facts has made it very difficult for the relator to establish such extreme and pervasive hostility. The record of the original trial, which is before the court in this collateral proceeding, shows that each of the prospective jurors was subjected to a searching voir dire examination. The questioning of the fourteen persons who became the jurors and alternates for this trial takes up some seventy pages of the typewritten record. Their responses indicated that they were capable of making and disposed to make a fair and objective evaluation of the evidence. Beyond that, original counsel for the relator was sufficiently satisfied with the responses of these veniremen so that he used less than half of the peremptory challenges available to him. And he did not at any time ask for a change of venue. Concerning the significance of this, see Stroble v. State of California, 1952, 343 U.S. 181, 194, 72 S.Ct. 599, 96 L.Ed. 872; United States v. Rosenberg, 2 Cir., 1953, 200 F.2d 666, 669. While to a majority of this court these facts alone have not seemed so compelling as to preclude an independent showing that the trial was dominated by prejudice and hostility, they certainly make the undertaking very difficult. To meet this difficult burden of proof relator has relied largely upon the daily newspaper accounts and editorial comments published in the community during the trial of two of relator’s alleged confederates, which ended only three days before he himself was required to stand trial. We have examined all of this material. The evidence does not indicate, as relator would infer, that the jurors who tried relator were waiting in or near the courtroom during the period of the trial of his confederates. At most it indicates that during the two weeks immediately preceding relator’s trial the community in general had experienced a revival and quickening of interest in the homicide attended by many expressions of indignation against its perpetrators. But it does not appear that feeling ran so high or that hostility toward the relator was so intense and so general as to make it seem incredible that the search for a satisfactory jury would yield twelve persons as open minded about this case as the jurors here claimed to have been. The situation certainly would have justified a decision to wait a while before trying the relator, or else to try him in another community if trial immediately after the conviction of his confederates was deemed important. We may be persuaded that in the circumstances it would have been wise to take such precautions, yet not be convinced that failure to follow the wiser course was a denial of the essence of fair trial. The due process concept does not embrace all that a very careful and perceptive judge might do to protect a trial against emotional factors. It covers no more than the minimum protection which, consistent with our present ideas of justice, every court must afford. In this view of the reach of due process, we can not say that trial of relator at the time and place in question was a denial of constitutionally required protection. Relator makes a second contention. Judge Hiram Keller presided over relator’s trial. But another judge of the same court, Honorable Calvin Boyer, was much in and about the courtroom during the course of this trial. Judge Boyer had just completed a trial at which relator’s confederates had been convicted of first degree murder without recommendation of mercy and, according to the press, he had commended the jury for its verdict. It is relator’s contention that Judge Boyer’s participation in and influence upon the trial were so unfair and prejudicial as to amount to a denial of due process of law. Here too the facts are now for the first time fully disclosed in the record. Relator’s trial began June 7 and he was convicted June 14. There were daily morning and afternoon sessions. It now appears that every day of this trial Judge Boyer spent some time, on occasions several hours, in the courtroom. He even attended an evening session. At times during the trial Judge Boyer joined Judge Keller on the bench for whispered consultations within view of the jury, although there is nothing to suggest that the jury could hear what was being said. It is also admitted that at least one such consultation was designed for the guidance of Judge Keller in the making of a trial ruling. However, there is no claim that any erroneous or prejudicial ruling resulted from consultation between the presiding judge and his colleague. Finally, during Judge Keller’s charge to the jury, Judge Boyer sat facing the jurors within the enclosure reserved for members of the bar and participants in the trial. It seems to be agreed that the jurors knew who Judge Boyer was. The evidence makes it very probable that they also knew that he had just completed the trial at which relator’s co-defendants had been convicted and sentenced to death. Moreover, it had been reported in the press that' Judge Boyer had commended the jury for the first degree verdict against the co-defendants with its mandatory death penalty. Relator also makes the point that, while his trial was in progress, the press quoted statements of Judge Boyer in another case reasonably calculated to indicate that the jurist was engaged in an effort to make it clear that the community would deal very sternly with wrongdoers from Philadelphia, a category which included the relator. But this last incident could not have affected the jury in relator’s case, because the jurors had no access to any source of news. Nevertheless, relator argues that the overall effect of this situation was to make Judge Boyer’s impressive record of attendance at this trial an intolerably coercive influence upon the trial jury. But we think this is attaching too much significance to the jury’s observation that a judge other than the trial judge was showing much interest in the ease. Certainly Judge Boyer was privileged to attend and observe proceedings of the court of which he was a judge. His presence in itself was not an impropriety. Even if the jurors identified him as an official who was hostile to the relator, we think it would be necessary to show that he had said or done something prejudicial to the defendant during his stay in the courtroom before the fact of his presence and manifest interest could raise a substantial due process question. The present petition charges one such act and this allegation has given us great concern. The relator alleged and attempted to prove that during the trial Judge Boyer actively helped the prosecutor. Specifically, there wasi testimony from witnesses who may well not have been unbiased that on one occasion Judge Boyer passed a written message to the prosecutor with the result that the prosecutor made a point to the presiding judge about an item in the charge. The government introduced evidence for the purpose of disproving this contention. The government’s showing was less than overwhelming. Yet it was not unsubstantial. There was a sufficient conflict of testimony to make it necessary for the district court as the trier of facts in this habeas corpus proceeding to resolve the factual question whether Judge Boyer did or did not coach and advise the prosecutor as alleged. The district court made a specific finding that this alleged occurrence 'did not take place. On the record we think that we are not justified in disturbing that finding. And absent some • such improper partisan participation by Judge Boyer in the trial, we cannot say that his rather striking manifestation of extraordinary interest in the proceedings constituted a denial of due process of law. It is established constitutional doctrine that our limited function in correcting fundamental impropriety in state trials challenged under the due process clause makes it necessary that we leave alone many dubious occurrences in state procedure which we would proscribe if they should happen in a federal court. With Betts v. Brady, 1942, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, contrast Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. No other point urged by relator warrants appellate interference with the decision of the district court or requires particular comment. The judgment will be affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:

songer_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. C. L. GRANSDEN & CO. v. COMMISSIONER OF INTERNAL REVENUE. TUTTLE v. SAME. Nos. 8440, 8445. Circuit Court of Appeals, Sixth Circuit Jan. 8, 1941. Ward H. Peck, of Detroit, Mich., for petitioners. S. Dee Hanson, Sp. Asst. to Atty. Gen., for respondent. Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Howard D. Pack, Sp. Assts. to Atty. Gen., on the brief for respondent in No. 8440. Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, J. Louis Monarch, and S. Dee Hanson, Sp. Assts. to Atty. Gen., on the brief for respondent in No. 8445. Before HICKS, SIMONS, and HAMILTON, Circuit Judges. SIMONS, Circuit Judge. It is agreed that both petitions to review orders of the Board of Tax Appeals, raise the identical question of law. A single opinion will, therefore, suffice. In each case the petitioning taxpayer was the vendee of real estate in Michigan under a land contract calling for a down payment on the purchase price with the balance payable over a term of years in installments. Title to the real estate in each case, remained in the vendors, and the contracts provided that if the vendee failed to perform, the vendor had the right, immediately after default, to declare the contract void, retain whatever might have been paid thereon, and be entitled to immediate possession of the premises. In each case .there was default, and each taxpayer surrendered the land contract and made a payment to the vendor in consideration of being relieved of any further obligation thereunder. The Gransden transaction involved two contracts, one upon Detroit property, and the other upon a tract in Flint. The Detroit property was not purchased from the owner of the fee, but from the vendees in a prior land contract, at a profit to them. When the principal balance remaining unpaid upon the purchase price had been reduced to an amount equal to the balance remaining unpaid upon the original land contract, the latter was assigned to Grans-den upon Gransden assuming liability thereunder, and agreeing to pay the balance. Both land contracts were surrendered to the owner of the title, together with a quit-claim deed from the first vendee, in exchange for an instrument by the owner acknowledging receipt, and the payment of $250 by the petitioner, and releasing petitioner from claims of any nature arising out of the sale of the property. In the Tuttle case there was but one land contract in which the taxpayer was the vendee of the owner of the fee. This contract was likewise surrendered by the taxpayer to his vendor in consideration of a release from further obligation upon it. In addition to surrendering the contract, Tuttle paid his vendor $1,000 as additional consideration for release of liability. Each of the taxpayers suffered substantial loss realized during the tax year, the Gransden loss consisting of payments made upon the two parcels of real estate involved in its purchase contracts, and a cash outlay for additions and betterments, while the Tuttle loss was confined to payments made upon the purchase price. Each taxpayer claimed a deduction for the total loss suffered, which the Commissioner disallowed, in part, in a determination sustained by the Board. The applicable statute is the Revenue Act of 1934. In the Gransden case, the taxpayer being a corporation, and the Commissioner concluding that its loss was a capital loss, limited its deduction to $2,000 pursuant to the provisions of § 117(d) of the Act, 26 U.S.C.A. Int.Rev.Acts, page 708, which provides: "Limitation on Capital Losses. Losses from sales or exchanges of capital assets shall be allowed only to the extent of $2,000 plus the gains from such sales or exchanges. * * * ” In the Tuttle case, the taxpayer was an individual and the property having been held for more than five but not for more than ten years, the deduction was limited to 40% of the total loss in pursuance of § 117(a) of the Act, 26 U.S.C.A. Int.Rev. Acts, page 707, which provides: “General Rule. In the case of a taxpayer, other than a corporation, only the following percentages of the gain or loss recognized upon the sale or exchange of a capital asset shall be taken into account in computing net income: * * * 40 per centum if the capital asset has been held for more than 5 years but not for more than 10 years * * While in Michigan the interest of the vendee in real estate purchased upon an executory land contract is a mere equitable title, Lutz v. Dutmer, 286 Mich. 467, 282.N.W. 431; Hooper v. Van Husan, 105 Mich. 592, 63 N.W. 522, yet, such titles have been continuously bought and sold, as demonstrated in the sale of the Detroit property to Gransden in the first instance, have justified substantial outlay for additions and betterments, and have served as security for loans. It is not, therefore, with confidence urged by the petitioners that their equities in the real estate were not capital assets, or their losses were not capital losses within the purview of §§ 117 (a) and 117(d). Their main insistence is that the losses did not result from a sale or exchange, and that they were, therefore, ordinary losses deductible to their full extent under permission of § 23(f) in the case of corporations, and of § 23(a) in the case of individuals, without application of the limitations contained either in § 117(a) or § 117(d). The petitioners argue that when they surrendered their contracts they but surrendered their right to purchase real estate, and that the transactions were, in effect, but mutual cancellations of execu-tory contracts which did not constitute separate and distinct transactions from the original purchase agreements; that the losses suffered resulted not from sale or exchange, but from depreciation in value, and that by surrender and release neither they nor their vendors acquired or assigned anything of exchangeable value. Their interest in the property had been extinguished by market conditions, and nothing passed to the vendors that the latter did not have the right to take by virtue of the default and the forfeiture clauses of the contracts. This ignores or sets aside as unimportant, the beneficial interest acquired by both vendor and vendee. In the termination of the buyer-seller relationship the purchaser gave up the right of possession during forfeiture proceedings, the right to resort to moratorium remedies, and the speculative possibilities of restored value. The seller secured prompt possession of his property, saved the expense and delay of forfeiture proceedings, and surrendered his right to enforce the contract by way of a deficiency, decree, or otherwise, against a vendee concededly or presumptively solvent and financially responsible. Upon an earlier and better market for real estate it was not unheard of for vendors of real estate under land contracts to repurchase the property from their vendees at a profit to the latter. It would have been idle, in such cases, to contend that the transaction was not a sale or exchange of property merely because its reacquisition required no deeds and could be accomplished simply by the vendee surrendering his land contract to his vendor. The simplicity of the mechanism is likewise no bar to the recognition of a capital loss as resulting from a sale or exchange. It has frequently been held that income may be realized upon a change in the nature of legal rights held, although the particular taxpayer has enjoyed no addition to his economic worth. Lynch v. Hornby, 247 U.S. 339, 38 S.Ct. 543, 62 L. Ed. 1149; Burnet v. Commonwealth Imp. Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399; Helvering v. Midland Ins. Co., 300 U.S. 216, 57 S.Ct. 423, 426, 81 L.Ed. 612, 108 A.L.R. 436. As was said in the last cited case: "Where the legal effect of a transaction fits the plain letter of the statute, the tax is held payable, unless there is clearly revealed in the act itself or in its history a definite intention to exclude such transactions from the operation of its applicable language.” As the property there was the medium through which interest was received, so here the rights exchanged operated to extinguish the liability under the contract, and as there observed in reliance upon Weiss v. Wiener, 279 U.S. 333, 49 S.Ct. 337, 73 L.Ed. 720, “The income, tax laws do not profess to embody perfect economic theory.” The case of Rogers v. Commissioner, 9 Cir., 103 F.2d 790, involved the surrender of property subject to a mortgage in which default had been made by the purchaser, and it was 'there, as here, contended that the transaction was not a sale or exchange because neither party received anything of exchangeable value. The court reasoned that the situation was analogous to one where the mortgagor sells the property to a third party for a sum equal to the amount due on his note, and then pays the note with the money. While normally the taxability of a transaction is determined by what is done rather than by what might have been done, yet the courts will always look through the form of a transaction to determiné what, in substance, it is, and as indicated, it is our view that beneficial interests passing from vendor to vendee, and conversely, characterize the transactions here considered as sales or exchanges of capital assets. The transactions w’ere voluntary and we are not presently concerned with the question as to whether a forced judicial sale is a sale or exchange of capital assets within the purview of § 117 as we were in Commissioner v. Hammel, 6 Cir., 108 F.2d 753, reversed 311 U.S. -, 61 S.Ct. 368, 85 L.Ed. -. Nor are we concerned with any inconsistency in the classification of the cash payments by the petitioners to their vendors as ordinary losses, since such classification is not the subject of the present review. The decisions of the Board of Tax Appeals are 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_r_fed

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. DIRECTOPLATE CORPORATION v. DONALDSON LITHOGRAPHING CO. No. 5630. Circuit Court of Appeals, Sixth Circuit. Oct. 9, 1931. Before MOORMAN, HICKS, and HIGKENLOOPER, Circuit Judges. PER CURIAM. Upon petition for rehearing it is insisted that the court misread the drawings in evidence and erred in holding that, in defendant’s device, “the negative is carried by clamps upon the inner and under portion of the outer frame and the inner frame is used solely for the purpose of hermetically sealing the negative within the outer frame.” 51 F.(2d) 199, 201. A model of defendant’s frame is now presented, and from this it appears that the court did make the error suggested. It follows that the portion of the opinion above quoted should he modified to conform to the fact, which is, that the negative is carried by clamps upon the inner frame to which it is hermetically sealed by pressure and a rubber strip; and the inner frame is then firmly attached tó the outer frame, before use, by pairs of set screws, the opening between the inner and outer frames being sealed by a vertical curtain of flexible rubber cloth. The foregoing correction in no way requires a different conclusion than that heretofore reached. The two frames of the defendant’s device must still be considered as operatively and functionally integral, and the manner of operation of the device as substantially different from that of the patent (Koppe, No. 1,396,962). The petition for a rehearing is denied. 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_dueproc

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 the requirements of due process by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES ex rel. Richard CURTIS, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, and William J. Guste, Jr., Attorney General, State of Louisiana, Respondents-Appellees. No. 84-3068 Summary Calendar. United States Court of Appeals, Fifth Circuit. Dec. 20, 1984. Glass & Reed, John Wilson Reed, New Orleans, La., for petitioner-appellant. Richard Curtis, pro se. Wm. R. Campbell, Jr., Susan Scott Hunt, E. Sue Bernie, New Orleans, La., for respondents-appellees. Before REAVLEY, POLITZ and HIGGINBOTHAM, Circuit Judges. POLITZ, Circuit Judge: Richard Curtis was convicted of second offense armed robbery and was sentenced under the armed robbery statute, La.R.S. 14:64 B, and the habitual offender law, La.R.S. 15:529.1.A(1). Under the recidivist statute Curtís was subject to a minimum sentence of 33 years and a maximum sentence of 198 years. Curtis was sentenced to 198 years at hard labor. His conviction was affirmed, State v. Curtis, 363 So.2d 1375 (La.1978), but his case was remanded for resentencing because the trial judge had improperly imposed a condition that the sentence would not be subject to diminution for good behavior, a statutory provision added to the statute after commission of the first offense. On remand Curtis was again resentenced to 198 years. He then sought state habeas relief contending that the habitual offender law, as applied to armed robbery, violated the due process and equal protection clauses of the fourteenth amendment because it provided for the imposition of a harsher sentence on a second felony offender than on a fourth offender. The Louisiana Supreme Court denied collateral relief, assigning no reasons. Curtis v. Blackburn, 373 So.2d 545 (La.1979). State remedies exhausted, Curtis filed the instant petition under 28 U.S.C. § 2254, raising the same issue presented to the state court. The district court denied habeas relief. We affirm. Curtis’ challenge is based on an overlay of the habitual offender statute to the armed robbery statute ■ which results in the following sentencing scheme: Conviction Minimum Penalty Maximum Penalty First 5 years 99 years Second 33 years 198 years Third 49 years 198 years Fourth 99 years Life Although the statute states that the maximum sentence for a fourth offender is life imprisonment, Curtis argues that as a result of the case law interpreting this statute the maximum sentence for a fourth offender is, in effect, 99 years. In support of this view, Curtis cites State v. Delaney, 359 So.2d 976 (La.1978), State v. Alexander, 362 So.2d 775 (La.1978), and State v. Wilson, 363 So.2d 445 (La.1978). These cases offer less than brightline expressions by Louisiana’s highest court of the meaning of the habitual offender statute. In Delaney, with one justice dissenting, the court interpreted La.R.S. 15:529.1 A(3) and concluded that a sentence of 99 years “does not violate the prohibition in the statute that the sentence be ‘not more than his natural life.’ ” 359 So.2d at 977. In Alexander, a unanimous court, applying the same statutory provision and citing Delaney, vacated a 100-year sentence which it found illegal, stating simply: “The term of 100 years actually imposed on defendant clearly exceeds his natural life.” 362 So.2d at 776. Thereafter in Wilson, a divided court vacated a sentence of 110 years for a fourth offender under R.S. 15:529.1 A(3) stating that the sentence was “illegal and must be set aside.” 363 So.2d at 447. In a special concurrence, Justice Calogero, joined by Justice Dennis, mused that if a sentence of 100 years exceeded the defendant’s life expectancy then 99 years did also. These justices found Delaney and Alexander irreconcilable and expressed the opinion that the Louisiana Supreme Court “should either reverse Alexander or find that the sentencing provisions of the habitual offender statute do not apply to multiple convictions for armed robbery.” 363 So.2d at 447. On the same day it decided Wilson, the Louisiana Supreme Court, with Justice Calogero as author, decided Curtis’ direct appeal, State v. Curtis, 363 So.2d 1375 (La. 1978). The Curtis opinion, on a 5-2 split, overruled Wilson, at least in part, the majority declaring: “We therefore conclude that our recent Wilson decision is incorrect and must be overruled.” 363 So.2d 1383. Thereafter, the court split 4-3 in denying rehearing with Justice Calogero reurging the reasons contained in his special concurrence in Wilson. After reviewing all assignments of error, the court affirmed Curtis’ conviction but remanded for resentencing, finding the 198-year sentence without benefit of diminution for good behavior illegal because of the good time proviso. The court did not otherwise discuss the 198-year sentence. We cannot reconcile the holdings in Delaney, Alexander, Wilson, and Curtis, but the first three seem to declare that a fourth-offense armed robber may not be sentenced for a period longer than his natural life. It is apparent that Curtis’ 198-year second offense sentence is for a period which extends beyond his natural life span. That sets the stage for Curtis’ contention that second-time offenders are subject to more severe punishment than fourth offenders. On closer examination, and considering the total fabric of the Louisiana sentencing, punishment and pardon scheme, we do not agree. It is obvious that the minimum sentence for armed robbery increases with each seri-atim offense, from 5 years to 33 years to 49 years to 99 years. A second offender faces a minimum sentence of 33 years. A fourth offender faces a minimum sentence three times greater, 99 years. In light of that reality, the maximum sentence for a fourth offender is of purely academic interest. Neither a second or fourth offender receiving the statutory maximum sentence will ever be released unless they secure a pardon recommendation from the Pardon Board and a pardon from the Governor. La.R.S. 15:572-574.1. Absent such discretionary pardon action by both the Pardon Board and the Governor, neither will ever be eligible for parole consideration. La. R.S. 15:574.2-574.16. As we perceive the matter, Louisiana’s sentencing scheme does not, in actuality, treat a second offender more severely than a fourth offender. What is urged as a lighter penalty is more appearance than reality. Hopefully in time the Louisiana Supreme Court will address what at least two of its justices recognize as irreconcilable decisions in this area. The posture of the case before us does not present the occasion for this court to rule on the interplay between the armed robbery statute and the habitual offender law. Curtis challenges his sentence under the equal protection and due process clauses of the fourteenth amendment on the grounds that the statute treats second offenders more harshly than fourth offenders. Considering the substantial difference in the minimum sentences, and the realities of the maximum sentences, we are not persuaded. We find no meaningful constitutional infraction. AFFIRMED. . La.R.S. 14:64 B provides that a person convicted of armed robbery "shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.” Upon conviction of a second felony, the habitual offender law provides that the sentence of imprisonment “shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction . . . .” La.R.S. 15:529.1 A( 1). Question: Did the interpretation of the requirements of due process by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_circuit

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. SANCHO, Treasurer of Puerto Rico, v. HUMACAO SHIPPING CORPORATION. No. 3506. Circuit Court of Appeals, First Circuit. Dec. 22, 1939. 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 appellant. E. T. Fiddler, of San Juan, P. R. (Fid•dler, Cordova & McConnell, of San Juan, P. R., on the brief), for appellee. Before WILSON and MAGRUDER, Circuit Judges, and McLELLAN, District Judge. MAGRUDER, Circuit Judge. Humacao Shipping Corporation filed in the District Court of the United States for Puerto Rico a petition for a declaratory judgment, 28 U.S.C. § 400, 28 U.S.C. A. § 400, that certain taxes assessed against it by the Treasurer of Puerto Rico under authority of the Political Code, Section 297, were assessed in violation of the Fourteenth Amendment, Const.U.S.C.A., and Section 2 of the Organic Act of the Territory, 48 U.S.C. § 737, 48 U.S.C.A. § 737. The material portion of Section 297 provides, “That all personal property within or without Porto Rico shall be assessed to the owner thereof in the municipality in which he resides on the fifteenth day of January * * A demurrer to t-he petition was filed by the defendant, the Treasurer, and judgment for the plaintiff was entered on the pleadings. From the allegations of the complaint it appears: that plaintiff is a corporation •organized under the laws of Puerto Rico; that a quantity of raw sugar owned by it on the tax day, January 15, 1938, was assessed against it by the Treasurer for the purpose of personal property taxes for the fiscal year 1938-39 in the amount of $1,090,400; that plaintiff had purchased this sugar in parcels on board ship in Humacao, Puerto Rico, between April 14, 1937, and June 4, 1937, for the purpose of sale in continental United States; that immediately following the respective purchases, such sugar was shipped by plaintiff to New York, and on January 15, 1938, was held in warehouse in New York City, awaiting sale; that such sugar was never thereafter returned to Puerto Rico, but in fact was subsequently sold in the United States. It was alleged that on these facts the sugar had acquired “a permanent situs” outside of Puerto Rico and hence was not taxable to the owners in Puerto Rico. The judgment of the District Court, now appealed from, held and declared, on the authority of Union Refrigerator Transit Co. v. Kentucky, 1905, 199 U.S. 194, 26 S.Ct. 36, 50 L.Ed. 150, 4 Ann.Cas. 493, “that the defendant Treasurer of Puerto Rico is without power to assess for property taxation the aforesaid 363,338.6 hundredweight of raw centrifugal sugar mentioned in the bill of complaint, and that Section 297 of the Political Code of Puerto Rico should not be construed as permitting him to do so.” In Union Refrigerator Transit Co. v. Kentucky, supra, it was held that Kentucky'could not impose a personal property tax on rolling stock owned by a Kentucky corporation, but permanently located in another state and employed there in the prosecution of the corporation’s business. Some of the language in the opinion seemed to imply that chattels have to be physically within the boundaries of the state in order to be taxable there. Thus the court said (199 U.S. at page 204, 26 S.Ct. at page 37, 50 L.Ed. 150, 4 Ann.Cas. 493) : “It is also essential to the validity of a tax that the property shall be within the territorial jurisdiction of the taxing power. Not only is the operation of state laws limited to persons and property within the boundaries of the state, but property which is wholly and exclusively within the jurisdiction of another state receives none of the protection for which the tax is supposed to be the compensation. This rule receives its most familiar illustration in the cases of land, which, to be taxable, must be within the limits of the state.” But in Southern Pacific Co. v. Kentucky, 1911, 222 U.S. 63, 32 S.Ct. 13, 56 L.Ed. 96, it was held that Kentucky could exact a personal property tax on ships owned by a Kentucky corporation, though the ships had never been within the borders of Kentucky, where such ships, plying from port to port, had never acquired a taxable sitiis in any other state. This case can hardly rest upon territorial jurisdiction over the ships, which never were in Kentucky and to whose protection the laws of Kentucky rendered no contribution. Rather, the jurisdiction to tax would seem to rest upon Kentucky’s jurisdiction over the person of the taxpayer domiciled there. As was observed by Mr. Justice Holmes, dissenting, in Safe Deposit & Trust Co. v. Virginia, 1929, 280 U.S. 83, at page 97, 50 S.Ct. 59, at page 62, 74 L.Ed. 180, 67 A.L.R. 386: “Taxes generally are imposed upon persons, for the general advantages of living within the jurisdiction, not upon property, although generally measured more or less by reference to the riches of the person taxed, on grounds not of fiction but of fact. Fidelity & Columbia Trust Co. v. Louisville, 245 U.S. 54, 58, 38 S.Ct. 40, 62 L.Ed. 145, L.R.A.1918C, 124; Kirtland v. Hotchkiss, 100 U.S. 491, 498, 25 L.Ed. 558. The notion that the property must be within the jurisdiction puts the emphasis on the wrong thing. The owner may be taxed for it although it never has been within the State. Southern Pacific Co. v. Kentucky, 222 U.S. 63, 32 S.Ct. 13, 56 L.Ed. 96.” Since Kentucky had jurisdiction over the person of the owner in Southern Pacific Co. v. Kentucky, supra, Kentucky had power to tax the owner for the support of the government unless the tax was so outrageous as to be considered a denial of due process of law. Such a tax was not considered outrageous, when laid on the basis of tangible property situated outside the state, provided such property was not taxable elsewhere. On the other hand, where such property had acquired a taxable situs in another state, a tax laid at the domicile of the owner was regarded in Union Refrigerator Transit Co. v. Kentucky, supra, as “rather of the nature of an extortion than a tax.” 199 U.S. at page 202, 26 S.Ct. at page 37, 50 L.Ed. 150, 4 Ann.Cas. 493. In other words, the factor of potential double taxation seems to have been regarded by the court as making it so unfair for Kentucky to tax the rolling stock in the Transit Co. case as to offend the Fourteenth Amendment. In subsequent decisions the Supreme Court began to say that double taxation of intangible property was equally obnoxious. In Farmers’ Loan & Trust Co. v. Minnesota, 1930, 280 U.S. 204, 212, 50 S.Ct. 98, 100, 74 L.Ed. 371, 65 A.L.R. 1000, the court said: “We have determined that in general intangibles may be properly taxed at the domicile of their owner, and we can find no sufficient reason for saying that they are not entitled to enjoy an immunity against taxation at more than one place similar to that accorded to tangibles.” But there has more recently been a recession in the tide. It is apparent now that double taxation of intangibles is not in all circumstances forbidden. Curry v. McCanless, 1939, 307 U.S. 357, 363, 59 S. Ct. 900, 83 L.Ed. 1339; Graves v. Elliott,. 1939, 307 U.S. 383, 59 S.Ct. 913, 59 L.Ed. 1356. The question whether the state, of the domicile has power to lay a property tax on intangibles which under the doctrine of New Orleans v. Stempel, 1899, 175 U.S. 309, 20 S.Ct. 110, 44 L.Ed. 174, and following cases, had acquired a taxable situs in another state, was expressly reserved in Newark Fire Insurance Co. v. State Board of Tax Appeals, 1939, 307 U. S. 313, 319, 59 S.Ct. 918, 83 L.Ed. 1312. It may be argued that the recent decisions of the Supreme Court, just referred to, have undermined the basis of Union-Refrigerator Transit Co. . v. Kentucky. That case seems to rest, as we have seen, on the ground that double taxation of tangibles is constitutionally objectionable,, and therefore that the domicile of the owner of the chattel cannot tax where the chattel, actually present in another state, has acquired a taxable situs there. If the state of the domicile of the owner can tax intangibles, though that may result in double taxation, it may be asked why the same should not be true in the case of tangible property. It is urged that the Union Refrigerator Transit Co. case should be confined to its exact facts and held to turn on the peculiar nature of the property there involved; that railroad cars are more analogous to real property than-personalty. But the doctrine of this case has not been so limited in cases that followed it. Frick v. Pennsylvania, 268 U. S. 473, 45 S.Ct. 603, 69 L.Ed. 1058, 42 A.L.R. 316. We need not pursue these arguments, because the Supreme Court consistently, and even in its latest pronouncements, has adhered to the doctrine of the Union Refrigerator Transit Co. case so far as tangible property is concerned. Frick v. Pennsylvania, 268 U.S. 473, 489, 45 S.Ct. 603, 69 L.Ed. 1058, 42 A.L.R. 316; Safe Deposit & Trust Co. v. Virginia, 280 U.S. 83, 92, 93, 50 S.Ct. 59, 74 L.Ed. 180, 67 A.L.R. 386; Johnson Oil Refining Co. v. State of Oklahoma ex rel. Mitchell, 1933, 290 U.S. 158, 161, 54 S.Ct. 152, 78 L.Ed. 238; Great Atlantic & Pacific Tea Co. v. Grosjean, 1937, 301 U.S. 412, 424, 57 S.Ct. 772, 81 L.Ed. 1193, 112 A.L.R. 293; Connecticut General Life Insurance Co. v. Johnson, 1938, 303 U.S. 77, 81, 58 S.Ct. 436, 82 L.Ed. 673; Curry v. McCanless, 1939, 307 U.S. 357, 364, 365, 59 S.Ct. 900, 83 L.Ed. 1339. Mr. Justice Stone, speaking for the court in the last-cited case, drew a sharp distinction, both theoretical and practical, between the taxation of tangibles and the taxation of intangibles, which have no location in space but are rights founded on relationships between persons. He said (307 U.S. at page 373, 59 S.Ct. at page 908, 83 L.Ed. 1339): “We find it impossible to say that taxation of intangibles can be reduced in every case to the mere mechanical operation of locating at a single place, and there taxing, every legal interest growing out of all the complex legal relationships which may be entered into between persons. This is the case because in point of actuality those interests may be too diverse in their relationships to various taxing jurisdictions to admit of unitary treatment without discarding modes of taxation long accepted and applied before the Fourteenth Amendment was adopted, and still recognized by this Court as valid.” There is no intimation in the cases that the Supreme Court would now overrule the Union Refrigerator- Transit Co. case. We know of no substantial ground on which the case could be overruled, without conceding the power of the domiciliary state to tax a landowner on land situated in another state. The Supreme Court has frequently pointed out the close analogy between foreign-held land and chattels permanently situated in another state and subject to the taxing power thereof. Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 204, 26 S.Ct. 36, 50 L.Ed. 150, 4 Ann. Cas. 493; Frick v. Pennsylvania, 268 U.S. 473, 492, 45 S.Ct. 603, 69 L.Ed. 1058, 42 A.L.R. 316; Wheeling Steel Corp. v. Fox, 298 U.S. 193, 208, 209, 56 S.Ct. 773, 80 L.Ed. 1143; Curry v. McCanless, 307 U.S. 357, 363, 59 S.Ct. 900, 83 L.Ed. 1339. It is not for us to begin the process of whittling away the decision in Union Refrigerator Transit Co. v. Kentucky by the taking of distinctions and the making of refinements. It remains to consider whether the sugar involved in the present case became subject to the taxing power of the State of New York when it was put in warehouses there and so remained for many months awaiting sale. The decided cases make it clear that New York could lay a tax in these circumstances. American Steel & Wire Co. v. Speed, 1904, 192 U.S. 500, 24 S.Ct. 365, 48 L.Ed. 538; General Oil Co. v. Crain, 1908, 209 U.S. 211,. 28 S.Ct. 475, 52 L.Ed. 754; Susquehanna Coal Co. v. South Amboy, 1913, 228 U.S. 665, 33 S.Ct. 712, 57 L.Ed. 1015; Bacon v. People of State of Illinois, 1913, 227 U.S. 504, 33 S.Ct. 299, 57 L.Ed. 615; Minnesota v. Blasius, 1933, 290 U.S. 1, 54 S.Ct. 34, 78 L.Ed. 131; cf. Carson Petroleum Co. v. Vial, 1929, 279 U.S. 95, 49 S.Ct. 292, 73 L.Ed. 626. In fact, New York did not undertake to tax. See New York Tax Law, Consol.Laws, c. 60, Section 3, Laws 1933, c. 470. But the important thing is the existence of the power. In Union Refrigerator Transit Co. v. Kentucky it did not appear that any other state had sought to tax the rolling stock. As the court said in Farmers’ Loan & Trust Co. v. Minnesota, 1930, 280 U.S. 204, 211, 50 S.Ct. 98, 100, 74 L.Ed. 371, 65 A.L.R. 1000: “Southern Pacific Co. v. Kentucky, 222 U.S. 63, 32 S.Ct. 13, 56 L.Ed. 96, indicates plainly enough that the right of one state to tax may depend somewhat upon the power of another so to do.” To the same effect, see Johnson Oil Refining Co. v. State of Oklahoma ex rel. Mitchell, 290 U.S. at pages 161, 162, 54 S.Ct. 152, 78 L.Ed. 238. The judgment of the District Court is affirmed with costs to the appellee. 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_r_bus

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. David W. ALLARD, Jr., Trustee of the Debtor Estate of DeLorean Motor Company, a Michigan Corporation, Plaintiff-Appellant, v. John Z. DeLOREAN and Christina C. DeLorean, Defendants, and Howard L. Weitzman, Defendant-Appellee. No. 88-5541. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 3, 1989. Decided Aug. 31, 1989. Judy B. Calton, Honigman Miller Schwartz and Cohn, Detroit, Mich., for plaintiff-appellant. Howard L. Weitzman, Wyman Bautzer Kuchel & Silbert, Richard S. Berger, Gen-del, Raskoff, Shapiro & Quittner, co-counsel, Los Angeles, Cal., for defendant-appel-lee. Before FLETCHER, NELSON and NORRIS, Circuit Judges. NELSON, Circuit Judge: David W. Allard, Jr., the trustee of the debtor estate of DeLorean Motor Company, appeals the district court’s judgment against Allard on his claim that John Z. DeLorean’s transfer of real property located in San Diego to Attorney Howard Weitz-man as compensation for Weitzman’s legal services rendered to DeLorean should be set aside as fraudulent under the California Fraudulent Conveyance statute, Cal.Civ. Code §§ 3439 et seq. We dismiss this case as moot and remand this case to the district court to decide whether the judgment below should be vacated. FACTS AND PROCEDURAL HISTORY In 1982, the DeLorean Motor Company (DMC) filed for bankruptcy under Chapter 11 in the bankruptcy court in the Eastern District of Michigan. The Chapter 11 case was converted into a Chapter 7 case and David W. Allard, Jr. (Allard) was appointed as trustee. In 1983, Allard initiated an adversary proceeding against John Z. De-Lorean (DeLorean) and Christina DeLorean (Christina) seeking the turnover of the debtor estate’s property and damages (the Michigan case). On October 19, 1982 DeLorean was arrested and charged with conspiring to distribute cocaine. DeLorean retained the law firm of Hufstedler, Miller, Carlson & Beardsley (the Hufstedler firm) which retained Howard Weitzman (Weitzman) to aid in the defense of DeLorean’s criminal case. The Hufstedler firm billed its time to DeLo-rean on an hourly basis. DeLorean deposited a retainer of over a million dollars with the Hufstedler firm to be drawn on for expenses incurred in defending his criminal case. Thereafter, Weitzman took over the defense of DeLorean’s criminal case. DeLo-rean and Weitzman initially agreed that Weitzman would draw on the retainer that had been deposited with the Hufstedler firm and that DeLorean would pay any additional costs. After the retainer was depleted, DeLorean executed and delivered to Weitzman, on July 26, 1983, a negotiable promissory demand note in the amount of 2.5 million dollars, which was secured by a deed of trust on DeLorean’s ranch in San Diego (the Pauma Valley property) to pay for Weitzman’s past and future legal services to DeLorean. On March 6, 1984, De-Lorean executed and delivered a quitclaim deed to Weitzman on the Pauma Valley property. On April 13, 1983, Allard, the trustee, filed this suit against Weitzman, DeLorean and Christina, seeking to set aside the Pau-ma Valley conveyance on the ground that the tiansfer was fraudulent as to DeLore-an’s creditors (Pauma Valley case). During trial, both parties presented evidence regarding the value of DeLorean’s assets and liabilities on July 26, 1983, and March 6, 1984, to determine whether DeLorean was solvent when he made the conveyances to Weitzman. On March 28, 1987, the district court in a bench opinion found in favor of Weitzman and DeLorean. The court determined that the Pauma Valley conveyance constituted fair consideration for the value of Weitz-man’s legal services to DeLorean, the conveyance was not made with the intent to defraud DeLorean’s creditors, and DeLore-an was solvent when he conveyed the Pau-ma Valley property to Weitzman. On November 24, 1987, the court entered judgment in favor of the defendants. Allard timely appealed. Before judgment was entered in the Pau-ma Valley case, however, Allard and DeLo-rean negotiated a settlement of their dispute. The settlement agreement between Allard and DeLorean was entered as an order by the district court in the Michigan case and approved by the Michigan bankruptcy court which was presiding over DMC’s bankruptcy. The settlement agreement essentially provided that DeLorean would pay Allard over 9 million dollars. Thereafter, the district court in the Pau-ma Valley case, pursuant to a stipulation entered into between Allard and DeLorean, ordered a dismissal with prejudice of Al-lard’s suit, and vacated the November 24, 1987 judgment. Weitzman did not sign the stipulation and the district court’s dismissal order did not address Allard’s claim against Weitzman. On March 28, 1989, DeLorean paid Allard the balance of over $9 million that he owed him pursuant to the settlement agreement and Allard executed and filed a full satisfaction of the judgment. ANALYSIS A. Mootness Weitzman contends that we should dismiss this case as moot because Allard is no longer a creditor of DeLorean and therefore does not have an interest in the outcome of this case. We agree. A case is moot if it has lost its character as a present live controversy. Aguirre v. S.S. Sohio Intrepid, 801 F.2d 1185, 1189 (9th Cir.1986). If events subsequent to the filing of an appeal moot the issues presented in a case, no justiciable controversy is presented. Id. (citing Flast v. Coken, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968)). This court has no jurisdiction to hear a case that cannot affect the litigant’s rights. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971); Aguirre, 801 F.2d at 1189. California’s Uniform Fraudulent Conveyance Act (the Act) provides creditors with the right to have a fraudulent conveyance set aside under certain circumstances. See Cal.Civ.Code § 3439.06-3439.-10. Under the Act a creditor is defined as a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent. Cal.Civ.Code § 3439.01 (repealed stats; 1986 c. 383, § 1). An individual with a contingent claim for damages is a “creditor” within the meaning of Cal.Civ.Code § 3439.01. Estate of Blanco, 86 Cal.App.3d. 826, 831, 150 Cal.Rptr. 645, 648 (1978). A plaintiff is not entitled to the remedy of setting aside a fraudulent conveyance unless he has shown that he is a creditor. See Cal.Civ.Code § 3439.06-3439.10; Weisenburg v. Cragholm, 5 Cal.3d 892, 897, 97 Cal.Rptr. 862, 489 P.2d 1126 (1971) (stating that because plaintiff was no longer defendant’s creditor, he was not entitled to the remedy of setting aside the defendant’s transfers as fraudulent). Here, Allard is attempting to set aside DeLorean’s transfer of the Pauma Valley property to Weitzman. Allard originally was a creditor in this action because, as the plaintiff in the Michigan case, Allard had a contingent claim against DeLorean. See Blanco, 86 Cal.App.3d at 831, 150 Cal.Rptr. at 648 (stating that an individual with a contingent claim is a “creditor”); 2 Collier On Bankruptcy § 323 (15th ed.) (stating that a trustee, as the representative of the bankrupt estate, may bring an action to protect the interests of the estate and its creditors). The parties agree that Allard is no longer a creditor in this action because pursuant to the stipulation between Allard and DeLorean, on March 28, 1989, Allard executed and filed a full satisfaction of judgment after DeLorean paid Allard 9 million dollars. Because Allard is not entitled to the remedy of setting aside DeLorean’s conveyance to Weitzman as fraudulent, see Weisenburg, 5 Cal.3d at 897, 97 Cal.Rptr. 862, 489 P.2d 1126, he does not have an interest in the outcome of this appeal. See Rice, 404 U.S. at 246, 92 S.Ct. at 404; Aguirre, 801 F.2d at 1189; accord Matter of Combined Metals Reduction Co., 557 F.2d 179, 190-93 (9th Cir.1977) (stating that action challenging transfer of property was moot when court could not afford the appellant relief by voiding transfer of property). Accordingly, this appeal is moot. See Rice, 404 U.S. at 246, 92 S.Ct. at 404; Aguirre, 801 F.2d at 1189. B. Vacatur Allard contends that if this appeal is dismissed as moot, we should vacate the district court’s judgment because Allard will suffer adverse consequences from the collateral effects of the lower court’s judgment. We disagree. The Supreme Court has stated that when an appeal is dismissed as moot, the established practice is for the appellate court to reverse or vacate the judgment below and dismiss the case. United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106-07, 95 L.Ed. 36 (1950); see Karcher v. May, 484 U.S. 72, 108 S.Ct. 388, 395, 98 L.Ed.2d 327 (1987). Vacating the lower court’s order clears the path for future relitigation of the issues between the parties and eliminates the collateral effect of a judgment not benefited by appellate review. Karcher, 108 S.Ct. at 395; Munsingwear, 340 U.S. at 40, 71 S.Ct. at 107. However, in determining whether to vacate the lower court’s judgment when a case has become moot on appeal, we have found relevant the distinction between litigants who are responsible for rendering their case moot and those who are not. Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720, 721 (9th Cir.1982); see Karcher, 108 S.Ct. at 395. We have stated an exception to the Munsingwear procedure in cases in which the appellant by his own act has caused the dismissal of the appeal as moot. Ringsby, 686 F.2d at 721-22. The rationale behind this exception is that a dissatisfied litigant should not be allowed to destroy the collateral consequences of an adverse judgment by destroying his own right to appeal. Id. at 721. In such cases, it is appropriate for the district court to balance the consequences and attendant hardships “between the competing values of finality of judgment and right to relitigation of unre-viewed disputes” to determine whether the judgment below should be vacated. Id. at 722. Here, Allard, the appellant, entered into a settlement with DeLorean after the district court entered a decision against Allard. Weitzman took no part in the settlement. Allard’s settlement with DeLorean rendered this appeal moot, thereby precluding our review of the district court’s decision. Because Allard was responsible for rendering this appeal moot, this case falls within our holding in Ringsby and it is inappropriate for us to automatically vacate the lower court’s judgment. Id. at 722. Instead, the district court should balance the competing interests of the parties in order to determine whether the judgment below should be vacated. Id. DISMISSED as moot and REMANDED to the district court to determine whether the district court’s judgment should be vacated. . Allard argues this appeal is not moot because the underlying issues could possibly be litigated in malicious prosecution actions by DeLorean and Weitzman. We disagree. Collateral consequences of a judgment may forestall the mootness of a case. Wright, Miller & Cooper, 13A Federal Practice and Procedure, § 3533.2. To establish a malicious prosecution cause of action under California law, a plaintiff must plead and prove that the prior action 1) was commenced at the direction of the defendants, 2) brought without probable cause and 3) initiated with malice. Silver, 211 Cal.App.3d 17, 22; 259 Cal.Rptr. 185, 187 (1989). Although there may be some overlap, a malicious prosecution case against HMS & C would involve different issues and a different adversarial setting than this case. Balanced against this is the prohibition against an Article III court deciding a case in which there is no justiciable controversy. See Flast, 392 U.S. at 95, 88 S.Ct. at 1949-50; Aguirre, 801 F.2d at 1189. This court cannot grant Allard the relief he requests because, as the parties agree, Allard is no longer a creditor under the Act. See Cal.Civ.Code § 3439 et seq. Under the circumstances, Allard’s apprehension regarding a malicious prosecution action is too remote a consequence to forestall the mootness of this appeal. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

songer_appel1_1_4

J

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant. FORREST CITY MACHINE WORKS, INC.; Mallard Farms Holding Co., Inc.; David A. Hodges, Appellants, v. UNITED STATES of America, Appellee. No. 91-1746. United States Court of Appeals, Eighth Circuit. Submitted Nov. 12, 1991. Decided Jan. 6, 1992. David A. Hodges, Little Rock, Ark., for appellants. Richard M. Pence, Little Rock, Ark., for appellee. Before BOWMAN and BEAM, Circuit Judges, and VAN SICKLE, District Judge. The Honorable Bruce M. Van Sickle, Senior United States District Judge for the District of North Dakota, sitting by designation. BOWMAN, Circuit Judge. Forrest City Machine Works, Mallard Farms, and David A. Hodges (“appellants”) appeal from the order of the District Court dismissing their complaint for lack of subject-matter jurisdiction. We affirm. In 1988, Twin City Bank of Arkansas brought a civil suit (“Twin City case”) to recover on the United States Commerce Department’s guaranty of a loan made by the bank to Forrest City Machine Works. Madeleine Austin, an attorney in the Commerce Department’s Office of the General Counsel, was assigned to work on the case on behalf of the Commerce Department. As the Commerce Department’s attorney, she filed the answer to Twin City’s complaint. Accompanying the answer was a counterclaim against the Bank and a third-party complaint against, inter alia, the appellants in this case. The third-party complaint alleged that the appellants had breached a contract and committed fraud. In 1990, the appellants filed a state court complaint against Austin, alleging that her filing of the third-party complaint constituted malicious prosecution and abuse of process. The appellants based this allegation in part on their assertion that the fraud count of the third-party complaint was dismissed after Austin left the employ of the Commerce Department. The United States moved to remove this case to federal court and moved that the United States be substituted as defendant, replacing Austin. This action was requested pursuant to 28 U.S.C. § 2679(d)(2) (1988), which states that “[u]pon certification ... that the defendant employee was acting within the scope of [her] employment at the time of the incident ... any civil action ... commenced ... in a State court shall be removed ... to the district court of the United States.... [T]he United States shall be substituted as the party defendant.” The United States provided such certification by way of a certificate filed by the United States Attorney for the Eastern District of Arkansas. The District Court accepted the certification, granted removal from the state court, and substituted the United States for Austin as the defendant. Shortly thereafter the United States filed a motion to dismiss the complaint for lack of subject-matter jurisdiction. On March 25, 1991, after determining that Austin was acting within the scope of her employment in filing the third-party complaint against the appellants in the Twin City case, the District Court entered an order of dismissal. The District Court held that the Federal Tort Claims Act (“FTCA”), as amended in 1988 by the Federal Employees Liability Reform and Tort Compensation Act (“Liability Reform Act”), precluded recovery on a malicious prosecution or abuse of process claim against either a federal employee acting within the scope of her employment or the United States. Although the appellants raise a number of issues on appeal, the dispositive issue is whether the District Court erred in determining that Austin was acting within the scope of her employment when she filed the third-party complaint in the Twin City case. If she was acting within the scope of her employment, then this complaint was rightly dismissed because of a lack of subject-matter jurisdiction. This is so because if Austin was acting within the scope of her employment, the United States must be substituted as the defendant. 28 U.S.C. § 2679(d)(2). But the United States is subject to suit only if it waives its sovereign immunity. The FTCA is such a waiver, but it is a limited one and it exempts from its waiver of sovereign immunity, inter alia, claims of malicious prosecution or abuse of process. 28 U.S.C. § 2680(h) (1988). Thus, the United States cannot be sued for claims of malicious prosecution or abuse of process. Similarly, a government employee acting within the scope of her employment cannot be sued on such claims. 28 U.S.C. § 2679(b)(1) (1988). “[Because the FTCA is an exclusive remedy for torts committed by federal employees acting within the scope of their employment, if recovery is not available against the United States under § 2680, it is not available at all.” Brown v. Armstrong, 949 F.2d 1007, 1013 (8th Cir.1991); see also Smith v. United States, — U.S. -, 111 S.Ct. 1180, 1184-85, 113 L.Ed.2d 134 (1991) (the Liability Reform Act “immunizes Government employees from suit even when an FTCA exception precludes recovery against the Government”). Thus, the appellants’ claim is viable only if Austin was not acting within the scope of her employment when she filed the third-party action on behalf of the Commerce Department in the Twin City case. If she was not, then substitution of the United States as defendant was not proper, and Austin should be reinstated as the defendant. Section 2679(d)(2) states that when the United States certifies that the employee was acting within the scope of her employment, substitution shall occur. Section 2679(d)(2) states that this certification “shall conclusively establish scope of ... employment for purposes of removal,” but we have interpreted the section to require “at least limited judicial review of the ... scope-of-employment certification before substituting the United States as defendant.” Brown, 949 F.2d at 1011 (footnote omitted). Here the District Court undertook such a review before substituting the United States as a defendant. After discussing various exhibits introduced by the United States, the District Court stated that it “finds, after its independent review of the record, that Madeleine Austin was, in fact, acting within the scope of her federal employment when she filed the answer and third-party complaint_” Order of Dismissal at 7, reprinted in Appellants’ Addendum 1, 7. The appellants claim that their requests for discovery should have been allowed béfore such a review was made. “[W]e need not address in this case the potentially difficult issues of whether the certification is entitled to deference when the [appellants] come forward with contrary evidence and, if so, whether [appellants] must be permitted to probe the basis for the certification in discovery,” Brown, 949 F.2d 1007, 1012 n. 9, because here the appellants have not come forward with any evidence contradicting the government’s scope-of-employment certification and supporting exhibits. Further, the discovery requested by the appellants does not relate to the scope-of-employment question, but rather to the government’s basis for the third-party complaint in the Twin City case. Accordingly, the District Court did not err in dismissing this case without permitting the appellants to proceed with their discovery requests. We conclude that the District Court correctly determined that Austin was acting within the scope of her federal employment when in the Twin City case she filed the third-party complaint for the Commerce Department against the appellants. At the time the complaint was filed, Austin was a Commerce Department attorney assigned to work on the Twin City case. The third-party complaint accompanied the government’s answer and counter-claim in the Twin City case. In filing those pleadings Austin clearly was acting “for [her] employer’s benefit or [in furtherance of her] employer's interest.” Piper v. United States, 887 F.2d 861, 863 (8th Cir.1989). The exhibits filed by the government fully support the scope-of-employment determination, and the appellants have offered nothing to call the District Court’s determination into doubt. “[T]he ... certification, although subject to judicial review, is prima facie evidence that the employee's challenged conduct was within the scope of employ. Therefore ... the [appellants] ... must come forward with specific facts rebutting the government’s scope-of-employment certification.” Brown, 949 F.2d 1007, 1012. The appellants have failed to carry their burden, and the District Court’s determination that the action by Austin of which the appellants complain was within the scope of her employment must be sustained. The order of the District Court is affirmed. . The Honorable G. Thomas Eisele, Senior United States District Judge for the Eastern District of Arkansas. . "The [United States] Attorneys are authorized to make the certification! ] provided for in ... 28 U.S.C. 2679(d) ... with respect to civil actions ... brought against Federal employees in their respective districts.” 28 CFR § 15.3(a) (1991). . We note that if substitution was proper, the District Court lacks subject-matter jurisdiction over this claim for an additional reason. 28 U.S.C. § 2675(a) (1988) states that an action against the United States “shall not be instituted ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency....” The appellants acknowledge that they did not submit the required administrative claim before filing this suit. Thus, the District Court lacks subject-matter jurisdiction over this claim for this reason. Sanders v. United States, 760 F.2d 869, 872 (8th Cir.1985). However, a dismissal on this ground might have the effect of simply prolonging the inevitable. If the appellants were allowed to submit such a claim, they eventually would return to this court in the same position as they are now, and again would have their claim dismissed for lack of subject-matter jurisdiction. In the interest of judicial economy, our affirmance of the dismissal due to a lack of subject-matter jurisdiction is based not upon this procedural defect but upon the immunity accorded Austin and the United States by the FTCA and the Liability Reform Act. . As there is no factual dispute, we treat this issue as a question of law and review the District Court's determination de novo. See Arbour v. Jenkins, 903 F.2d 416, 422 (6th Cir.1990); Washington v. United States, 868 F.2d 332, 334 (9th Cir.), cert. denied, 493 U.S. 992, 110 S.Ct. 539, 107 L.Ed.2d 536 (1989); Nietert v. Overby, 816 F.2d 1464, 1466 (10th Cir.1987); Hoston v. Silbert, 681 F.2d 876, 879 (D.C.Cir.1982) (per curiam); cf. S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir.1990) (issue is mixed question of law and fact), modified, 924 F.2d 1555 (11th Cir.) (per curiam), cert. denied, — U.S. -, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991); Cronin v. Hertz Corp., 818 F.2d 1064, 1069 (2nd Cir.1987) (issue is mixed question of law and fact). . The issue of scope of employment is controlled by the "applicable state law of responde-at superior." Piper v. United States, 887 F.2d 861, 863 (8th Cir.1989) (noting applicable Arkansas respondeat superior law). The appellants do not contend that the District Court failed to apply or misconstrued the governing state law. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant? A. auto industry B. chemical industry C. drug industry D. food industry E. oil & gas industry F. clothing & textile industry G. electronic industry H. alcohol and tobacco industry I. other J. unclear Answer:

songer_circuit

F

What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. Robert I. WARD and Ruth Ward, Plaintiffs-Appellants, Cross-Appellees, v. UNITED STATES of America, Defendant-Appellee, Cross-Appellant. Nos. 86-5978, 86-5979 and 86-6122. United States Court of Appeals, Sixth Circuit. Argued Dec. 10, 1987. Decided Feb. 3, 1988. Wayne Taylor, Omer and Taylor, James R. Omer (argued), Nashville, Tenn., for plaintiffs-appellants, cross-appellees. W. Hickman Ewing, Jr., U.S. Atty., Memphis, Tenn., Joe Dycus, for defendant-ap-pellee, cross-appellant. Before JONES and GUY, Circuit Judges, and BROWN, Senior Circuit Judge. BAILEY BROWN, Senior Circuit Judge. Plaintiffs Robert I. Ward and Ruth Ward, husband and wife, appeal the judgment of the district court for the defendant in this Federal Tort Claims Act case brought for the alleged medical malpractice of a surgeon-employee of defendant. Plaintiffs contend that the district court was clearly erroneous in finding that plaintiffs had not proved by a preponderance of the evidence that the surgeon performed surgery contrary to the applicable standard of care. Plaintiffs also allege error by the district court in admitting into evidence and relying on certain medical journal articles that were relied on by expert witnesses, in disqualifying one of plaintiffs’ witnesses as an expert on the applicable standard of care, and in failing to give plaintiffs the benefit of the presumption of defendant’s negligence under Tenn.Code Ann. 29-26-115(c). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Because we find no error in fact or law by the district court, we affirm the judgment for the defendant. Plaintiff Robert Ward brought his action for personal injuries against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq. Mrs. Ward filed her action for loss of services and consortium and for the value of her nursing care. The two actions were consolidated for trial. Plaintiffs allege that on January 9, 1978, Dr. C. Allen Ruleman, Jr., a surgeon at the Veterans Administration Medical Center in Memphis, Tennessee, was negligent in that he breached the applicable standard of care when he unintentionally injected Teflon (polytetrafluoroethy-lene) paste into Mr. Ward’s carotid artery, causing Mr. Ward to suffer a cerebrovascu-lar accident or stroke. At the time of the alleged malpractice, Mr. Ward was undergoing a procedure known as a Teflon injection of the naso-pharynx to treat his patent (open) eustachi-an tube. The procedure involves using a Bruning syringe to inject Teflon paste in the area of the nasopharynx, causing the eustachian tubes to close partially. The operation report showed that the surgery, under general anesthesia, began at 9:15 a.m., with the actual operation going from 9:25 a.m. to 9:50 a.m. Mr. Ward was taken to the recovery room in a drowsy condition, but responded to verbal stimuli. By 12:30 a.m. the next morning, Mr. Ward could not move his right arm or leg and the right side of his mouth was drooping. He could not talk. At this time, doctors suspected a stroke. Subsequent medical tests confirmed this diagnosis. I. The Standard of Care The liability of the United States in actions under the Federal Tort Claims Act is governed by the law of the place where the alleged tort occurred. 28 U.S.C. §§ 1346(b), 2674. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). All of the acts in this case occurred in Tennessee; therefore Tenn. Code Ann. § 29-26-115, which governs liability of medical personnel, is controlling. On the first day of trial, the parties stipulated that Dr. Ruleman had injected the Teflon paste into the artery, and that the injection was the proximate cause of Mr. Ward’s stroke. Therefore, the only issue regarding liability to be decided at trial was the negligence of Dr. Ruleman, in other words, whether he breached the applicable standard of care. Tenn.Code Ann. § 29-26-115 provides: (a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subsection (b): (1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which he practices or in a similar community at the time the alleged injury or wrongful action occurred; (2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and (3) As a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred. (b) No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a) unless he was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make his expert testimony relevant to the issues in the case and had practiced this profession or specialty in one of these states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available. (c) In a malpractice action as described in subsection (a) of this section there shall be no presumption of negligence on the part of the defendant. Provided, however, there shall be a rebuttable presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant (or defendants’) exclusive control and that the accident or injury was one which ordinarily doesn’t occur in the absence of negligence. (d) In a malpractice action as described in subsection (a) of this section, the jury shall be instructed that the claimant has the burden of proving, by a preponderance of the evidence, the negligence of the defendant. The jury shall be further instructed that injury alone does not raise a presumption of the defendant’s negligence. Plaintiffs had the burden to prove by a preponderance of the evidence the recognized standard of care in the community regarding the Teflon injection procedure by ear, nose, and throat (ENT) surgeons. Plaintiffs also had the burden to prove that Dr. Ruleman deviated from this standard and was, therefore, negligent. Plaintiffs’ evidence regarding the standard of care consisted of the testimony, by deposition, of Perry Felton Harris, M.D., John J. Shea, M.D., and Howard Kirshner, M.D. As discussed below, Dr. Kirshner was later disqualified by the court as an expert on the standard of care. Dr. Harris, a board certified otolaryngol-ogist, testified that he had performed the Teflon injection procedure from 1970 or 1971 to 1985. He performed this procedure in a manner similar to the one used by Dr. Ruleman on Mr. Ward. Dr. Harris injects the needle to a depth of only one and a half to two millimeters under the mucous membrane. He uses a special syringe with a bulb on it that prevents him from injecting deeper; but in 1978, at the time of Mr. Ward’s surgery, this syringe was not available. Dr. Harris testified that he assumed that Dr. Ruleman’s use of a plastic sleeve on the syringe was an attempt to prevent the injection from going too deeply. Dr. Harris noted that such a sleeve could be put on the needle, “and try to hold it in a fashion whereby you couldn’t go but two or three or four or five millimeters.” Joint Appendix (JA) at 85. He testified that if you inject too deeply, the carotid artery might be penetrated. He stated that the carotid artery is at different depths in different people and that he did not know how close Mr. Ward’s artery was to the injection site. Furthermore, only an autopsy could reveal this information. Anatomically, the artery “would be anywhere from four or five millimeters to maybe a half-inch or thereabouts” from the injection site. JA at 70. Dr. Harris testified that the standard of care in performing this surgery was “to inject the Teflon into the anterior and inferior portion of the eustachian tube to render it partially closed or no longer patent, and, in so doing, not injecting either into the adjacent carotid artery or so near it that it should be blocked.” JA at 40. He opined that Dr. Ruleman had not deviated from the standard of care by doing the procedure in the manner he did, or in the amount of Teflon paste that he injected, but that he did deviate by blocking the artery. Dr. Harris stated he was led to this conclusion “[b]ecause of the stroke the man had.” JA at 75. Dr. Shea, a world famous otologist, testified that he had also done this procedure. His method involved doing the procedure through the nose, rather than through the mouth by raising the soft palate with a retractor as Dr. Ruleman had done. Dr. Shea was of the opinion that his was the only safe and reliable method, but that not everyone in Memphis knew or should have known this. He also testified that in his opinion, it is beneath the standard of care to inject Teflon paste into the artery regardless of the method used. Two articles written by Jack L. Pulec, M.D., were attached to Dr. Shea’s deposition by counsel for defendant as exhibits 3 and 4. Dr. Shea had referred to these articles in his direct testimony and stated these articles were authoritative. In one of the articles, Dr. Pulec stated that the Teflon procedure can usually be done with the patient awake sitting in a chair, either lifting the palate, or going through the nostril. Dr. Pulec also wrote that: In most cases this procedure can be done with the patient sitting in the chair and awake (Fig. 6), although occasionally the palate cannot be elevated sufficiently. For these patients it is desirable to place the needle through the nostril on the involved side and guide its placement accurately into the tissue just anterior to the eustachian tube orifice by observing the area through a nasopharyngoscope placed through the other nostril. Occasionally general anesthesia is necessary. The Yankauer speculum is stronger and seems to be better when general anesthesia is used. The injection is made 0.5 cm. anterior and 0.5 cm. inferior to the nasopharyngeal orifice of the eustac-hian tube (Fig. 7). The tip of the needle is thrust into the tissue for approximately 0.5 cm.; this is the area of the levator palatine muscle. The injection is delayed for a few moments and the area of the injection observed to make sure that there is no flow of blood from around the tip of the needle, indicating perforation of a large vessel. Then 0.75 to 1.5 ml. of paste is injected. JA 475-76 (exhibit 3: Pulec & Hahn, The Abnormally Patulous Eustachian Tube, Otolaryngolic Clinics of North America, 131, 136-37 (Feb. 1970)). Dr. Ruleman testified that he had assisted Dr. Charles Gross, the head of the oto-laryngology residency program at the University of Tennessee, in the Teflon injection procedure on at least two prior occasions, one of them under general anesthesia. The night before he did the surgery, Dr. Ruleman reread Pulec’s articles. -Dr. Ruleman testified that Mr. Ward’s deviated septum prevented him from doing the procedure through his nose, and the structure of his palate would have required too much pressure to retract it under local anesthesia; therefore, the injection was made through the mouth under general anesthesia. Dr. Ruleman detailed how he did the surgery, including putting plastic tubing on the needle to insure that he did not go deeper than 5 millimeters and following the procedure outlined in the Pulec articles. He testified that the standard of care at the time of Mr. Ward’s surgery was that described by Dr. Pulec in his articles and taught by Dr. Gross, and that he had performed the surgery within this standard of care. Dr. Ruleman also testified that at the time of the surgery, there was no report in the medical literature of the possibility of strokes or other severe side effects from the procedure. The district court found that at the time of Ward’s surgery in 1978, Dr. Ruleman was a well-qualified ENT surgeon. The court also found that Pulec’s articles described the national standard of care for performing the Teflon injection procedure. The district court found that Dr. Ruleman injected at the correct site, at the correct depth, with the correct amount of paste, and checked for blood or swelling after inserting the needle to be sure that an artery had not been penetrated. The court concluded that the plaintiffs had not carried their burden of proof regarding Dr. Ruleman’s negligence and found that Mr. Ward’s stroke was the result of a complication of the procedure. The court stated: It is not enough to find that the plaintiffs have carried their burden of proof to say that injection into the artery is a breach of the standard of care and that every time a physician injects into the artery, despite the best of care and caution, that is a violation of the standard. To say that the standard is “not to inject into the artery” is to say that a physician should guarantee his results, and that is not the law in medical malpractice cases. JA at 2. This analysis is correct. Under Tennessee law, a physician’s duty is to exercise reasonable care and diligence. He must exercise his best judgment regarding treatment, and is not guilty of malpractice if he chooses a course of treatment supported by other physicians in good standing. Truan v. Smith, 578 S.W.2d 73, 75-76 (Tenn.1979). A physician is not the insurer of the patient; he is only liable for negligence, and negligence is not presumed from the fact that the treatment is unsuccessful. Liability for malpractice depends on whether or not the physician is lacking in and fails to exercise the reasonable degree of learning, skill, and experience that is ordinarily possessed by others of his profession. Watkins v. United States, 482 F.Supp. 1006, 1012 (M.D.Tenn.1980). There is no presumption of negligence; rather, the law presumes the physician has discharged his full duty. Redwood v. Raskind, 49 Tenn.App. 69, 350 S.W.2d 414 (1961). Moreover, negligence may not be presumed from the mere fact of injury. Johnson v. Lawrence, 720 S.W.2d 50, 56 (Tenn.Ct.App.1986). An honest mistake in judgment is not sufficient to find a physician negligent. Perkins v. Park View Hosp., 61 Tenn.App. 458, 456 S.W.2d 276 (1970). In determining the degree of learning and skill required of a medical practitioner in the treatment of a particular case, regard must be given to the state of medical science at the time. Ogle v. Noe, 6 Tenn.App. 485 (1927). “Evaluation of professional judgment must be based upon the facts available to the professional and the accepted practice among members of the profession under such facts.” Perkins, 61 Tenn.App. at 482-83, 456 S.W.2d at 287. The district court’s finding that Dr. Ruleman performed the procedure in a manner well-recognized and accepted in January 1978 and exercised the care required to meet the standards of the specialty, was not clearly erroneous. II. Medical Articles as Evidence The plaintiffs contend that the district court erred when it read and relied on Dr. Pulec’s articles in establishing the applicable standard of care. These articles were referred to by Dr. Shea on direct examination and marked by defendant’s counsel as exhibits 3 and 4 to Dr. Shea’s deposition. Although Federal Rule of Evidence 803(18) precludes learned treatises from being received as exhibits, the Rule provides that treatises can be read into evidence. It appears that plaintiffs’ counsel has confused the concept of not being received as exhibits with not being received as evidence. Furthermore, Federal Rule of Evidence 103 provides that, in order to be error, a ruling admitting evidence must affect a substantial right of the party and a timely objection or motion to strike must appear on the record. On the second day of the trial, the court announced that it had read the depositions submitted and that court time need not be taken by reading them into the record. At this time, counsel for defendant objected to specific statements in the depositions submitted by plaintiffs, and the court ruled on those objections. Plaintiffs failed to object at this time, and never objected to the court’s reading of the exhibits until this appeal. Moreover, plaintiffs have not shown that a substantial right was violated. The articles were relied upon by Dr. Ruleman, referred to by Dr. Kirshner, identified by Dr. Harris, discussed and quoted from by Dr. Shea, and generally recognized by the expert witnesses as the most important papers regarding the technique used on Mr. Ward. Plaintiffs argue that because state law governs the competency of witnesses under Federal Rule of Evidence 601, the articles cannot be relied upon to establish the standard of care because Dr. Pulec would be incompetent to testify to the standard of care under the locality rule of Tenn.Code Ann. § 29-26-115(b). Even assuming, arguendo, that plaintiffs are correct in this contention, the short answer is that Dr. Pulec was not offered as a witness. Furthermore, these articles were incorporated into the testimony of Drs. Shea and Ruleman, who are competent to testify under the state statute. Considering all of the above, it was not reversible error for the district court to read and rely on the articles regarding the issue of the standard of care. III. Disqualification of Expert Witness On the second day of trial, the district court ruled that plaintiffs had not qualified Dr. Kirshner, a neurologist and not an ENT surgeon, as an expert to testify to the standard of care for performing this type of ENT surgery. During the taking of Dr. Kirshner’s deposition, counsel for defendant objected to Kirshner’s testimony on the standard of care on the grounds that he was not qualified to give such an opinion. The parties make an issue as to whether Federal Rules of Evidence 601 or 702 applies to the court’s determination. Plaintiffs argue that under Federal Rule of Evidence 601, when state law provides the substantive law, competency of witnesses is also determined by state law. See Crumley v. Memorial Hosp., 509 F.Supp. 531, 532 n. 2 (E.D.Tenn.1978) (in diversity based medical malpractice action, competency of physician as expert witness is to be determined in accordance with Tennessee law), aff'd, 647 F.2d 164 (6th Cir.1981) (unpublished opinion). See also LeMaire v. United States, 826 F.2d 949, 954 (10th Cir.1987) (state law regarding competency of physician’s testimony applicable to medical malpractice case brought under Federal Tort Claims Act). Defendant argues that Federal Rule of Evidence 702 governs expert testimony and that state law is inapplicable. See Dawsey v. Olin Corp., 782 F.2d 1254, 1262 (5th Cir.1986) (under Fed.R.Evid. 1101 and 702, state statute preventing unlicensed physicians from testifying as medical experts inapplicable in diversity action in federal court). We need not decide this issue because plaintiffs failed to show that this evidentiary ruling affected a substantial right as required by Federal Rule of Evidence 103(a)(1). Furthermore, the court stated that Dr. Kirshner’s testimony on the standard of care did not add anything to the record. Kirshner testified that he was not “an expert about precise standards for that particular operation.” JA at 158. His testimony was to the effect that it was never acceptable for any doctor to inject Teflon into the carotid artery. Therefore, we determine that no error was committed by the district court. IV. Rebuttable Presumption Federal Rule of Evidence 302 provides that state law determines presumptions when state law provides the rule of decision. Plaintiffs contend that the district court erred in failing to give them the benefit of the rebuttable presumption of defendant’s negligence available in Tenn. Code Ann. § 29-26-115(c) when the instrumentality is in the exclusive control of the defendant and the injury ordinarily does not occur in the absence of negligence. The presumption codified in § 29-26-115(c) is the doctrine of res ipsa loquitur. This doctrine is not ordinarily applicable to medical malpractice cases. German v. Nichopoulos, 577 S.W.2d 197 (Tenn.Ct.App.1978). “This is true because neither lay people nor Courts possess reliable common knowledge in such technical matters. Therefore, expert testimony regarding the standard of care or duty in order to show negligence is required.” Id. at 202. Here, the proper procedure to use in injecting Teflon is clearly not within common knowledge of a lay person and res ipsa loquitur does not apply. See Perkins v. Park View Hosp., 61 Tenn.App. 458, 456 S.W.2d 276 (1970). Furthermore, there was no proof at trial that the injury would not have occurred in the absence of negligence. Even when all due care is exercised, this injury could still occur. See Johnson v. Lawrence, 720 S.W.2d 50, 56 (Tenn.Ct.App.1986) (failure of plaintiff to show that stroke ordinarily does not occur in absence of negligence precluded plaintiff’s reliance on statutory presumption of negligence). Moreover, the doctrine is not applied when evidence is offered by plaintiff of specific acts of negligence. Hughes v. Hastings, 225 Tenn. 386, 469 S.W.2d 378 (1971). In the present case, plaintiffs presented extensive evidence on the issue of negligence of Dr. Ruleman. Therefore, it is clear that this case is not appropriate for the application of the presumption found in § 29-26-115(c). For the foregoing reasons, we AFFIRM the district court’s judgment for defendant based on the plaintiffs’ failure to carry their burden of proof regarding the defendant’s breach of the standard of care. . Defendant cross-appeals the finding of the district court that plaintiffs timely filed their administrative tort claim. Because we affirm the judgment for defendant on the liability issue, we need not address the statute of limitations issue. . Plaintiffs complain that the district court relied on Tennessee cases decided before this statute became effective on July 1, 1975. However, the Tennessee Supreme Court has stated that this statute is a codification of the common law elements of negligence, Cardwell v. Bechtol, 724 S.W.2d 739, 753 (Tenn.1987), and Tennessee cases applying the statute give precedential effect to pre-statute cases. See, e.g., German v. Nichopoulus, 577 S.W.2d 197 (Tenn.Ct.App.1978). 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_genresp1

H

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. SOUTHERN GROCERY STORES, Inc., v. CHILDS. No. 8933. Circuit Court of Appeals, Fifth Circuit. Dec. 28, 1939. M. E. Kilpatrick, of Atlanta, Ga., for appellant. James A. Branch and Thomas B. Branch, Jr., both of Atlanta, Ga., for appellee. Before FOSTER, HUTCHESON, and McCORD, Circuit Judges. FOSTER, Circuit Judge. Appellee, as trustee in bankruptcy of Paramount Dairy Company, brought this suit under the provisions of Section 60 National Bankruptcy Act, 11 U.S.C.A. § 96, to recover preferential payments made to appellant by the bankrupt. It was tried to a jury and a verdict was rendered in appellee’s favor, upon which judgment was entered. Errors are assigned to the overruling of a plea of res adjudicata and to the denial of a directed verdict. The plea of res adjudicata is based upon a judgment of the Superior Court of De Kalb County, Georgia, dismissing on demurrer a suit brought by appellee against Southern Grocery Stores, Inc. (appellant), Southern Dairy Corporation, and four individuals, charging them, in effect, with fraudulent conversion of the assets of the bankrupt. That suit was brought under the law of Georgia and sounded in tort. Recovery of preferences was not an issue in that suit and the question was not decided. The suit at bar is based upon a right given the trustee by a Federal statute. Fraud is not an ingredient. While the parties are the same, it is evident the cause of action is different. The plea of res adjudicata was properly overruled. Troxell v. Delaware, Lackawanna & Western R. R. Co., 227 U.S. 434, 33 S.Ct. 274, 57 L.Ed. 586. The motion for a directed verdict was on the ground that there was no proof showing the bankrupt was insolvent at the times the preferences were received. It is further contended it was not shown appellant had reasonable cause to know the bankrupt was insolvent or that it was being granted preferences. The amount of the verdict is not disputed. On this point it is sufficient to say we find substantial evidence in the record tending to support the verdict. No prejudicial error appearing, the judgment is affirmed. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

sc_casesource

158

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. JENNINGS v. MAHONEY, DIRECTOR, FINANCIAL RESPONSIBILITY DIVISION, DEPARTMENT OF PUBLIC SAFETY OF UTAH No. 71-5179. Decided November 9, 1971 Per Curiam. Appellant, a Utah motorist, was involved in a collision. Both drivers and a police officer who investigated the accident filed accident reports with Utah’s Department of Public Safety as required by the Utah Motor Vehicle Safety Responsibility Act. Without affording appellant a hearing on fault, and based solely on the contents of the accident reports, the Director of the Financial Responsibility Division determined that there was a reasonable possibility that appellant was at fault. Appellant did not carry liability insurance and was unable to post security to show financial responsibility. The Director therefore suspended her license. A Utah District Court sustained the Director, and the Supreme Court of Utah affirmed. 26 Utah 2d 128, 485 P. 2d 1404 (1971). The proceedings were authorized under Utah Code Ann. §§ 41-12-2 (b) and 41-6-35 (1953). Appellant attacks the statutory scheme as not affording the procedural due process required by our decision in Bell v. Burson, 402 U. S. 535 (1971). We there held that the Georgia version of a motor vehicle responsibility law was constitutionally deficient for failure to afford the uninsured motorist procedural due process. We held that, although a determination that there was a reasonable possibility that the motorist was at fault in the accident sufficed, “before the State may deprive [him] of his driver’s license and vehicle registration,” the State must provide “a forum for the determination of the question” and a “meaningful . . . ‘hearing appropriate to the nature of the case.’ ” Id., at 541, 542. Appellant submits that Utah’s statutory scheme falls short of these requirements in two respects: (1) by not requiring a stay of the Director’s order pending determination of judicial review, the scheme leaves open the possibility of suspension of licenses without prior hearing; (2) in confining judicial review to whether the Director’s determination is supported by the accident reports, and not affording the motorist an opportunity to offer evidence and cross-examine witnesses, the motorist is not afforded a “meaningful” hearing. There is plainly a substantial question whether the Utah statutory scheme on its face affords the procedural due process required by Bell v. Burson. This case does not, however, require that we address that question. The District Court in fact afforded this appellant such procedural due process. That court stayed the Director’s suspension order pending completion of judicial review, and conducted a hearing at which appellant was afforded the opportunity to present evidence and cross-examine witnesses. Both appellant and the Director testified at that hearing. The testimony of the investigating police officer would also have been heard except that appellant’s service of a subpoena upon him to appear was not timely under the applicable court rules. The judgment of the Utah Supreme Court is Affirmed. 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:

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. MATTZ v. ARNETT, DIRECTOR, DEPARTMENT OF FISH AND GAME No. 71-1182. Argued March 27-28, 1973 Decided June 11, 1973 Blackmtfn, J., delivered the opinion for a unanimous Court. Lee J. Sclar argued the cause and filed briefs for petitioner. Roderick Walston, Deputy Attorney General of California, argued the cause for respondent. With him on the briefs were Evelle J. Younger, Attorney General, and Carl Boronkay, Assistant Attorney General. Harry R. Sachse argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Griswold, Assistant Attorney General Frizzell, Carl Strass, and Glen R. Goodsell. MR. Justice Blackmun delivered the opinion of the Court. Our decision in this case turns on the resolution of the narrow question whether the Klamath River Indian Reservation in northern California was terminated by Act of Congress or whether it remains “Indian country,” within the meaning of 18 U. S. C. § 1151. When established, the reservation was described as “a strip of territory commencing at the Pacific Ocean and extending 1 mile in width on each side of the Klamath River” for a distance of approximately 20 miles, encompassing an area not exceeding 25,000 acres. This description is taken from President Franklin Pierce’s Executive Order issued November 16, 1855, pursuant to the authority granted by the Act of March 3, 1853, 10 Stat. 226, 238, and the Act of March 3, 1855, 10 Stat. 686, 699. Petitioner Raymond Mattz is a Yurok, or Klamath River, Indian who, since the age of nine, regularly fished, as his grandfather did before him, with dip, gill, and trigger nets, at a location called Brooks Riffle on the Klamath River. On September 24, 1969, a California game warden confiscated five gill nets owned by Mattz. The nets were stored near Brooks Riffle, approximately 200 feet from the river, and within 20 miles of the river’s mouth. The respondent Director of the Department of Fish and Game instituted a forfeiture proceeding in state court. Mattz intervened and asked for the return of his nets. He alleged, among other things, that he was an enrolled member of the Yurok Tribe, that the nets were seized within Indian country, and that the state statutes prohibiting the use of gill nets, Cal. Fish & Game Code §§8664, 8686, and 8630, therefore were inapplicable to him. The state trial court, relying on Elser v. Gill Net Number One, 246 Cal. App. 2d 30, 54 Cal. Rptr. 568 (1966), found that the Klamath River Reservation in 1892 “for all practical purposes almost immediately lost its identity,” and concluded that the area where the nets were seized was not Indian country. The court thereby disposed of petitioner's primary defense to the forfeiture. It did not reach other issues bearing upon the application of the California statutes to Indian country and the existence of Indian fishing rights there. On appeal, the State Court of Appeal affirmed, holding that, inasmuch as the area in question had been opened for unrestricted homestead entry in 1892, the earlier reservation status of the land had terminated. 20 Cal. App. 3d 729, 97 Cal. Rptr. 894 (1971). The Supreme Court of California, one judge dissenting, denied a petition for hearing. See 20 Cal. App. 3d, at 735, 97 Cal. Rptr., at 898. We granted certiorari, 409 U. S. 1124 (1973), because the judgments of the state courts appeared to be in conflict with applicable decisions of this Court. We now reverse. The reversal, of course, does not dispose of the underlying forfeiture issue. On remand, the questions relating to the existence of Matiz’ fishing rights and to the applicability of California law notwithstanding reservation status will be addressed. We intimate no opinion on those issues. I While the current reservation status of the Klamath River Reservation turns primarily upon the effect of an 1892 Act of Congress which opened the reservation land for settlement, the meaning and effect of that Act cannot be determined without some reference to the Yurok Tribe and the history of the reservation between 1855 and 1892. The Yurok Indians apparently resided in the area of the lower Klamath River for a substantial period before 1855 when the Klamath River Reservation was established. Little is known of their prior history. There are sources, however, that provide us with relatively detailed information about the tribe, its culture, living conditions, and customs for the period following 1855. That the tribe had inhabited the lower Klamath River well before 1855 is suggested by the name. Yurok means “down the river.” The names of the neighboring tribes, the Karok and the Modok, mean, respectively, “up the river” and “head of the river,” and these appellations, as would be expected, coincide with the respective homelands. Powers 19; Kroeber 15. By the Act of March 3, 1853, 10 Stat. 238, the President was “authorized to make five military reservations from the public domain in the State of California or the Territories of Utah and New Mexico bordering on said State, for Indian purposes.” The Act of March 3, 1855, 10 Stat. 699, appropriated funds for “collecting, removing, and subsisting the Indians of California ... on two additional military reservations, to be selected as heretofore . . . Provided, That the President may enlarge the quantity of reservations heretofore selected, equal to those hereby provided for.” President Pierce then issued his order of November 16, 1855, specifying the Klamath River Reservation and stating, “Let the reservation be made, as proposed.” Kappler 817. The site was ideally selected for the Yuroks. They had lived in the area; the arable land, although limited, was “peculiarly adapted to the growth of vegetables,” 1856 Report 238; and the river, which ran through a canyon its entire length, abounded in salmon and other fish. Ibid.; 1858 Report 286. In 1861 nearly all the arable lands on the Klamath River Reservation were destroyed by a freshet, and, upon recommendation of the local Indian agent, some of the Indians were removed to the Smith River Reservation, established for that purpose in 1862. Only a small number of Yuroks moved to the new reservation, however, and nearly all those who did move returned within a few years to the Klamath River. Crichton v. Shelton, 33 I. D. 205, 208 (1904); Kappler 830; 1864 Report 122. The Smith River Reservation was then discontinued. Act of July 27, 1868, 15 Stat. 198, 221. The total Yurok population on the Klamath River Reservation in the 1860’s cannot be stated with precision. In 1852, based in part on a rough census made by a trader, it was estimated at 2,500. Kroeber 16-17. The effect of the 1861 flood cannot be firmly established; but it is clear that the tribe remained on the Klamath thereafter. For later years, Kroeber estimated that the population in 1895 was 900, and, in 1910, 668. Kroeber 19. From this it would appear that the flood at least did not cause a dissolution of the tribe; on the contrary, the Yuroks continued to reside in the area through the turn of the century and beyond. The Act of April 8, 1864, 13 Stat. 39, designated California as one Indian superintendency. It also recited that “there shall be set apart by the President, and at his discretion, not exceeding four tracts of land, within the limits of said state, to be retained by the United States for the purposes of Indian reservations.” It further provided that “the several Indian reservations in California which shall not be retained . . . under . . . this act, shall ... be surveyed into lots or parcels . . . and ... be offered for sale at public outcry, and thence afterward shall be held subject to sale at private entry.” Id., at 40. At the time of the passage of the 1864 Act there were, apparently, three reservations in California: the Klam-ath River, the Mendocino, and the Smith River. It appears, also, that the President did not take immediate action, upon the passage of the Act, to recognize reservations in California. It was not until 1868 that any formal recognition occurred, and then it was the Congress, rather than the President, that acted. In that year Congress discontinued the Smith River Reservation, 15 Stat. 221, and restored the Mendocino to the public lands. Id., at 223. No similar action was taken with respect to the Klamath River Reservation. Crichton v. Shelton, 33 I. D., at 209. Congress made appropriations for the Round Valley Reservation, 15 Stat. 221, and for it and the Hoopa Valley Reservation in 1869, 16 Stat. 37, although neither of these, apparently, had been established theretofore by formal Executive Order. The Klamath River Reservation, although not reestablished by Executive Order or specific congressional action, continued, certainly, in de facto existence. Yuroks remained on reservation land, and the Department of Indian Affairs regarded the Klamath River Reservation as “in a state of reservation” throughout the period from 1864 to 1891. No steps were taken to sell the reservation, or parts thereof, under the 1864 Act. Indeed, in 1879, all trespassers there were removed by the military. In 1883 the Secretary of the Interior directed that allotments of land be made to the Indians on the reservation. In February 1889, the Senate, by resolution, directed the Secretary of the Interior “to inform the Senate what proceedings, if any, have been had in his Department relative to the survey and sale of the Klamath Indian reservation ... in pursuance of the provisions of the act approved April 8, 1864.” 20 Cong. Rec. 1818. In response, the Commissioner of Indian Affairs, by letter dated February 18, 1889, to the Secretary disclosed that no proceedings to this effect had been undertaken. An Assistant Attorney General for the Department of the Interior expressed a similar view in an opinion dated January 20, 1891. In 1888, in a forfeiture suit, the United States District Court for the Northern District of California concluded that the area within the Klamath River Reservation was not Indian country, within the meaning of Rev. Stat. § 2133, prescribing the penalty for unlicensed trading in Indian country. The court concluded that the land composing the reservation was not retained or recognized as reservation land pursuant to the 1864 Act and that, therefore, it no longer constituted an Indian reservation. United States v. Forty-eight Pounds of Rising Star Tea, 35 F. 403 (ND Cal. 1888). This holding was expressly affirmed on appeal to a circuit judge. 38 F. 400 (CCND Cal. 1889). The Assistant Attorney General, in the opinion referred to above, conceded the probable correctness of the judgment but was not convinced that his own views were erroneous, and he could not assent to the reasoning of the court. He felt that the court’s comments as to the abandoned status of the reservation “were dicta and not essential to the decision of the case before the court.” Crichton v. Shelton, 33 I. D., at 215. Thus, as of 1891, it may be fair to say that the exact legal status of the Klamath River Reservation was obscure and uncertain. The petitioner in his brief here, p. 14, states that the reservation “ceased to exist in 1876, at the latest.” Any question concerning the reservation’s continuing legal existence, however, appears to have been effectively laid to rest by an Executive Order dated October 16, 1891, issued by President Benjamin Harrison. By the specific terms of that order, the Hoopa Valley Reservation, which, as we already have noted, was located in 1864 and formally set apart in 1876, and which was situated about 50 miles upstream from the Klamath River’s mouth, was extended so as to include all land, one mile in width on each side of the river, from “the present limits” of the Hoopa Valley Reservation to the Pacific Ocean. The Klamath River Reservation, or what had been the reservation, thus was made part of the Hoopa Valley Reservation, as extended. The reason for incorporating the Klamath River Reservation in the Hoopa Valley Reservation is apparent. The 1864 Act had authorized the President to “set apart” no more than four tracts for Indian reservations in California. By 1876, and certainly by 1891, four reservations already had been so set apart. These were the Round Valley, referred to above, the Mission, the Hoopa Valley, and the Tule River. Kappler 830-831. Thus, recognition of a fifth reservation along the Klamath River was not permissible under the 1864 Act. Accordingly, the President turned to his authority under the Act to expand an existing, recognized reservation. He enlarged the Hoopa Valley Reservation to include what had been the Klamath River Reservation as well as an intervening riparian strip connecting the two tracts. The President’s continuing authority so to enlarge reservations and, specifically, the legality of the 1891 Executive Order, was affirmed by this Court in Donnelly v. United States, 228 TJ. S. 243, 255-259 (1913), reh. denied, 228 U. S. 708, and is not challenged here. II This general background as to the origin and development of the Klamath River Reservation is not contested by either party. The reservation’s existence, pursuant to the Executive Order of 1891, is conceded. The present controversy relates to its termination subsequent to 1891, and turns primarily upon the effect of the Act of June 17, 1892, 27 Stat. 52, entitled “An act to provide for the disposition and sale of lands known as the Klamath River Indian Reservation.” This Act provided: “That all of the lands embraced in what was Klamath River Reservation in the State of California, as set apart and reserved under authority of law by an Executive order dated November sixteenth, eighteen hundred and fifty-five, are hereby declared to be subject to settlement, entry, and purchase under the laws of the United States granting homestead rights and authorizing the sale of mineral, stone, and timber lands: Provided, That any Indian now located upon said reservation may, at any time within one year from the passage of this act, apply to the Secretary of the Interior for an allotment .... And the Secretary of the Interior may reserve from settlement, entry, or purchase any tract or tracts of land upon which any village or settlement of Indians is now located, and may set apart the same for the permanent use and occupation of said village or settlement of Indians. . . . Provided further, That the proceeds arising from the sale of said lands shall constitute a fund to be used under the direction of the Secretary of the Interior for the maintenance and education of the Indians now residing on said lands and their children.” The respondent Director argues that this statute effected the termination of the Klamath River Reservation. The petitioner urges the contrary. It is our task, in light of the language and purpose of the Act, as well as of the historical background, outlined above, to determine the proper meaning of the Act and, consequently, the current status of the reservation. The respondent relies upon what he feels is significant language in the Act and upon references in the legislative history. He contends, “The fact that the lands were to be opened up for settlement and sale by homesteaders strongly militates against a continuation of such reservation status.” Brief for Respondent 3. We conclude, however, that this is a misreading of the effect of the allotment provisions in the 1892 Act. The meaning of those terms is to be ascertained from the overview of the earlier General Allotment Act of 1887, 24 Stat. 388. That Act permitted the President to make allotments of reservation lands to resident Indians and, with tribal consent, to sell surplus lands. Its policy was to continue the reservation system and the trust status of Indian lands, but to allot tracts to individual Indians for agriculture and grazing. When all the lands had been allotted and the trust expired, the reservation could be abolished. Unallotted lands were made available to non-Indians with the purpose, in part, of promoting interaction between the races and of encouraging Indians to adopt white ways. See § 6 of the General Allotment Act, 24 Stat. 390; United States Department of the Interior, Federal Indian Law 115-117, 127-129, 776-777 (1958). Under the 1887 Act, however, the President was not required to open reservation land for allotment; he merely had the discretion to do so. In view of the discretionary nature of this presidential power, Congress occasionally enacted special legislation in order to assure that a particular reservation was in fact opened to allotment. The 1892 Act was but one example of this. Its allotment provisions, which do not differ materially from those of the General Allotment Act of 1887, and which in fact refer to the earlier Act, do not, alone, recite or even suggest that Congress intended thereby to terminate the Klamath River Reservation. See Seymour v. Superintendent, 368 U. S. 351, 357-358 (1962). Rather, allotment under the 1892 Act is completely consistent with continued reservation status. This Court unanimously observed, in an analogous setting in Seymour, id., at 356, “The Act did no more [in this respect] than open the way for non-Indian settlers to own land on the reservation in a manner which the Federal Government, acting as guardian and trustee for the Indians, regarded as beneficial to the development of its wards.” See United States v. Celestine, 215 U. S. 278 (1909); United States v. Nice, 241 U. S. 591 (1916). See also Wilbur v. United States, 281 U. S. 206 (1930); Donnelly v. United States, 228 U. S. 243 (1913). Ill The respondent further urges, however, that his view of the effect of the 1892 Act is supported by the Act's reference to “what was [the] Klamath River Reservation.” According to the respondent, this reference, and other references in the legislative history, compel the conclusion that Congress intended to terminate the reservation in 1892. The 1892 Act, to be sure, does refer to the Klamath River Reservation in the past tense. But this is not to be read as a clear indication of congressional purpose to terminate. Just a few weeks before the bill (H. R. 38, 52d Cong., 1st Sess.), which eventually became the Act, was reported out of committee on February 5, 1892, H. R. Rep. No. 161, 52d Cong., 1st Sess., the President had formally extended the Hoopa Valley Reservation to include the Klamath River Reservation. And only that portion of the extension which had been the Klamath River Reservation was the subject of the 1892 Act. The reference to the Klamath River Reservation in the past tense seems, then, merely to have been a natural, convenient, and shorthand way of identifying the land subject to allotment under the 1892 Act. We do not believe the reference can be read as indicating any clear purpose to terminate the reservation directly or by innuendo. The respondent also points to numerous statements in the legislative history that, in his view, indicate that the reservation was to be terminated. We need not refer in detail to the cited passages in H. R. Rep. No. 161, supra, or to the debates on the bill, 23 Cong. Rec. 1598-1599, 3918-3919 (1892), for there is no challenge here to the view that the House was generally hostile to continued reservation status of the land in question. In our estimation, however, this very fact, in proper perspective, supports the petitioner and undermines the respondent's position. As early as 1879, there were efforts in Congress to abolish the Klamath River Reservation. From that date to 1892 strong sentiment existed to this effect. But it does not appear that termination ever commanded majority support. The advocates of termination argued that the reservation, as of 1879, long had been abandoned; that the land was useless as a reservation; and that many white settlers had moved on to the land and their property should be protected. See H. R. Rep. No. 1354, 46th Cong., 2d Sess., 5 (1880). That whites had settled there is clear, but the view that no Indians remained after the flood of 1861 appears to have been a gross misconception on the part of those who sought termination. The first bill providing for public entry and sale of the Klamath River Reservation was introduced in the Senate on May 28, 1879. S. Res. 34, 46th Cong., 1st Sess.; 9 Cong. Rec. 1651. The resolution referred to the reservation’s having been “abandoned” in 1855 “ and the tribe removed to another reservation established for its use.” No action was taken on the bill, and another, of the same purport, was introduced on January 12, 1880, in the House. H. R. 3454, 46th Cong., 2d Sess.; 10 Cong. Rec. 286. This bill provided that the reservation “be, and the same is hereby, abolished,” and authorized and directed the Secretary of the Interior to survey the lands and have them made subject to homestead and preemption entry and sale “the same as other public lands.” It is clear from the report on this second bill, H. R. Rep. No. 1354, supra, at 1-5, that the establishment of the reservation in 1855 was viewed as a mistake and an injustice. According to the Report, the reservation had been abandoned after the 1861 freshet, and the Indians had moved to the Smith River and, later, the Hoopa Valley Reservations. White settlers had moved in and wished to exploit the lumber and soil of the area which, some said, “has no equal in California as a fruit and wine growing country.” Id., at 5. Inasmuch as the reservation blocked access to the river, the resources of the area could not be developed. Although unmentioned in that Report, the Office of Indian Affairs opposed the bill. See H. R. Rep. No. 1148, 47th Cong., 1st Sess., 1 (1882). The bill as reported was recommitted and no further action was taken. 10 Cong. Rec. 3126 (1880). An identical bill was introduced in the following Congress. H. R. 60, 47th Cong., 1st Sess.; 13 Cong. Rec. 90 (1881). The Commissioner of Indian Affairs opposed the bill as introduced, but stated that he would not oppose it if provision for prior allotments to the Indians was made. H. R. Rep. No. 1148, supra, at 2. The Commissioner's proposed amendment was approved by the Committee, 13 Cong. Rec. 3414 (1882), but no action on the bill was taken by the full House. In 1883 and 1884 three more bills were introduced. It is of interest to note that each acceded to the request of the Commissioner that provision be made for prior allotments to resident Indians. H. R. 112, 48th Cong., 1st Sess.; 15 Cong. Rec. 62 (1883); S. 813, 48th Cong., 1st Sess.; 15 Cong. Rec. 166 (1883); H. R. 7505, 48th Cong., 1st Sess.; 15 Cong. Rec. 5923 (1884). Each bill would have “abolished” the reservation and would have made the land subject to homestead and pre-emption entry. None of the bills was enacted, although passage must have been generally regarded as likely, for the Indian Bureau in 1883 began the work of allotment and survey, perhaps in anticipation of passage. In 1885 two bills were introduced in the House. Each was substantially identical to those introduced in 1883 and 1884. H. R. 158 and H. R. 165, 49th Cong., 1st Sess. ; 17 Cong. Rec. 370 (1885). No action was taken on either bill. No further bills, apparently, were introduced until 1889. During the intervening period, however, the General Allotment Act of 1887, 24 Stat. 388, was passed and thereafter amended, 26 Stat. 794. The Rising Star Tea case, 35 F. 403, was also decided. In 1889 a bill providing for the allotment of the Klamath River Reservation was introduced. The allotments, however, were to be made in a manner inconsistent with the General Allotment Act. H. R. 12104, 50th Cong., 2d Sess.; 20 Cong. Rec. 756 (1889). And after affirmance of the Rising Star Tea case by the circuit court, 38 F. 400 (1889), identical bills were introduced in the House and the Senate providing, without mention of allotment, that “all of the lands embraced in what was Klamath River Reservation . . . are hereby de-dared to be subject to settlement, entry, and purchase” under the land laws. H. It. 113, 51st Cong., 1st Sess.; 21 Cong. Rec. 229 (1889); S. 2297, 51st Cong., 1st Sess.; 21 Cong. Rec. 855 (1890). The Indian Office opposed the bills, recommending that they be amended to provide for allotments to the Indians under the General Allotment Act, that surplus lands be restored to the public domain, and that the proceeds be held in trust for the Klamath River Indians. See Short v. United States, No. 102-63, pp. 44-45 (Report of Commissioner, Court of Claims, 1972). H. R. 113 was reported out of committee with certain amendments, including one to the effect that proceeds arising from the sale of lands were to be used for the “removal, maintenance, and education” of the resident Indians, the Hoopa Valley Reservation being considered the place of removal. Allotments to the Indians on the Klamath Reservation, however, were emphatically rejected. H. R. Rep. No. 1176, 51st Cong., 1st Sess., 2 (1890). The bill was so amended and passed the House. 21 Cong. Rec. 10701-10702 (1890). It died in the Senate. In light of the passage of this last bill in the House and the presence of the Rising Star Tea opinions, the Indian Department moved to have the Klamath River Reservation land protected for the Indians residing there. The details of this effort, including the opinion of the Assistant Attorney General, referred to above, are outlined in the Commissioner’s report in Short v. United States, supra, at 45-50. These efforts culminated in President Harrison’s Executive Order of October 1891 expanding the Hoopa Valley Reservation to include the Klamath River Reservation. It is against this background of repeated legislative efforts to terminate the reservation, and to avoid allotting reservation lands to the Indians, that the 1892 Act was introduced. H. R. 38, 52d Cong., 1st Sess.; 23 Cong. E.ec. 125 (1892). The bill provided for the settlement, entry, and purchase of the reservation land and specified that the proceeds should be used for the “removal, maintenance, and education” of the resident Indians. No allotments were provided for, as the Indians were “semicivilized, disinclined to labor, and have no conception of land values or desire to cultivate the soil.” H. R. Rep. No. 161, 52d Cong., 1st Sess., 1 (1892). The House Committee on Indian Affairs amended the bill by changing the word “and” to “or” in the proviso relating to the use of proceeds. Id., at 2. The bill passed the House without change. 23 Cong. Rec. 1598-1599 (1892). It was struck out in the Senate, however, and another version was substituted deleting reference to the removal of the Indians and providing that before public sale the land should be allotted to the Indians under the General Allotment Act of 1887, as amended. Id., at 3918-3919. This substitute measure had the support of the Interior Department. Id., at 3918. The Senate called for a conference with the House, id., at 3919, and the conference adopted the Senate version with amendments. Sen. Mise. Doc. No. 153, 52d Cong., 1st Sess. (1892). The bill was then passed and became the 1892 Act. IV Several conclusions may be drawn from this account. First, the respondent’s reliance on the House Report and on comments made on the floor of the House is not well placed. Although the primary impetus for termination of the Klamath River Reservation had been with the House since 1871, this effort consistently had failed to accomplish the very objectives the respondent now seeks to achieve. Likewise, the House in 1892 failed to accomplish these objectives, for the Senate version, supported by the Interior Department, was substituted for that of the House. The Senate version, ultimately enacted, provided for allotments to the Indians and for the proceeds of sales to be held in trust for the “maintenance and education,” not the removal, of the Indians. The legislative history relied upon by the respondent does not support the view that the reservation was terminated; rather, by contrast with the bill as finally enacted, it compels the conclusion that efforts to terminate the reservation by denying allotments to the Indians failed completely. A second conclusion is also inescapable. The presence of allotment provisions in the 1892 Act cannot be interpreted to mean that the reservation was to be terminated. This is apparent from the very language of 18 U. S. C. § 1151, defining Indian country “notwithstanding the issuance of any patent”, therein. More significantly, throughout the period from 1871-1892 numerous bills were introduced which expressly provided for the termination of the reservation and did so in unequivocal terms. Congress was fully aware of the means by which termination could be effected. But clear termination language was not employed in the 1892 Act. This being so, we are not inclined to infer an intent to terminate the reservation. The Court stated in United States v. Celestine, 215 U. S., at 285, that “when Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress.” A congressional determination to terminate must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history. See Seymour v. Superintendent, 368 TJ. S. 351 (1962); United States v. Nice, 241 U. S. 591 (1916). Finally, our conclusion that the 1892 Act did not terminate the Klamath River Reservation is reinforced by repeated recognition of the reservation status of the land after 1892 by the Department of the Interior and by Congress. In 1904 the Department, in Crichton v. Shelton, 33 I. D. 205, ruled that the 1892 Act reconfirmed the continued existence of the reservation. In 1932 the Department continued to recognize the Klamath River Reservation, albeit as part of the Hoopa Valley Reservation, and it continues to do so today. And Congress has recognized the reservation's continued existence by extending the period of trust allotments for this very reservation by the 1942 Act, described above, 25 U. S. C. § 348a, and by restoring to tribal ownership certain vacant and undisposed-of ceded lands in the reservation by the 1958 Act, supra. We conclude that the Klamath River Reservation was not terminated by the Act of June 17, 1892, and that the land within the boundaries of the reservation is still Indian country, within the meaning of 18 U. S. C. § 1151. The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings. It is so ordered. Title 18 U. S. C. § 1151 defines the term “Indian country” to include, inter alia, “all lands within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent . . . .” Title 18 U. S. C. § 1162 (a) provides that, with respect to Indian country within California, that State “shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country ... to the same extent that such State . . . has jurisdiction over offenses committed elsewhere within the State . . . , and the criminal laws of such State . . . shall have the same force and effect within such Indian country as they have elsewhere within the State . . . .” Section 1162 (b) provides, however, “Nothing in this section . . . shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.” Finally, the California Fish & Game Code § 12300 (Supp. 1973), reads: “Irrespective of any other provision of law, the provisions of this code are not applicable to California Indians whose names are inscribed upon the tribal rolls, while on the reservation of such tribe and under those circumstances in this State where the code was not applicable to them immediately prior to the effective date of Public Law 280, Chapter 505, First Session, 1953, 83d Congress of the United States [18 U. S. C. § 1162].” The Executive Order is reproduced in 1 C. Kappler, Indian Affairs — Laws and Treaties 817 (1904) (hereinafter Kappler). At the end of this opinion, as the Appendix, is a map of the Klam-ath River Reservation. The area described in the text is indicated as the “Old Klamath River Reservation.” See Pet. for Cert., App. B 4-5. A. Kroeber, Handbook of the Indians of California, ec. 1-4, published as Bulletin 78, Bureau of American Ethnology 1-97 (1925) (hereinafter Kroeber); S. Powers, Tribes of California, cc. 4 and 5, published as 3 Contributions to North American Ethnology 44^64 (1877) (hereinafter Powers). Various Annual Reports of the Commissioner of Indian Affairs provide further information; see, for example, the 1856 Report of the Commissioner of Indian Affairs 249-250 (hereinafter Report). Kroeber, in the preface to his work, suggests that the factual material contained in Powers' manuscript is subject to some criticism. Kroeber’s reference to Powers deserves reproduction in full here: “I should not close without expressing my sincere appreciation of my one predecessor in this field, the late Stephen Powers, well known for his classic 'Tribes of California,' one of the most remarkable reports ever printed by any government. Powers was a journalist by profession and it is true that his ethnology is often of the crudest. Probably the majority of his statements are inaccurate, many are misleading, and a very fair proportion are without any foundation or positively erroneous. He possessed, however, an astoundingly quick and vivid sympathy, a power of observation as keen as it was untrained, and an invariably spirited gift of portrayal that rises at times into the realm of the sheerly fascinating. Anthropologically his great service lies in the fact that with all the looseness of his data and method he was able to a greater degree than anyone before or after him to seize and fix the salient qualities of the mentality of the people he described. The ethnologist may therefore by turns writhe and smile as he fingers Powers’s pages, but for the broad outlines of the culture of the California Indian, for its values with all their high fights and shadows, he can still do no better than consult the book. With all its flimsy texture and slovenly edges, it will always remain the best introduction to the subject.” Kroeber ix. Of this area one agent stated, “No place can be found so well adapted to these Indians, and to which they themselves are so well adapted, as this very spot. No possessions of the Government can be better spared to them. No territory offers more to these Indians and very little territory offers less to the white man. The issue of their removal seems to disappear.” 1885 Report 266. It is interesting to note that Powers believed the Yurok population at one time far exceeded 2,500 and perhaps numbered over 5,000. This was, as Powers stated, “before the whites had come among them, bringing their corruptions and their maladies . . . .” Powers 59. The renowned Major John Wesley Powell, who was then in charge of the United States Geographical and Geological Survey of the Rocky Mountain Region, Department of the Interior, placed little faith in Powers’ figures and requested that he modify his estimates. Powers expressed his displeasure at this in a letter to Major Powell stating, in characteristic fashion, “I have the greatest respect for your views and beliefs, and, with your rich fund of personal experience and observation; if you desire to cut out the paragraph and insert one under your own signature, in brackets, or something of that kind, I will submit without a murmur, if you will add this remark, as quoted from myself, to wit: T desire simply to ask the reader to remember that Major Powell has been accustomed to the vast sterile wastes of the interior of the continent, and has not visited the rich forests and teeming rivers of California.’ But I should greatly prefer that you would simply disavow the estimates, and throw the whole responsibility upon me. “This permission I give you; but I have waded too many rivers and climbed too many mountains to abate one jot of my opinions or beliefs for any carpet-knight who yields a compiling-pen in the office of the - or -. If any critic, sitting in his comfortable parlor in New York, and reading about the sparse aboriginal populations of the cold forests of the Atlantic States, can overthrow any of my conclusions with a dash of his pen, what is the use of the book at all? As Luther said, at the Diet of Worms, ‘Here I stand; I cannot do otherwise.’ “I beg you, my dear major, not to consider anything above written as in the slightest degree disrespectful to yourself; such is the farthest remove from my thoughts.” Powers 2-3. Powers’ estimates were not altered, and the above-quoted letter was placed sympathetically by Major Powell in the introductory section of Powers’ published study. 1864 Report 122; Opinion dated Jan. 20, 1891, of the Assistant Attorney General for the Department of the Interior, quoted in Crichton v. Shelton, 33 I. D. 205, 210 (1904); Kroeber 19. Another source estimates that in 1871 the Indian population along the Klamath was 2,500. Report of D. H. Lowry, Indian Agent, Sept. 1, 1871, noted in Short v. United States, No. 102-63, p. 35 (Report of Commissioner, Court of Claims, 1972). The Hoopa Valley Reservation was located August 21, 1864, but formally set apart for Indian purposes, as authorized by the 1864 Act, by President Grant only by Executive Order dated June 23, 1876. Kappler 815. See Appendix map. The area is that described as the "Original Hoopa Valley Reservation.” Letter dated Apr. 4, 1888, from the Commissioner of Indian Affairs to the Secretary of the Interior, quoted in Crichton v. Shelton, 33 I. D., at 211. The allotments, however, were postponed "on account of the discovery of gross errors in the public surveys.” Ibid.; 1885 Report XLVIII. “In response to said resolution, I have to state that I am unable to discover from the records or correspondence of this office that any proceedings were ever had or contemplated by this Department for the survey and sale of said reservation under the provisions of the act aforesaid; on the contrary, it appears to have been the declared purpose and intention of the superintendent of Indian affairs for California, who was charged with the selection of the four reservations to be retained under said act, either to extend the Hoopa Valley Reservation (one of the reservations selected under the act), so as to include the Klamath River Reservation, or else keep it as a separate independent reservation, with a station or subagency there, to be under control of the agent at the Hoopa Valley Reservation, and the lands have been held in a state of reservation from that day to this (Ex. Doc. 140, pp. 1, 2).” Quoted in Crichton v. Shelton, 33 I. D., at 212. “Pushing aside all technicalities of construction, can any one doubt that for all practical purposes the tract in question constitutes an Indian reservation? Surely, it has all the essential characteristics of such a reservation; was regularly established by the proper authority; has been for years and is so occupied by Indians now, and is regarded and treated as such reservation by the executive branch of the government, to which has been committed the management of Indian affairs and the administration of the public land system .... It is said, however, that the Klamath River reservation was abolished by section three of the act of 1864. Is this so? “In the present instance, the Indians have lived upon the described tract and made it their home from time immemorial; and it was regular!y set apart as such by the constituted authorities, and dedicated to that purpose with all the solemnities known to the law, thus adding official sanction to a right of occupation already in existence. It seems to me something more than a mere implication, arising from a rigid and technical construction of an act of Congress, is required to show that it was the intention of that body to deprive these Indians of their right of occupancy of said lands, without consultation with them or their assent. And an implication to that effect is all, I think that can be made out of that portion of the third section of the act of 1864 which is supposed to be applicable.” Quoted in Crichton v. Shelton, 33 I. D., at 212-213. “It is hereby ordered that the limits of the Hoopa Valley Reservation in the state of California, a reservation duly set apart for Indian purposes, as one of the Indian reservations authorized to be set apart, in said State, by Act of Congress approved April [8], 1864, (13 Stats., 39), be and the same are hereby extended so as to include a tract of country one mile in width on each side of the Klamath River, and extending from the present limits of the said Hoopa Valley reservation to the Pacific Ocean; Provided, however, That any tract or tracts included within the above described boundaries to which valid rights have attached under the laws of the United States are hereby excluded from the reservation as hereby extended.” Kappler 815. Kappler 819-824. It is noteworthy that the boundaries of the Mission Reservation were altered repeatedly between 1870 and 1875, and even thereafter. These actions were taken under the President’s continuing authority to set apart and add to or diminish the four reservations authorized under the 1864 Act. Donnelly v. United States, 228 U. S. 243 and 708 (1913). In its final form, the Mission Reservation consisted of no less than 19 different and noncontiguous tracts. Kappler 819-824; Crichton v. Shelton, 33 I. D., at 209-210. See Appendix map. The strip of land between the Hoopa Valley Reservation and the Klamath River Reservation is referred to there as the “Connecting Strip.” Under the 1891 Executive Order the Hoopa Valley Reservation was extended to encompass all three areas indicated on the map. The connecting strip and the old Klamath River Reservation frequently are referred to as the Hoopa Valley Extension. The trust period on allotments to Indians on the Klamath River Reservation expired in 1919, but was later extended by Congress by the Act of Dec. 24, 1942, 56 Stat, 1081, 25 U. S. C. § 348a. See S. Rep. No. 1714, 77th Cong., 2d Sess. (1942). And in 1958 Congress restored to tribal ownership vacant and undisposed-of ceded lands on various reservations, including 159.57 acres on the Klamath River Reservation. Pub. L. 85-420, 72 Stat. 121. For an extended treatment of allotment policy, see D. Otis, History of the Allotment Policy, in Readjustment of Indian Affairs, Hearings on H. R. 7902 Before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 428-440 (1934). The policy of allotment and sale of surplus reservation land was repudiated in 1934 by the Indian Reorganization Act, 48 Stat. 984, now amended and codified as 25 U. S. C. § 461 et seq. See, for example, the Act of Mar. 2, 1889, 25 Stat. 888 (Sioux Reservations), and United States v. Nice, 241 U. S. 591 (1916) ; the Act of Mar. 22, 1906, 34 Stat. 80 (Colville Reservation), and Seymour v. Superintendent, 368 U. S. 351 (1962); the Act of May 29, 1908, 35 Stat. 460 (Cheyenne River and Standing Rock Reservations), and United States ex rel. Condon v. Erickson, 478 F. 2d 684 (CA8 1973), aff’g 344 F. Supp. 777 (SD 1972). The respondent argues, however, that Congress, perhaps unacquainted with the Executive Order of October 1891, intended this language to convey the view expressed in the House Report, H. R. Rep. No. 161, supra, 23 Cong. .Rec. 1598-1599 (1892), that the Klamath River Reservation had long been abandoned and, in fact and in law, had already been terminated. It is clear from the text, infra, that there were efforts in certain quarters of the House to terminate the reservation and open it for white settlement. See Short v. United, States, supra, n. 8, at 3F-52. While the respondent’s interpretation of the phrase is plausible, it is no less plausible to conclude, in light of the repeated and unsuccessful efforts by the House to terminate the reservation, that the Senate proponents of the legislation were not inclined to make their cause (of requiring allotments) less attractive to the House by amending the bill to refer to the “former Klamath River Reservation, now part of the Hoopa Valley Reservation” rather than “what was [the] Klamath River Reservation.” The Department of the Interior took issue with the Committee's population estimates. H. R. Rep. No. 1148, 47th Cong., 1st Sess., 1-3 (1882). In a letter transmitted to the Committee on Indian Affairs in 1881, an infantry lieutenant, acting as Indian Agent, suggested that the Committee’s population estimates were “gleaned principally from civilians, who are, I believe, somewhat inclined to lessen the number, thinking doubtlessly that the smaller the number the greater the likelihood of its being thrown open to settlers.” Id., at 2. Congress has used clear language of express termination when that result is desired. See, for example, 15 Stat. 221 (1868) (“the Smith River reservation is hereby discontinued”); 27 Stat. 63 (1892) (adopted just two weeks after the 1892 Act with which this case is concerned, providing that the North Half of the Colville Indian Reservation, “the same being a portion of the Colville Indian Reservation ... be, and is hereby, vacated and restored to the public domain”), and Seymour v. Superintendent, 368 U. S., at 354; 33 Stat. 218 (1904) (“the reservation lines of the said Ponca and Otoe and Missouria Indian reservations be, and the same are hereby, abolished”). In United, States ex rel. Condon v. Erickson, 478 F. 2d 684 (1973), the United States Court of Appeals for the Eighth Circuit reached a similar conclusion in a case presenting issues not unlike those before us. The court concluded, id., at 689, that “a holding favoring federal jurisdiction is required unless Congress has expressly or by clear implication diminished the boundaries of the reservation opened to settlement” (emphasis in original). Hearings before a Subcommittee of the Senate Committee on Indian Affairs, Survey of Conditions of the Indians in the United States, pt. 29, California, 72d Cong., 1st Sess., 15532 (1934). Although subsequent legislation usually is not entitled to much weight in construing earlier statutes, United States v. Southwestern Cable Co., 392 U. S. 157, 170 (1968), it is not always without significance. See Seymour v. Superintendent, 368 U. S., at 356-357. 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_r_fiduc

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Diana L. MASON, Individually and as Administrator of the Estate of Otis W. Mason, Deceased, Plaintiff-Appellee, v. TEXACO INC., Defendant-Appellant, v. ASHLAND CHEMICAL COMPANY, Defendant-Appellee. No. 84-2220. United States Court of Appeals, Tenth Circuit. Nov. 28, 1988. Gerald L. Michaud (Richard D. Cordry and Dwight A. Corrin of Corrin & Krysl, with him on the briefs) of Michaud, Cordry, Michaud, Hutton & Hutton, Wichita, Kan., for plaintiff-appellee. Ken M. Peterson (Robert W. Coykendall, with him on the briefs) of Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, Kan., for defendant-appellant. Wesley A. Weathers of Weathers & Riley, Topeka, Kan., for defendant-appellee. Before ANDERSON, BALDOCK and BRORBY, Circuit Judges. BRORBY, Circuit Judge. This products liability case involves claims of personal injury and wrongful death under Kansas law. Jurisdiction was based upon diversity of citizenship. 28 U.S.C. § 1332. Following a fourteen-week trial, the jury returned a verdict against defendant Texaco Inc. (Texaco) and in favor of Diana L. Mason, individually and as administrator of the estate of Otis Mason (Mason), for damages arising from the death of Otis Mason. The jury found that Otis Mason developed leukemia and died after being exposed to benzene produced by Texaco. Texaco moved for a judgment notwithstanding the verdict or for a new trial. Texaco’s motion was denied, and Texaco appeals, asserting numerous errors including: the incorrect application of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.App. § 525 (1982); failure to submit to the jury the comparative fault of defendant Ashland Chemical Company as a phantom defendant after Ashland Chemical Company was dismissed by directed verdict; and erroneous jury instructions. We agree the district court’s jury instructions were in error. Accordingly, we REVERSE and REMAND for a new trial. In 1977, Otis Mason was serving in the United States Coast Guard as an instructor át the Coast Guard Engineering School at Yorktown, Virginia, when doctors diagnosed his condition as acute myelocytic leukemia. Otis Mason filed this lawsuit on August 14, 1978, alleging that his leukemia was caused by exposure to benzene, a solvent used in the classroom in a motor oil test kit. He died from leukemia on December 10,1979. Thereafter, his widow, Diana L. Mason, was substituted as plaintiff in the personal-injury action for the pain and suffering, and wrongful death of Otis Mason. Mason alleged that the manufacturers and distributors of the benzene to which Otis Mason was exposed were liable for his injuries and death primarily because of their failure to warn adequately of the hazards of benzene inhalation. Originally, Mason named as defendant Gerin Corporation (Gerin), the manufacturer of the kit which Otis Mason used to test properties of motor oil. Later, the complaint was amended to state claims against Gerin’s supplier, Dooner & Smith Chemical Company (Dooner & Smith); and Dooner & Smith’s suppliers, Mellen Chemical, Inc. (Mellen), Ashland Chemical Company (Ash-land), and Texaco. By the time of trial, Texaco and Ashland remained as defendants in the lawsuit. At the conclusion of plaintiff’s case, the court granted defendant Ashland’s motion for directed verdict. The case was submitted against Texaco, although other parties, except Ashland, were listed on the verdict form for comparative-fault assessments. The jury found that the total damages were $9 million and that Texaco was 35% at fault. Judgment against Texaco was entered for $3.150 million. I. SOLDIERS’ AND SAILORS’ CIVIL RELIEF ACT OF 1940 Texaco asserts two reasons the lower court erred in holding that the claims were not time-barred by the Kansas statute of limitations. First, the court misapplied the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.App. §§ 501-591 (1982), to exclude from the Kansas limitation period the time during which Otis Mason was placed on the “temporary disability retired list.” Second, the court misapplied the Act to Otis Mason, a career military employee without any showing of disability to bring legal suit. The tolling provision of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C. App. § 525, provides in part as follows: The period of military service shall not be included in computing any period now or hereafter to be limited by any law, ... for the bringing of any action or proceeding in any court, ... by or against any person in military service or by or against his heirs, executors, administrators, or assigns. The Act bars any period of military service from being included in computing a statute of limitations for or against a person in the military service. The Act defines “person in the military service” to include those in the Coast Guard. “Military service” means “active duty” under the Act, and “active duty” includes “the period during which a person in military service is absent from duty on account of sickness, wounds, leave or other lawful cause.” 50 U.S.C.App. § 511(1) (1982). It is undisputed that in September 1977, Otis Mason was diagnosed as having acute myelocytic leukemia. On March 15, 1978, he was placed on the “temporary disability retired list.” On November 5, 1979, Otis Mason was permanently retired, and on December 10, 1979, he died as a result of leukemia. The question presented is whether placement on the “temporary disability retired list” is a “discharge from active service” or merely an “absentee] from duty on account of sickness,” as anticipated by § 511(1). Under the former, a statute of limitations is not tolled; under the latter, the statute of limitations is tolled. We hold that placement on the “temporary disability retired list” constitutes “absen[ce] from duty on account of sickness” under the Act, and therefore the period of limitations provided by the Kansas two-year statute of limitations, Kan. Stat.Ann. § 60-513(a) (1983), was tolled from March 15, 1978, until November 5, 1979. See Cruz v. General Motors Corp., 308 F.Supp. 1052 (S.D.N.Y.1970). Texaco further argues that the lower court erred in applying the Soldiers’ and Sailors’ Civil Relief Act of 1940 to Otis Mason, a career military employee. Citing Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir.1977), Texaco urges this court to adopt a broad rule that the tolling provision of 50 U.S.C.App. § 525 of the Soldiers’ and Sailors’ Civil Relief Act of 1940 does not apply to a career serviceman who has not shown that military service handicapped him from asserting a claim. Although the court in Pannell sought to interpret § 525, the court’s conclusion is predicated upon a combined reading of §§ 521 and 525. Section 521 provides for stay of proceedings and requires the serviceman to demonstrate that his status creates an inability to fully assert or defend a claim. Section 525 contains no such condition precedent. Even so, the court in Pan-nell imposed upon § 525 the requirement of § 521 and concluded that the tolling provision of the Soldiers’ and Sailors’ Civil Relief Act of 1940 was inapplicable to a career serviceman who has not shown that he was handicapped by his military service from asserting any claim he had prior to the expiration of the prescribed period. Pannell, 554 F.2d at 225. We cannot accept this interpretation of 50 U.S.C.App. § 525 of the Soldiers’ and Sailors’ Civil Relief Act of 1940. In our view, the language of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.App. § 525, is clear and unambiguous. We find no reason to ignore the plain meaning of the statute, and we are persuaded that the correct course to follow is set forth in Ricard v. Birch, 529 F.2d 214 (4th Cir.1975); and Bickford v. United States, 228 Ct.Cl. 321, 656 F.2d 636 (1981). The career status of Otis Mason does not negate the application of § 525. The only condition to § 525 is military service. That condition was met during Mason’s placement on the “temporary disability retired list,” and therefore the period of limitations was tolled from March 15, 1978, until November 5, 1979. Mason’s naming of Texaco as a party on July 14, 1980, was within the period of limitations. II. COMPARATIVE FAULT Texaco next contends that the court erred in not submitting to the jury Ash-land’s possible comparative fault. The court refused to include Ashland as a phantom defendant on the verdict form for determination of comparative fault because Ashland had been granted a directed verdict at the close of the plaintiff’s case. Under Kansas law, all types of fault, regardless of degree, are to be compared in order to apportion the causal responsibility for the damages. Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 454 (10th Cir.1982). We have stated previously in Hardin that a scintilla of evidence is not sufficient to justify submitting a nonparty to the jury as a phantom defendant, and that the judge should apply the directed verdict standard when deciding which nonparties to submit as phantoms on the verdict form. Id. at 459 n. 7. Although the standard for granting a directed verdict has varied somewhat over time, compare Cockrell v. Boise Cascade Corp., 781 F.2d 173, 177 (10th Cir.1986), with Thompson v. Kerr-McGee Refining Corp., 660 F.2d 1380, 1389 (10th Cir.1981), cert. denied 455 U.S. 1019, 102 S.Ct. 1716, 72 L.Ed.2d 137 (1982), we find no error, in the legal standard applied by the trial judge. We do not review the correctness of the judge’s factual findings as they apply to the issue of naming phantom parties on the verdict form because retrial of this case may present new factual issues on the propriety of including the phantom parties. We do note, however, that the propriety of the directed verdict granted to Ashland at the close of the plaintiffs case is not before this court. Mason has not raised that issue on appeal. Texaco had no standing to challenge the ruling below, see e.g., Price v. Greenway, 167 F.2d 196, 200 (3d Cir.1948); Hayes v. Tootle-Lacy Nat’l Bank, 72 F.2d 429, 431-32 (10th Cir.1934), and now cannot resurrect the issue in this court. III. JURY INSTRUCTIONS Texaco asserts that in instructing the jury the trial court deviated from Kansas law on several issues relating to Texaco’s duty to warn of product hazards. Specifically, Texaco argues the court erred in instructing the jury contrary to law on the bulk seller’s duty to warn (No. 6), the duty to train salesmen (No. 13), and also by invading the province of the jury to determine the content and form of the warning required in this case (Nos. 16, 6, and 23). In reviewing Texaco’s challenge to the jury instructions, we consider the instructions as a whole to determine whether they “state the law which governs and provided the jury with an ample understanding of the issues and the standards applicable.” Ramsey v. Culpepper, 738 F.2d 1092, 1098 (10th Cir.1984). In a diversity case, we apply the substantive law of the forum. Brownlow v. Aman, 740 F.2d 1476, 1490 (10th Cir.1984). “ ‘The appellate standard of review to be applied by the court is clear: an error in jury instructions will mandate reversal of a judgment only if the error is determined to have been prejudicial, based on a review of the record as a whole.’ ” Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1271 n. 19 (10th Cir.1988), citing Durflinger v. Artiles, 727 F.2d 888, 895 (10th Cir.1984). A. Duties Owed by a Bulk Supplier The leading case in Kansas on the liability of a bulk supplier is Jones v. Hittle Service Inc., 219 Kan. 627, 549 P.2d 1383 (1976). In Jones, the Kansas Supreme Court held that the manufacturer and bulk seller of liquefied petroleum gas “fulfills his duty to the ultimate consumer when he ascertains that the distributor to whom he sells is adequately trained, is familiar with the properties of the gas and safe methods of handling it, and is capable of passing on his knowledge to his customers.” Id. 549 P.2d at 1394. Essentially, the holding imposes upon the bulk seller the obligation to sell only to knowledgeable and responsible distributors. Jones does not impose a duty on the bulk seller to warn the ultimate consumer, and specifically does not impose a duty on the bulk seller to police the adequacy of warnings given by the distributor. “If the product is sold in bulk, adequate warning to the vendee is all that can reasonably be required.” Id. at 1393. Texaco asserts that Jury Instruction No. 6, the court’s “stairstep guide,” imposes a duty upon Texaco which exceeds the obligations settled under Kansas law. The third step in the instruction in part advises the jury as follows: Such third issue would cause you to decide whether any or all actions taken by Texaco were sufficient and adequate to reasonably inform and warn its immediate purchaser of such dangerous carcinogenic propensity of benzene, and safety precautions to avoid exposure, and to take reasonable measures to determine that such purchaser was capable of warning others in the chain of distribution to ultimate consumers. Should you find that Texaco fulfilled and discharged its legal duty to warn and take reasonable steps to see that its distributor knew and complied with its duty to inform, then you would return a verdict for defendant Texaco. (Emphasis added.) Instruction No. 6 advises the jury that Texaco had a legal duty to police the actions of the distributor. The language “knew and complied with” exceeds the obligation to sell to a knowledgeable vendee who was capable of passing on the warnings. Although Mason argues that at trial Texaco failed to object to the language “knew and complied with,” the record demonstrates that counsel for Texaco objected to Instruction No. 6, that he detailed his objections paragraph by paragraph, and that he specifically objected to the clause “and take reasonable steps to see that its distributor knew and complied with its duty to inform.” Texaco more than adequately preserved its objection to Instruction No. 6. The trial court’s Instruction No. 6 pertaining to the bulk seller’s duty to warn was contrary to Kansas law as set forth not only in Jones, but also in Hendrix v. Phillips Petroleum Co., 203 Kan. 140, 453 P.2d 486, 496 (1969). See generally, Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348 (1983); Younger v. Dow Coming Corp., 202 Kan. 674, 451 P.2d 177 (1969). In our view the trial court erroneously instructed the jury as to the applicable law. B. Duty to Train Salesmen Texaco next argues the trial judge erroneously instructed the jury that as part of the duty to warn, Texaco had a duty to train its salesmen. Instruction No. 13 provides: The defendant Texaco had a duty to adequately instruct and train their salesmen as to their product, benzene, in order that their salesmen take appropriate action and give appropriate advice to the purchasers and users of benzene. The violation of such a duty is negligence. The defendant had a duty to exercise a high degree of care in selecting, training and advising its salesmen. We agree with Texaco that in so instructing the jury, the trial court erred. The instruction does not state Kansas law properly, and it dictates the method of conveying a warning in order for it to be found adequate by the jury. Under Kansas law, a manufacturer has a duty to instruct a distributor or ascertain that he has been instructed in the use and handling of its commodities. Hendrix, 453 P.2d 486. While the central issue before the Kansas Supreme Court in Hendrix was the relationship of parties and the respective liabilities, the court also addressed the duty of the bulk seller to warn the distributor of the hazards of using its product. Plaintiffs brought suit against a distributor of liquefied petroleum gas as a result of an explosion in a private residence. The trial court entered judgment in favor of plaintiffs as against the distributor (Fortner), and in favor of the seller (Phillips) as against plaintiffs. In Hendrix, plaintiffs claimed the trial court erred in failing to rule as a matter of law under the evidence that the manufacturer, Phillips, was negligent in its failure to adequately train the distributor, Fortner. The Kansas Supreme Court characterized the question as one of fact to be determined by the jury under proper instructions, and upheld the following instruction: You are instructed that defendant Phillips had a duty to instruct Fortner [distributor] or ascertain that he had been instructed as to the proceedings to be followed in the event of a leak in an L.P. gas system or explosion. In this connection it is not required that Fortner be educated or instructed as an expert in the field. Phillips has the duty to instruct or ascertain that Fortner has been instructed to the extent that he have such knowledge as is reasonable under the circumstances to give him information sufficient to take appropriate action and give appropriate advice to his customer. The violation of such duty is negligence. Phillips, once having fulfilled the above duty, cannot be held liable for Fortner’s failure to take advantage of, use or impart to others such instruction. Id. 453 P.2d at 496. In approving the instruction, the Kansas Supreme Court stated: “A manufacturer of L.P. gas is under a duty to instruct a distributor or to ascertain that he has been instructed in the use and handling of its commodities.” Id. 453 P.2d at 496. Counsel for Mason proposed Instruction No. 13 in the instant case, and argued that it was based upon Hendrix. Texaco argued vociferously against giving Instruction No. 13 for the reason that it mandated a particular mode of communication (i.e., instructing and training its salesmen) rather than advising the jury on the Hendrix standard and seeking their determination on the issue of adequacy of warning. Texaco argues that this confusion of method with content of warning grossly misled the jury. We agree. In our view, Instruction No. 13 misinterpreted and improperly expanded the duty imposed upon Texaco under Hendrix. In the trial judge’s Opinion and Order denying post-trial motions, he justified the giving of Instruction No. 13 under the Hendrix case and also the case of Sterling Drug, Inc. v. Yarrow, 408 F.2d 978 (8th Cir.1969). In our view, reliance upon Sterling was misplaced as well. In Sterling, plaintiff sought damages from a drug manufacturer as a result of the manufacturer’s alleged failure to warn plaintiff’s doctor of the side effects of the drug prescribed. The case was tried to the court, and judgment was entered for the plaintiff. The manufacturer appealed. The Court of Appeals for the Eighth Circuit held that the trial judge’s finding that the manufacturer’s detail men presented the most effective method of warning plaintiff’s doctor was not clearly erroneous. The Sterling holding arises from a trial to the bench where the judge functioned as the fact-finder. The duty which the Sterling trial court imposed in finding the facts was a “duty to make reasonable efforts to warn the medical profession of the side effects of the drug.” Id. at 991. The Sterling trial court found as fact that failure of the manufacturer to instruct its detail force to warn the physicians constituted failure to make reasonable efforts to warn the prescribing physicians. The circuit court upheld the law applied by the trial court and declined to declare the findings thereunder to be clearly erroneous. The findings of fact in Sterling, however, do not justify the instruction by the court below that Texaco had a legal duty to train salesmen. By so instructing the jury, the trial judge found facts, rather than instructing the jury on the legal duty and asking them to answer the question of adequacy of warnings given, if any. This confusion of function and misstatement of law constituted prejudicial error. C. Invading the Province of the Jury Texaco next argues that the trial court’s references to benzene as carcinogenic throughout the instructions “amounted to a virtual instruction that Texaco’s warning of injury to blood-forming organs was inadequate.” On this issue, Texaco submits three sources of error: Instructions Nos. 6 and 23, and the verdict form. Instruction No. 6, the “stairstep guide,” reads in part as follows: On the other hand, in the first step, if you find both that benzene was the cause of Mason’s leukemia, and that it was Texaco’s benzene, you would proceed to answer the next issue, which is the state of the scientific knowledge to a reasonable degree of probable certainty in the time period of Mason’s exposure to benzene. If you cannot find by a preponderance of the evidence that such scientific knowledge existed concerning a dangerous propensity of benzene to cause carcinogenic (cancerous) blood disease at the time of Mason’s exposure, then your deliberations would cease and your verdict should be for the defendant. If you find that such scientific knowledge did exist to the extent that Texaco either knew it, or should reasonably have known about it, prior to and during Mason’s exposure, then you would proceed to decide the next or third issue. Such third issue would cause you to decide whether any or all actions taken by Texaco were sufficient and adequate to reasonably inform and warn its immediate purchaser of such dangerous carcinogenic propensity of benzene, and safety precautions to avoid exposure, and to take reasonable measures to determine that such purchaser was capable of warning others in the chain of distribution to ultimate consumers. Should you find that Texaco fulfilled and discharged its legal duty to warn and take reasonable steps to see that its distributor knew and complied with its duty to inform, then you would return a verdict for defendant Texaco. On the other hand, should you find by a preponderance of the evidence that the warnings were inadequate, defendant Texaco would be negligent, and you would then consider whether such negligence directly caused, wholly or in part, Mason’s leukemia. (Emphasis added.) Instruction No. 23, the trial court’s comment on the evidence, structured the dispute as to when benzene became recognized as a cause of cancerous blood diseases. The instruction reads in part: A further comment of the Court may be helpful in your decision on the existence of the state of scientific knowledge and defendant Texaco’s duty to warn. Actually, on the basis of the evidence of scientific knowledge, two factors or elements of knowledge have been shown to exist. First, there is the dispute over whether and when benzene became recognized as a leukemia source, i.e., a cause of cancerous blood diseases; and secondly, at what level of exposure does the danger exist. (Emphasis added.) The verdict form reads in part as follows: 4. Do you find by a preponderance of the evidence that the actions taken by Texaco were insufficient and inadequate to warn Texaco’s immediate purchaser of the dangerous carcinogenic propensity of benzene? Yes X No ‡ sfc sfc 4: * sfc 5. Do you find by a preponderance of the evidence that Texaco did not take reasonable measures to determine that its immediate purchaser, Mellen, was capable of conveying adequate warning to others in the chain of distribution of benzene? Yes X No (Emphasis added.) Texaco argues that these instructions and the verdict form shifted the focus away from the true liability question of whether Texaco adequately warned of the dangerous, propensities of benzene. According to Texaco, the trial judge instructed the jury to consider whether Texaco had issued a warning of the possible cancerous nature of benzene. Texaco argues this instruction directed the jury to conclude, contrary to evidence, that Texaco’s warning of injury to blood-forming organs was inadequate. Stated differently, Texaco argues that the trial court instructed the jury that any warning not containing the word “cancer” was inadequate as a matter of law. Although Texaco’s argument is alluring academically, a common-sense approach to the record reveals no error. The trial court’s structure of the case in Instruction No. 6, the “stairstep guide,” set out as a threshold issue the question of whether the stated level of scientific knowledge existed concerning a dangerous propensity of benzene to cause cancerous blood disease at the time of Otis Mason’s exposure. If the jury believed that plaintiff’s evidence failed on that issue, they were instructed to cease deliberation and render a verdict for the defendant Texaco. Consequently, in any deliberation on issues past the threshold issue, the jury could rely on its finding that the stated level of scientific knowledge existed regarding the carcinogenic properties of benzene at the time. of Otis Mason s exposure. On this issue we perceive no error. IV. OTHER ISSUES Texaco raised additional issues which this court does not address in detail due to the necessity of a new trial. Three issues pertain to the applicability rather than content of jury instructions: No. 19, governmental standards; No. 32 “love of live” presumption; and No. 14, duty to test. Texaco also raised the scope of permitted expert testimony; the duty to warn of hazards already known to the employer; nondisclosure of the fact that Gerin was a named defendant; and excessive damages. In our view, each of these issues is fact-bound, and extensive discussion of these issues by us would be unproductive. As to the final issue, Instruction No. 23, the trial judge’s comments on the evidence, the law is well settled. In light of the unfortunate necessity of a new trial, we do not decide these additional issues. V. CONCLUSION We conclude the jury was misled as to a bulk seller’s duty to warn and duty to train salesmen. The jury could not have had a clear understanding that Texaco was only required to warn the purchaser Mellen of benzene’s dangerous characteristics and ascertain that Mellen was informed and capable of passing on the warning. The instruction requiring Texaco to train salesmen has no basis in Kansas law. We conclude, therefore, that the jury instructions constituted reversible error. The judgment against Texaco is REVERSED, and the case is REMANDED for a new trial. Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:

sc_respondentstate

27

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. WILL v. MICHIGAN DEPARTMENT OF STATE POLICE et al. CERTIORARI TO THE SUPREME COURT OF MICHIGAN No. 87-1207. Argued December 5, 1988 Decided June 15, 1989 William Burnham argued the cause for petitioner. With him on the briefs were Clark Cunningham, Paul D. Rein-gold, John A. Powell, Helen Hershkoff, and Steven R. Shapiro. George H. Weller, Assistant Attorney General of Michigan, argued the cause for respondents. With him on the brief were Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Thomas L. Casey, Assistant Solicitor General. William A. Bradford, Jr., Conrad K. Harper, Stuart J. Land, Norman Redlich, William L. Robinson, and Antonia Hernandez filed a brief for the Lawyers’ Committee for Civil Rights Under Law et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the State of Tennessee et al. by W. J. Michael Cody, Attorney General of Tennessee, and Michael W. Catalano, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Don Siegelman of Alabama, Robert K. Corbin of Arizona, John Steven Clark of Arkansas, John Van de Kamp of California, Duane Woodard of Colorado, Joseph Lieberman of Connecticut, Charles M. Oberly of Delaware, Robert Buttenvorth of Florida, Warren Pries III of Hawaii, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, Frederic J. Cowan of Kentucky, William J. Guste, Jr., of Louisiana, J. Joseph Curran, Jr., of Maryland, Hubert H. Humphrey III of Minnesota, Michael C. Moore of Mississippi, William L. Webster of Missouri, Mike Gt'eely of Montana, Robert M. Spire of Nebraska, Stephen E. Merrill of New Hampshire, Hal Stratton of New Mexico, Lacy H. Thornburg of North Carolina, Nicholas Spaeth of North Dakota, Anthony J. Celebrezze, Jr., of Ohio, Robert Henry of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, Hector Rivera-Cruz of Puerto Rico, Travis Medlock of South Carolina, Roger A. Tellinghuisen of South Dakota, David L. Wilkinson of Utah, Jeffrey Amestoy of Vermont, Mary Sue Terry of Virginia, Kenneth 0. Eikenberry of Washington, Charlie Brown of West Virginia, Don J. Hanaway of Wisconsin, and Joseph B. Meyer of Wyoming; and for the National Governors’ Association et al. by Benna Ruth Solomon, Kenneth S. Geller, and Andreiv J. Pincus. Justice White delivered the opinion of the Court. This case presents the question whether a State, or an official of the State while acting in his or her official capacity, is a “person” within the meaning of Rev. Stat. § 1979, 42 U. S. C. § 1983. Petitioner Ray Will filed suit in Michigan Circuit Court alleging various violations of the United States and Michigan Constitutions as grounds for a claim under §1983. He alleged that he had been denied a promotion to a data systems analyst position with the Department of State Police for an improper reason, that is, because his brother had been a student activist and the subject of a “red squad” file maintained by respondent. Named as defendants were the Department of State Police and the Director of State Police in his official capacity, also a respondent here. The Circuit Court remanded the case to the Michigan Civil Service Commission for a grievance hearing. While the grievance was pending, petitioner filed suit in the Michigan Court of Claims raising an essentially identical § 1983 claim. The Civil Service Commission ultimately found in petitioner’s favor, ruling that respondents had refused to promote petitioner because of “partisan considerations.” App. 46. On the basis of that finding, the state-court judge, acting in both the Circuit Court and the Court of Claims cases, concluded that petitioner had established a violation of the United States Constitution. The judge held that the Circuit Court action was barred under state law but that the Claims Court action could go forward. The judge also ruled that respondents were persons for purposes of § 1983. The Michigan Court of Appeals vacated the judgment against the Department of State Police, holding that a State is not a person under § 1983, but remanded the case for determination of the possible immunity of the Director of State Police from liability for damages. The Michigan Supreme Court granted discretionary review and affirmed the Court of Appeals in part and reversed in part. Smith v. Department of Pub. Health, 428 Mich. 540, 410 N. W. 2d 749 (1987). The Supreme Court agreed that the State itself is not a person under § 1983, but held that a state official acting in his or her official capacity also is not such a person. The Michigan Supreme Court’s holding that a State is not a person under § 1983 conflicts with a number of state- and federal-court decisions to the contrary. We granted certio-rari to resolve the conflict. 485 U. S. 1005 (1988). Prior to Monell v. New York City Dept. of Social Services, 436 U. S. 668 (1978), the question whether a State is a person within the meaning of § 1983 had been answered by this Court in the negative. In Monroe v. Pape, 365 U. S. 167, 187-191 (1961), the Court had held that a municipality was not a person under § 1983. “[T]hat being the case,” we reasoned, § 1983 “could not have been intended to include States as parties defendant.” Fitzpatrick v. Bitzer, 427 U. S. 446, 452 (1976). But in Monell, the Court overruled Monroe, holding that a municipality was a person under § 1983. 436 U. S., at 690. Since then, various members of the Court have debated whether a State is a person within the meaning of § 1983, see Hutto v. Finney, 437 U. S. 678, 700-704 (1978) (Brennan, J., concurring); id., at 708, n. 6 (Powell, J., concurring in part and dissenting in part), but this Court has never expressly dealt with that issue. Some courts, including the Michigan Supreme Court here, have construed our decision in Quern v. Jordan, 440 U. S. 332 (1979), as holding by implication that a State is not a person under § 1983. See Smith v. Department of Pub. Health, supra, at 581, 410 N. W. 2d, at 767. See also, e. g., State v. Green, 633 P. 2d 1381, 1382 (Alaska 1981); Woodbridge v. Worcester State Hospital, 384 Mass. 38, 44-45, n. 7, 423 N. E. 2d 782, 786, n. 7 (1981); Edgar v. State, 92 Wash. 2d 217, 221, 595 P. 2d 534, 537 (1979), cert. denied, 444 U. S. 1077 (1980). Quern held that §1983 does not override a State’s Eleventh Amendment immunity, a holding that the concurrence suggested was “patently dicta” to the effect that a State is not a person, 440 U. S., at 350 (Brennan, J., concurring in judgment). Petitioner filed the present § 1983 actions in Michigan state court, which places the question whether a State is a person under § 1983 squarely before us since the Eleventh Amendment does not apply in state courts. Maine v. Thiboutot, 448 U. S. 1, 9, n. 7 (1980). For the reasons that follow, we reaffirm today what we had concluded prior to Monell and what some have considered implicit in Quern: that a State is not a person within the meaning of § 1983. We observe initially that if a State is a “person” within the meaning of § 1983, the section is to be read as saying that “every person, including a State, who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects . . . .” That would be a decidedly awkward way of expressing an intent to subject the States to liability. At the very least, reading the statute in this way is not so clearly indicated that it provides reason to depart from the often-expressed understanding that “fin common usage, the term ‘person’ does not include the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it.’” Wilson v. Omaha Tribe, 442 U. S. 653, 667 (1979) (quoting United States v. Cooper Corp., 312 U. S. 600, 604 (1941)). See also United States v. Mine Workers, 330 U. S. 258, 275 (1947). This approach is particularly applicable where it is claimed that Congress has subjected the States to liability to which they had not been subject before. In Wilson v. Omaha Tribe, supra, we followed this rule in construing the phrase “white person” contained in 25 U. S. C. § 194, enacted as Act of June 30, 1834, 4 Stat. 729, as not including the “sovereign States of the Union.” 442 U. S., at 667. This common usage of the term “person” provides a strong indication that “person” as used in § 1983 likewise does not include a State. The language of § 1983 also falls far short of satisfying the ordinary rule of statutory construction that if Congress intends to alter the “usual constitutional balance between the States and the Federal Government,” it must make its intention to do so “unmistakably clear in the language of the statute.” Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985); see also Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 99 (1984). Atascadero was an Eleventh Amendment case, but a similar approach is applied in other contexts. Congress should make its intention “clear and manifest” if it intends to pre-empt the historic powers of the States, Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947), or if it intends to impose a condition on the grant of federal moneys, Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 16 (1981); South Dakota v. Dole, 483 U. S. 203, 207 (1987). “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.” United States v. Bass, 404 U. S. 336, 349 (1971). Our conclusion that a State is not a “person” within the meaning of § 1983 is reinforced by Congress’ purpose in enacting the statute. Congress enacted § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the precursor .to § 1983, shortly after the end of the Civil War “in response to the widespread deprivations of civil rights in the Southern States and the inability or unwillingness of authorities in those States to protect those rights or punish wrongdoers.” Felder v. Casey, 487 U. S. 131, 147 (1988). Although Congress did not establish federal courts as the exclusive forum to remedy these deprivations, ibid., it is plain that “Congress assigned to the federal courts a paramount role” in this endeavor, Patsy v. Board of Regents of Florida, 457 U. S. 496, 503 (1982). Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity, Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S. 468, 472-473 (1987) (plurality opinion), or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity. That Congress, in passing § 1983, had no intention to disturb the States’ Eleventh Amendment immunity and so to alter the federal-state balance in that respect was made clear in our decision in Quern. Given that a principal purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims, and that Congress did not provide such a federal forum for civil rights claims against States, we cannot accept petitioner’s argument that Congress intended nevertheless to create a cause of action against States to be brought in state courts, which are precisely the courts Congress sought to allow civil rights claimants to avoid through § 1983. This does not mean, as petitioner suggests, that we think that the scope of the Eleventh Amendment and the scope of § 1983 are not separate issues. Certainly they are. But in deciphering congressional intent as to the scope of § 1983, the scope of the Eleventh Amendment is a consideration, and we decline to adopt a reading of § 1983 that disregards it. Our conclusion is further supported by our holdings that in enacting §1983, Congress did not intend to override well-established immunities or defenses under the common law. “One important assumption underlying the Court’s decisions in this area is that members of the 42d Congress were familiar with common-law principles, including defenses previously recognized in ordinary tort litigation, and that they likely intended these common-law principles to obtain, absent specific provisions to the contrary.” Newport v. Fact Concerts, Inc., 453 U. S. 247, 258 (1981). Stump v. Sparkman, 435 U. S. 349, 356 (1978); Scheuer v. Rhodes, 416 U. S. 232, 247 (1974); Pierson v. Ray, 386 U. S. 547, 554 (1967); and Tenney v. Brandhove, 341 U. S. 367, 376 (1951), are also to this effect. The doctrine of sovereign immunity was a familiar doctrine at common law. “The principle is elementary that a State cannot be sued in its own courts without its consent.” Railroad Co. v. Tennessee, 101 U. S. 337, 339 (1880). It is an “established principle of jurisprudence” that the sovereign cannot be sued in its own courts without its consent. Beers v. Arkansas, 20 How. 527, 529 (1858). We cannot conclude that § 1983 was intended to disregard the well-established immunity of a State from being sued without its consent. The legislative history of § 1983 does not suggest a different conclusion. Petitioner contends that the congressional debates on § 1 of the 1871 Act indicate that § 1983 was intended to extend to the full reach of the Fourteenth Amendment and thereby to provide a remedy “ ‘against all forms of official violation of federally protected rights.”’ Brief for Petitioner 16 (quoting Monell, 436 U. S., at 700-701). He refers us to various parts of the vigorous debates accompanying the passage of § 1983 and revealing that it was the failure of the States to take appropriate action that was undoubtedly the motivating force behind § 1983. The inference must be drawn, it is urged, that Congress must have intended to subject the States themselves to liability. But the intent of Congress to provide a remedy for unconstitutional state action does not without more include the sovereign States among those persons against whom § 1983 actions would lie. Construing § 1983 as a remedy for “official violation of federally protected rights” does no more than confirm that the section is directed against state action — action “under color of” state law. It does not suggest that the State itself was a person that Congress intended to be subject to liability. Although there were sharp and heated debates, the discussion of § 1 of the bill, which contained the present § 1983, was not extended. And although in other respects the impact on state sovereignty was much talked about, no one suggested that § 1 would subject the States themselves to a damages suit under federal law. Quern, 440 U. S., at 343. There was complaint that § 1 would subject state officers to damages liability, but no suggestion that it would also expose the States themselves. Cong. Globe, 42d Cong., 1st Sess., 366, 385 (1871). We find nothing substantial in the legislative history that leads us to believe that Congress intended that the word “person” in § 1983 included the States of the Union. And surely nothing in the debates rises to the clearly expressed legislative intent necessary to permit that construction. Likewise, the Act of Feb. 25, 1871, §2, 16 Stat. 431 (the “Dictionary Act”), on which we relied in Monell, supra, at 688-689, does not counsel a contrary conclusion here. As we noted in Quern, that Act, while adopted prior to § 1 of the Civil Rights Act of 1871, was adopted after §2 of the Civil Rights Act of 1866, from which § 1 of the 1871 Act was derived. 440 U. S., at 341, n. 11. Moreover, we disagree with Justice Brennan that at the time the Dictionary Act was passed “the phrase ‘bodies politic and corporate’ was understood to include the States.” Post, at 78. Rather, an examination of authorities of the era suggests that the phrase was used to mean corporations, both private and public (municipal), and not to include the States. In our view, the Dictionary Act, like § 1983 itself and its legislative history, fails to evidence a clear congressional intent that States be held liable. Finally, Monell itself is not to the contrary. True, prior to Monell the Court had reasoned that -if municipalities were not persons then surely States also were not. Fitzpatrick v. Bitzer, 427 U. S., at 452. And Monell overruled Monroe, undercutting that logic. But it does not follow that if municipalities are persons then so are States. States are protected by the Eleventh Amendment while municipalities are not, Monell, 436 U. S., at 690, n. 54, and we consequently limited our holding in Monell “to local government units which are not considered part of the State for Eleventh Amendment purposes,” ibid. Conversely, our holding here does not cast any doubt on Monell, and applies only to States or governmental entities that are considered “arms of the State” for Eleventh Amendment purposes. See, e. g., Mt. Healthy Bd. of Ed. v. Doyle, 429 U. S. 274, 280 (1977). Petitioner asserts, alternatively, that state officials should be considered “persons” under § 1983 even though acting in their official capacities. In this case, petitioner named as defendant not only the Michigan Department of State Police but also the Director of State Police in his official capacity. Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. Brandon v. Holt, 469 U. S. 464, 471 (1985). As such, it is no different from a suit against the State itself. See, e. g., Kentucky v. Graham, 473 U. S. 159, 165-166 (1985); Monell, supra, at 690, n. 55. We see no reason to adopt a different rule in the present context, particularly when such a rule would allow petitioner to circumvent congressional intent by a mere pleading device. We hold that neither a State nor its officials acting in their official capacities are “persons” under § 1983. The judgment of the Michigan Supreme Court is affirmed. It is so ordered. Section 1983 provides as follows: “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. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.” 42 U. S. C. § 1983. Also named as defendants were the Michigan Department of Civil Service and the State Personnel Director, but those parties were subsequently dismissed by the state courts. The courts in the following cases have taken the position that a State is a person under § 1983. See Della Grotta v. Rhode Island, 781 F. 2d 343, 349 (CA1 1986); Gay Student Services v. Texas A&M University, 612 F. 2d 160, 163-164 (CA5), cert. denied, 449 U. S. 1034 (1980); Uberoi v. University of Colorado, 713 P. 2d 894, 900-901 (Colo. 1986); Stanton v. Godfrey, 415 N. E. 2d 103, 107 (Ind. App. 1981); Gumbhir v. Kansas State Bd. of Pharmacy, 231 Kan. 507, 512-513, 646 P. 2d 1078, 1084 (1982), cert. denied, 459 U. S. 1103 (1983); Rahmah Navajo School Bd., Inc. v. Bureau of Revenue, 104 N. M. 302, 310, 720 P. 2d 1243, 1251 (App.), cert. denied, 479 U. S. 940 (1986). A larger number of courts have agreed with the Michigan Supreme Court that a State is not a person under § 1983. See Ruiz v. Estelle, 679 F. 2d 1115, 1137 (CA5), modified on other grounds, 688 F. 2d 266 (1982), cert. denied, 460 U. S. 1042 (1983); Toledo, P. & W. R. Co. v. Ilinois, 744 F. 2d 1296, 1298-1299, and n. 1 (CA7 1984), cert. denied, 470 U. S. 1051 (1985); Harris v. Missouri Court of Appeals, 787 F. 2d 427, 429 (CA8), cert. denied, 479 U. S. 851 (1986); Aubuchon v. Missouri, 631 F. 2d 581, 582 (CA8 1980) (per curiam), cert. denied, 450 U. S. 915 (1981); State v. Green, 633 P. 2d 1381, 1382 (Alaska 1981); St. Mary’s Hospital and Health Center v. State, 150 Ariz. 8, 11, 721 P. 2d 666, 669 (App. 1986); Mezey v. State, 161 Cal. App. 3d 1060, 1065, 208 Cal. Rptr. 40, 43 (1984); Hill v. Florida Dept. of Corrections, 513 So. 2d 129, 132 (Fla. 1987), cert. denied, 484 U. S. 1064 (1988); Merritt ex rel. Merritt v. State, 108 Idaho 20, 26, 696 P. 2d 871, 877 (1985); Woodbridge v. Worcester State Hospital, 384 Mass. 38, 44-45, n. 7, 423 N. E. 2d 782, 786, n. 7 (1981); Bird v. State Dept. of Public Safety, 375 N. W. 2d 36, 43 (Minn. App. 1985); Shaw v. St. Louis, 664 S. W. 2d 572, 576 (Mo. App. 1983), cert. denied, 469 U. S. 849 (1984); Fuchilla v. Layman, 109 N. J. 319, 323-324, 537 A. 2d 652, 654, cert. denied, 488 U. S. 826 (1988); Burkey v. Southern Ohio Correctional Facility, 38 Ohio App. 3d 170, 170-171, 528 N. E. 2d 607, 608 (1988); Gay v. State, 730 S. W. 2d 154, 157-158 (Tex. App. 1987); Edgar v. State, 92 Wash. 2d 217, 221, 595 P. 2d 534, 537 (1979), cert. denied, 444 U. S. 1077 (1980); Boldt v. State, 101 Wis. 2d 566, 584, 305 N. W. 2d 133, 143-144, cert. denied, 454 U. S. 973 (1981). Petitioner cites a number of cases from this Court that he asserts have “assumed” that a State is a person. Those cases include ones in which a State has been sued by name under § 1983, see, e. g., Maine v. Thiboutot, 448 U. S. 1 (1980); Martinez v. California, 444 U. S. 277 (1980), various eases awarding attorney’s fees against a State or a state agency, Maine v. Thiboutot, supra; Hutto v. Finney, 437 U. S. 678 (1978), and various cases discussing the waiver of Eleventh Amendment immunity by States, see, e. g., Kentucky v. Graham, 473 U. S. 159, 167, n. 14 (1985); Edelman v. Jordan, 415 U. S. 651 (1974). But the Court did not address the meaning of person in any of those cases, and in none of the eases was resolution of that issue necessary to the decision. Petitioner’s argument evidently rests on the proposition that whether a State is a person under § 1983 is “jurisdictional” and “thus could have been raised by the Court on its own motion” in those cases. Brief for Petitioner 25, n. 15. Even assuming that petitioner’s premise and characterization of the cases is correct, “this Court has never considered itself bound [by prior sub silentio holdings] when a subsequent case finally brings the jurisdictional issue before us.” Hagans v. Lavine, 415 U. S. 528, 535, n. 5 (1974). Jefferson County Pharmaceutical Assn. v. Abbott Laboratories, 460 U. S. 160 (1983), on which petitioner relies, is fully reconcilable with our holding in the present case. In Jefferson County, the Court held that States were persons that could be sued under the Robinson-Patman Act, 15 U. S. C. §§ 13(a) and 13(f). 460 U. S., at 155-157. But the plaintiff there was seeking only injunctive relief and not damages against the State defendant, the Board of Trustees of the University of Alabama; the District Court had dismissed the plaintiff’s damages claim as barred by the Eleventh Amendment. Id., at 153, n. 5. Had the present § 1983 action been brought in federal court, a similar disposition would have resulted. Of course, the Court would never be faced with a case such as Jefferson County that had been brought in a state court because the federal courts have exclusive jurisdiction over claims under the federal antitrust laws. 15 U. S. C. §§ 15 and 26. Moreover, the Court in Jefferson County was careful to limit its holding to “state purchases for the purpose of competing against private enterprise ... in the retail market.” 460 U. S., at 154. It assumed without deciding “that Congress did not intend the Act to apply to state purchases for consumption in traditional governmental functions,” ibid., which presents a more difficult question because it may well “affec[t] the federal balance.” See United States v. Bass, 404 U. S. 336, 349 (1971). . Petitioner argues that Congress would not have considered the Eleventh Amendment in enacting § 1983 because in 1871 this Court had not yet held that the Eleventh Amendment barred federal-question cases against States in federal court. This argument is no more than an attempt to have this Court reconsider Quern v. Jordan, 440 U. S. 332 (1979), which we decline to do. Our recognition in Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), that a municipality is a person under § 1983, is fully consistent with this reasoning. In Owen v. City of Independence, 445 U. S. 622 (1980), we noted that by the time of the enactment of § 1983, municipalities no longer retained the sovereign immunity they had previously shared with the States. “[B]y the end of the 19th century, courts regularly held that in imposing a specific duty on the municipality either in its charter or by statute, the State had impliedly withdrawn the city’s immunity from liability for the nonperformance or misperformance of its obligation,” id., at 646, and, as a result, municipalities had been held liable for damages “in a multitude of cases” involving previously immune activities, id., at 646-647. . The Dictionary Act provided that “in all acts hereafter passed . . . the word ‘person’ may extend and be applied to bodies politic and corporate . . . unless the context shows that such words were intended to be used in a more limited sense.” Act of Feb. 25, 1871, §2, 16 Stat. 431. See United States v. Fox, 94 U. S. 315, 321 (1877); 1 B. Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 155 (1879) (“most exact expression” for “public corporation”); W. Anderson, A Dictionary of Law 127 (1893) (“most exact expression for a public corporation or corporation having powers of government”); Black’s Law Dictionary 143 (1891) (“body politic” is “term applied to a corporation, which is usually designated as a ‘body corporate and politic’ ” and “is particularly appropriate to a public corporation invested with powers and duties of government”); 1 A. Burrill, A Law Dictionary and Glossary 212 (2d ed. 1871) (“body politic” is “term applied to a corporation, which is usually designated as a body corporate and politic”). A public corporation, in ordinary usage, was another term for a municipal corporation, and included towns, cities, and counties, but not States. See 2 Abbott, supra, at 347; Anderson, supra, at 264-265; Black, supra, at 278; 2 Burrill, supra, at 352. Justice BRENNAN appears to confuse this precise definition of the phrase with its use “in a rather loose way,” see Black, supra, at 143, to refer to the state (as opposed to a State). This confusion is revealed most clearly in Justice Brennan’s reliance on the 1979 edition of Black’s Law Dictionary, which defines “body politic or corporate” as “[a] social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.” Post, at 79. To the extent Justice Brennan’s citation of other authorities does not suffer from the same confusion, those authorities at best suggest that the phrase is ambiguous, which still renders the Dictionary Act incapable of supplying the necessary clear intent. Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because “official-capacity actions for prospective relief are not treated as actions against the State.” Kentucky v. Graham, 473 U. S., at 167, n. 14; Ex parte Young, 209 U. S. 123, 159-160 (1908). This distinction is “commonplace in sovereign immunity doctrine,” L. Tribe, American Constitutional Law § 3-27, p. 190, n. 3 (2d ed. 1988), and would not have been foreign to the 19th-century Congress that enacted § 1983, see, e. g., In re Ayers, 123 U. S. 443, 506-507 (1887); United States v. Lee, 106 U. S. 196, 219-222 (1882); Board of Liquidation v. McComb, 92 U. S. 531, 541 (1876); Osborn v. Bank of United States, 9 Wheat. 738 (1824). City of Kenosha v. Bruno, 412 U. S. 507, 513 (1973), on which Justice Stevens relies, see post, at 93, n. 8, is not to the contrary. That case involved municipal liability under § 1983, and the fact that nothing in § 1983 suggests its “bifurcated application to municipal corporations depending on the nature of the relief sought against them,” 412 U. S., at 513, is not surprising, since by the time of the enactment of § 1983 municipalities were no longer protected by sovereign immunity. Supra, at 67-68, n. 7. Question: What state is associated with the respondent? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

songer_respond1_2_2

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TYPOGRAPHICAL UNION NO. 18; International Typographical Union and its affiliate, Detroit Mailers Union Local No. 40; International Typographical Union and its affiliates, Detroit Mailers Union Local No. 40 and Detroit Typographical Union No. 18, Respondents. No. 14246. United States Court of Appeals Sixth Circuit. June 4, 1960. Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Thomas A. Roumell, 7th Regional Director, N.L.R.B., Detroit, Mich., for petitioner. Zwerdling & Zwerdling, Detroit, Mich., Van Arkel & Kaiser, Washington, D. C., for respondent. PER CURIAM. This cause came on to be heard upon the petition of the National Labor Relations Board for the enforcement of a certain order issued by it against Typographical Union No. 18; International Typographical Union and its affiliate, Detroit Mailers Union Local No. 40; International Typographical Union and its affiliates, Detroit Mailers Union Local No. 40 and Detroit Typographical Union No. 18, their officers, agents, successors and assigns on April 4, 1960, in a proceeding before the said Board numbered 7-CC-106, 7-CC-112, 7-CC-113, 7-CC-114 and 7-CB-623; upon the transcript of the record in said proceeding, certified and filed in this Court, and upon a stipulation providing for the entry of a consent decree of this Court enforcing the order. On consideration whereof, it is ordered, adjudged and decreed by the United States Court of Appeals for the Sixth Circuit, that the said order of the National Labor Relations Board be, and the same is hereby enforced; and that Typographical Union No. 18; International Typographical Union and its affiliate, Detroit Mailers Union Local No. 40; International Typographical Union and its affiliates, Detroit Mailers Union Local No. 40 and Detroit Typographical Union No. 18, their officers, agents, successors and assigns abide by and perform the directions of the Board in said order contained. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant? A. business, trade, professional, or union (BTPU) B. other 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. William J. MORGAN and Antonia B. Morgan, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 9035. United States Court of Appeals Fourth Circuit. Argued Nov. 6, 1963. Decided Nov. 11, 1963. William J. Morgan, pro se. Alan D. Pekelner, Atty., Dept, of Justice (Louis F. Oberdorfer, Asst. Atty. Gen., and Joseph M. Howard, Atty., Dept, of Justice, on brief), for respondent. Before HAYNSWORTH and BRYAN, Circuit Judges, and BUTZNER, District Judge. PER CURIAM. Careful consideration of this petition for review of a decision of the Tax Court of the United States brings us to the conviction that the Tax Court correctly found that the contested tax deficiencies had been properly assessed by the Commissioner. The decision of the Tax Court is affirmed for the reasons stated in its memorandum opinion filed November 28, 1962. Affirmed. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_pretrial

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's rulings on pre-trial procedure favor the appellant?" This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". In re CONSOLIDATED MOTOR PARTS, Inc., et al. No. 443. Circuit Court of Appeals, Second Circuit. Sept. 16, 1936. Louis I. Rothenberg, of Brooklyn, N. Y. (Samuel J. Sussman, of Brooklyn, N. Y., of counsel), for appellant. I. Bregoff, of New York City (David J. Orgain, of New York City, of counsel), for debtor-appellee. Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. This is an appeal from an order denying compensation to an attorney who represented certain creditors of the debt- or to the amount of approximately $5,-000 in a proceeding begun by the latter under section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. In April, 1935, the debtor had entered into an agreement with its merchandise creditors whereby those creditors (hereinafter designated as “old creditors”) agreed to waive payment of their claims in favor of merchandise creditors who thereafter extended credit (designated as “new creditors”). On May 23, 1935, the debtor filed a petition for reorganization, and thereafter orders were made allowing it to remain in possession and operation of its business. The debtor prepared, and on August 14, 1935, filed a plan of reorganization under which the “old creditors” were to receive 10 per cent, in cash, and new merchandise creditors, holding claims arising between April, 1935, and May 23, 1935, and claims arising out of the business conducted under the section 77B proceeding and non-merchandise creditors were to receive 10 per cent, in cash and 90 per cent, in bonds secured by a trust mortgage upon the debtor’s machinery. The appellant, who represented “old creditors,” objected to this plan, principally on the ground that it unfairly discriminated in favor of the “new creditors.” The plan was rejected, though approximately 75 per cent, of all classes of creditors had consented to its adoption. Thereafter a new plan was filed by the debt- or which provided for equal payments of 10 per cent, in cash and 35 per cent, in corporate bonds to all creditors. At the same time Davis Laboratories, Inc., one of the new creditors, proposed an alternative plan under which all creditors were to receive 10 per cent, in cash and 35 per cent, in bonds, but the old creditors were to give up to the new merchandise creditors so much of their bonds as might be necessary to make whole the new merchandise creditors. The appellant filed specifications of objections to the alternative plan as discriminatory, but stated his concurrence in the new plan proposed by the debtor which was thereupon approved by the court. At the time of the filing of the section 77B petition, the claims of the “old creditors” amounted to $63,054.27, those of the “new creditors” to $23,761.76, and those of the non-merchandise creditors to $19,247.70. Assuming that the 35 per cent, payable in bonds be realized, the “old creditors” will receive about $22,000 more under the amended plan of the debtor than under the one originally proposed. The appellant sought compensation for contributing to this result and for substantially promoting the acceptance of a plan beneficial to the “old creditors.” His petition was denied by the court below on the ground that his efforts did not benefit the estate as a whole. The application for compensation is governed by subsection (c) of section 77B of the Bankruptcy Act (11 U.S.C.A. § 207 (c), which so far as pertinent is as follows: “(c) Upon approving the petition or answer or at any time thereafter the judge, in addition to the jurisdiction and powers elsewhere in this section conferred upon him, * * * (9) may allow a reasonable compensation for the services rendered and reimbursement for the actual and necessary expenses incurred in connection with the proceeding and the plan by officers, parties in interest, depositaries, reorganization managers and committees or other representatives of creditors or stockholders, and the attorneys or agents of any of the foregoing and of the debtor, but appeals from orders fixing such allowances may be taken to the Circuit Court of Appeals independently of other appeals in the proceeding and shall be heard summarily.” The appellant was an attorney for creditors and as such may be allowed compensation for “services rendered * * * in connection with the proceeding and plan.” If he had been counsel for a. creditors’ committee and had rendered substantial services in preparation of a plan of reorganization, he would have come within a familiar category. That he did not represent a large proportion of the creditors and that he assisted in bringing, about the plan finally adopted by objecting to the discriminatory features of the original and alternative plans did not, in our opinion, deprive him of a right to compensation. He rendered no less important services “in connection with the * * * plan” adopted though they were performed in court in assailing the plans first proposed, rather than in working with a committee upon a plan prior to its presentation in court. In the present case he seems to have been the very person who brought about the non-discriminatory plan which finally prevailed. In doing this, we think that he rendered substantial services “in connection with the proceeding and the plan” within the meaning of section 77B (c) (9). If he had merely done work in opposing a plan that substantially prevailed, he would hardly have been entitled to compensation from the estate. The services by appellant in connection with a plan of reorganization which will justify an allowance from the estate under section 77B must have contributed in some substantial way to the plan finally adopted, and in nearly all cases the decision of the District Court that they have not been sufficiently important or direct to deserve an allowance must be regarded as final. But here^ the appellant contributed to the final adoption of the plan, and the justice of the plan does not seem to be questioned. Under such circumstances, and in spite of the broad discretion lodged in the District Court, we see no reason for depriving him of all compensation for his contribution to a plan that will enable the debtor to become rehabilitated and resume business. Section 77B (c) (9), 11 U.S.C.A. § 207 (c) (9), appears to empower the court to award compensation to those persons who substantially contribute to a plan of reorganization. The creditors as a whole are interested in having some workable plan adopted, and the mere fact that work which has substantially aided the plan finally approved has been performed by an attorney for creditors or stockholders owning interests adverse to some of the other parties, does not necessarily deprive him of compensation. The question is whether the work in connection with the plan has been performed in good faith and has substantially contributed to the result finally achieved. It might be suggested that the Circuit Court of Appeals of the Seventh Circuit, in Re A. Herz, 81 F.(2d) 511, denied compensation to counsel for two creditors’ committees under circumstances closely resembling the present; but we do not read the opinion in that case as so holding. It does not appear that those committees or their counsel substantially assisted in the formulation of the plan that was finally adopted. Indeed, the court stated that the “Debtor’s Plan ultimately prevailed and was approved by the court.” 81 F.(2d) 511, at page 512. Briggle, J., who wrote the opinion, said at page 513 of 81 F.(2d): “It is not every service that may in some remote degree contribute to the general welfare of the proceeding that the court is bound to compensate under this section of the statute. If it were, the very purpose of the statute would in many cases be frustrated. Every case must stand upon its own bottom and is subject to the exercise of a sound judicial discretion by the trial court, subject to review in the event of abuse.” Our decisions in Nolte v. Hudson Nav. Co., 47 F.(2d) 166, and In re New York Investors, 79 F.(2d) 182, involved claims to compensation from an insolvent estate on the part of attorneys for creditors or stockholders who had appeared in an equity receivership. In each case compensation payable out of the estate was denied under the settled equity practice. But section 77B (c) (9) allows somewhat broader discretion in awarding compensation than was assumed by courts of equity especially in respect to matters affecting the plan of reorganization. We think that whether an award should be made under section 77B depends on the amount of assistance that has been rendered by the persons mentioned in subdivision (c) (9) in working out the plan that has finally been adopted. It must be remembered that the interest which the appellant represented was small and that the benefit which accrued to the other “old creditors” did not come to them at their request. Accordingly his compensation, though payable out of the estate because his services aided in promoting the plan finally adopted, must bear some fair proportion to the amount of the claims he has represented. In view of all the circumstances, we think $500 a fair allowance for the appellant’s services. We fix the award, instead of referring the matter to the District Court, in order to expedite the administration of the estate. The order is reversed, with costs to the appellant of this appeal, and the proceeding is remanded, with directions to allow him $500 as his. compensation, payable out of the debtor’s estate. Question: Did the court's rulings on pre-trial procedure favor the appellant? This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_usc1sect

717

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 15. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". RATON GAS TRANSMISSION COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. No. 87-1021. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 14, 1987. Decided July 29, 1988. Eugene Threadgill, Washington, D.C., for petitioner. Joshua Z. Rokach, F.E.R.C., with whom Catherine C. Cook, General Counsel, and Jerome M. Feit, Sol., F.E.R.C., Washington, D.C., were on the brief, for respondent. Hanford O’Hara, F.E.R.C., Washington, D.C., also entered an appearance for respondent. Before ROBINSON, GINSBURG and SILBERMAN, Circuit Judges. Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III. SPOTTSWOOD W. ROBINSON, III, Circuit Judge: This petition for review arises from an unsuccessful attempt by Raton Gas Transmission Company (Raton) to obtain relief from a $4,000 fee charged by the Federal Energy Regulatory Commission. The fee was exacted as recompense to the Commission for processing a filing in which Raton sought a reduction in the rates at which it sells natural gas. The principal question before us is whether Raton’s effort is an untimely attack upon a regulation adopted by the Commission more than two years before the present controversy emerged. We find that part of Raton’s challenge is jurisdictionally timely and on the merits is viable. We therefore remand this ease to the Commission for further consideration. I In 1986, Raton sought the Commission’s leave to pass on to its customers a decrease in the cost of its gas. Its filing, termed a “Purchased Gas Adjustment” (PGA), was submitted conformably with Commission regulations promulgated under the Natural Gas Act. These regulations require gas companies to make PGA filings every six months to reflect changes in their gas costs. Raton owns only one pipeline, and its filing was only six pages long. The Independent Office Appropriations Act authorizes the Commission to charge a fee for every service and benefit it provides to those it regulates. Accordingly, in Order No. 361 in 1984, the Commission set fees therefor, including processing of PGA filings. In compliance with the fee schedule, Raton enclosed with its filing a check for $2,300, which had been the standard charge for processing PGA filings. To its dismay, however, Raton was later advised by the Commission that shortly before the filing, the fee for this service had increased to $4,000. Raton paid the remaining amount under protest. Raton later moved for relief. Raton claimed that the Commission had no authority to charge a fee for a PGA filing seeking a reduction, as opposed to an increase, in rates. In the alternative, Raton asked the Commission to establish a fee reasonably related to the actual cost of the staff review of Raton’s filing. The Commission rebuffed Raton on both counts, and subsequently denied Raton’s request for rehearing. This petition for review followed. II Raton argues that the higher fees currently charged do not accurately reflect the cost to the Commission of processing Ra-ton’s PGA filing. Raton also contends that PGA filings envisioning reductions in rates do not confer any “special benefit” on Raton as required by the Independent Office Appropriations Act. The Commission replies that the issues raised by Raton were resolved more than three years ago by Order No. 361 and thus are beyond the pale of judicial review. The Commission also contends that most of these issues have been squarely addressed and decided in its favor by the Tenth Circuit. As the Commission points out, Order No. 361 was promulgated on February 9, 1984, but Raton’s motion for relief was not filed until March 20, 1986, long past the 60-day period allowed for judicial review of Commission orders promulgated under the Natural Gas Act. Raton counters with the argument that circuit precedent preserves this court’s jurisdiction to entertain a late attack on an agency rule under circumstances of the sort presented here. • We resolve this quarrel by examining the scenarios in which a late challenge to an agency order may be deemed excusable. To begin with, an attack upon the validity of an agency regulation after expiration of the statutory review period is rarely to be permitted. Strict enforcement of the time limit is necessary to preserve finality in agency decisionmaking and to protect justifiable reliance on agency rules. Nevertheless, we have long recognized a limited number of exceptional situations in which an objection to an agency regulation is considered timely even after the statutory review period has ended. The law of this circuit was recently summarized in our opinion in NLRB Union v. FLRA. There we noted a distinction between challenges that originate in a petition for rulemaking and those that do not. We stated that agency denials of petitions for rulemaking are generally subject to judicial review to a degree commensurate with the nature of the substantive claim. Even absent a petition for rulemaking, a litigant may still, under certain circumstances, question an agency regulation after the expiration of the statutory period for direct review. This we have allowed when the agency’s action did not “reasonably put[] aggrieved parties on notice of the rule’s content,” or clearly remained unripe for judicial review throughout the statutory review period. On several occasions we have suggested that there may be review of agency action outside the statutory review period in extreme cases involving gross violations of statutory or constitutional mandates, or denial of an adequate opportunity to test the regulation in court. Our observations in Investment Company Institute v. Board of Governors, aptly sum up our approach in these cases: Where an aggrieved party has a valid excuse for failing to challenge the initial order promulgating a regulation, the regulation may be opened to attack upon review of a Board adjudication which applies the regulation_ However, absent a convincing justification, the litigant should be bound by the regulation. A contrary rule would thwart the principle of finality underlying the [statutory review period]. Questions of a similar nature arise in cases presenting what at first blush appears to be a timely request for review of recent agency action, but the agency argues that the requester is actually attempting to litigate the validity of an older regulation that is otherwise unreviewable. An agency may, for instance, contend that targeted action merely implements policy choices embodied in an older regulation, for which the statutory period for review has passed. The court’s task then is to determine whether there can be meaningful review of the later action without upsetting the basis of the earlier action or instead, whether the later action is inextricably intertwined with the earlier. In the latter event, the caselaw of this circuit makes clear that review may be had only if the earlier action is itself reviewable by reason of the criteria we previously have considered. This principle is exemplified by our decision in MCI Telecommunications Corp. v. FCC. In that case, MCI challenged a provision in the Federal Communications Commission’s Sixth Report and Order, requiring certain common carriers of interstate telephone messages to refrain from filing tariffs. MCI’s petition was filed one day after the release of the Sixth Report, but FCC argued that nonetheless it was untimely because it was actually directed at FCC’s earlier Fourth Report, which had merely permitted the carriers to forego the filing of tariffs. Because the policy favoring forbearance predated issuance of the Sixth Report by a year, FCC asserted, MCI’s challenge to the latter was untimely. We found, however, that FCC in the Sixth Report had reconstructed its forbearance policy fundamentally by changing it from a permissive to a mandatory course of action. Since the Fourth Report did not anticipate the Sixth Report’s step in this crucial respect, any necessary connection between the two, we said, was “ ‘entirely unspoken (or impenetrably obscure).’ ” In summary, the law of our circuit distinguishes between challenges presented in a petition for rulemaking and those that are not. Attacks launched outside a petition for rulemaking must meet time requirements unless they fall within one of a few well-defined categories. And when an otherwise timely protest is resisted by an agency as an effort to reopen a decision for which the time for judicial review has expired, we must ascertain whether the venture necessarily will implicate the older rule, or whether it is confined to the newer agency action. Ill In the case before us, we note at the outset that Raton’s request for relief from the $4,000 fee did not take the form of a petition for rulemaking. It made its appearance in the course of a PGA filing, and followed Raton’s earlier letter of protest accompanying its payment of the higher fee. Raton’s motion therefore was an attack upon a rule — the one raising the fee for processing PGA filings — stemming from a particular application. The motion for relief contained three distinct elements. There was an argument that PGA filings seeking rate decreases instead of increases confer no special benefit, and no fee at all should be charged for them. There was the further argument that the $4,000 fee is not justified by the cost to the Commission of processing Ra-ton’s six-page filing, and that, indeed, a uniform fee imposes a hardship on small pipelines. Lastly, there was a request that the Commission allow Raton to pass the amount of any fee through to its customers. We examine first Raton’s claim that PGA filings for rate reductions deserve no processing fee and conclude that it is untimely. On its face, Order No. 361 does not limit fees for PGA filings to rate increases; rather, the pertinent language is broad enough to encompass all PGA filings. Moreover, the regulations call for PGA filings reporting changes in the price of gas, which naturally would include any decrease as well as any increase in that price. No claim has been made, nor seemingly could be made, that Order No. 361 was unripe for review at the time of its promulgation. Raton may not assert the invalidity of the Commission’s rule on grounds fully known to it at the time of issuance. Even were it proper to consider this challenge on the merits, we would still reject Raton’s position. The regulation demanding payment of fees for special benefits, as we have said, is written broadly enough to intercept PGA filings seeking rate reductions as well as rate elevations, and we have not been referred to any administrative practice inconsistent with the text of the rule. Once it chose the PGA procedure over a Section 4 proceeding, Ra-ton became responsible for PGA filings for both decreases and increases. We have held that the term “special benefits” justifies the levying of a fee when an agency assists a regulated entity in complying with its statutory obligations. The Commission’s processing of Raton’s filing conferred enough of a special benefit to support a fee requirement under the governing statute. Raton further contends that the new fee of $4,000 is invalid on the ground that it does not reflect the real expense of processing Raton’s PGA filing, and that it visits a severe hardship on a small pipeline. At the administrative level, Raton asked that in the event that some fee was to be charged, the Commission revise its fee structure to reflect the true cost of processing filings. This complaint, unlike the more general challenge to the Commission’s power to impose any fee, does not implicate Order No. 361 directly, but focuses instead on the increase announced only a month prior to Raton’s motion for relief. The Commission maintains that this claim nonetheless is foreclosed by the order, and is as well shattered by the Tenth Circuit’s decision in Phillips Petroleum Co. which upheld various parts of the order. The Commission contends that since the original rule plainly set forth the methodology for calculating the fee for filings, and also made clear that the fee was to be uniform for all entities, large and small, except in special circumstances covered by individual waivers, consideration of Raton’s protest would necessarily involve a forbidden substantive review of Order No. 361. We find the Commission’s argument unacceptable for two reasons. First, it is uncertain whether the original justifications for the fee remain valid in light of the size of the increase involved. Put another way, the new fees may no longer be adequately cost-justified, as required by the Act. The Commission did not set forth a new calculation of costs in its order announcing the higher fees; it merely stated that the fees had been recalculated by use of the Commission's new time distribution reporting system. Ordinarily that explanation might suffice, but we.think the immensity of the increase, which almost doubled the fees, concomitantly with the resulting financial burden on small pipelines, require somewhat more. We do not know whether the sudden jump in fees was prompted by a rise in the Commission’s labor costs, or in the average size or complexity of PGA filings, or because more or different types of agency operations entered into the calculation of time spent in processing such filings, or, on the other hand, for some other reason, or for no reason at all. The second reason for our disagreement with the Commission is that the larger fees shown a set of fairness concerns not previously present. The Commission charges a uniform fee regardless of whether the filing is six or two thousand pages long, and whether the task of processing is simple or complicated. Raton states, without dispute by the Commission, that the higher fees will consume a significant portion of its net revenues each year. If the fees were commensurate with the time and labor required for the Commission to process filings of different length or complexity, Ra-ton submits, it could achieve substantial savings. The need for such selectivity may not have been as great when the fees, and thus their financial impact, were much lower. After the increase, however, a uniform fee may no longer comport with the statutory call for fairness. Similarly, the Commission’s provision in Order No. 361 of a case-by-case fee waiver procedure for applicants suffering from economic hardship cannot fully allay the fairness concerns raised by the new fee. The Commission itself indicated that the fee waiver procedure was intended only for isolated instances of utilities in “a state of financial distress or emergency.” The waiver procedure is therefore quite ill-suited to handle the problem presented by the new fee — small companies whose net revenues may be significantly affected by the size of the fees but are not facing imminent financial ruin. When the Commission first erected its fee structure it realized that future reduction of fees for some groups of filings might become appropriate. A specific example adverted to was “where there is a reduction in the amount of time required to process a filing.” When Order No. 361 was promulgated, the Commission may properly have determined that the difficulty inherent in setting different fees for PGA filings at varying levels of complexity outweighed any easing of the burden on utilities that would benefit from graduated fees. With the large hikes in fees recently occurring, however, the balance of fairness and efficiency may well have tipped in the other direction, to such an extent that variations in fees assessed against utilities making PGA filings of vastly different lengths could be significant. If, for instance, the recent spiral of fees upward is attributable to rapid growth in the average length and complexity of filings, it may be inequitable to force utilities continuing to submit simple filings, such as Raton, to share disproportionately the financial onus of processing heavy filings. We therefore hold that Raton’s challenge to the size of the new fees is timely. IV Our examination of the merits of the Commission’s refusal to reduce Raton’s fee may be brief. On rehearing, the Commission affirmed exaction of the uniform $4,000 fee on the ground that the Tenth Circuit had approved the formula by which the Commission had calculated it. As we have explained, however, approval of the old fee does not automatically translate into validity of the new fee. The Act requires fees assessed for agency service to be cost-justified and fair. The new fee may no longer be cost-justified, and its uniform application to all pipelines may be substantively unfair to smaller pipelines. Since the Commission has not furnished any explanation sufficient to put these concerns to rest, we cannot presently say that the new fees are consistent with the statutory mandates. We conclude that part of Raton’s challenge is timely and that the Commission has not sufficiently justified its position on the new fees. We therefore vacate the Commission’s order and remand the case for further proceedings. On remand, the Commission must reconsider its decision to charge Raton the full $4,000 fee and must supply a fuller explanation of the result it reaches. It may also reevaluate the situation to determine whether it is now time to devise a new fee schedule better assuring fairness of the fees charged to small pipelines. So ordered. . Letter from Raton Gas Transmission Company to Federal Energy Regulatory Commission, Joint Appendix (J. App.) 1. . See 15 U.S.C. §§ 717-717w (1982). Natural gas pipeline companies wishing to alter their rates are required to initiate what frequently becomes a lengthy proceeding before the Commission under § 4 of the Act. Id. § 717c. Commission regulations, however, allow pipelines to bypass this proceeding with respect to their costs for purchased gas by filing a PGA clause with the Commission and securing its approval. 18 C.F.R. § 154.38 (1987). Thus PGA filings, while less onerous than § 4 proceedings, do necessitate Commission processing and approbation. . 18 C.F.R. § 154.38 (1987). While the regulations themselves do not seem to insist upon filings every six months, both parties assert that Raton is obliged to file on a semi-annual basis. Brief for Petitioner at 4 n. 3; Brief for Respondent at 3. . J.App. 1-6. . 31 U.S.C. § 9701 (1982). . 49 Fed.Reg. 5083 (Feb. 10, 1984) (codified at 18 C.F.R. pts. 154, 381 (1987)) [hereinafter Order No. 361 ]. . Id. at 5091. . Notice of the fee increase had earlier been published in the Federal Register. 51 Fed.Reg. 4310 (Feb. 4, 1986). . Letter from Eugene E. Threadgill to Kenneth F. Plumb (Mar. 14, 1986), J.App. 11. . Motion of Raton Gas Transmission Company for Relief from PGA Fee and for Permission to Offset Fee Against Change in Raton’s Rates, Raton Gas Transmission Co., FERC Docket No. TA-86-1-40 (dated Mar. 20, 1986), J.App. 13 [hereinafter Motion for Relief]. . Id. at 2, J.App. 14. . Id. at 4, J.App. 16. . Raton Gas Transmission Co., FERC Docket Nos. TA 86-1-40-000 & TA 86-1-40-001 (filed Aug. 5, 1986) (order denying refund, denying permission to offset fee against rate reduction and denying late intervention), J.App. 29. . Raton Gas Transmission Co., FERC Docket No. TA 86-1-40-002 (filed Nov. 26, 1986) (order denying rehearing), J.App. 49. . Brief for Petitioner at 19-21. . Id. at 21-23. . Brief for Respondent at 7-8; see also Motion to Dismiss, Raton Gas Transmission Co. v. FERC, No. 87-1021 (D.C.Cir.) (filed June 15, 1987) at 5-10, Respondent's Appendix (R.App.) B-5 to B-10. . Brief for Respondent at 7; see Phillips Petroleum Co. v. FERC, 786 F.2d 370 (10th Cir.1986); see also Motion to Dismiss, supra note 17, at 7, 9, R.App. B-7, B-9. . See 15 U.S.C. § 717r(b) (1982). . Brief for Petitioner at 10-12. . E.g., Eagle-Picher Indus, v. EPA, 245 U.S.App.D.C. 179, 185, 759 F.2d 905, 911 (1985). . Id. . 266 U.S.App.D.C. 165, 169-171, 834 F.2d 191, 195-197 (1987). . Id. at 169-170, 834 F.2d at 195-196. . See id. at 170-171, 834 F.2d at 196-197; Farmers Export Co. v. United States, 244 U.S.App.D.C. 413, 417, 758 F.2d 733, 737 (1985); Professional Drivers Council v. Bureau of Motor Carrier Safety, 227 U.S.App.D.C. 312, 314 n. 2, 706 F.2d 1216, 1218 n. 2 (1983); NRDC v. NRC, 215 U.S.App.D.C. 32, 39-40, 666 F.2d 595, 602-603 (1981); Geller v. FCC, 198 U.S.App.D.C. 31, 34-35, 610 F.2d 973, 977-978 (1979); Functional Music, Inc. v. FCC, 107 U.S.App.D.C. 34, 37, 274 F.2d 543, 546 (1958). . RCA Global Communications, Inc. v. FCC, 244 U.S.App.D.C. 402, 410, 758 F.2d 722, 730 (1985). . Eagle-Picher Indus, v. EPA, supra note 21, 245 U.S.App.D.C. at 185-189, 759 F.2d at 911-915; Baltimore Gas & Elec. Co. v. ICC, 217 U.S.App.D.C. 293, 296-297, 672 F.2d 146, 149-150 (1982). . NLRB Union v. FLRA, supra note 23, 266 U.S.App.D.C. at 169-170, 834 F.2d at 195-196; Geller v. FCC, supra note 25, 198 U.S.App.D.C. at 35, 610 F.2d at 978; Functional Music, Inc. v. FCC, supra note 25, 107 U.S.App.D.C. at 37, 274 F.2d at 546. . 179 U.S.App.D.C. 311, 551 F.2d 1270 (1977). . Id. at 323 n. 13, 551 F.2d at 1282 n. 13 (citations omitted). . See American Trading Transp. Co. v. United States, 253 U.S.App.D.C. 40, 48 n. 11, 791 F.2d 942, 950 n. 11 (1986); MCI Telecommunications Corp. v. FCC, 247 U.S.App.D.C. 32, 35-37, 765 F.2d 1186, 1189-1191 (1985); Montana v. Clark, 242 U.S.App.D.C. 62, 65-66, 749 F.2d 740, 743-744 (1984); National Bank v. Comptroller, 233 U.S.App.D.C. 284, 285-286, 725 F.2d 1390, 1391-1392 (1984). . See MCI Telecommunications Corp. v. FCC, supra note 31, 247 U.S.App.D.C. at 35-36, 765 F.2d at 1189-1190. . Supra note 31. . 247 U.S.App.D.C. at 33-35, 765 F.2d at 1187-1189. . Id. at 35-36, 765 F.2d at 1189-1190. . Id. . Id. at 36, 765 F.2d at 1190. . Id. at 37, 765 F.2d at 1191 (quoting RCA Global Communications, Inc. v. FCC, supra note 26, 244 U.S.App.D.C. at 411, 758 F.2d at 731) (emphasis in original). . Motion for Relief, supra note 10, at 2-4, J.App. 14-16. . Id. at 4, J.App. 16. . Id. at 5, J.App. 17. This point, however, has not been reasserted here. . Order No. 361, supra note 6, 49 Fed.Reg. at 5091. . 18 C.F.R. § 154.38 (1987); see note 3 supra. . NRDC v. NRC, supra note 25, 215 U.S.App.D.C. at 39-40, 666 F.2d at 602-603. . Electronic Indus. Ass’n v. FCC, 180 U.S.App.D.C. 250, 256, 554 F.2d 1109, 1115 (1976). . The Tenth Circuit has also endorsed this rationale. Phillips Petroleum Co. v. FERC, supra note 18, 786 F.2d at 376. . Motion for Relief, supra note 10, at 4, J.App. 16. . 51 Fed.Reg. 4310 (Feb. 4, 1986). . Supra note 18. . Motion to Dismiss, supra note 17, at 9-10, R.App. B-9 to B-10. . See 31 U.S.C. § 9701(b)(2)(A) (1982). . 51 Fed.Reg. 4310 (Feb. 4, 1986). . In consequence of a still-later order enlarging the increase further, the fees currently in effect are more than double those specified in Order No. 361. Appellant's Appendix (A.App.) A-36. . Motion for Relief, supra note 10, at 5, J.App. 17. . In Order No. 361, the Commission discussed the possibility that uniform fees might expose small pipelines to severe economic hardship. It stated, however, its expectation that such hardship would be rare “since the Commission has reduced the fee significantly as a result of excluding any recovery of hearing costs." Order No. 361, supra note 6, 49 Fed.Reg. at 5089. The new fees, in our view, serve at least to reopen the question of the accuracy and adequacy of that statement. . See 31 U.S.C. § 9701(b)(1) (1982). . Order No. 361, supra note 6, 49 Fed.Reg. at 5089. . Id. . Raton notes that PGA filings by other utilities may exceed 2,600 pages in length. Application for Rehearing of Raton Gas Transmission Company, Raton Gas Transmission Co., FERC Docket No. TA 86-1-40 (filed Aug. 29, 1986) at 5, J.App. 40. . Phillips Petroleum Co. v. FERC, supra note 18. . Raton Gas Transmission Co., supra note 14, at 3, J.App. 51. . 31 U.S.C. § 9701(b)(2)(A) (1982). . Id. § 9701(b)(1). . See Part III supra. 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 15? Answer with a number. Answer:

songer_r_state

4

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "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. Harry S. PEARE, Individually and on behalf of a class of persons in the State of Indiana similarly situated, Plaintiff-Appellant, v. Harry T. McFARLAND, in his capacity as Director of Indiana Employment Security Division, William H. Skinner, Paul M. Hutson, and Daniel L. Adams, Defendants-Appellees, and United States Department of Labor, Defendant-Intervenor-Appellee. No. 84-1360. United States Court of Appeals, Seventh Circuit. Argued Sept. 28, 1984. Decided Nov. 27, 1985. Ivan E. Bodensteiner, Legislative Service Program of North Ind., Valparaiso, Ind., for plaintiff-appellant. Michael Kimmel, U.S. Dept, of Justice, Civ. Div., Washington, D.C., for appellee. Before CUDAHY and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge. FAIRCHILD, Senior Circuit Judge. This appeal involves an application of the federal law governing a State’s offset of Social Security retirement benefits against unemployment compensation. Indiana is the State involved here. The same question has been presented in the Sixth and Ninth Circuits and decided in favor of the offset. Bowman v. Stumbo, 735 F.2d 192 (6th Cir.1984) and Rivera v. Becerra, 714 F.2d 887 (9th Cir.1983), cert. denied, 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 124 (1984). We reach the same conclusion. The opposite decision was made in Edwards v. Valdez, 602 F.Supp. 361 (D.Colo.1985) appeal pending, Nos. 85-1552, 85-1650 (10th Cir., April 11, 1985, May 5, 1985). We shall attempt to avoid unnecessary duplication of the background material included in those opinions. I Harry Peare, the named plaintiff, retired and started receiving Social Security retirement benefits in 1973. He was 65. In 1981 he went to work for Mathis Machine Corporation. He had not previously worked for Mathis. After 18 months, Peare was laid off and applied for unemployment compensation. Mathis, his “base period employer” for the purpose of unemployment compensation, paid PICA taxes with respect to its employees, including Peare. IESD, the appropriate Indiana agency, granted unemployment compensation, but reduced it by 50% of Peare’s Social Security benefits. Peare filed this class action against McFarland, the Director of IESD. The United States Department of Labor was permitted to intervene. The district court granted the Department’s motion for summary judgment. Peare v. McFarland, 577 F.Supp. 791, 795 (N.D.Ind.1984). Peare appealed from the judgment accordingly entered. The federal statute involved is 26 U.S.C. § 3304(a)(15) as amended by Pub.L. 96-364, § 414, 94 Stat. 1208, 1310 (1980). As enacted in 1976, the statute had required States to reduce unemployment compensation by 100% of all pension income. Apparently considering that this requirement may have gone too far, Congress postponed the effective date. The 1980 amendment was designed to ameliorate the so-called offset requirement. It clearly did so. The present dispute with respect to Social Security is whether greater liberalization was intended. 26 U.S.C. § 3304(a) requires the Secretary of Labor to approve any State law which he finds contains certain provisions. Subsection (15) is the offset requirement, compelling reduction of compensation by the amount of “a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment which is based on the previous work of” the applicant. The 1980 amendment added two conditions, (A)(i) and (A)(ii) which are to be fulfilled before the offset is required, and added (B) permitting a State to limit the offset where the worker made contributions for the payments. The (A)(i) condition is fulfilled if the payment “is under a plan maintained (or contributed to) by a base period employer or chargeable employer (as determined under applicable law).” Everyone concedes that Social Security retirement benefits constitute one of the types of payment dealt with by subsection (15). Indeed, if that were not so, there would never be a reduction of unemployment compensation as a result of Social Security benefit payments. Although in the course of formulation of the 1980 amendment the House of Representatives had adopted a provision that the offset “shall not apply to any amount paid under the Social Security Act or the Railroad Retirement Act of 1974 ...,” this provision did not survive the Committee of Conference. House of Representatives Report No. 96-1343, September 18, 1980. Indeed, Social Security (and Railroad Retirement) payments are expressly excepted from “such a payment” in condition (A)(ii). This exception carries the clear implication that when “payments” are referred to in parts of subsection (15) other than (A)(ii), Social Security retirement benefits are included. Condition (A)(i) must be fulfilled before an offset is required. In this case Social Security is the “plan” under which Peare’s Social Security benefits are paid, and Mathis, the base period employer, “contributed to” it, giving those terms their ordinary meaning in the field of pensions and retirement. If Social Security were not a “plan,” “contributed to” through FICA taxes, the (A)(i) condition would never be met as to Social Security benefits and they would never be offset. Yet everyone concedes that there are some circumstances under which Social Security benefits must be offset. Plaintiff suggests that there should be an interpretation of “plan” and “contributed to” under which an employer will be deemed to contribute to an individual worker’s Social Security “plan” only during periods when the contributions affect that worker’s eligibility for Social Security benefits. Plaintiff’s interpretation would require a strained, unusual meaning of the terms. Moreover, Congress directly addressed the concept advocated by plaintiff in adding condition (A)(ii), but made it inapplicable to Social Security payments. The (A)(ii) condition is: in the case of such a payment not made under the Social Security Act or the Railroad Retirement Act of 1974 ... services performed for such employer after the beginning of the base period (or remuneration for such services) affect eligibility for, or increase the amount of, such pension, retirement or retired pay, annuity, or similar payment____ Plaintiff also suggests that it was the intention of Congress that Social Security benefits are not to be offset unless the base period employer has also employed the worker at the time he became “fully insured” under the Social Security Act, a status normally achieved after about ten years of employment subject to the Act. Just why offset is required only if the base period employer had been the employer at that point rather than during some period within which the amount of benefits were being increased, or at the point the worker first became entitled to draw Social Security payments, or first actually drew payments is not explained, and certainly no statutory language suggests an answer. II The bill which was enacted, after amendment in both Houses and a compromise reached in Conference, was H.R. 3904. Two other House Bills addressed the subject. H.R. 5507 did not reach the Senate, but H.R. 3612 did so, and was amended there. The parties cite statements of members of the House and Senate concerning the various versions of all three bills. With one arguable exception, a statement by Senator Bradley, these statements convey no clear message concerning our problem. Plaintiff’s reply brief concedes that except for Senator Bradley’s remarks, the legislative history does not “conclusively” support the position of either side. Senator Bradley had been a co-sponsor, along with Senator Chafee, of an amendment to H.R. 3904 adopted by the Senate before the Senate passage of the bill and before the deliberations of the Committee of Conference. He had not, however, been a member of that Committee. He spoke while the Conference Report was being considered by the Senate on September 18, 1980. Senator Bradley said he was “pleased” that the Committee of Conference had chosen to sustain the “corrective” amendment he and Senator Chafee had offered. He gave examples of how the new law would work. One of these was as follows: First, an individual at Company A retires and begins to collect social security. For whatever reason, this person then goes to work for Company B and, after 6 months there, is terminated. Assuming the individual is eligible for unemployment insurance because of the work done at Company B, the level of unemployment insurance will not be reduced at all. This is because the base period employer is not the same as the social security employer. The offset would apply however if the individual had returned to work for Company A instead of working for Company B. Under those circumstances, the base period employer and the social security employer would be the same. 126 Cong.Rec. 26040-41 (Sept. 18, 1980). Senator Bradley’s example supports the result for which plaintiff contends, although it does not assist in explaining how the statutory language chosen would accomplish the result. Moreover, the example gives no guidance as to the meaning of “social security employer” except that the “social security employer” in the example had been the employer at the time the worker retired and began to collect Social Security payments. There are, however, many other times and periods during a worker’s employment history at which the worker’s entitlement to draw Social Security benefits and the amount thereof are built up. If the Senator was thinking of the “social security employer” as any employer whose employment of the worker had affected the worker’s eligibility for or increased the amount of Social Security benefits, the enactment of (A)(ii) clearly applied that concept to private and other governmental pensions, but clearly excepted Social Security (and Railroad Retirement) payments from it. The offset provisions are clear and unambiguous. As just noted, they very specifically state a rule which, if applied to Social Security, would bring plaintiff victory, but equally specifically does not apply it to Social Security. “When confronted by a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning. Ex Parte Collett, 337 U.S. 55, 61 [69 S.Ct. 944, 947, 93 L.Ed. 1207] (1949), and cases cited therein.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 n. 29, 98 S.Ct. 2279, 2296 n. 29, 57 L.Ed.2d 117 (1978). See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-95, 71 S.Ct. 745, 750-51, 95 L.Ed. 1035 (1951). On the other hand, “a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute.” Bob Jones University v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017, 2025, 76 L.Ed.2d 157 (1983). We are unable, however, to discern with any clarity from the legislative history or elsewhere any plain purpose of Congress with which the particular chosen language is in conflict. “[T]he plainer the language, the more convincing contrary legislative history must be.” United States v. United States Steel Corp., 482 F.2d 439, 444 (7th Cir.), cert. denied, 414 U.S. 909, 94 S.Ct. 229, 38 L.Ed.2d 147 (1973). Ill District Judge Weinshienk of the District of Colorado recently reached a decision that Social Security benefits should not be offset in cases like this one. Edwards v. Valdez, 602 F.Supp. 361 (D.Colo.1985). She concluded that the statute at issue is ambiguous and that resort to legislative history is appropriate. Analyzing the legislative history, she evidently concluded that early in the process of formulation, condition (A)(i) was recognized as meaning that a pension payment was not to be offset if the worker had become entitled to draw that amount as a result of his earlier work for employers other than his base period employer. This would be true whether the pension payment was under Social Security or some other plan. The later drafted condition (A)(ii) embodied the foregoing concept, originally without any exception of Social Security and Railroad Retirement benefits. Judge Weinshienk evidently felt that condition (A)(ii) was not intended to have any substantive effect with or without the exception. “The net impact of the exclusion of Social Security from (A)(ii) language is to put sole control over offset of Social Security benefits under subsection (A)(i).” 602 F.Supp. at 368. With all respect, we are not persuaded. It seems fair to say that in the situation under consideration the legislative history is ambiguous and the enacted language plain. We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive. Consumer Product Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The judgment appealed from is 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_appnatpr

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Douglas Earl SAVAGE, Defendant-Appellant. No. 72-3145. United States Court of Appeals, Ninth Circuit. Aug. 8, 1973. Rehearing Denied Sept. 5, 1973. Charles Robinowitz (argued), Portland, Or., for defendant-appellant. Tommy Hawk; Asst. U. S. Atty. (argued, Sidney I. Lezak, U. S. Atty., Portland, Or., for plaintiff-appellee. Before HUFSTEDLER and CHOY, Circuit Judges, and TAYLOR, District Judge. The Honorable Fred M. Taylor, United States District Judge for the District of Idaho, sitting by designation. CHOY, Circuit Judge: Douglas Earl Savage was convicted after a jury trial of bank robbery and using a firearm to commit a felony in violation of 18 U.S.C. §§ 2113(a), 924(c). He was sentenced to fifteen year and five year terms to run concurrently. We affirm. In April 1971, two men, wearing masks and brandishing firearms, entered a federally-insured bank in a small Oregon town, took about $29,000 and escaped in a 1969 Dodge station wagon. The key government witness, Margaret Casebeer, was the wife of one of the robbers. After charges against her were reduced, Mrs. Casebeer testified that she made the masks for Savage and her husband, was present when plans were discussed, and waited for the two men outside of town while the robbery took place. Mrs. Casebeer was also present when Savage discussed the robbery the next day. There was an abundance of corroborative evidence presented by the prosecution, including an admission by Savage to his mother that he had robbed the bank. After his arrest and while he was in custody, Savage wrote a letter to Ronald Casebeer who was then confined in the federal penitentiary at .McNeil Island. The letter was intercepted by a prison security officer who made a photocopy of the original before forwarding it to Casebeer. The letter contained the ingredients of an alibi by Savage, attempting to shift the blame for the robbery to one Mayberry, and detailing Savage’s actions at the time of the robbery and subsequently. At trial, a copy of the letter from Savage to Casebeer was introduced as evidence. The security officer testified that the letter had been copied exactly and Casebeer’s testimony from a previous trial indicated that the original had been • destroyed. Under these circumstances, the copy was held admissible. Savage makes three contentions on this appeal: (1) that the photocopy of his letter to Casebeer was improperly admitted into evidence; (2) that his fourth amendment rights were violated when the letter was intercepted and photocopied by the prison security officer; and (3) failure to record the proceedings before the grand jury requires reversal. To prove the terms of a writing, the original writing must be produced unless it is shown to be unavailable for some reason other than the fault of the proponent. The loss or destruction of an original writing is a longstanding basis for asserting unavailability. C. McCormick, Law of Evidence § 201 at 413 (1954); 4 J. Wigmore, On Evidence § 1193-98 (1972). See also Proposed Rules of Evidence for the U. S. District Courts and Magistrates, Rule 1004(1). Savage’s first contention fails since there was proof that the original was destroyed and the security guard testified that the copy was an exact reproduction. Savage was in custody when he wrote his letter to Casebeer. He argues that opening and copying the letter was an unconstitutional invasion of his privacy. Individuals do not forfeit all their constitutional rights when they are taken into custody. A prisoner is entitled to the fourth amendment’s protection from unreasonable searches and seizures. Burns v. Wilkinson, 333 F.Supp. 94, 96 (W.D.Mo.1971); Palmigiano v. Travisono, 317 F.Supp. 776, 791 (D.R.I.1970). But under the standard enunciated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), what society recognizes as a reasonable expectation of privacy is restricted when the individual asserting the expectation is incarcerated or in custody. The view that prison authorities may examine the communications of a prisoner without infringing upon his constitutional rights has recently come under fire on both first and -.fourth amendment grounds. A three-judge court in Martinez v. Procunier, 354 F.Supp. 1092 (N.D.Calif.1973), prob. jur. noted, - U.S. -, 93 S.Ct. 3013, 37 L.Ed.2d 1000 (1973), held that a prisoner’s right to correspond was a fundamental right protected by the first amendment. The State of California’s regulations, which permitted the reading of incoming and outgoing mail, were held violative of the first amendment because they were not both reasonably and necessarily related to the advancement of some justifiable purpose of imprisonment or prison security. A similar practice was condemned on both first and fourth amendment grounds in Palmigiano, supra. We think that absent a showing of some justifiable purpose of imprisonment or prison security the interception and photocopying of the letter was violative of the fourth amendment and the letter should have been excluded as evidence. Here no such showing was made. Despite the failure to exclude the letter, Savage’s conviction must stand. There was overwhelming evidence of Savage’s guilt and the illegally admitted evidence did not contribute to his conviction. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Hence, the constitutional error was harmless beyond a reasonable doubt. Nor did the admission of the letter prejudice Savage since the contents were directed at exculpating him and did not contain any self-incriminatory statements. We held in United States v. Price, 474 F.2d 1223 (9th Cir. 1973) that upon a proper motion, failure to record grand jury proceedings absent a showing of a compelling government interest to be served by nonrecordation is an abuse of discretion by the district court. In the instant case, however, no request for recordation was made. Affirmed. . The principal authority for this view is found in Stroud v. United States, 251 U.S. 15 (1919) and United States v. Wilson, 447 F.2d 1, 8 (9th Cir. 1971). Other circuits have expressed similar views. See Denson v. United States, 424 F.2d 329 (10th Cir. 1970), and cases cited therein Those decisions hold that prison discipline or security justify the examination of a prisoner’s communications. To that extent we are in complete agreement but add the proviso that justification must be demonstrated. . See also Dreyer v. Jalet, 349 F.Supp. 452, 483 (S.D.Tex.1972); Lamar v. Kern, 349 F.Supp. 222, 225 (S.D.Tex.1972); Guajardo v. McAdams, 349 F.Supp. 211, 219 (S.D.Tex.1972). Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_usc1

26

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. UNITED STATES of America, Plaintiff-Appellee, v. John H. KELLEY, Defendant-Appellant. No. 15036. United States Court of Appeals Sixth Circuit. March 11, 1963. Harry Lewis, Columbus, Ohio, Wright, Gilbert & Lewis, Columbus, Ohio, on brief, for appellant. Robert A. Bell, Asst. U. S. Atty., Columbus, Ohio, Joseph P. Kinneary, U. S. Atty., Columbus, Ohio, on brief, for appellee. Before WEICK, Circuit Judge, and BOYD and THORNTON, District Judges. WEICK, Circuit Judge. Appellant was tried and convicted by a jury in the District Court on a three-count Information charging that he received wagers in each of the years 1958, 1959 and 1960 and wilfully failed to register and pay the special occupational tax imposed by Section 4411 of the Internal Revenue Code of 1954, in violation of 26 U.S.C. § 7203. He was fined $1,000 and placed on probation for a period of five years. The principal errors relied upon in this appeal are that the District Court erred in limiting cross-examination of the Government’s witness, Esposito, and in threatening defense counsel on two occasions with contempt of court in the presence of the jury during the course of the trial. On direct examination, Esposito had been asked general questions by Government counsel about placing “wagers” with defendant. He testified that when he had lost about $100 defendant would come to his office to collect. The bets related to football or basketball games. He guessed that 20 to 25 bets had been placed in 1958, about the same number in 1959 and 10 or 15 in 1960. The defendant objected to a number of the questions on the ground that no specific bets or dates were mentioned and that the questions dealt only in generalities. The objections were overruled. The following took place upon cross-examination : “By Mr. Bernard: “Q. Now, you have described a lot of general activity, Mr. Esposito. I want you to name five specific bets that you made with Jack Kelley. I want you to name the amount of the bet, the event upon which you wagered, when you made the wager, and where you made the wager? “Mr. Bell: Objection. “The Court: Sustained. “Mr.. Bernard: If the Court please, I think that we have a perfect right to prepare a defense. “The Court: The Court has ruled. It is not material as to the amount of wagers. It is a question whether he made wagers. “Mr. Bernai'd: I would like to know what the wagers were. “The Court: The Court sustained the objection. You may have to inquire through other sources for it. “Mr. Bernard: May I ask the question individually ? I don’t want to impose upon the Court. “The Court: The Court doesn’t intend for you to impose upon it. Go ahead. “Mr. Bernard: That’s right. “The Court: Now, if he has any recollection I will permit him to answer. I think under the law it is a question whether or not he made wagers, whether it is five dollars, ten dollars, a hundred, or a thousand. It is whether or not he placed wagers. If he has knowledge of any particular wagers the Court will permit him to answer. “Q. Can you recall five specific bets that you made during the year 1960? “Mr. Bell: Objection. "The Court: I don’t think this comes down to a specific matter, Mr. Bernard. I think the question involved here is whether' or not he received wagers as defined by Section 4421 and in so doing was required to register and pay his special occupational tax. That is the gist of this indictment. We don’t care whether he won money, lost money, or whether he bet one dollar or a hundred, but did he wager with this man. That is the question involved. You will confine your questions to that line. “Q. Name five specific wagers— “The Court: The Court has ruled two or three times. “Mr. Bernard: I don’t understand the Court, then. This defendant is accused of receiving wagers. “The Court: I understand, and the Court has advised you that specific amounts are not involved. “Mr. Bernard: How about the subject matter? “The Court: Ask him about it, without testifying as to particular wagers. “Q. Name five specific events upon which you wagered— “The Court: This is the last time the Court is going to rule. If you want to get in contempt of court you repeat that same question again and you will be in contempt of court. “Mr. Bernard: I don’t understand the Court. “The Court: I have ruled and I have sustained the objection. Proceed in regular order. This is not a police court, this is a United States Federal Court. “Q. Isn’t it a fact, Mr. Esposito— “Mr. Bernard: I have no further questions.” As before indicated, the witness had testified to making about 65 wagers with the defendant over a three year period. He did not give any specific date as to any of the bets or any information as to what any particular bet encompassed. He was asked on cross-examination to give specific information as to only five of these bets. These questions were proper on cross-examination to test the memory of the witness and his truth and veracity. The District Court erred in sustaining objections to the questions. We find no basis for the District Judge’s threat to the lawyer to hold him in contempt for repeating the question in an effort to comply with an erroneous ruling. We do not understand the Judge’s reference to the police court. For all this to take place in the presence of the jury was extremely prejudicial to the defendant. The implication was present that defendant’s lawyer was indulging in tactics prevalent in a police court which supposedly were not proper. There was no occasion for the Judge to comment disparagingly on any other court. The threat of contempt not only tended to belittle the lawyer in the eyes of the jury, but also to unnerve him and throw him off balance so that he could not devote his best talents to the defense of his client. After the witness Esposito had been discharged and during the direct examination of the witness Jones, the Court made the following comment: “The Court: Now in its ruling on your question, Mr. Bernard, the Court was not intending to circumscribe you on testing the veracity or truthfulness of the witness, but your question was a complex, complicated question, stated in general terms, which made it improper. That was the reason for the Court ruling against you on it. Had you asked the man about specific events that might have been different, but when you lumped them all in five specific times without a fixing time, that was the reason for the Court’s ruling. If you want to recall that witness and cross examine him further, the Court will permit you to do so. Go ahead.” While the court stated that he was not intending to circumscribe the lawyer on testing the veracity or truthfulness of the witness, the fact is that he did and still maintained that he was correct in doing so. We see nothing complex or complicated in the questions which were asked and we do not believe they were improper. The lawyer did not recall the witness for further cross-examination probably because he did not know how to frame a question which would meet the requirements as to admissibility imposed by the Judge. In any event, the damage to the defendant’s case had already been done. The Government witness, Slav-en, testified on direct examination as to making wagers with defendant, but placed the time in 1954 which was prior to the offenses charged in the Information. The following then took place. “The Court: Just a moment. The court is telling counsel at this time he wants you to stop your smiling, wants you to stop pointing at the jury with your arm, or one of you is going to be held in contempt. This is not a circus, this is a trial. You are both able lawyers, able lawyers at both tables, and I want you to conduct yourselves according with the ethics of the profession. I have observed too much of it up to this time.” If the Judge did not like the facial expressions of defense counsel or the movement of their arms, he could have admonished them without making another threat of contempt or insinuating that they were unethical in the presence of the jury. The lawyer’s feelings in the matter are best expressed in the closing lines of his argument to the jury. He said: “I have no more to say to you, ladies and gentlemen. It seems that I have probably reached the end of my luck with the Honorable Judge Underwood, and I am afraid if I say any more he is liable to get real mean with me. “The Court: No, Mr. Bernard. You are a good lawyer, you know the province of proper argument. You know it is highly improper for you to attempt to tell the jury what the law is.” Mr. Bernard made no further argument. In our judgment, these errors were prejudicial and operated to prevent the defendant from having a fair trial. United States v. Koenig, 300 F.2d 377 (C.A. 6). In view of this disposition of the case it is not necessary for us to pass upon the other errors alleged. The judgment of the District Court is reversed and the cause is remanded for a new trial. 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_caseoriginstate

51

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state. Genovevo SALINAS, Petitioner v. TEXAS. No. 12-246. Supreme Court of the United States Argued April 17, 2013. Decided June 17, 2013. Jeffrey L. Fisher, Stanford, CA, for Petitioner. Alan K. Curry, Houston, TX, for Respondent. Ginger D. Anders, for the United States as amicus curiae, by special leave of the Court, supporting the Respondent. Neal Davis, Neal Davis Law Firm, PLLC, Houston, TX, Kevin K. Russell, Goldstein & Russell, P.C., Washington, DC, Jeffrey L. Fisher, Counsel of Record, Pamela S. Karlan, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, Dick DeGuerin, DeGuerin & Dickson, Houston, TX, for Petitioner. Mike Anderson, District Attorney, Alan Keith Curry, Counsel of Record, Carol M. Cameron, Eric Kugler, David C. Newell, Assistant District Attorneys, Harris County District Attorney's Office, Houston, TX, for Respondent. Justice ALITO announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and Justice KENNEDY join. Without being placed in custody or receiving Miranda warnings, petitioner voluntarily answered the questions of a police officer who was investigating a murder. But petitioner balked when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match petitioner's shotgun. Petitioner was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer's question suggested that he was guilty. Petitioner claims that this argument violated the Fifth Amendment, which guarantees that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question. It has long been settled that the privilege "generally is not self-executing" and that a witness who desires its protection " 'must claim it.' " Minnesota v. Murphy, 465 U.S. 420, 425, 427, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (quoting United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943) ). Although "no ritualistic formula is necessary in order to invoke the privilege," Quinn v. United States, 349 U.S. 155, 164, 75 S.Ct. 668, 99 L.Ed. 964 (1955), a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner's Fifth Amendment claim is affirmed. I On the morning of December 18, 1992, two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. The investigation led police to petitioner, who had been a guest at a party the victims hosted the night before they were killed. Police visited petitioner at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning. Petitioner's interview with the police lasted approximately one hour. All agree that the interview was noncustodial, and the parties litigated this case on the assumption that he was not read Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). For most of the interview, petitioner answered the officer's questions. But when asked whether his shotgun "would match the shells recovered at the scene of the murder," App. 17, petitioner declined to answer. Instead, petitioner "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up." Id ., at 18. After a few moments of silence, the officer asked additional questions, which petitioner answered. Ibid. Following the interview, police arrested petitioner on outstanding traffic warrants. Prosecutors soon concluded that there was insufficient evidence to charge him with the murders, and he was released. A few days later, police obtained a statement from a man who said he had heard petitioner confess to the killings. On the strength of that additional evidence, prosecutors decided to charge petitioner, but by this time he had absconded. In 2007, police discovered petitioner living in the Houston area under an assumed name. Petitioner did not testify at trial. Over his objection, prosecutors used his reaction to the officer's question during the 1993 interview as evidence of his guilt. The jury found petitioner guilty, and he received a 20-year sentence. On direct appeal to the Court of Appeals of Texas, petitioner argued that prosecutors' use of his silence as part of their case in chief violated the Fifth Amendment. The Court of Appeals rejected that argument, reasoning that petitioner's prearrest, pre-Miranda silence was not "compelled" within the meaning of the Fifth Amendment. 368 S.W.3d 550, 557-559 (2011). The Texas Court of Criminal Appeals took up this case and affirmed on the same ground. 369 S.W.3d 176 (2012). We granted certiorari, 568 U.S. ----, 133 S.Ct. 928, 184 L.Ed.2d 719 (2013), to resolve a division of authority in the lower courts over whether the prosecution may use a defendant's assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. Compare, e.g., United States v. Rivera, 944 F.2d 1563, 1568 (C.A.11 1991), with United States v. Moore, 104 F.3d 377, 386 (C.A.D.C.1997). But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that question. II A The privilege against self-incrimination "is an exception to the general principle that the Government has the right to everyone's testimony." Garner v. United States, 424 U.S. 648, 658, n. 11, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who " 'desires the protection of the privilege ... must claim it' " at the time he relies on it. Murphy, 465 U.S., at 427, 104 S.Ct. 1136 (quoting Monia, 317 U.S., at 427, 63 S.Ct. 409 ). See also United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 71 L.Ed. 560 (1927). That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), or cure any potential self-incrimination through a grant of immunity, see Kastigar v. United States, 406 U.S. 441, 448, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The express invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness' reasons for refusing to answer. See Roberts v. United States, 445 U.S. 552, 560, n. 7, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980) ("A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give"); Hutcheson v. United States, 369 U.S. 599, 610-611, 82 S.Ct. 1005, 8 L.Ed.2d 137 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege "assures that the Government obtains all the information to which it is entitled." Garner, supra, at 658, n. 11, 96 S.Ct. 1178. We have previously recognized two exceptions to the requirement that witnesses invoke the privilege, but neither applies here. First, we held in Griffin v. California, 380 U.S. 609, 613-615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), that a criminal defendant need not take the stand and assert the privilege at his own trial. That exception reflects the fact that a criminal defendant has an "absolute right not to testify." Turner v. United States, 396 U.S. 398, 433, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (Black, J., dissenting); see United States v. Patane, 542 U.S. 630, 637, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality opinion). Since a defendant's reasons for remaining silent at trial are irrelevant to his constitutional right to do so, requiring that he expressly invoke the privilege would serve no purpose; neither a showing that his testimony would not be self-incriminating nor a grant of immunity could force him to speak. Because petitioner had no comparable unqualified right during his interview with police, his silence falls outside the Griffin exception. Second, we have held that a witness' failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary. Thus, in Miranda, we said that a suspect who is subjected to the "inherently compelling pressures" of an unwarned custodial interrogation need not invoke the privilege. 384 U.S., at 467-468, and n. 37, 86 S.Ct. 1602. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege "unless [he] fails to claim [it] after being suitably warned." Murphy,supra, at 429-430., 104 S.Ct. 1136 For similar reasons, we have held that threats to withdraw a governmental benefit such as public employment sometimes make exercise of the privilege so costly that it need not be affirmatively asserted. Garrity v. New Jersey, 385 U.S. 493, 497, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (public employment). See also Lefkowitz v. Cunningham, 431 U.S. 801, 802-804, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) (public office); Lefkowitz v. Turley, 414 U.S. 70, 84-85, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973) (public contracts). And where assertion of the privilege would itself tend to incriminate, we have allowed witnesses to exercise the privilege through silence. See, e.g., Leary v. United States, 395 U.S. 6, 28-29, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) (no requirement that taxpayer complete tax form where doing so would have revealed income from illegal activities); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 77-79, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965) (members of the Communist Party not required to complete registration form "where response to any of the form's questions ... might involve [them] in the admission of a crucial element of a crime"). The principle that unites all of those cases is that a witness need not expressly invoke the privilege where some form of official compulsion denies him "a 'free choice to admit, to deny, or to refuse to answer.' " Garner, 424 U.S., at 656-657, 96 S.Ct. 1178 (quoting Lisenba v. California, 314 U.S. 219, 241, 62 S.Ct. 280, 86 L.Ed. 166 (1941) ). Petitioner cannot benefit from that principle because it is undisputed that his interview with police was voluntary. As petitioner himself acknowledges, he agreed to accompany the officers to the station and "was free to leave at any time during the interview." Brief for Petitioner 2-3 (internal quotation marks omitted). That places petitioner's situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from voluntarily invoking the privilege. The dissent elides this point when it cites our precedents in this area for the proposition that "[c]ircumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment." Post, at 2189. (opinion of BREYER, J.). The critical question is whether, under the "circumstances" of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not. We have before us no allegation that petitioner's failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer's question on Fifth Amendment grounds. Because he failed to do so, the prosecution's use of his noncustodial silence did not violate the Fifth Amendment. B Petitioner urges us to adopt a third exception to the invocation requirement for cases in which a witness stands mute and thereby declines to give an answer that officials suspect would be incriminating. Our cases all but foreclose such an exception, which would needlessly burden the Government's interests in obtaining testimony and prosecuting criminal activity. We therefore decline petitioner's invitation to craft a new exception to the "general rule" that a witness must assert the privilege to subsequently benefit from it. Murphy, 465 U.S., at 429, 104 S.Ct. 1136. Our cases establish that a defendant normally does not invoke the privilege by remaining silent. In Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622, for example, we rejected the Fifth Amendment claim of a defendant who remained silent throughout a police investigation and received a harsher sentence for his failure to cooperate. In so ruling, we explained that "if [the defendant] believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have determined whether his claim was legitimate." Id., at 560, 100 S.Ct. 1358. See also United States v. Sullivan, 274 U.S. 259, 263-264, 47 S.Ct. 607, 71 L.Ed. 1037 (1927) ; Vajtauer, 273 U.S., at 113, 47 S.Ct. 302. A witness does not expressly invoke the privilege by standing mute. We have also repeatedly held that the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness. Thus, in Murphy we held that the defendant's self-incriminating answers to his probation officer were properly admitted at trial because he failed to invoke the privilege. 465 U.S., at 427-428, 104 S.Ct. 1136. In reaching that conclusion, we rejected the notion "that a witness must 'put the Government on notice by formally availing himself of the privilege' only when he alone 'is reasonably aware of the incriminating tendency of the questions.' " Id., at 428, 104 S.Ct. 1136 (quoting Roberts, supra, at 562, n. *, 100 S.Ct. 1358 (Brennan, J., concurring)). See also United States v. Kordel, 397 U.S. 1, 7, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970). Petitioner does not dispute the vitality of either of those lines of precedent but instead argues that we should adopt an exception for cases at their intersection. Thus, petitioner would have us hold that although neither a witness' silence nor official suspicions are enough to excuse the express invocation requirement, the invocation requirement does not apply where a witness is silent in the face of official suspicions. For the same reasons that neither of those factors is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, we conclude that they do not do so together. A contrary result would do little to protect those genuinely relying on the Fifth Amendment privilege while placing a needless new burden on society's interest in the admission of evidence that is probative of a criminal defendant's guilt. Petitioner's proposed exception would also be very difficult to reconcile with Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). There, we held in the closely related context of post-Miranda silence that a defendant failed to invoke the privilege when he refused to respond to police questioning for 2 hours and 45 minutes. 560 U.S., at ----, 130 S.Ct., at 2256-57, 2259-60. If the extended custodial silence in that case did not invoke the privilege, then surely the momentary silence in this case did not do so either. Petitioner and the dissent attempt to distinguish Berghuis by observing that it did not concern the admissibility of the defendant's silence but instead involved the admissibility of his subsequent statements. Post, at 2181 - 2182 (opinion of BREYER, J.). But regardless of whether prosecutors seek to use silence or a confession that follows, the logic of Berghuis applies with equal force: A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment privilege. In support of their proposed exception to the invocation requirement, petitioner and the dissent argue that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case such as this one. Reply Brief 17; see post, at 2189 - 2190 (BREYER, J., dissenting). But whatever the most probable explanation, such silence is "insolubly ambiguous." See Doyle, v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). To be sure, someone might decline to answer a police officer's question in reliance on his constitutional privilege. But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. Petitioner alone knew why he did not answer the officer's question, and it was therefore his "burden ... to make a timely assertion of the privilege." Garner, 424 U.S., at 655, 96 S.Ct. 1178. At oral argument, counsel for petitioner suggested that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his "right to remain silent." Tr. of Oral Arg. 26-27; see post, at 2191 (BREYER, J., dissenting); Michigan v. Tucker, 417 U.S. 433, 439, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974) (observing that "virtually every schoolboy is familiar with the concept, if not the language" of the Fifth Amendment). But popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be "compelled in any criminal case to be a witness against himself"; it does not establish an unqualified "right to remain silent." A witness' constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim. See Hoffman, 341 U.S., at 486-487, 71 S.Ct. 814. In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing. Murphy, 465 U.S., at 427-428, 104 S.Ct. 1136 ; Garner, supra, at 654, n. 9, 96 S.Ct. 1178. Statements against interest are regularly admitted into evidence at criminal trials, see Fed. Rule of Evid. 804(b)(3), and there is no good reason to approach a defendant's silence any differently. C Finally, we are not persuaded by petitioner's arguments that applying the usual express invocation requirement where a witness is silent during a noncustodial police interview will prove unworkable in practice. Petitioner and the dissent suggest that our approach will "unleash complicated and persistent litigation" over what a suspect must say to invoke the privilege, Reply Brief 18; see post, at 2183 - 2184 (opinion of BREYER, J.), but our cases have long required that a witness assert the privilege to subsequently benefit from it. That rule has not proved difficult to apply. Nor did the potential for close cases dissuade us from adopting similar invocation requirements for suspects who wish to assert their rights and cut off police questioning during custodial interviews. Berghuis, 560 U.S., at ----, 130 S.Ct., at 2259-60 (requiring suspect to unambiguously assert privilege against self-incrimination to cut off custodial questioning); Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (same standard for assertions of the right to counsel). Notably, petitioner's approach would produce its own line-drawing problems, as this case vividly illustrates. When the interviewing officer asked petitioner if his shotgun would match the shell casings found at the crime scene, petitioner did not merely remain silent; he made movements that suggested surprise and anxiety. At precisely what point such reactions transform "silence" into expressive conduct would be a difficult and recurring question that our decision allows us to avoid. We also reject petitioner's argument that an express invocation requirement will encourage police officers to " 'unfairly "tric[k]" ' " suspects into cooperating. Reply Brief 21 (quoting South Dakota v. Neville, 459 U.S. 553, 566, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) ). Petitioner worries that officers could unduly pressure suspects into talking by telling them that their silence could be used in a future prosecution. But as petitioner himself concedes, police officers "have done nothing wrong" when they "accurately stat[e] the law." Brief for Petitioner 32. We found no constitutional infirmity in government officials telling the defendant in Murphy that he was required to speak truthfully to his parole officer, 465 U.S., at 436-438, 104 S.Ct. 1136, and we see no greater danger in the interview tactics petitioner identifies. So long as police do not deprive a witness of the ability to voluntarily invoke the privilege, there is no Fifth Amendment violation. * * * Before petitioner could rely on the privilege against self-incrimination, he was required to invoke it. Because he failed to do so, the judgment of the Texas Court of Criminal Appeals is affirmed. It is so ordered. Justice THOMAS, with whom Justice SCALIA joins, concurring in the judgment. We granted certiorari to decide whether the Fifth Amendment privilege against compulsory self-incrimination prohibits a prosecutor from using a defendant's pre-custodial silence as evidence of his guilt. The plurality avoids reaching that question and instead concludes that Salinas' Fifth Amendment claim fails because he did not expressly invoke the privilege. Ante, at 2178 - 2179. I think there is a simpler way to resolve this case. In my view, Salinas' claim would fail even if he had invoked the privilege because the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony. In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), this Court held that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant's failure to testify. Id., at 614, 85 S.Ct. 1229. The Court reasoned that such comments, and any adverse inferences drawn from them, are a "penalty" imposed on the defendant's exercise of his Fifth Amendment privilege. Ibid. Salinas argues that we should extend Griffin 's no-adverse-inference rule to a defendant's silence during a precustodial interview. I have previously explained that the Court's decision in Griffin "lacks foundation in the Constitution's text, history, or logic" and should not be extended. See Mitchell v. United States, 526 U.S. 314, 341, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (dissenting opinion). I adhere to that view today. Griffin is impossible to square with the text of the Fifth Amendment, which provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." A defendant is not "compelled ... to be a witness against himself" simply because a jury has been told that it may draw an adverse inference from his silence. See Mitchell, supra, at 331, 119 S.Ct. 1307 (SCALIA, J., dissenting) ("[T]he threat of an adverse inference does not 'compel' anyone to testify.... Indeed, I imagine that in most instances, a guilty defendant would choose to remain silent despite the adverse inference, on the theory that it would do him less damage than his cross-examined testimony"); Carter v. Kentucky, 450 U.S. 288, 306, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981) (Powell, J., concurring) ("[N]othing in the [Self-Incrimination] Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances"). Nor does the history of the Fifth Amendment support Griffin . At the time of the founding, English and American courts strongly encouraged defendants to give unsworn statements and drew adverse inferences when they failed to do so. See Mitchell, supra, at 332, 119 S.Ct. 1307 (SCALIA, J., dissenting); Alschuler, A Peculiar Privilege in Historical Perspective, in The Privilege Against Self-Incrimination 204 (R. Hemholz et al. eds. 1997). Given Griffin 's indefensible foundation, I would not extend it to a defendant's silence during a precustodial interview. I agree with the plurality that Salinas' Fifth Amendment claim fails and, therefore, concur in the judgment. Justice BREYER, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join, dissenting. In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner's silence in response to police questioning. And I dissent from the Court's contrary conclusion. I In January 1993, Houston police began to suspect petitioner Genovevo Salinas of having committed two murders the previous month. They asked Salinas to come to the police station "to take photographs and to clear him as [a] suspect." App. 3. At the station, police took Salinas into what he describes as "an interview room." Brief for Petitioner 3. Because he was "free to leave at that time," App. 14, they did not give him Miranda warnings. The police then asked Salinas questions. And Salinas answered until the police asked him whether the shotgun from his home "would match the shells recovered at the scene of the murder." Id., at 17. At that point Salinas fell silent. Ibid. Salinas was later tried for, and convicted of, murder. At closing argument, drawing on testimony he had elicited earlier, the prosecutor pointed out to the jury that Salinas, during his earlier questioning at the police station, had remained silent when asked about the shotgun. The prosecutor told the jury, among other things, that " '[a]n innocent person' " would have said, " 'What are you talking about? I didn't do that. I wasn't there.' " 368 S.W.3d 550, 556 (Tex.Ct.App.2011). But Salinas, the prosecutor said, " 'didn't respond that way.' " Ibid. Rather, " '[h]e wouldn't answer that question.' " Ibid. II The question before us is whether the Fifth Amendment prohibits the prosecutor from eliciting and commenting upon the evidence about Salinas' silence. The plurality believes that the Amendment does not bar the evidence and comments because Salinas "did not expressly invoke the privilege against self-incrimination" when he fell silent during the questioning at the police station. Ante, at 2178. But, in my view, that conclusion is inconsistent with this Court's case law and its underlying practical rationale. A The Fifth Amendment prohibits prosecutors from commenting on an individual's silence where that silence amounts to an effort to avoid becoming "a witness against himself." This Court has specified that "a rule of evidence" permitting "commen[t] ... by counsel" in a criminal case upon a defendant's failure to testify "violates the Fifth Amendment." Griffin v. California, 380 U.S. 609, 610, n. 2, 613, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (internal quotation marks omitted). See also United States v. Patane, 542 U.S. 630, 637, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality opinion); Turner v. United States, 396 U.S. 398, 433, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (Black, J., dissenting). And, since "it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation," the "prosecution may not ... use at trial the fact that he stood mute or claimed his privilege in the face of accusation." Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (emphasis added). Particularly in the context of police interrogation, a contrary rule would undermine the basic protection that the Fifth Amendment provides. Cf. Kastigar v. United States, 406 U.S. 441, 461, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) ("The privilege ... usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer"). To permit a prosecutor to comment on a defendant's constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances-even if he is innocent. See, e.g., Griffin, supra, at 613, 85 S.Ct. 1229 ; Kassin, Inside Interrogation: Why Innocent People Confess, 32 Am. J. Trial Advoc. 525, 537 (2009). If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt. And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissible. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as "a witness against himself"-very much what the Fifth Amendment forbids. Cf. Pennsylvania v. Muniz, 496 U.S. 582, 596-597, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (definition of "testimonial" includes responses to questions that require a suspect to communicate an express or implied assertion of fact or belief). And that is similarly so whether the questioned individual, as part of his decision to remain silent, invokes the Fifth Amendment explicitly or implicitly, through words, through deeds, or through reference to surrounding circumstances. B It is consequently not surprising that this Court, more than half a century ago, explained that "no ritualistic formula is necessary in order to invoke the privilege." Quinn v. United States, 349 U.S. 155, 164, 75 S.Ct. 668, 99 L.Ed. 964 (1955). Thus, a prosecutor may not comment on a defendant's failure to testify at trial-even if neither the defendant nor anyone else ever mentions a Fifth Amendment right not to do so. Circumstances, not a defendant's statement, tie the defendant's silence to the right. Similarly, a prosecutor may not comment on the fact that a defendant in custody, after receiving Miranda warnings, "stood mute"-regardless of whether he "claimed his privilege" in so many words. Miranda, supra, at 468, n. 37, 86 S.Ct. 1602. Again, it is not any explicit statement but, instead, the defendant's deeds (silence) and circumstances (receipt of the warnings) that tie together silence and constitutional right. Most lower courts have so construed the law, even where the defendant, having received Miranda warnings, answers some questions while remaining silent as to others. See, e.g., Hurd v. Terhune, 619 F.3d 1080, 1087 (C.A.9 2010) ; United States v. May, 52 F.3d 885, 890 (C.A.10 1995) ; United States v. Scott, 47 F.3d 904, 907 (C.A.7 1995) ; United States v. Canterbury, 985 F.2d 483, 486 (C.A.10 1993) ; Grieco v. Hall, 641 F.2d 1029, 1034 (C.A.1 1981) ; United States v. Ghiz, 491 F.2d 599, 600 (C.A.4 1974). But see, e.g., United States v. Harris, 956 F.2d 177, 181 (C.A.8 1992). The cases in which this Court has insisted that a defendant expressly mention the Fifth Amendment by name in order to rely on its privilege to protect silence are cases where (1) the circumstances surrounding the silence (unlike the present case) did not give rise to an inference that the defendant intended, by his silence, to exercise his Fifth Amendment rights; and (2) the questioner greeted by the silence (again unlike the present case) had a special need to know whether the defendant sought to rely on the protections of the Fifth Amendment. See ante, at 2179 (explaining that, in such cases, the government needs to know the basis for refusing to answer "so that it may either argue that the testimony sought could not be self-incriminating or cure any potential self-incrimination through a grant of immunity" (citation omitted)). These cases include Roberts, Rogers, Sullivan, Vajtauer, and Jenkins -all of which at least do involve the protection of silence -and also include cases emphasized by the plurality that are not even about silence-namely, Murphy and Garner . In Roberts and Rogers, the individual refused to answer questions that government investigators (in Roberts ) and a grand jury (in Rogers ) asked, principally because the individual wanted to avoid incriminating other persons . Roberts v. United States, 445 U.S. 552, 553-556, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980) ; Rogers v. United States, 340 U.S. 367, 368-370, and n. 4, 71 S.Ct. 438, 95 L.Ed. 344 (1951). But the Fifth Amendment does not protect someone from incriminating others; it protects against self- incrimination. In turn, neither the nature of the questions nor the circumstances of the refusal to answer them provided any basis to infer a tie between the silence and the Fifth Amendment, while knowledge of any such tie would have proved critical to the questioner's determination as to whether the defendant had any proper legal basis for claiming Fifth Amendment protection. In Sullivan, the defendant's silence consisted of his failure to file a tax return-a return, he later claimed, that would have revealed his illegal activity as a bootlegger. United States v. Sullivan, 274 U.S. 259, 262-264, 47 S.Ct. 607, 71 L.Ed. 1037 (1927). The circumstances did not give rise to an inference of a tie between his silence (in the form of failing to file a tax return) and the Fifth Amendment; and, if he really did want to rely on the Fifth Amendment, then the government would have had special need to know of any such tie in order to determine whether, for example, the assertion of privilege was valid and, perhaps, an offer of immunity was appropriate. In Vajtauer, an alien refused to answer questions asked by an immigration official at a deportation proceeding. United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 71 L.Ed. 560 (1927). Here, the circumstances gave rise to a distinct inference that the alien was not invoking any Fifth Amendment privilege: The alien's lawyer had stated quite publicly at the hearing that he advised his client to remain silent not on Fifth Amendment grounds; rather, the lawyer " 'advise[d] the alien not to answer any further questions until the evidence upon which the warrant is based will be presented here.' " Id., at 106-107, 47 S.Ct. 302 (quoting the lawyer). This statement weakened or destroyed the possibility of a silence-Fifth Amendment linkage; the Government could not challenge his right to invoke the Fifth Amendment; and this Court described its later invocation as "evidently an afterthought." Id., at 113, 47 S.Ct. 302. Perhaps most illustrative is Jenkins, a case upon which the plurality relies, ante, at 2182, n. 3, and upon which the Texas Court of Criminal Appeals relied almost exclusively, 369 S.W.3d 176, 178-179 (2012). Jenkins killed someone, and was not arrested until he turned himself in two weeks later. Jenkins v. Anderson, 447 U.S. 231, 232, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). On cross-examination at his trial, Jenkins claimed that his killing was in self-defense after being attacked. Id., at 232-233, 100 S.Ct. 2124. The prosecutor then asked why he did not report the alleged attack, and in closing argument suggested that Jenkins' failure to do so cast doubt on his claim to have acted in self-defense. Id., at 233-234, 100 S.Ct. 2124. We explained that this unusual form of "prearrest silence" was not constitutionally protected from use at trial. Id., at 240, 100 S.Ct. 2124. Perhaps even more aptly, Justice Stevens' concurrence noted that "the privilege against compulsory self-incrimination is simply irrelevant" in such circumstances. Id., at 241, 100 S.Ct. 2124 (footnote omitted). How would anyone have known that Jenkins, while failing to report an attack, was relying on the Fifth Amendment? And how would the government have had any way of determining whether his claim was valid? In Jenkins, as in Roberts, Rogers, Sullivan, and Vajtauer, no one had any reason to connect silence to the Fifth Amendment; and the government had no opportunity to contest any alleged connection. Still further afield from today's case are Murphy and Garner, neither of which involved silence at all. Rather, in both cases, a defendant had earlier answered questions posed by the government-in Murphy, by speaking with a probation officer, and in Garner, by completing a tax return. Minnesota v. Murphy, 465 U.S. 420, 422-425, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) ; Garner v. United States, 424 U.S. 648, 649-650, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). At the time of providing answers, neither circumstances nor deeds nor words suggested reliance on the Fifth Amendment: Murphy simply answered questions posed by his probation officer; Garner simply filled out a tax return. They did not argue that their self-incriminating statements had been "compelled" in violation of the Fifth Amendment until later, at trial. Murphy, supra, at 425, 431, 104 S.Ct. 1136 ; Garner, supra, at 649, 665, 96 S.Ct. 1178. The Court held that those statements were not compelled. Murphy, supra, at 440, 104 S.Ct. 1136 ; Garner,supra, at 665, 96 S.Ct. 1178. The circumstances indicated that the defendants had affirmatively chosen to speak and to write. Thus, we have two sets of cases: One where express invocation of the Fifth Amendment was not required to tie one's silence to its protections, and another where something like express invocation was required, because circumstances demanded some explanation for the silence (or the statements) in order to indicate that the Fifth Amendment was at issue. There is also a third set of cases, cases that may well fit into the second category but where the Court has held that the Fifth Amendment both applies and does not require express invocation despite ambiguous circumstances. The Court in those cases has made clear that an individual, when silent, need not expressly invoke the Fifth Amendment if there are "inherently compelling pressures" not to do so. Miranda, 384 U.S., at 467, 86 S.Ct. 1602. Thus, in Garrity v. New Jersey, 385 U.S. 493, 497, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), the Court held that no explicit assertion of the Fifth Amendment was required where, in the course of an investigation, such assertion would, by law, have cost police officers their jobs. Similarly, this Court did not require explicit assertion in response to a grand jury subpoena where that assertion would have cost two architects their public contracts or a political official his job. Lefkowitz v. Turley, 414 U.S. 70, 75-76, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973) ; Lefkowitz v. Cunningham, 431 U.S. 801, 802-804, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). In Leary v. United States, 395 U.S. 6, 28-29, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Court held that the Fifth Amendment did not require explicit assertion of the privilege against self-incrimination because, in the context of the Marihuana Tax Act, such assertion would have been inherently incriminating. In Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 77-79, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965), we held the same where explicit assertion of the Fifth Amendment would have required, as a first step, the potentially incriminating admission of membership in the Communist Party. The Court has also held that gamblers, without explicitly invoking the Fifth Amendment, need not comply with tax requirements that would, inherently and directly, lead to self-incrimination. Marchetti v. United States, 390 U.S. 39, 60-61, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) ; Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). All told, this third category of cases receives the same treatment as the first: Circumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment. So, too, in today's case. The plurality refers to one additional case, namely Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). See ante, at 2181 - 2182. But that case is here beside the point. In Berghuis, the defendant was in custody, he had been informed of his Miranda rights, and he was subsequently silent in the face of 2 hours and 45 minutes of questioning before he offered any substantive answers. Id., at ---- - ----, 130 S.Ct., at 2256-57. The Court held that he had waived his Fifth Amendment rights in respect to his later speech . The Court said nothing at all about a prosecutor's right to comment on his preceding silence and no prosecutor sought to do so. Indeed, how could a prosecutor lawfully have tried to do so, given this Court's statement in Miranda itself that a prosecutor cannot comment on the fact that, after receiving Miranda warnings, the suspect "stood mute"? 384 U.S., at 468, n. 37, 86 S.Ct. 1602. We end where we began. "[N]o ritualistic formula is necessary in order to invoke the privilege." Quinn, 349 U.S., at 164, 75 S.Ct. 668. Much depends on the circumstances of the particular case, the most important circumstances being: (1) whether one can fairly infer that the individual being questioned is invoking the Amendment's protection; (2) if that is unclear, whether it is particularly important for the questioner to know whether the individual is doing so; and (3) even if it is, whether, in any event, there is a good reason for excusing the individual from referring to the Fifth Amendment, such as inherent penalization simply by answering. C Applying these principles to the present case, I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. Police told Salinas that and made clear that he was a suspect. His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question-about whether the shotgun from Salinas' home would incriminate him-amounted to a switch in subject matter. And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder. See 368 S.W.3d, at 552-553. These circumstances give rise to a reasonable inference that Salinas' silence derived from an exercise of his Fifth Amendment rights. This Court has recognized repeatedly that many, indeed most, Americans are aware that they have a constitutional right not to incriminate themselves by answering questions posed by the police during an interrogation conducted in order to figure out the perpetrator of a crime. See Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) ; Brogan v. United States, 522 U.S. 398, 405, 118 S.Ct. 805, 139 L.Ed.2d 830 (1998) ; Michigan v. Tucker, 417 U.S. 433, 439, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). The nature of the surroundings, the switch of topic, the particular question-all suggested that the right we have and generally know we have was at issue at the critical moment here. Salinas, not being represented by counsel, would not likely have used the precise words "Fifth Amendment" to invoke his rights because he would not likely have been aware of technical legal requirements, such as a need to identify the Fifth Amendment by name. At the same time, the need to categorize Salinas' silence as based on the Fifth Amendment is supported here by the presence, in full force, of the predicament I discussed earlier, namely that of not forcing Salinas to choose between incrimination through speech and incrimination through silence. That need is also supported by the absence of any special reason that the police had to know, with certainty, whether Salinas was, in fact, relying on the Fifth Amendment-such as whether to doubt that there really was a risk of self-incrimination, see Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), or whether to grant immunity, see Kastigar, 406 U.S., at 448, 92 S.Ct. 1653. Given these circumstances, Salinas' silence was "sufficient to put the [government] on notice of an apparent claim of the privilege." Quinn, supra, at 164, 75 S.Ct. 668. That being so, for reasons similar to those given in Griffin, the Fifth Amendment bars the evidence of silence admitted against Salinas and mentioned by the prosecutor. See 380 U.S., at 614-615, 85 S.Ct. 1229. D I recognize that other cases may arise where facts and circumstances surrounding an individual's silence present a closer question. The critical question-whether those circumstances give rise to a fair inference that the silence rests on the Fifth Amendment-will not always prove easy to administer. But that consideration does not support the plurality's rule-based approach here, for the administrative problems accompanying the plurality's approach are even worse. The plurality says that a suspect must "expressly invoke the privilege against self-incrimination." Ante, at 2178. But does it really mean that the suspect must use the exact words "Fifth Amendment"? How can an individual who is not a lawyer know that these particular words are legally magic? Nor does the Solicitor General help when he adds that the suspect may " mak[e] the claim 'in any language that [the questioner] may reasonably be expected to understand as an attempt to invoke the privilege.' " Brief for United States as Amicus Curiae 22 (quoting Quinn, supra, at 162-163, 75 S.Ct. 668 ; alteration in original). What counts as "making the claim"? Suppose the individual says, "Let's discuss something else," or "I'm not sure I want to answer that"; or suppose he just gets up and leaves the room. Cf. Davis v. Mississippi, 394 U.S. 721, 727, n. 6, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) (affirming "the settled principle that while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes[,] they have no right to compel them to answer"); Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (noting that even someone detained in a Terry stop "is not obliged to respond" to police questions); Florida v. Royer, 460 U.S. 491, 497-498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion). How is simple silence in the present context any different? The basic problem for the plurality is that an effort to have a simple, clear "explicit statement" rule poses a serious obstacle to those who, like Salinas, seek to assert their basic Fifth Amendment right to remain silent, for they are likely unaware of any such linguistic detail. At the same time, acknowledging that our case law does not require use of specific words, see ante, at 2178, leaves the plurality without the administrative benefits it might hope to find in requiring that detail. Far better, in my view, to pose the relevant question directly: Can one fairly infer from an individual's silence and surrounding circumstances an exercise of the Fifth Amendment's privilege? The need for simplicity, the constitutional importance of applying the Fifth Amendment to those who seek its protection, and this Court's case law all suggest that this is the right question to ask here. And the answer to that question in the circumstances of today's case is clearly: yes. For these reasons, I believe that the Fifth Amendment prohibits a prosecutor from commenting on Salinas's silence. I respectfully dissent from the Court's contrary conclusion. The dissent argues that in these cases "neither the nature of the questions nor the circumstances of the refusal to answer them provided any basis to infer a tie between the silence and the Fifth Amendment." Post, at 2187 (opinion of BREYER, J.). But none of our precedents suggests that governmental officials are obliged to guess at the meaning of a witness' unexplained silence when implicit reliance on the Fifth Amendment seems probable. Roberts does not say as much, despite its holding that the defendant in that case was required to explain the Fifth Amendment basis for his failure to cooperate with an investigation that led to his prosecution. 445 U.S., at 559, 100 S.Ct. 1358. Our cases do not support the distinction the dissent draws between silence and the failure to invoke the privilege before making incriminating statements. See post, at 2188 (BREYER, J., dissenting). For example, Murphy, a case in which the witness made incriminating statements after failing to invoke the privilege, repeatedly relied on Roberts and Vajtauer -two cases in which witnesses remained silent and did not make incriminating statements. 465 U.S., at 427, 429, 455-456, n. 20, 104 S.Ct. 1136. Similarly, Kordel cited Vajtauer, among other cases, for the proposition that the defendant's "failure at any time to assert the constitutional privilege leaves him in no position to complain now that he was compelled to give testimony against himself."397 U.S., at 10, and n. 18, 90 S.Ct. 763. Petitioner is correct that due process prohibits prosecutors from pointing to the fact that a defendant was silent after he heard Miranda warnings, Doyle v. Ohio, 426 U.S. 610, 617-618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), but that rule does not apply where a suspect has not received the warnings' implicit promise that any silence will not be used against him, Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). The dissent suggests that officials in this case had no "special need to know whether the defendant sought to rely on the protections of the Fifth Amendment." Post, at 2186 - 2187 (opinion of BREYER, J.). But we have never said that the government must demonstrate such a need on a case-by-case basis for the invocation requirement to apply. Any such rule would require judicial hypothesizing about the probable strategic choices of prosecutors, who often use immunity to compel testimony from witnesses who invoke the Fifth Amendment. Question: What is the state of the court in which the case originated? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

songer_respond1_3_2

E

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. 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)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:

songer_procedur

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. 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: 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_treat

G

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Marvin W. BROWN, Appellant, v. GASTON COUNTY DYEING MACHINE COMPANY, Appellee. No. 71-1268. United States Court of Appeals, Fourth Circuit. Argued Oct. 6, 1971. Decided March 28, 1972. Rehearing En Banc Denied May 22, 1972. Robert Belton, Charlotte, N. C., (J. LeVonne Chambers, Charlotte, N. C., Conrad O. Pearson, Durham, N. C., Jack Greenberg, William L. Robinson, New York City, and Chambers, Stein, Ferguson, & Lanning, Charlotte N. C., on brief), for appellant. Brown Hill Boswell, Charlotte, N. C. (J. W. Alexander, Jr., Blakeney, Alexander, & Machen, Charlottte, N. C., on brief), for appellee. Before CRAVEN and BUTZNER, Circuit Judges, and DUPREE, District Judge. BUTZNER, Circuit Judge: This is an appeal from the district court’s dismissal of an individual claim and class action alleging racial discrimination in hiring, promotion, pay, and other terms and conditions of employment. The suit is founded on Title VII, § 703(a) of the Civil Rights Act of 1964, and 42 U.S.C. § 1981, derived from the Civil Rights Act of 1866. We modify the judgment concerning the individual claim, vacate the judgment dismissing the action brought on behalf of the class, and remand the case for further proceedings. I The defendant, Gaston County Dyeing Machine Co., manufactures and installs custom-made machines for dyeing textile yarns or threads under high pressure. The machines, essentially large vessels weighing several tons with numerous fittings and connections, are assembled by welder-fabricators who must be able to read blueprints and weld to exacting tolerances. Welder-fabricators are among the company’s best paid employees. Marvin Brown, the individual plaintiff, claims that he was denied promotion to higher paying welder-fabricator classifications because he is black. The company counters that Brown was offered unfettered opportunity to advance, but that he lacked the ability and temperament to do the work required of him. Resolution of these conflicting claims depended largely upon the credibility of witnesses, and since the district judge’s findings are supported by the evidence, they are binding upon us. Fed.R.Civ.P. 52(a). In 1960, Brown, who had finished a welding course at North Carolina Agricultural and Technical College, was hired by the company for one of its lower paying jobs. The district judge found that “Brown asked for employment as a welder and was given to understand by supervisory people that it was premature to try to place a Negro in a job as welder with the defendant. “However, in 1961, [the company’s president] instructed his plant managers to give Brown a job as a welder and try to help him make progress in that work. . . .” 325 F.Supp. at 542. The president’s directions were followed and Brown was promoted to welder-trainee. He then progressed through various steps to welder-fabricator, class B. The district judge’s findings establish that the company violated 42 U.S.C. § 1981 by denying Brown a welding job because of his race from the time he applied in 1960 until he was employed as a welder-trainee in 1961. Brown, therefore, is entitled to back pay measured by the difference between the wages he would have earned had he been initially employed as a welder-trainee and his actual wages. Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1971); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971); Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir.), cert. denied, United Order of Am. Bricklayers and Stone Masons, Local 21 v. Waters, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970). The district judge, for reasons fully stated in his opinion, found that Brown was not a victim of racial discrimination after he was employed as a welder-trainee. This finding also depended largely upon the credibility of witnesses. It, too, is supported by the record and is binding upon us. Since this finding covers the period Brown worked for the company after the effective date of the Civil Rights Act of 1964, he is not entitled individually to the relief he seeks under Title VII of the Act, and his remedy is limited to § 1981 for the earlier period. II While Brown has not proved his own Title VII claim, the class of employees he represents is not for this reason deprived of a remedy. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 428 (8th Cir. 1970); cf. Jenkins v. United Gas Corp., 400 F.2d 28, 31 (5th Cir. 1968). The district court, cognizant of this rule, considered the class action on'its merits. Rejecting the company’s claim -that the evidence demonstrates no discrimination against minorities, the district court said, “[A]t least in prior years, welding and high pay in the defendant’s shop were not for black men.” 325 F.Supp. at 543. However, it found that the company, possibly spurred by this suit, had recently undertaken a number of measures to eliminate the racial discrimination it practiced in the past. Consequently, the court dismissed the action for lack of evidence to support relief for the class. Although the company has employed black workers for many years in low paying jobs, it was not until 1961, when Brown was promoted to welder-trainee, that any had been assigned to welding. From 1958 to 1968, the company offered an after-hours training program for welding, blueprint reading, and shop math. Only one black employee was admitted to the program in that decade. For at least six years, it has employed three black leadmen, but these three are paid less than other leadmen who are white. The company advertises that it is an “equal opportunity employer,” but it has no objective, formal guidelines for hiring, promotion, and transfer, or for giving notice of vacancies within the plant except by word of mouth. Starting in the late 1950’s, the company integrated its facilities, sports, and social functions. Since 1965 it has made affirmative efforts to recruit black workers as a part of its routine employment procedure, and it has provided opportunities for black employees to transfer into welder-fabricator or machine shop classifications. Some have accepted the transfers; others, after initially accepting, returned at their own request to lower paying jobs. The district court found that Gaston County where the defendant’s plant is located, has a black population of approximately 13 percent. In September 1969, black employees constituted less than ten percent of the defendant’s total work force. As of the same date they comprised approximately 13 percent of the hourly rate production employees, but this percentage had slipped to less than 11 percent by the time of the trial in October 1970. The following table shows employment by race in each of the company’s job classifications of hourly rate production employees as of September 1969: Analysis of these statistics shows that of the 45 job classifications, black workers are employed in only 11. Slightly less than half of these employees are relegated to two positions, grinding and pickling, and industrial ■maintenance (janitors). Both of these jobs are rated ''near the bottom of the company’s pay scale, and neither affords employees much opportunity for advancement to higher paid positions. Significantly, both of these classifications are almost completely segregated. Each has six black employees and only one white employee. Sandblaster is the classification of another comparatively low paying job, and it, too,' is filled by black employees. In contrast, although 55 persons are employed in welding jobs, only one is black. And in the top 18 classifications having a pay range exceeding $3.00 an hour, there are 102 white and three black employees. But even these three, who are classified as leadmen, receive less than $3.00 an hour while their white counterparts are paid at a rate in excess of $3.00. Courts have often observed that proof of overt racial discrimination in employment is seldom direct. E. g., United States v. Jacksonville Terminal Co., 451 F.2d 418, 442 (5th Cir. 1971); Marquez v. Omaha District Sales Office, Ford Division, 440 F.2d 1157, 1162 (8th Cir. 1971); Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581, 584 (1954). Recognizing this, we have found “error in limiting Title VII to present specific acts of racial discrimination,” United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970), and it is now well established that courts must also examine statistics, patterns, practices and general policies to ascertain whether racial discrimination exists. United States v. Jacksonville Terminal Co., 451 F.2d 418, 442 (5th Cir. 1971); Graniteville Co. v. EEOC, 438 F.2d 32, 41 (4th Cir. 1971); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971); United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970); United States v. Hayes International Corp., 415 F.2d 1038, 1044 (5th Cir. 1969). We need not decide whether the 1969 statistics, revealing as they are, should be regarded as conclusively showing violation of Title VII or whether they establish a prima facie case. It is sufficient to hold that they have not been rebutted by the company’s efforts since 1965 to hire and promote black employees. In United States v. Bethlehem Steel Corp., 446 F.2d 652, 655 (2nd Cir. 1971), the court identified the lack of “fixed or reasonably objective standards and procedures for hiring” as a discriminatory practice. Gaston’s employment policies suffer the same deficiency. The company lacks objective guidelines for hiring, for pay increases within job classifications, and for promotion or transfer from one job to another. Employment and promotion policies that operate without objective standards for the direction of supervisory personnel may appear impartial, but recently we cautioned: “Practices, policies or patterns, even though neutral on their face, may operate to segregate and classify on the basis of race at least as effectively as overt racial discrimination. Particularly is this so if a history of past discrimination is developed.” United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970). Elusive, purely subjective standards must give way to objectivity if statistical indicia of discrimination are to be refuted. “Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant.” Griggs v. Duke Power Co., 401 U.S. 424, 436, 91 S.Ct. 849, 856, 28 L.Ed.2d 158 (1971). Here, in the absence of objective criteria applied to all workers alike, the statistics indicate that race is the only identifiable factor explaining the disparity between the jobs held by white employees and those held by black employees. The proof discloses no objective standards based on education, experience, ability, length of service, reliability, or aptitude to account for the preferential employment of white workers. Cf. United States v. Jacksonville Terminal Co., 451 F.2d 418, 449 (5th Cir. 1971). Moreover, the record discloses that notices of vacancies are not posted, and news of them is passed along by word of mouth. When job classifications are as segregated as they are in this company, delay in learning about a vacancy in an all white category may in itself discriminate against a black employee who hears of it only after it has been filled. This practice resembles the lack of a formal transfer system which we criticized in Dillon. 429 F.2d at 802, 804. It differs little from a hiring policy of referral by employees that has been condemned because it favors the family and friends of white employees over black job seekers who have no way of knowing about an opening. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970); United States v. Sheet Metal Workers, Local 36, 416 F.2d 123, 137 (8th Cir. 1969); see Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L. Rev. 1109, 1152 (1971). In sum, the lack of objective guidelines for hiring and promotion and the failure to post notices of job vacancies are badges of discrimination that serve to corroborate, not to rebut, the racial bias pictured by the statistical pattern of the company’s work force. III The district court was impressed with' the efforts of the company to remedy the discrimination of prior years. Counsel for the plaintiff, though pressing for full injunctive relief, candidly acknowledges that the company has recently improved many of its practices. But the transition to a shop free from discrimination is as yet incomplete. Progress already made has chiefly occurred since the institution of this suit. If this litigation is prematurely terminated, members of the class run the risk that this progress will abruptly end. Therefore, we will adopt the remedy fashioned in Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 428 (8th Cir. 1970), which the plaintiff somewhat reluctantly proposes as an alternative measure. There the court of appeals directed the district judge to retain the case on his docket a reasonable time to insure continuance of the company’s policy of equal employment opportunities. Accordingly, the case is remanded to the district court for retention on its docket for a reasonable time. If, at the end of this period, the court finds that the company’s employment policies have completely eliminated the unlawful practices prohibited by § 703(a), it may dismiss this action. However, if any unlawful employment practices remain, the court must order appropriate injunc-tive relief. In either event, the plaintiff is entitled to recover his costs and reasonable counsel fees. Robinson v. Lorillard Corp., 444 F.2d 794 (4th Cir. 1971); Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971); Parham, supra, 433 F.2d at 429. The judgment is affirmed in part, vacated in part, and the case is remanded for further proceedings consistent with this opinion. . Brown v. Gaston County Dyeing Machine Co., 325 F.Supp. 541 (W.D.N.C.1970). This case was previously here on appeal of the issue of exhaustion of remedies. Brown v. Gaston County Dyeing Machine Co., 405 F.2d 887 (4th Cir. 1968), cert. denied, Pilot Freight Carriers, Inc. v. Walker, 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451 (1969). . Section 703(a) of the Act, 42 U.S.C. § 2000e-2(a) (1970), provides: “It shall be an unlawful employment practice for an employer— “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or “(2) fo limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” . 42 U.S.C. § 1981 provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” . Compare Parham v. Southwestern Bell Telephone Company, 433 F.2d 421, 426 (8th Cir. 1970) (statistics as a matter of law establish a violation of Title VII), with Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971) (statistics create a prima facie case of discrimination). See Developments in the Law — Employment Discrimination and Title VII of the Civil Bights Act of 1964, 84 Harv.L.Rev. 1109, 1154 (1971). Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:

sc_lcdispositiondirection

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations FEDERAL POWER COMMISSION v. UNITED GAS PIPE LINE CO. No. 247. Decided October 21, 1968. Solicitor General Griswold, Harris Weinstein, Richard A. Solomon, and Peter H. Schiff for petitioner in No. 247. Reuben Goldberg and George E. Morrow for petitioner in No. 248. David T. Searls and Vernon W. Woods for respondent in both cases. Together with No. 248, Memphis Light, Gas & Water Division v. United Gas Pipe Line Co., also on petition for writ of certiorari to the same court. Per Curiam. When these cases were here the first time, we sustained the authority of the Federal Power Commission to determine the tax component of United’s cost of service in accordance with the formula developed by it in Cities Service Gas Co., 30 F. P. C. 158 (1963), but remanded the cases with respect to whether in applying the Cities Service formula it was significant that United apparently had both jurisdictional and non jurisdictional activities and income. FPC v. United Gas Pipe Line Co., 386 U. S. 237 (1967). Over the objections of the Commission, the Court of Appeals held that the issue had been sufficiently raised by United in its petition for rehearing before the Commission in accordance with § 19 of the Natural Gas Act, 52 Stat. 831, as amended, 15 U. S. C. § 717r, and that the Cities Service formula required that consolidated return tax savings coming to United be first allocated to United’s non jurisdictional income. The petitions for certiorari are granted and the judgment of the Court of Appeals is reversed. Although we acquiesce in the Court of Appeals’ construction of United’s petition for rehearing filed with the Commission, the issue on remand was not in the proper posture for final determination by the Court of Appeals and should have been remanded to the Commission for further consideration. It is true that the Commission in its opinion had remarked that “United is largely a regulated company, and we shall designate it as such for the purpose of these computations.” United Gas Pipe Line Co., 31 F. P. C. 1180, 1190 (1964). But the Commission made no effort to justify this characterization of United in terms of the findings, the fundamentals of the Cities Service formula, or the applicable law. This may have been because the adversary proceedings were primarily concerned with the validity of the formula itself and never focused precisely on the question of intra-company revenue and cost allocation. Whatever the reason, there was “no indication of the basis on which the Commission exercised its expert discretion/’ no articulation of “any rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 167, 168 (1962). On this issue the Commission’s order was vulnerable on rehearing and in the Court of Appeals. But it does not follow that the Court of Appeals, in the face of the Commission’s insistence that its decision was wholly consistent with its Cities Service formula, should have itself determined that consolidated return savings be first allocated to non jurisdictional income and that “income from the unregulated component of United is sufficiently large to absorb all such net tax losses and no excess remains to reduce the regulated taxable income of United.” United Gas Pipe Line Co. v. FPC, 388 F. 2d 385, 391-392 (C. A. 5th Cir. 1968) (footnote omitted). These questions should have had adequate attention from the Commission in the first instance before being subjected to judicial review. Before the courts can properly review agency action, the agency must disclose the basis of its order and “give clear indication that it has exercised the discretion with which Congress has empowered it,” Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 197 (1941); otherwise the courts are propelled “into the domain which Congress has set aside exclusively for the administrative agency.” SEC v. Chenery Corp., 332 U. S. 194, 196 (1947). The judgment of the Court of Appeals is reversed and the cases are remanded with instructions to return the cases to the Commission for further proceedings. It is so ordered. Mr. Justice Fortas and Mr. Justice Marshall took no part in the consideration or decision of these cases. The motion for leave to use the record in the prior proceedings before this Court, Nos. 127 and 128, October Term, 1966, is granted. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable 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. LILES v. PEISER et al. No. 10776. United States Court of Appeals Sixth Circuit. April 11, 1949. W. Wright Mitchell, of Memphis, Tenn. (Robert M. Nelson and W. Wright Mitchell, both of Memphis, Tenn., on the brief), for appellant. Charles M. Crump, Marx J. Borod and David Ballon, all of Memphis, Tenn. (Charles M. Crump, Rosenfield & Borod and David Ballon, all of Memphis, Tenn., on the brief), for appellees. Before HICKS, Chief Judge, and MARTIN and MILLER, Circuit Judges. MARTIN, Circuit Judge. The Referee in Bankruptcy disallowed thé petition of appellant, doing business as Liles Electric Company, for reclamation of certain machinery, material and equipment, and for the enforcement of liens for labor and materials supplied the bankrupt Independent Tool and Machinery Co. The claim of appellant was reduced $1,377.37 by the Referee and allowed as an unsecured claim in the amount of $9,962.82. The Referee filed no separate findings of fact and conclusions of law. He denied the petition of appellant by an order in which inadequate statements of fact were intertwined with the bare announcement of legal conclusions. He wrote no elucidating opinion and cited no interpretative decisions of the Tennessee courts, or any other authorities, but merely quoted in part section 7913 of the Tennessee Code. The District Judge confirmed the mixed findings and conclusions contained in the order of the Referee, denied petitioner’s prayer for review, and dismissed the petition. The Independent Tool and Machinery Company (the bankrupt) conducted a manufacturing business at two leased locations in Memphis, Tennessee. One location, the Ragsdale property, with three buildings thereon, was at 814 Scott Street and was known as Plant No. 1. From December 31, 1946, to February 25, 1947, the date of bankruptcy, Independent had no lease in writing on the Ragsdale premises. The other premises, the Klyce property at 921 Rayner Street, leased by Independent consisted of two buildings. The first, known as Plant No. 2, was occupied by Independent under demise in writing dated April 1, 1946, and extending into 1951. A right of re-entry by lessor in event of lessee’s bankruptcy was reserved in this lease. The other building at 921 Rayner Street, known as Plant No. 3, was occupied by the bankrupt as sub-tenant of the American Plating Works under a month-to-month tenancy. By agreements with the owners of' the ■leased premises, Independent was privileged to remove all electric wiring, switches, transformers, and the like, which it had placed on the property. The machinery installed and used by Independent on the leased premises belonged to it. Upon being notified by the City Inspection Department in December, 1945, that its plant on Scott Street was inadequate and would have to be rewired and put in shape, Inde-, pendent orally contracted with appellant to do the necessary work to that end. Liles, began performance forthwith. Also, he contracted orally to do certain work for Independent at its plants on Rayner Street. All contracts between Independent and Liles were oral except an ante-dated alleged conditional sales agreement and contract, to be hereinafter discussed. The work on the No. 3 Plant on Rayner Street consisted in rewiring machines which had been moved there from the plant on Scott Street. This work was completed before December 6, 1946. On December 13th of that year, Independent paid Liles in full for all labor and materials furnished by him up to December 6, 1946. Liles continued his work at the Scott Street plant until two days before Independent’s voluntary bankruptcy. Work of no consequence was done by Liles in Plant No. 2 on the Klyce property. Independent had executed a $100,000 promissory note, dated January 9, 1946, payable to the Union Planters National Bank and secured by chattel trust deed on its machinery and equipment. This note and security were later assigned to Arnold and Walter Klyce. The bankrupt being indebted to them in an amount in excess of $95,000, the Referee in Bankruptcy confirmed on April 21, 1947, a public sale to the Klyces of the dies, jigs and fixtures-located in Plant No. 1, certain machinery and equipment at Plant No. 3 listed on the trustee’s inventory, and the machinery and equipment in Plant No. 1, with the exception of certain items listed on that inventory. The consideration recited, in the Referee’s order was $95,000; and it was provided therein that the purchasers should pay in cash to the trustee sums equal in amount to any liens against the property which should be finally proved and allowed in the bankruptcy cause. On the same date, April 21, 1947, appellant filed a petition for reclamation and for enforcement of alleged liens for labor and materials. He averred that, on September 2, 1946, he had entered into a contract with the bankrupt- to furnish labor and material to rewire its plants; that the property at 814 Scott Street was owned by Mrs. Banks and Mrs. Ragsdale, and the property at 921 Rayner Street was owned by Mrs. Elise Klyce and Mrs. Mary Klyce; and that he was informed that the bankrupt was oc-' cupying these properties under a month-to-month oral lease. The petitioner alleged further that, by the same conditional sales contract dated September 2, 1946, preserved in the form of an attached memorandum letter, he retained title to the materials furnished by him to the bankrupt. He asserted; moreover, a lien by virtue of section 7914 of the official Code of Tennessee, hereinafter quoted. After praying for service, for an answer by the trustee, and for a show cause order, he prayed for the right to enter upon the premises and reclaim and take possession of all materials theretofore furnished by him and used in the work performed on the contract, for the purpose of “advertising and selling same” under the “Tennessee Conditional Sales Statute [Code, § 7286 et seq.]”, the proceeds to be applied “in the reduction of the costs and purchase price of. said materials.” He prayed further for the declaration and enforcement of a lien against all machinery and equipment listed in attached exhibits. - - Most of the machinery and equipment described was included in, the aforementioned property sold at public auction to the Klyces. In an amended petition, filed in May, 1947, he prayed that, pursuant to sections 7920 and 7921 of the Code of Tennessee, he be granted the same relief asked for in the original petition. On May 24, 1947, the Trustee in Bankruptcy filed exceptions to appellant’s petition for. reclamation and for enforcement of his alleged lien. The trustee denied’ that the alleged contract of September 2, 1946, was a valid conditional sales contract; and averred that the document was not actually executed until within ten days prior to the filing of the petition in bankruptcy, that the purported contract was prepared, executed and ante-dated in a fraudulent effort by appellant to claim retention of title to materials already furnished, and that “the purported contract is invalid insofar as. it purports to retain title to materials furnished as security for labor and services performed.” The contract was further attacked as invalid in failing to describe accurately the property to which title is stated to be retained. The exceptions of the trustee, moreover, denied that appellant is entitled to a lien by virtue of section 7914 of the Code of Tennessee, or any other statute, or by virtue of the common law. Upon the hearing before the Referee, Clement, president of the company, testified that the letter claimed to be a conditional sales contract' was executed, not upon the date appearing on its face — September 2, 1946 — but was in fact executed, to, the best of his recollection,' on February IS, 1947. The appellant admitted that the letter was ante-dated, and did not deny that it was executed shortly before the bankruptcy. The letter in question reads, as follows: “Mr. J. W. Clement: We propose to furnish the labor and materials to rewire plant located at 814 Scott Avenue, also No. 3 building, and Plant No. 2, located at 921 Rayner, as follows: Labor at rate of, electricians, three dollars per hour, helper, one dollar and a half; material, at the rate of cost plus forty per cent;- all wiring materials, including wire conduit, switches, motor controls and transformers, to remain the property of the Liles Electric Company until the work is completed, and fully paid for.” The letter was signed, ■“Liles Electric Company Glenn ■ Liles (Owner.)”; and was undersigned: “Accepted by Independent Tool and Machine Company. J. W. Clement, president.” There can be no doubt that the Referee, confirmed by the District Judge, was correct in holding this ante-dated letter invalid as a conditional sales contract. Indeed, appellant does not press upon us that this was erroneous; but bases his appeal upon alleged error in the refusal of the District Court to apply in his behalf the mechanics’ and furnishers’ lien laws of Tennessee as he construes them. .Ill his original petition, appellant based his right to a lien upon section 7914 of the official'Code of Tennessee, which provides: “There shall be a lien upon any lot of ground or tract of land upon which a house .or structure has been erected, demolished, altered, or repaired, or for fixtures or ma'chinery furnished or erected, or improvements made, by special contract with the owner or his agent, in favor of the contractor, mechanic, laborer, founder or machinist, who does the work or any part of the work, or furnishes the materials or any part of the materials, or puts thereon any fixtures,, machinery, or material, and in favor of all persons who do any portion of the work or furnish any portion of the materials for such building.” It should be noted that, in the preceding section, 7913, of the Tennessee Code, the word “owner” is thus defined: “ ‘Owner’ includes the owner in fee of real property, or of a less estate therein, a lessee for a term of years, a vendee in possession under a contract for the purchase of real property, and any person having any right, title or interest, legal or equitable, in real property, which may be sold under process.” The appellant contends that machines, such as heavy transformers, switches, conduits, bolted down and installed, and wiring installed, “in leased property by a tenant,” are “chattels real and therefore an interest in real property within the meaning of Sections 7913, 7914, 7916 and 7917 of the Tennessee Code” and are under such statutes subject to “mechanics lien for labor performed thereon and material added thereto at tenant’s request.” • The main authority upon which appellant depends is Burr v. Graves, 72 Tenn. 552, decided by the state Supreme Court in 1880. In that case, the complainants, who had erected a cotton-cleaning plant for a lessee upon land in lessee’s possession under an oral lease, filed their bill in chancery fifteen days before the expiration of one year of lessee’s term to enforce a mechanics’ lien “on the leasehold interest, building, machinery, and fixtures.” In affirming a decree of the chancellor in favor of complainants, the Supreme Court of Tennessee said, inter alia: “The complainants were, under the original contract, entitled to a lien as mechanics for the debt thereby created, on the leasehold interest in the land, the building, engines, machinery and fixtures furnished and erected, for twelve months from the completion of the work: Code, sec. 1981, [contained in sec. 7914 of the present Williams’ Code] ; Alley v. La-nier, 41 Tenn. 540. The lease, even if void as a letting for three years, because not in writing, was good for one year, and the bill was filed before the expiration of the year.” It would seem from the. opinion that machinery was not regarded by the court as “fixtures”, and that the lien could be imposed upon the machinery only if considered to be an “improvement”. But, under section 7913 of the existing Code, which was not in existence in 1880, “improvement” is now defined as “any building, structure, erection, alteration, demolition, excavation, or any part thereof, including ornamental shrubbery, on real property for its permanent benefit.” [Emphasis supplied.] Upon the facts of the instant case, the movable machinery could not be deemed a “permanent benefit”. When Burr v. Graves was decided, although the law in Tennessee was that a leasehold interest is subject to mechanics’ lien, (Alley & Bush v. Lanier, 41 Tenn. 540), the qualification to the rule had not been expressed, which now is found in section 7913, that the leasehold must be “for a term of years”, or one “which may be sold under process”. Construing Burr v. Graves most favorably to appellant’s position, that authority does not now support the argument that mechanics’ or furnishers’ liens embrace trade fixtures owned by lessee, situated upon property in possession of lessee under a month-to-month tenancy. It is true that, in Steger, Assignees, v. Arctic Refrigerating Company, 89 Tenn. 453, 14 S.W. 1087, 11 L.R.A. 580, cited by appellant, the court quotes with approval the language of Judge Cooper in Burr v. Graves, supra, that the “lien is favored by the Legislature, and should not be hazarded by dangerous niceties in its enforcement”; and reaffirms the doctrine that liens created for the benefit of those who have furnished labor or material for the erection of buildings or machinery should be liberally construed in favor of the lienor. Liberal construction, however, should not be over-strained. The highest Tennessee court has said: “The liberal construction spoken of in our cases refers to the subject-matter, that is, the property to which the lien attaches and against which it may be enforced; the rule is not applied to draw in those excluded from the benefit of the statute. Thompson v. Baxter, 92 Tenn. [305], 307, 21 S.W. 668, 36 Am.St.Rep. 85;, [Chickasaw] Hotel Company v. [C. B. Barker] Construction Co., 135 Tenn. 305, 186 S.W. 115, L.R.A.1916F, 106. The Court cannot extend the benefit of the Statute to either persons or objects not embraced in its terms, and in determining the breadth and scope of the Act we must be guided by both the words and context.” Pillow v. Kelly, 155 Tenn. 597, 599, 296. S.W. 11, 12. In Tuec Co. v. McKnight & Merz, 140 Tenn. 67, 69, 203 S.W. 238, holding a theater’s vacuum cleaning installation to be subject to mechanics’ lien, parts of the mechanism were permanently attached to the building and other parts were not but were loose and removable. The entire vacuum cleaning installation was held subject to the lien, it being “perfectly plain that a. vacuum cleaner, under modern conditions, is material used in the construction of the theater.” Halley v. Alloway, 78 Tenn. 523, was cited by the court as authority. In both the Steger case, supra, and the Tuec case, the improvements upon which the liens were held enforceable became a permanent part of the buildings in which they were placed. In the case at bar, the machinery upon which the lien is sought was not permanently attached to the building and was removable by the lessee at will. In Bank & Trust Co. v. Fred W. Wolf Co., 114 Tenn. 255, 265, 86 S.W. 310, 312, the Tennessee court thus quoted from its earlier opinion in Johnson v. Patterson, 81 Tenn. 626: “Modern authorities all agree that the most controlling test of the question whether property connected with real estate is to be deemed realty or a mere chattel, removable at the pleasure of the owner, is the intention and purpose of the erection.” In Hickman v. Booth, 131 Tenn. 32, 34, 173 S.W. 438, Mr. Justice (later Chief Justice) Green said: “In Tennessee only those chattels are fixtures which are so attached to the freehold that, from the intention of the parties and the uses to which they are put, they are presumed to be permanently annexed, or a removal thereof would cause serious injury to the freehold. {Citing authorities.] The usual test is said to be the intention with which a chattel is connected with realty. If it is intended to be removable at the pleasure of the owner, it is not a fixture.” Cf. Blue v. Gunn, 114 Tenn. 414, 425, 87 S.W. 408, 69 L.R.A. 892, 108 Am.St.Rep. 912, 4 Ann.Cas. 1157. By this test, the machinery involved in this case was certainly not a fixture. The old case of Grewar v. Alloway, 3 Cooper Tenn.Ch. 584, adds no force to appellant’s argument. There, the issue was between the owner of a theater and the mechanic who had installed therein chairs, balusters, railings, rollers and pulleys for shifting scenery, and the like. The articles furnished were for permanent use in the building. The court used the following language to distinguish such a- case from one which involved trade fixtures owned by a lessee: “Such fixtures, like other trade fixtures, are, as between landlord and tenant, removable by the tenant, but, as between the owner and the mechanic, are subject to the mechanic’s lien law.” [Emphasis supplied.] The following cases cited by appellee bear some weight against the contention of appellant; but, in our view of the case, are not crucial. Hart v. Appalachian Washed Coal Co., 139 Tenn. 204, 201 S.W. 515; Degraffenreid v. Scruggs, 23 Tenn. 451, 40 Am.Dec. 658; Allen v. Brown, 14 Tenn. App. 405, 408. Of all the Tennessee decisions which have been considered, we find Truxall & Dummeyer v. Williams & McCallie, 83 Tenn. 427, 428, most apposite. In that case, a mechanic, employed by the owner of a portable engine, boiler and appurtenances to take the same from one place and erect them temporarily upon the land of another, was held not to be entitled under the then existing statutes of Tennessee to a lien, either upon the land or upon the machinery. In denying the right of the mechanic to a lien, the Supreme Court said : “But here is no ownership of a term, or any interest in the land whatever, to be subjected to complainant’s claim, but only a permission to occupy with portable machinery another’s land for the purpose of sawing his timber. The party owning the machinery could remove it at any time he chose. It is not a fixture erected by the owner for the beneficial use of his own land, as contemplated in the first section of the statute. It is only the temporary occupation of a party’s land by the personal property of the owner, the property having no permanent connection whatever with his freehold. The only legal question is, then, whether a mechanics’ lien exists on mere personalty, as such, of another while being temporarily used on a third party’s land, by the permission of the land owner. The statute has not given such a lien, and we are not authorized to say it exists.” In the present controversy, likewise, we find that the statute has given no such lien as is claimed by appellant. There is no material difference between section 7914 and the operative Code section 2745 with which the Tennessee court was -concerned in the Truxpd case, supra. It is true that, in that case, there had been no lease 'of any kind, but merely a temporary permissive right to put and operate a mill and machinery on land for the phrpose of sawing timber, the owner of the land to receive one-half of the timber sawed; while, in the present case, the bankrupt was in possession of the property under a month-to-month tenancy. Inasmuch as this was not a lease for a term of years nor an interese which could be sold under process, the factual difference in the two cases does not distinguish them. The complainant here is not seeking a lien against a leasehold estate, but rather, as in the Truxall case, against machinery temporarily placed upon the leasehold. In view of our conclusion that appellant has not established a valid lien under Tennessee law, it is unnecessary to discuss his secondary argument that the Tennessee mechanics’ and furnishers’ lien statutes give him priority over the lien of the chattel trust deed involved herein. One issue remains. The District Judge sustained the Referee in Bankruptcy in reducing the unsecured claim of appellant by the sum of $1,377.37, constituting overtime improperly included in the claim. It was held that the cost of labor to be charged against the bankrupt in its cost plus contract with appellant had been' definitely fixed and was evidenced in writing by the contract letter of February 15, 1947, antedated September 2, 1946. The rate therein provided was three dollars per hour for electricians and one-dollar-and-a-half per hour for helpers. Appellant insists that it was erroneously refused the right to prove that union employees receive extra compensation for work in excess of forty hours in a single workweek and receive, also, extra compensation for work performed on Saturdays, Sundays and at night. Appellant refers to Faulkner v. Ramsey, 178 Tenn. 370, 158 S.W.2d 710, and Earle v. Illinois Cent. R. Co., 25 Tenn.App. 660, 167 S.W.2d 15. From our reading of the record and consideration of the evidence we find nothing substantial to justify a conclusion that Independent liad knowledge that appellant was paying over-time to employees in excess of the contract rate and charging such payments to it. In the absence of such proof, we are of opinion that the specified contract for labor was binding on the parties ; and that it was - not erroneous to refuse to receive the proffered evidence as to custom. In Sweeney v. Thomason, 77 Tenn. 359, 363, 364, 42 Am.Rep. 676, the Tennessee court found no reason for holding, in relation to a contract for the supplying of brick, that the purchaser had agreed to pay anything more than was expressed in the plain' language of the contract, or that he understood the contract “to mean anything'different from the plain and natural import of the language.” We think that in the instant case, likewise, there should be no departure from the agreement evidenced in writing. The order of the District Court from which this appeal was taken is affirmed. “Section 7913. Definitions.— [Blaterial excerpts.] ‘Improvement’ means any building, structure, erection, alteration, demolition, excavation, or any part there of, including ornamental shrubbery, on real property for its permanent benefit. * * * [“Owner” as defined in this section has been quoted heretofore in the body of this opinion.] * * * ‘Real property’ includes real estate, lands, tenements and hereditaments, corporeal and incorporeal, and fixtures.” Section 7914. [Heretofore .quoted in full in body of opinion.] “Section 7916. Extent of liens.- — Sucb lien shall extend to, and only to, the owner’s right, title or interest in the real property and improvements, existing at the time of the visible commencement of operation or thereafter acquired. If any part of the real property or improvements subject to such lien be removed by the owner or any other person at any time before discharge thereof, such removal shall not affect the rights of the lienor either in respect of the real property and improvements, or the part so removed.” “Section 7917. Comprehension and duration of lien. — The lien shall include the building, structure, fixture, or improvement as well as the lot or land, and continue for one year after the work is finished or materials are furnished, and until the final decision of any suit that may be brought within that time for its en- . forcement.” Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:

sc_caseorigin

057

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. KILLIAN v. UNITED STATES. No. 7. Argued October 10, 1961. Decided December 11, 1961. David B. Rothstein and Basil R. Pollitt argued the cause for petitioner. With them on the brief was M. Michael Essin. Kevin T. Maroney argued the cause for the United States. With him on the briefs were Solicitor General Cox, Assistant Attorney General Yeagley, Bruce J. Terris, George B. Searls and Lee B. Anderson. Telford Taylor filed a brief'for Raymond Dennis et al., as amici curiae, urging reversal. Mr. Justice Whittaker delivered the opinion of the Court. For the purpose of enabling a labor union of which he was then an officer to comply with § 9 (h) of the National Labor Relations Act, as amended, 29 U. S. C. § 169 (h), and hence to use the processes of the National Labor Relations Board, petitioner made on Decembér 9, and caused to be filed with the Board on December 11, 1952, an affidavit reciting, inter alia, “I am not a member of the Communist Party or affiliated with such Party.” Upon receipt of that affidavit and like ones of all other officers of the union, the Board advised the union that it had complied with § 9 (h) and could make use of the Board’s processes. In November 1955, an indictment in two counts was returned against petitioner in the United States District Court for the Northern District of Illinois. The first count charged that, in violation of 18 U. S. C. § 1001, petitioner had falsely sworn, in the affidavit, that he was not a member of the Communist Party, and the second charged that, in violation of the same statute, he had also falsely sworn in that affidavit that he was not affiliated' with the Communist Party. A jury trial was had which resulted in a verdict of guilty on both counts, and the court sentenced petitioner to imprisonment. On appeal, the United States Court of Appeals for the Seventh Circuit originally affirmed, but, before the motion for rehearing was ruled, this Court’s decision in Jencks v. United States, 353 U. S. 657, came down, and, on the authority of that case, the court granted the motion for rehearing, reversed the judgment and remanded the case for a new trial. United States v. Killian, 246 F. 2d 77, 82. A new trial was had. It also resulted in a verdict of guilty on both counts, and petitioner was sentenced to imprisonment for five years on Count I, and for three years on Count II, the sentences to run concurrently. On appeal, the United States Court of Appeals for the Seventh Circuit affirmed, United States v. Killian, 275 F. 2d 561, and we granted certiorari limited to two questions, namely, (1) whether production of statements submitted by Government informer witnesses for their expenses, and the receipts executed by them for the payments, is required by 18 U. S. C. § 3500 when the Government offers at the trial to produce a list of the dates and .amounts of the payments, and (2) whether the instructions to the jury properly defined membership in and affiliation with the Communist Party. 365 U. S. 810. The Government introduced evidence tending to show that petitioner was a member and active in the affairs of the Communist Party from 1949 through August 1953, but, inasmuch as there is not before us any question concerning the sufficiency of the evidence to make a sub-missible case for the jury, it is not necessary to review the evidence in detail. I. The Document Production Questions. Intelligent understanding of the document production questions presented requires a brief statement of their basis. They arose in connection with the testimony of Government witnesses Sullivan and Ondrejka. On direct examination, Sullivan testified that he joined the Communist Party in 1948 at the request of the Federal Bureau of Investigation, and in October 1949 transferred his membership from Cincinnati, Ohio, to Madison, Wisconsin, where, by secret means, he made contact with local leaders of the Communist Party and became active in its affairs. In those activities, he met petitioner in December 1949. Petitioner was then the section organizer for the Party in Madison. Thereafter, Sullivan attended a number of secret Communist Party group meetings in Madison in 1949 and 1950 at which petitioner was present and acted as the spokesman and leader. Sullivan testified that he gave written reports to the F. B. I. respecting Party meetings and activities soon after they occurred. At the close of Sullivan’s direct testimony, petitioner moved for production, for use in cross-examination, of all statements given by the witness to the F. B. I. relating to his direct testimony. The narrative statements were produced to the judge, in camera, who, after excising the parts that did not relate to the witness' direct testimony, handed them to petitioner’s counsel. On cross-examination, Sullivan testified that he was paid stipulated monthly amounts for his services, and was reimbursed for his expenses incurred in Communist Party activities, by the F. B. I., and that when he received the money he signed a receipt for it. His connection with the F. B. I. terminated in 1952. After completing the cross-examination of the witness, petitioner again moved for production of all statements made by the witness to the F. B. I., without excision. The Government objected to the motion on the grounds that it had produced all of the witness’ statements that related to his direct testimony, and that there was no showing that the witness had given any other statements to the Government that related to his direct testimony. Thereupon, the court denied petitioner’s motion. Petitioner then moved to strike the testimony of the witness, and that motion, too, was denied. On direct examination, Ondrejka testified that he joined the Communist Party at the request of the F. B. I. in October 1949 and remained a member of the Party until November 1953. He met petitioner at a Communist Party meeting in Milwaukee, Wisconsin, in January 1951, and thereafter attended many secret Communist Party meetings in Milwaukee where petitioner was present and active, and alsi > participated with petitioner in numerous Party activities, until August 1953, and knew petitioner to be a member of the Communist Party throughout that period. Ondrejka testified that he gave written reports to the F. B. I. respecting Party meetings and activities soon after they occurred. At the conclusion of Ondrejka’s direct testimony, petitioner moved for production, for use in cross-examination, of all statements given by the witness to the F. B. I. The court ordered the Government to produce to the judge, in camera, “all statements that in any way affect the direct examination of the witness.” Accordingly, all of the narrative statements given by the witness to the Government relating to his direct testimony were produced to the judge, who, after excising such parts as did not relate to the witness’ direct testimony, delivered them to petitioner’s counsel. Petitioner then moved for production of all statements relating to the testimony of the witness, without excision. That motion was denied. On cross-examination, Ondrejka testified that he was paid stipulated monthly amounts in cash for his services by the F. B. I., and, in addition, was reimbursed by the F. B. I. for his expenses, such as Communist Party dues, literature, contributions and travel, which he orally reported to an F. B. I. agent, who made notes thereof and later reimbursed him in cash. The court sustained the Government’s objection to a question asking whether Ondrejka signed receipts for the moneys paid to him in reimbursement for his expenses. Petitioner then moved for production of all statements given by the witness to the F. B. I., whether written by the witness or by an F. B. I. agent as the result of interviews with the witness, which related to the witness’ testimony on cross-examination, including particularly reports by the witness of his reimbursable expenses and the receipts which he signed evidencing reimbursement for those expenses. The Government opposed production of the documents on the ground that they did not relate to the direct testimony of the witness. It further objected to producing Ondrejka’s reports of expenses, and the receipts he had signed when reimbursed for those expenses, on the grounds that they were administrative records of the F. B. I. and were immaterial and irrelevant, but the Government offered to produce a list showing the dates and amounts of the payments and whether they were for services or expenses. Petitioner refused to receive that proffered list. Thereupon, the court denied the motion. Petitioner then moved to strike all of Ondrejka’s testimony, and that motion, too, was denied. Petitioner contends that his general demands for “all statements,” as well as his specific demand for the reports and receipts made by Ondrejka, encompassed, and the trial court erred to his prejudice in denying his motion to require the Government to produce, (1) the notes made by the F. B. I. agents covering Ondrejka’s oral reports of expenses and (2) the receipts signed by Sullivan and Ondrejka for moneys paid to them in reimbursement for expenses. He supports these contentions with an elaborate argument which we need not delineate because the Solicitor General now concedes that the F. B. I. notes of Ondrejka’s oral reports may have been “statements” within the meaning of 18 U. S. C. §3500 (e)(2), and he flatly concedes that the receipts signed by Sullivan and Ondrejka were “statements” within the meaning of § 3500. However, the Solicitor General contends that on the actual facts — many of which are not incorporated in the record before us — petitioner is not entitled to, and that we should not on this incomplete and imperfect record order, a new trial, because the true facts are that the F. B. I. agents’ notes covering Ondrejka’s oral reports of expenses were not in existence at the time of the trial, and the receipts signed by Sullivan and Ondrejka do not “relate to” their direct testimony as required by § 3500, or, if it may be said that any of them do “relate to” their direct testimony, that the same information, in much greater detail, was given to petitioner in the witnesses’ narrative statements that were produced and delivered to his counsel at the trial, and hence if there was any error it was harmless. More specifically, the Solicitor General tells us in his brief that, although the nature of the Government’s objections in the courts below implied that the agents’ notes were in existence, his interrogation of the F. B. I. agents has disclosed that, after they incorporated the data contained in their notes of Ondrejka’s oral reports into the receipts to be signed by him, the agents destroyed the notes in accord with their normal practice, and hence those notes were not in existence at the time of either of petitioner’s trials. Although the receipts are not contained in the record before us, the Solicitor General says that there are 124 of them and that a careful examination of them reveals that none of Sullivan’s receipts contains any itemization whatever of the nature of the reimbursed expenses, and thus they do not "relate to” anything mentioned in his direct testimony. With respect to Ondrejka’s receipts, the Solicitor General says that, although the Government inadvertently represented to the District Court and the Court of Appeals that the list, proffered to petitioner at the trial and showing the dates and amounts of payments made to Ondrejka, gave all of the information that was contained in the receipts, his examination has disclosed that nine of Ondrejka’s receipts do contain some itemization of the nature of his reimbursed expenses, but that only two of the nine can be said to “relate to” anything mentioned by Ondrejka on his direct examination, and that the same information, in greater detail, was contained in Ondrejka’s narrative statements that were produced and delivered to petitioner’s counsel at the trial. . For these reasons, the Solicitor General contends that, viewed upon the now known and readily available actual facts, no error, at least no prejudicial error, resulted from the nonproduction of the F. B. I. notes and the Sullivan and Ondrejka receipts at the trial. However, the Solicitor General recognizes that petitioner is not bound to accept his statement that the F. B. I. notes of Ondrejka’s oral reports of expenses were destroyed in accord with normal practice long prior to the trial, and that petitioner is entitled to an opportunity to examine the F. B. I. agents and other responsible Government officials on these matters which, of course, can be done only in the District Court. He recognizes, too, that his contentions with respect to the receipts signed by Sullivan and Ondrejka necessarily involve a detailed examination and comparison of the lengthy direct testimony of Sullivan and Ondrejka, the 124 receipts, the list showing the dates and amounts of payments to Ondrejka that was proffered to petitioner by the Government at the trial, and the numerous narrative statements by Sullivan and Ondrejka that were produced and delivered to petitioner at the trial, and he submits that this cannot appropriately be done in this Court, especially since neither the receipts nor the proffered list is contained in the present record, but can properly be done only in the District Court. He therefore asks us to vacate the judgment and remand the case to the District Court to hear these issues and to determine whether a new trial should be ordered or the judgment should be reinstated with the right in the petitioner, of course, to appeal from any such judgment to the Court of Appeals. In opposition, petitioner argues that the claimed destruction of the agents’ notes admits the destruction of evidence that may have been helpful to him and deprives him of his rights under § 3500 and to due process of law, and therefore the judgment should be reversed. Alternatively, he argues that only he and his counsel could determine the uses that might have been made of the receipts had they been produced, and he concludes that it would not be possible for the District Court, on remand, to find that the failure to produce the receipts was nonprejudicial or harmless error, and that therefore he is entitled to a new trial. As to petitioner’s contention that the claimed destruction of the agents’ notes admits the destruction of evidence, deprives him of legal rights and requires reversal of the judgment, it seems appropriate to observe that almost everything is evidence of something, but that does not mean that nothing can ever safely be destroyed. If the agents’ notes of Ondrejka's oral reports of expenses were made only for the purpose of transferring the data thereon to the receipts to be signed by Ondrejka, and if, after having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practice, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right. Those are the factual representations made by the Solicitor General. Whether they are true can be determined only upon a hearing in the District Court. It is entirely clear that petitioner would not be entitled to a new trial because of the nonproduction of the agents’ notes if those notes were so destroyed and not in existence at the time of the trial. It is equally clear that, notwithstanding the fact that the Sullivan and Ondrejka receipts were “statements” within the meaning of § 3500 and were demanded under that section, petitioner would not be entitled to a new trial because of the nonproduction of those receipts if in truth they do not relate to the direct testimony of those witnesses inasmuch as § 3500 (c) requires “the court [to] excise the portions of [the] statement which do not relate to the subject matter of the testimony of the witness.” The Solicitor General represents that 115 of the 124 receipts signed by Sullivan and Ondrejka do not contain any itemization of the nature of the reimbursed expenses nor relate to the direct testimony of those witnesses. If those representations are true, petitioner would not be entitled to a new trial because of the nonproduction of those 115 receipts. Inasmuch as the receipts are not contained in the record before us, whether the Solicitor General’s representations are true can be determined only upon a hearing in the District Court. But the Solicitor General finds that two of Ondrejka’s receipts may be said to relate to Ondrejka’s direct testimony. However, he says that the same information as they contain and much more on the same subjects was contained in Ondrejka’s narrative statements that were produced and delivered to petitioner at the trial, and therefore petitioner could not have been prejudiced by the nonproduction of those two receipts and is not entitled to a new trial on that account. It is true, as petitioner argues, that only the defense is in position to determine the precise uses that may be made of demanded documents, Jencks v. United States, 353 U. S. 657, 668, but that is not to say that the harmless error rule is never applicable in respect to the nonproduction of demanded documents. Upon very similar facts, we recently approved a holding that nonproduction of demanded documents was harmless error. Rosenberg v. United States, 360 U. S. 367. We there said: “Since the same information that would have been afforded had the document been given to defendant was already in the possession of the defense by way of the witness’ admissions while testifying, it would deny reason to entertain the belief that defendant could have been prejudiced by not having had opportunity to inspect the letter.” 360 U. S., at 371. While, as we said in the Rosenberg case, supra, a “court should not confidently guess what defendant’s attorney might have found useful for impeachment purposes in withheld documents to which the defense is entitled . . . , when the very same information was possessed by defendant’s counsel as would have been available were error not committed [a court properly can find that] it would offend common sense and the fair administration of justice to order a new trial.” 360 U. S., at 371. If it is true, as the Solicitor General represents, that the information contained on the two Ondrejka receipts had already been given to petitioner in Ondrejka’s narrative statements covering the same subjects, it is clear that the District Court properly could find that the error in failing to produce those two receipts was harmless. Accordingly, we vacate the judgment and remand the cause to the District Court for a hearing confined to the issues raised by the Solicitor General’s representations as stated in this opinion. The District Court shall make findings of fact on those issues. If the District Court finds that the Solicitor General’s representations are true in all material respects, it shall enter a new final judgment based upon the record as supplemented by its findings, thereby preserving to petitioner the right to appeal to the Court of Appeals. If, on the other hand, the District Court finds that the Solicitor General’s representations are untrue in any material respect, it shall grant petitioner a new trial. II. The Instructions to the Jury. Whether the District Court, on remand, grants or denies a new trial, it is obvious that petitioner’s contentions respecting the court’s instructions to the jury will not be mooted and it seems necessary to decide them. Because of the nature of some of petitioner’s contentions respecting the instructions, it seems appropriate to make clear just what was the charge upon which petitioner was convicted. He was not charged with criminality for being a member of or affiliated with the Communist Party, nor for participation in any criminal activities of or for the Communist Party. He was not charged with advocating or teaching the overthrow of the Government as was the case in Yates v. United States, 354 U. S. 298, or with knowing membership in an organization advocating the overthrow of the Government by force and violence as in Scales v. United States, 367 U. S. 203, and Noto v. United States, 367 U. S. 290. The charge was that, to enable a labor union of which he was an officer to comply with § 9 (h) of the National Labor Relations Act and thus be permitted to use the processes of the Labor' Board, petitioner, on December 11, 1952, knowingly made and caused to be transmitted to the Labor Board a false affidavit, saying he was not then a member of or affiliated with the Communist Party when in fact he was both a member of and affiliated with the Communist Party, and that those acts were made criminal and punishable by 18 U. S. C. § 1001. Nothing in § 9 (h) or elsewhere in the National Labor Relations Act makes or purports to make criminal either membership in or affiliation with the Communist Party, American Communications Assn. v. Douds, 339 U. S. 382, 402, but § 1001 provides that “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies ... a material fact ... or makes or uses any false writing or document knowing the same to contain any false . . . statement . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.” Petitioner was charged with and convicted for violating that statute — of knowingly making and transmitting to the Labor Board on December 11, 1952, an affidavit falsely swearing that he was not a member of or affiliated with the Communist Party — not for being a member of or affiliated with the Communist Party, nor for participating in any activities, lawful or unlawful, of the Communist Party, although, of course, determination of whether the affidavit was true or false requires a determination of whether petitioner was a member of or affiliated with the Communist Party on December 11, 1952. Neither is there any question here about the fact that the evidence was sufficient to make a submissible case for the jury and to support its verdict — notwithstanding petitioner’s tangential implications to the contrary. The questions here are simply whether the court’s instructions to the jury properly defined membership in and affiliation with the Communist Party. Membership. Petitioner first contends that the instruction respecting membership should have defined “membership” as, and required a finding of, “a definite objective factual phenomenon” or a “specific formal act of joining” rather than, as was done, in the subjective terms of a state of mind. If petitioner is right in this contention it would follow, despite the fact the question is foreclosed against him here, that the evidence did not make a submissible case for the jury on Count I of the indictment and his motion for a directed verdict of acquittal on that count should have been granted, for there was no evidence of “a definite objective factual phenomenon [of joining]” or of “a specific formal act of joining.” Indeed, the very nature of the case — claimed membership in an underground or secretly operating organization whose membership records, if any, are not available to the Government— precludes the possibility of such evidence, and, if the rule were as petitioner contends, false affidavits of non-Communist Party membership could be made and submitted to the Labor Board with impunity. Membership in such a secretly operating organization is, to all but the organization and its member or members, necessarily subjective, and, although it must be proved by evidence of objective facts and circumstances having a rational tendency to show, and from which the jury may rationally and logically infer, the ultimate subjective fact of membership, it is, in the very nature of such a case, necessary that the court's instructions define membership in such an organization in subjective terms or not at all. A similar question arising under § 9 (h) was presented in Jencks v. United States, 353 U. S. 657, but the Court’s opinion, turning on the document production question, did not reach it. However, Mr. Justice Burton’s separate concurring opinion, joined by Mr. Justice Harlan, 353 U. S., at 672, and, on the question here considered, also by Mr. Justice Frankfurter, 353 U. S., at 672, did reach the question. It found the membership defining instruction given in that case to be deficient because it “failed to emphasize to the jury the essential element of membership in an organized group — the desire of an individual to belong to the organization and a recognition by the organization that it considers him as a member.” 353 U. S., at 679. In the instant case, the District Court’s instruction to the jury defined membership to the jury in almost precisely that language (see note 5, sixth paragraph) . Similar instructions in cases arising under § 9(h) have been held proper by every United States Court of Appeals that has passed upon the question. Fisher v. United States, 231 F. 2d 99, 107 (C. A. 9th Cir.); Lohman v. United States, 251 F. 2d 951, 954 (C. A. 6th Cir.); Lohman v. United States, 266 F. 2d 3 (C. A. 6th Cir.); Travis v. United States, 269 F. 2d 928, 942-943 (C. A. 10th Cir.). From these consistent holdings and upon principle, it seems clear that the instruction’s definition of. membership was not erroneous under Count I of the indictment. Petitioner next contends that the court’s instruction failed to tell the jury precisely what objective circumstances would be sufficient to justify a finding of membership, and that the criteria which it told the jury they might consider in determining the question of membership were too indefinite to give the jury the necessary guidance. Although the ultimate fact of membership in such a case is almost necessarily a subjective one, it may be proved, as we have said, by objective facts and circumstances having a rational tendency to show, and from which the jury rationally and logically may find, the ultimate fact of membership. But, for the purpose of confining the jury’s considerations to the relevant evidence, it was proper for the court to outline the objective acts, shown in the evidence, which they might consider in determining the ultimate subjective fact of membership. Here, the court’s instruction, after telling the jury that intent is a state of mind and can only be determined by what an individual says and does, went on to say that in determining the issue as to whether the defendant was or was not a member of the Communist Party at the time alleged in the indictment the jury might take into consideration, as circumstances bearing on that question, the acts and statements of the defendant (see note 5, sixth paragraph), and in this connection they might take into consideration whether the defendant did the things set forth in the 12 numbered paragraphs that followed, which, it said, were some of the indicia of Communist Party membership (see note 5, eighth paragraph). While the criteria specified in the numbered paragraphs of the challenged instruction were in substance 12 of the 14 criteria specified by Congress in § 5 of the Communist Control Act of 1954 (50 U. S. C. § 844) to be considered by a jury in determining Communist Party membership under that Act, it is unnecessary for us to determine in this case whether that section applies, by force of law, to prosecutions under 18 U. S. C. § 1001 for making a false affidavit to the Labor Board in purported compliance with § 9 (h) of the National Labor Relations Act, for it is obvious that those 12 criteria rationally tend to show, and were sufficient to enable a jury rationally and logically to find, the ultimate fact of membership, though subjective, and hence it was proper, independently of and wholly apart from § 5 of the Communist Control Act of 1954, to tell the jury, as this instruction did, that they might consider those criteria in determining whether the defendant was or was not a member of the Communist Party on the date charged in the indictment. Similar criteria were contained in the membership instruction given in the Jencks case, supra, and the opinion of Mr. Justice Burton did not find any error in that aspect of the instruction. Very similar instructions telling the jury that they might consider such or similar criteria in determining the ultimate subjective fact of membership within the meaning of § 9 (h) have been consistently and uniformly approved, Hupman v. United States, 219 F. 2d 243 (C. A. 6th Cir.); Fisher v. United States, 231 F. 2d 99, 107 (C. A. 9th Cir.). In Travis v. United States, 247 F. 2d 130, 135, the United States Court of Appeals for the Tenth Circuit reversed because the membership instruction failed to specify and require the jury to consider such criteria in determining the question of membership. On retrial, the jury was instructed to consider virtually the same criteria of membership as was the jury in the instant case. The defendants were again convicted, and, on appeal, the Court of Appeals specifically approved the instruction. Travis v. United States, 269 F. 2d 928, 942-943. We think there is no merit in petitioner’s contention that the instruction failed adequately to state the objective circumstances that might be considered by the jury in determining membership or that the criteria submitted were too indefinite to give the jury the necessary guidance. Nor is there any merit in petitioner’s contention that those criteria allowed a finding of membership on a date other than that charged in the indictment. That contention fails to consider the whole charge, particularly the vital fact that the court repeatedly emphasized to the jury that the issue for them to determine was whether petitioner was or was not a member of the Communist Party on the date that he executed and transmitted the affidavit. Petitioner, and the amici curiae, contend that § 5 of the Communist Control Act of 1954 (50 U. S. C. § 844) is constitutionally invalid in that it violates the First Amendment of the Constitution and denies due process because it permits a jury to base its finding of membership upon statements and acts that are protected by the First Amendment. They then argue that because the challenged instruction substantially adopted 12 of the 14 criteria mentioned in that section this instruction, too, was violative of the First Amendment and denied due process. We have no occasion here to consider the constitutionality of § 5 of the Communist Control Act of 1954 because, as we have said, the indicia which the challenged instruction told the jury to consider as circumstances bearing upon the issue of membership did rationally tend to show, and were sufficient, if believed, to enable the jury rationally and logically to find, the ultimate subjective fact of membership, wholly apart from' and independently of § 5 of the Communist Control Act of 1954. To petitioner’s argument that the submitted criteria permitted the jury to find membership from statements and acts that were wholly innocent in themselves or even protected by the First Amendment, it is enough to recall that nothing in § 9 (h) or elsewhere in the National Labor Relations Act makes or purports to make criminal either membership in or affiliation with the Communist Party, American Communications Assn. v. Douds, supra, 339 U. S., at 402, and that petitioner was not charged with criminality for being a member of or affiliated with the Communist Party, nor with participating in any criminal activities of or for the Communist Party, but only with having made and submitted to the Government an affidavit falsely swearing that he was not a member of or affiliated with the Communist Party in violation of 18 U. S. C. § 1001. It would be strange doctrine, indeed, to say that membership in the Communist Party — when, as here, a lawful status — cannot be proved by evidence of lawful acts and statements, but only by evidence of unlawful acts and statements. Affiliation. We think the court’s instruction defining affiliation was correct under Count II of the indictment and in accord with all the precedents. A far less complete and definitive instruction on affiliation was given by the trial court in Jencks v. United States, supra, and was challenged in this Court. That instruction merely quoted dictionary definitions and then stated that “[a]filiation . . . means something less than membership but more than sympathy. Affiliation with the Communist Party may be proved by either circumstantial or direct evidence, or both.” See 353 U. S., at 679. The Court’s opinion, turning on the document production problem, did not reach that question. However the opinion of Mr. Justice Burton did reach the question. It did not find the instruction erroneous insofar as it went, but found it to be deficient because “It did not require a continuing course of conduct ‘on a fairly permanent basis’ ‘that could not be abruptly ended without giving at least reasonable cause for the charge of a breach of good faith,’ ” and thus “allowed the jury to convict petitioner on the basis of acts of intermittent cooperation.” 353 U. S., at 679-680. The instruction given in this case contained not only the definition given in the Jencks case (see note 13, paragraph one) but went on to embody almost exactly the expanded definition prescribed by Mr. Justice Burton (see note 13, paragraph two). The opinions of the Courts of Appeals have uniformly approved that definition. In Bryson v. United States, 238 F. 2d 657, 664, the United States Court of Appeals for the Ninth Circuit found an identical instruction to be “full and complete” and said that it “adequately informed the jury of the meaning of the term [affiliated with] and provided an adequate standard for evaluating the evidence.” In Lohman v. United States, 251 F. 2d 951, 954, the United States Court of Appeals for the Sixth Circuit, speaking through Judge, now Mr. Justice, Stewart, specifically approved the definition of “affiliated with” prescribed by Mr. Justice Burton’s opinion in the Jencks case; and in Travis v. United States, 247 F. 2d 130, 135, the United States Court of Appeals for the Tenth Circuit approved an almost identical instruction. Petitioner contends that one may not be “affiliated with” the Communist Party, within the meaning of §9 (h), by any direct relationship with the Party, but only by being a member of another organization that is affiliated with the Party, and that the instruction was erroneous for failure so to advise the jury. If petitioner is right in this contention it would follow, despite the fact the question is foreclosed against him here, that the evidence did not make a submissible case for the jury on Count II of the indictment and his motion for a directed verdict of acquittal on that count should have been granted, for there was no evidence that petitioner was affiliated with the Communist Party through membership in some other organization. It is true that one may be “affiliated with” the Communist Party through membership in an organization that is affiliated with the Communist Party, American Communications Assn. v. Douds, supra, 339 U. S., at 406, 421, 450, but that is not to say one may not do so directly, and every decision that has considered the meaning of “affiliated with,” as used in § 9 (h), has held that one may be directly affiliated with the Communist Party. See Mr. Justice Burton's separate concurring opinion in Jencks v. United States, supra, 353 U. S., at 672, 679; and Bryson v. United States, supra, 238 F. 2d, at 664; Lohman v. United States, supra, 251 F. 2d, at 954; Travis v. United States, supra, 269 F. 2d, at 942. In a manner similar to his attack upon the court’s instruction defining membership, petitioner contends that the instruction in question erroneously defined the phrase “affiliated with” only in subjective terms and without objective criteria. However, just as with regard to membership, affiliation, in relation to Count II in this case, is necessarily subjective. But the ultimate fact of affiliation, though subjective, may be proved by evidence of objective facts and circumstances having a rational tendency to show, and from which the jury may rationally and logically find, the ultimate fact of affiliation. It cannot be disputed here that there was such evidence at the trial. The court’s instruction told the jury that “[wjhether or not the defendant was affiliated with the Communist party ... is a question of fact which you are to determine from all the evidence in the case,” and that their determination should be based on the “statements made or acts done by the accused, and all other facts and circumstances in evidence . . . .” We think that instruction was adequate. Petitioner argues that because the first paragraph of the instruction stated that affiliation “means a relationship short of and less than membership in the Communist Party, but more than that of mere sympathy for the aims and objectives of the Communist Party,” and the third paragraph of the instruction stated that “affiliation . . . means a relationship which is equivalent or equal to that of membership in all but name,” it was contradictory and confusing. We agree that the third paragraph appears inconsistent with the first. However, it is evident that the erroneous third paragraph could not have prejudiced petitioner for it, though inconsistent with the correct first paragraph, exacted a higher standard of proof of affiliation than the law required. Petitioner, quite understandably, would require instructions as specific as mathematical formulas. But such specificity often is impossible. The phrases “member of” and “affiliated with,” especially when applied to the relationship between persons and organizations that conceal their connection, cannot be defined in absolute terms. The most that is possible, and hence all that can be expected, is that the trial court shall give the jury a fair statement of the issues — i. e., whether petitioner was a member of or affiliated with the Communist Party on the date of his affidavit — give a reasonable definition of the terms and outline the various criteria, shown in the evidence, which the jury may consider in determining the ultimate issues. We believe thát the instructions in this case, which are consistent with all the judicial precedents under § 9 (h), adequately met those tests. Accordingly, the judgment is vacated and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered. Section 9 (h), 29 U. S. C. § 159 (h), provided in pertinent part that “No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 160 of this title, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelve-month period by each officer of such labor organization . . . that he is not a member of the Communist Party or affiliated with such party . . . .” This section was repealed by Pub. L. 86-257, 86th Cong., 1st Sess., § 201 (d), 73 Stat. 519, 525. 18 U. S. C. § 1001 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.” The Solicitor General concedes that the F. B. I. notes of Ondrejka’s oral reports may have come within the meaning of “statement" as defined by 18 U. S. C. §3500 (e)(2), namely, “a stenographic . . . recording . . . which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement." These instruction questions are not likely to be mooted on remand, because if a new trial is granted it is probable, since the Court of Appeals has already approved them, the District Court would give the same or similar instructions to the jury on the new trial, and, if petitioner should be convicted, the same question would likely be brought here again. If we then disapproved the instructions, a fourth trial would be necessary. If, on the other hand, the District Court denies a new trial and enters a new judgment, it is likely that the Court of Appeals would again approve these instructions and that the same questions would be brought here again. The instruction respecting membership was as follows: “The crucial issue of fact in this case is whether on December 11, 1952, John Joseph Killian was or was not then a member of the Communist Party or affiliated with such Party. “The affidavit does not call upon any person to state whether or not in the past he has ever been a member of the Communist Party or affiliated with it. A person who has been at some time in the past a member of the Communist Party or affiliated with that Party but who has terminated such membership or affiliation prior to the making of the affidavit would be entitled to sign the affidavit under oath without violating the law. “Since the affidavit speaks in the present tense only, the fundamental issue of fact for you to decide is whether or not at the time alleged in the indictment the defendant knowingly and willfully used an affidavit which was false and which he knew to be false at that time. “Whether or not the defendant was a member of the Communist party at the time alleged in the indictment- is a question of fact which you are to determine from all of the evidence in the case. In determining this question you must bear in mind that the burden of proof rests on the Government to prove the defendant guilty beyond a reasonable doubt. Membership or lack of membership in the Communist Party may be established by direct as well as circumstantial evidence. “Membership in the Communist Party, the same as membership in any other organization, constitutes the state of being one of those persons who belong to or comprise the Communist Party. It connotes a status of mutuality between the individual and the organization. That is to say, there must be present the desire on the part of the individual to belong to the Communist Party and a recognition by that Party that it considers him as a member. “Intent is a state of mind and can only be determined by what an individual says and what he does. In determining the issue as to whether the defendant was or was not a member of the Communist Party at the time alleged in the indictment you may take into consideration the acts and statements of this defendant, as disclosed by the evidence, bearing in mind that individual and unrelated isolated acts of the defendant showing cooperation with the Communist Party or isolated statements of the defendant showing sympathy with the-Communist Party are not in themselves conclusive evidence of membership but are circumstances which you may take into consideration along with all the other evidence in this case. “In determining whether or not the defendant was a member of the Communist Party at the time alleged in the indictment you may take into consideration whether the defendant: “1. Paid dues or made any financial contributions to the Communist Party or collected any funds on its behalf; “2. Attended Communist Party meetings, classes, conferences, or any other type of Communist Party gathering; “3. Had made himself subject to the discipline of the Communist Party in any form whatsoever; “4. Participated in any recruiting activities on behalf of the Communist Party; “5. Has executed orders, plans or directives of any kind of the Communist Party; “6. Has acted as an agent, messenger, correspondent, organizer, or in any other capacity in behalf of the Communist Party; “7. Has been accepted to his knowledge as an officer or member of the Communist Party, or as one to be called upon for services by other officers or members of the Communist Party; “8. Has conferred with officers or other members of the Communist Party in behalf of any plan or enterprise of the Communist Party; “9. Has spoken or in any other way communicated orders, directives or plans of the Communist Party; “10. Has advised, counseled, or in any other way imparted information, suggestions, or recommendations, to officers or members of the Communist Party, or to anyone else, in behalf of the Communist Party; “11. Has indicated by word, action, conduct, writing, or in any other way, a willingness to carry out in any manner and to any degree the plans, objectives or designs of the Communist Party; “12. Has in any other way participated in the activities, planning or actions of the Communist Party; “These are some of the indicia of Communist Party membership but you are not limited solely to those I have enumerated. As sole arbiters of the facts, it is your duty to consider all the evidence, either direct or circumstantial, which bears upon the question of whether or not the defendant was a member of the Communist Party on the date alleged in the indictment. “In determining this question, you must bear in mind that the burden of proof rests upon the Government to prove the defendant guilty beyond a reasonable doubt. If you find that the Government has sustained this burden by proving beyond a reasonable doubt that the defendant was a member of the Communist Party on December 11, 1952, as alleged in the indictment, and if you find, also, that the Government has proved beyond a reasonable doubt the other essential elements of the offense charged in the first count of the indictment, as I have outlined them to you, then you must find the defendant guilty as to the first count.” In Fisher v. United States, supra, the Court of Appeals for the Ninth Circuit said: “Membership is composed of a desire on the part of the person in question to belong to an organization and acceptance by the organization. Moreover, certain actions are usually required such as paying dues, attending meetings and doing some of the work of the group.” 231 F. 2d, at 107. In Lohman v. United States, supra, the Court of Appeals for the Sixth Circuit, speaking through Judge, now Mr. Justice, Stewart, said: “Membership should be so defined as to emphasize to the jury the necessity of finding that the appellant desired to belong to the Communist Party, and that the Communist Party recognized that it considered him as a member. Jencks v. United States, 353 U. S. at pages 657, 679, 77 S. Ct. 1007, 1019 (concurring opinion); Fisher v. United States, 9 Cir., 1956, 231 F. 2d 99, 106-107; Travis v. United States, 10 Cir., 1957, 247 F. 2d 130, 135-136. . . ." On retrial of the Lohman case, supra, the trial court defined membership for the jury as directed by the Court of Appeals on the first appeal (see note 7) and the defendant was again convicted. On appeal, the Court of Appeals for the Sixth Circuit reapproved that instruction. Lohman v. United States, 266 F. 2d, at 4. In Travis v. United States, supra, the Court of Appeals for the Tenth Circuit said of the membership instruction, precisely like the one here, that “The instructions were meaningful and clear. They included 11 of the 14 indicia of membership outlined by Congress in Section 5 of the Communist Control Act of 1954 (50 U. S. C. A. § 844) and emphasized the primary element of membership as suggested by Mr. Justice Burton in Jencks v. United States, 353 U. S. 657, 77 S. Ct. 1007, 1019, 1 L. Ed. 2d 1103, that there must be present ‘the desire of an individual to belong to the organization and a recognition by the organization that it considers him as a member.’ This adequately outlined the kind of acts that could be considered evidence of membership and included the idea of the continuing reciprocal relationship necessary for that status.” 269 F. 2d, at 942-943. Compare the Jencks instruction, 353 U. S., at 679, with the 12 numbered paragraphs in note 5. In Hupman v. United States, supra, the Court of Appeals for the Sixth Circuit said that a very similar instruction was “fair [and] substantially covered the crucial questions of law, with a careful analysis of the elements of the offense charged.” 219 F. 2d, at 249. In Fisher v. United States, supra, the Court of Appeals for the Ninth Circuit, in dealing with a similar question, said: “The jury should have been reminded of the components of the term membership rather than be supplied with synonyms.” 231 F. 2d, at 107. The instruction respecting affiliation was as follows: “The verb ‘affiliated,’ as used in the Second Count of the indictment, means a relationship short of and less than membership in the Communist Party, but more than that of mere sympathy for the aims and objectives of the Communist Party. “A person may be found to be ‘affiliated’ with an organization, even though not a member, when there is shown to be a close working alliance or association between him and the organization, together with a mutual understanding or recognition that the organization can rely and depend upon him to cooperate with it, and to work for its benefit, for an indefinite future period upon a fairly permanent basis. “Briefly stated, affiliation as charged in the Second Count of the indictment, means a relationship which is equivalent or equal to that of membership in all but name. “Whether or not the defendant was affiliated with the Communist Party at the time alleged in the indictment is a question of fact which you are to determine from all the evidence in the ease. Affiliation or lack of affiliation in the Communist Party may be established by direct as well as circumstantial evidence. “In determining the issue as to whether the defendant was or was not affiliated with the Communist Party at the time alleged in the indictment, you may take into consideration any statements made or acts done by the accused, and all other facts and circumstances in evidence which may aid determination of the issue.” Compare United States ex rel. Kettunen v. Reimer, 79 F. 2d 315 (C. A. 2d Cir.), and Bridges v. Wixon, 326 U. S. 135, defining the term affiliation but as used in the deportation statutes. 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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