Datasets:

ricdomolm

/

lawma-instructions_llama3_16k

like 0

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 of America, Appellee, v. Clifford DAVIS, Appellant, No. 72-1469. United States Court of Appeals, Tenth Circuit. Argued and Submitted Nov. 13, 1972. Decided Feb. 12, 1973. John A. Ramsey, Denver, Colo., for appellant. James F. Housley, Asst. U. S. Atty. (C. Nelson Day, U. S. Atty., with him on the brief), for appellee. Before HILL, SETH and DOYLE, Circuit Judges. SETH, Circuit Judge. The defendant was found guilty by a jury on two counts of unlawfully selling depressant or stimulant drugs in violation of section 331(q)(2), Title 21, United States Code, and from the judgment entered on that verdict, defendant Davis brings this appeal. Defendant-appellant’s only contention on this appeal is that the trial court erred in not granting his motion to have the principal Government witness, Chris V. Saiz, barred from testifying at his trial. Chris V. Saiz had been the Special Agent in Charge of the Salt Lake City Bureau of Narcotics and Dangerous Drugs office at the time defendant was arrested. The transaction which was the basis of the charge was between defendant and Saiz. There were no other eyewitnesses to the alleged sale to Saiz, although there was testimony from other officers as to the movements of then Agent Saiz in and out of the house of the defendant. Defendant based his motion to have Saiz disqualified and barred from testifying on the fact that Saiz had entered a plea of guilty to a misdemeanor charge of depriving a person of his civil rights, after being named in a federal grand jury indictment charging him and other agents with conspiracy, perjury, and submitting a false report. This charge arose from testimony given by him at a trial in California involving facts similar to those present here. The indictment charged that Agent Saiz’s alleged illegal activity took place during about the same time as the events which led to defendant’s arrest and trial. Saiz testified during the course of this trial that he had in the California trial signed an untrue report, and testified to the false facts contained in that report, and that he did so because of pressures from his superiors. He was extensively-cross-examined below as to this prior false testimony. Thus, all the information bearing on the credibility of the witness Saiz was brought out at defendant’s trial. The jury was faced with a choice as to whether or not they thought Saiz was telling the truth during this trial. They apparently believed that he was, and returned a verdict against the defendant. Defendant urges that we should reverse and so rule to bar the Government from using testimony from such a witness. In support of his contention that it was error to not grant his motion to bar Saiz from testifying, defendant relies primarily on the case of Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956). Mesarosh does not support defendant’s contention. In that case, the Solicitor General brought to the attention of the Supreme Court the fact that the witness Mazzei, a paid Government informer, had testified falsely in proceedings subsequent to those in which the petitioners had been convicted and asked that the case be remanded to the District Court to allow the trial judge to hold a a hearing as to the truth of Mazzei’s testimony in the pending case. The Supreme Court remanded the case for a new trial as to all defendants, holding that if Mazzei’s testimony had been false, the trial was tainted as to all petitioners. They did not, however, hold that Mazzei could not testify at the new trial simply because his credibility had been brought into question. The Seventh Circuit, in United States v. Smith, 335 F.2d 898 (1964), cert. denied, 379 U.S. 989, 85 S.Ct. 700, 13 L.Ed.2d 609 (1965), interpreted Mesa-rosh, quite properly we believe, to require only that the issue of the truthfulness of the witness be presented fully to the jury. We think this interpretation is also supported by the fact that in Mesarosh, the Supreme Court cited Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003 (1956). There the Supreme Court had also remanded for a determination as to the truthfulness of testimony given before the Board by three informers, paid employees of the Department of Justice, who the Government felt might have testified falsely in that proceeding. Also in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), the Court held that the testimony and the credibility of a paid Government informer was properly before the jury; that the jury was properly instructed, as they were in this case, as to the issue of credibility, and that no error had been committed. The credibility and the weight to be given the testimony of any witness is a matter for determination by the jury. United States v. Plemons, 455 F.2d 243 (10th Cir.); United States v. Frazier, 434 F.2d 238 (10th Cir.). The matter of disqualification of a witness to testify is covered under the Rules of Evidence for the United States Courts to be effective July 1, 1973. A great variety of witnesses testify and perhaps on occasion some not worthy of belief as to all their testimony but they are the only ones available. The jury is prepared under proper instructions to select and give proper weight to the testimony to be believed. Thus we hold that the District Court was correct in permitting Agent Saiz to testify, and to leave the matter of his credibility to the jury. Affirmed. 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_civproc1

0

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. William C. LANDSTROM, d/b/a Landstrom Gravel Co., Plaintiff-Appellee, v. CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS LOCAL UNION NO. 65 OF the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Defendant-Appellant. No. 334, Docket 72-1906. United States Court of Appeals, Second Circuit. Argued Jan. 15, 1973. Decided March 30, 1973. Peter P. Paravati, Utica, N. Y., for defendant-appellant. James L. Burke, Elmira, N. Y., for plaintiff-appellee. Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges. OAKES, Circuit Judge: This appeal is by a local union held liable for $60,000 compensatory damages under § 303 of the Labor Management Relations Act of 1947, 29 U.S.C. § 187, for unfair labor practices as defined in § 8(b) (4) (ii) (B) of the Act, 29 U.S.C. § 158(b) (4) (ii) (B). The appellee, a' non-union gravel and ready-mix concrete contractor in Ithaca, New York, alleged that he lost jobs as a result of appellant’s threats to shut down major area contractors if they subcontracted gravel or concrete work to appellee. The questions raised by the appeal relate to (1) sufficiency of the evidence of a violation of § 8(b) (4) (ii) (B); (2) sufficiency of the evidence concerning the charge pertaining to, and excessiveness of, damages; and (3) the admission of evidence on matters not set forth in appellee’s answers to interrogatories. We resolve the questions of liability in appellee’s favor but reverse and remand for a new trial on the issue of damages. Appellee’s business is a small one, on the outskirts of Ithaca, where he has a gravel pit, a transit mix concrete plant, three concrete mixers (one standby), about five dump trucks, and eight regular employees. After trying unsuccess-, fully in 1967 to organize the plant, the appellant union picketed it for two weeks in the spring of 1969. Apparently the picketing was stopped after both the union and appellee had filed charges with the NLRB. These charges were later dropped by mutual agreement before May 23, 1969. After that date, for the most part, the course of conduct on which this suit was brought ensued. Taking the evidence in the light most favorable to the party prevailing before the jury, it appears that appellee had started to supply sand, gravel, or in one case ready-mix concrete to a number of contractors in the period 1969-1971 when he was told by the contractors or their representatives to stop making delivery. There was testimony from those coerced as follows: (1) John Card, assistant superintendent for Dyer Fitts Construction Company in charge of the Cornell Student Housing Project, testified that he stopped appellee from making deliveries to his site because the appellant’s business agent “told me I better not use Landstrom’s trucks delivering on that job . . . that he might shut the job down, our part of the work down.” (2) James Cartwright, executive secretary of the Cortland-Ithaca Building Exchange, a contractors’ group, testified that he had several meetings with Mr. Michaels, the business agent of the appellant, who told him that the union “would quite possibly have to picket” the job sites of members of the Exchange who dealt with Landstrom. Acting on this information, Cartwright advised the Exchange’s membership “they should anticipate some type of work stoppage” if they utilized Landstrom material or service. One of the contractors to whom Cartwright said he told this was Mr. McGuire of the firm of Stewart and Bennett. (3) Mr. McGuire, whose employer was the prime contractor on the Spencer-Van Etten School project, corroborated Cartwright, saying that he recalled being informed by Cartwright that “there was a possibility that the job could have trouble, pickets and so forth,” if Landstrom was used. As a result of Cartwright’s statement, although Landstrom was low bidder, he did not get the 6-7,000 yard concrete contract for the school. (4) Donald H. Brown, general superintendent of Streeter Associates, another contractor, testified that he had a conversation with Michaels before the Inlet Park job, in the course of which Michaels told him, “You must realize we don’t have an agreement with Landstrom and if you use him you would be violating your contract with us.” As a result of that conversation, according to Brown, Streeter did not order gravel from Landstrom that would have otherwise been ordered. Brown also implied that because of the “groundwork [that] had been laid” in discussion with Michaels about the Inlet Park job, Landstrom did not get the contract to supply gravel on the Unex Press job, Brown also testified, however, that another supplier — Paully Mancini & Son — did haul gravel that was bought at the Landstrom pit to the Unex Press job. (5) Elwood Marshall, plant foreman of a Landstrom sand supplier, RumseyIthaca Company, testified that Michaels “came to us and told us not to load any of the Landstrom trucks,” and that “if we loaded trucks, he was going to shut the place down.” As a result of Michaels’ intervention with Rumsey-Ithaca, Landstrom had to find another, more expensive, supplier of sand. (6) Rhaeto Pfister, president of Lynch Excavating Trucking Corporation, who had the excavating contract at the Ithaca College dormitories, testified that he stopped deliveries by Landstrom after “[t]he Teamsters informed us that if Bill Landstrom continued to deliver gravel that . . . I am not sure if he said picketing, or he would pull his men off, there would be a strike. Something to the effect that we would have a shutdown.” He also testified as to a similar threat by Michaels in connection with the excavating contract at Cornell Student Complex at Cornell University and as to his “other jobs,” including jobs at Tompkins Hospital and BOCES School. Pfister’s testimony was subsequently corroborated by the testimony of his then excavation superintendent, William J. Mobbs. (7) John H. Boniface, Assistant Vice President of A. Frederick & Sons, contractors on the First' National Bank job at Ithaca, testified that he had employed Landstrom on that job but then had a call from Michaels. The substance of Michaels’ message was that “if [Boniface] continued, . . . using the non-union equipment, [Michaels] would put pickets on that job.” Boniface, however, used Landstrom anyway, without further consequences. (8) Peter Giacobbi of Giacobbi Excavating and Grading Contractors Incorporated said he conferred with Michaels who told him Landstrom was “not union at all” and that thus he could not use Landstrom on the Northeast School Job, one involving some 8,373 cubic yards of gravel. (9) William Schlobohna, plumbing superintendent of J & B Plumbing & Heating, testified that he had had to stop using Landstrom for hauling a small amount of gravel for a water main ditch in downtown Ithaca when Michaels told him that Landstrom’s gravel was “nonunion” and that Michaels “would shut down the job if I continued to use it.” The principal line of defense to all of this evidence was that there was a “subcontractor’s clause” in the contracts between the union and the general contractors which required that subcontractors pay their employees the same as the general contractor paid its employees. By using Landstrom, the union argued, a general contractor was violating that clause. Thus Michaels, when asked whether he had ever threatened to shut down any of the contractors for using Landstrom, testified that he had merely “told them I was going to go to the grievance procedure,” by which he explained that he meant “I contacted my legal attorney, I find out what I can do legally, outside of giving him the seventy-two hour notice or three day notice and withdrawing my men”’ In essence, however, the jury disbelieved Michaels’ testimony that he did not tell Card, Pfister, Mobbs, Boniface, Marshall, or Schlobohna that he was going to picket their jobs or shut them down. While there is no indication that Landstrom was a subcontractor, as opposed to being a supplier, even if he were, the clause could only be enforced through the courts, NLRB v. Local 445, 473 F.2d 249 at 252 (2d Cir., 1973), since the clause was clearly “secondary.” See Orange Belt Painters District Council No. 48 v. NLRB, 117 U.S.App.D.C. 233, 328 F.2d 534, 537-538 (1964). Here there was a jury issue under § 8(b)(4)(ii)(B) in that the jury rationally could have found that appellant threatened or coerced a number of general contractors and others with the object of forcing them “to cease using, selling, ... or otherwise dealing in the products of any other producer, . . or to cease doing business with any other person . . . .” There was evidence from which the jury could have found the appellee’s conduct was “unmistakably and flagrantly secondary” and caused a severe disruption of Landstrom’s business relationships with contractors not involved in the primary labor dispute. NLRB v. Local 825, Operating Engineers, 400 U.S. 297, 304-305, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971). See Note, Secondary Boycotts: The New Scope and Application of the “Cease Doing Business” Requirement of Section 8(b)(4) (B), 71 Colum.L.Rev. 1077, 1087 (1971); 12 B.C.Ind. & Comm.L.Rev. 1255 (1971). Thus, appellant’s contention that the evidence was insufficient to support the jury’s finding of a § 8(b) (4) (ii) (B) violation must be rejected. Appellant makes a somewhat confused subsidiary argument in reference to the Cornell Student Housing and Rumsey-Ithaca job which also applies to the statement made by Michaels to Cartwright of the Building Exchange and repeated by Cartwright to McGuire so as to deprive appellee of the Spencer-Van Etten School contract. As we understand it, appellant relies on the proviso to § 8(b) (4) (ii) (B) and Sailor’s Union of the Pacific (Moore Dry Dock), 92 NLRB 547 (1950), approved in Local 761, Electrical Workers v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961), and argues that since the alleged threats relating to those three projects occurred during the pendency of a primary dispute between Landstrom and the union, the union could properly picket (and implicitly threaten to picket) Landstrom wherever he was working until the primary dispute was ended in the spring of 1969. The jury could well have found, however, that the threats that occurred in the spring of 1969 went beyond a threat of picketing in conformity with Moore Dry Dock standards, for Michaels’ words were ominous and threatening and included an explicit or implied threat to shut the neutral contractor down if he continued to deal with Landstrom. The Moore Dry Dock rules are only evidentiary aids to the finder of fact and can be overcome by other evidence of illegal secondary purpose. NLRB v. Northern California District Council of Hod Carriers, 389 F. 2d 721, 725 (9th Cir. 1968). But more important, the issue was not raised below, the court’s charge did not deal with it, and no objection was taken to any failure to charge on this question. We would add that as we read the record, the most appellant might have been entitled to in any event was a charge in respect only to the three jobs mentioned above. Coneededly such a charge might have affected the damages substantially, but having permitted the case to be submitted otherwise, appellant cannot now be heard to complain. Appellant’s final argument on liability is that as to the A. Frederick job, by leaving the gravel in different piles Landstrom was doing on-site work. Hence the argument is this Was work performed by a subcontractor, not a supplier, and subject to the subcontractor clause of the contractor’s labor contracts and the construction industry proviso to § 8(e), 29 U.S.C. § 158(e). But the work Landstrom performed on this particular job is no different from the delivery of concrete by mixing and pouring it at the job site, which we held not to be subcontracting in NLRB v. Teamsters Local 294, 342 F.2d 18, 21-22 (2d Cir. 1965). Relative to damages, the only evidence consisted of Landstrom’s uncontroverted testimony that his profit (the excess of selling price over cost) on the sale of gravel picked up at his pit was 25 cents per yard, on the sale of gravel delivered by his trucks to a work site approximately 75 cents per yard, and with regard to concrete at the Spencer-Van Etten school job (the only one involving the sale of concrete) $8.95 per yard. Briefly stated, there was evidence from which the jury could find that, multiplying the numbers of yards of gravel lost on the various jobs by the “profits” above stated, together with a “lost profit” for 5400 yards of concrete at $8.95 per yard or $48,330, the total damage on this basis was $74,625.25. Appellant argues, however, that as a matter of law the evidence on damages was insufficient because appellee had the burden of proof of damages, Jodice v. Calabrese, 80 LRRM 2681 (S.D.N.Y., June 6, 1970), was free to and did use his employees and materials on other jobs, and made no showing of a general loss of profits. H. L. Robertson & Associates, Inc. v. Plumbers Local 519, 74 LRRM 2689 (S.D.Fla., Dec. 9, 1969) , aff’d, 429 F.2d 520 (5th Cir. 1970) (per curiam). It is now clear that, irrespective of state law, only compensatory damages are recoverable 303 actions. Teamsters Local 20 v. Morton, 377 U.S. 252, 260-261, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964). It is equally clear that damages in a § 303 action need not be proven to a certainty, but only to an approximation inferable reasonably and justly. Flame Coal Co. v. UMW, 303 F.2d 39 (6th Cir.), cert. denied, 371 U.S. 891, 83 S.Ct. 186, 9 L.Ed.2d 125 (1962); UMW v. Patton, 211 F.2d 742 (4th Cir.), cert. denied, 348 U.S. 824, 75 S.Ct. 38, 99 L.Ed. 649 (1954). See also Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 567-568, 51 S.Ct. 248, 75 L.Ed. 544 (1931) (loss of business from Sherman Act violation). But here, with one minor exception, appellee produced no evidence of out of pocket expense as in Gulf Coast Building & Supply Co. v. Electrical Workers Local 480, 428 F.2d 121 (5th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246 (1970), or Burns Brothers Plumbers, Inc. v. Groves Ventures Co., 412 F.2d 202 (6th Cir. 1969). There was no evidence produced that appellee did not or could not have employed his material elsewhere and used his trucks and men in connection with other projects not interfered with by appellant — no evidence that his men and equipment were idled by appellant’s activity. The most that was shown is a lost gross profit, but not a loss of net income. The proof of damage here thus falls far short of that adduced by the general contractor in Abbott v. Pipefitters Local 142, 429 F.2d 786, 789-790 (5th Cir. 1970) (proof of average profit over three year period and less profit on particular job, coupled with proof that losses were not attributable to factors other than picketing). See also Sheet Metal Workers Local 223 v. Atlas Sheet Metal Co., 384 F.2d 101 (5th Cir. 1967); Teamsters Local 984 v. Humko Co., 287 F.2d 231 (6th Cir.), cert. denied, 366 U.S. 962, 81 S.Ct. 1922, 6 L.Ed.2d 1254 (1961). While there is ample proof that as a result of appellant’s unlawful activity appellee sustained lost profits on some gravel that he could have sold at the pit and some that he could have delivered, there is no proof that the same gravel — surely the most fungible and widely used of minerals — was not sold elsewhere or in any event delivered elsewhere in the ordinary course of business by the use of Landstrom’s men and equipment. Thus, appellee did not sustain his burden of proving actual damage. Since we must remand in respect to alleged losses of profits in any event, it is unnecessary to determine whether the court’s response to a jury question in respect to Landstrom’s claim for damages should have been framed in substantially the same terms as Landstrom’s attorney’s summation. We do hold, however, that appellant’s belated objections to evidence relating to liability and damages on the Spencer-Van Etten, Morris Chain and Unex Press jobs on the ground that they were not specifically mentioned in appellee’s answers to interrogatories are unavailing. Reference was made in the interrogatory answers to claimed damages of $62,500 in respect to Stewart and Bennett, the Spencer-Van Etten contractors, and in connection with the Unex Press project there was a general answer of claimed damages of $25,000 on additional jobs; appellant cannot now claim, having failed to press for further specification before trial, that he was surprised by this evidence. Landstrom’s deposition could have been, but was not taken. The Morris Chain project of which appellant now complains was not material since no claim for damages in respect to it was made. Judgment affirmed as to liability, reversed and remanded for new trial on damages only, costs to neither party. . Section 8 provides in pertinent part: (b) It shall be an unfair labor practice for a labor organization or its agents'— (4) . . . (ii) to threaten, coerce, or restrain any person . . . where . an object thereof is' — • (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing[.] . Appellee originally also sued Michaels and Lawrence Small, Secretary-Treasurer of the appellant. These suits were dismissed by consent prior to trial. . On the validity of such clauses, see Truck Drivers Local 413 v. NLRB, 118 U.S.App.D.C. 149, 334 F.2d 539, cert. denied, 379 U.S. 916, 85 S.Ct. 264, 13 L.Ed.2d 186 (1964). . Section 8(b) (4) (ii) (B) makes an explicit exception with respect to primary disputes. See note 1 supra. See generally United Steelworkers v. NLRB, 376 U.S. 492, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964); Typographical Union No. 37 v. NLRB, 131 U.S.App.D.C. 1, 401 F.2d 952 (1968); NLRB v. Northern California District Council of Hod Carriers, 389 F.2d 721 (9th Cir. 1968). . The pertinent portion of the charge as to appellant’s defenses read as follows: The defendant Union, on the other hand, denies that its officers many [sic] any threats to anyone as testified to by the various witnesses produced by the plaintiff. The defendant contends that on various occasions its president advised contractors with whom the Union had .agreements that it would resort to the lawful procedure set forth in those agreements to enforce the Union’s rights under them. The Union concedes that in the course of a dispute with the plaintiff in the spring of 1969 it posted pickets at its place of business. They deny threatening to picket or strike on any other or in connection with anyone else. You will recall that there is evidence that various charges and counter-charges were filed with the National Labor Relations Board as a result of which the pickets were withdrawn and the matter was resolved in some manner. The defendant further denies that its actions taken in connection with the plaintiff had any object or purpose or intent to require or force any of the contractors or the Rumsey-Ithaca Corporation to cease doing business with the plaintiff. Finally, the defendant denies that the plaintiff suffered any injury to his business and property as a proximate result of any unfair or unlawful labor practice. The defendant further maintains that it was only seeking to enforce its rights under three contracts which were introduced into evidence .... Obviously, this did not suffice to place the Moore Dry Dock issue before the jury. . (e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, ti-ansporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible [sic] and void: Provided, That nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work .... . Our understanding of what happened on the damage and other issues in this case below is hampered by a transcript that contains numerous uncorrectod errors, followed by briefs and appendices that are most unhelpful (and as regards the briefs in violation of Fed.R.App.P. 28, in numerous respects). To the best of our understanding, it appears that the trial court’s charge as to Landstrom’s claims was somewhat different from the testimony adduced because in connection with the BOCES School, appellant’s counsel in summation and the court spoke of twenty-seven hundred yards of gravel used there, as to which Landstrom would have delivered only one-half, making a loss of $1,-012.50. The testimony of Mr. Pfister at pages 150 et seq. of the transcript, however, was that the total yardage on the project was twenty-two thousand seven hundred yards of which Landstrom would have delivered at least one-half. On this basis the loss sustained would have been $8,512.50. This discrepancy in the charge of $7,500 in favor of appellant was not objected to by appellee and may have been due to a mistake in transcribing the testimony rather than counsel’s computations. . For mason sand Landstrom had to purchase at a higher cost — $222.50. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:

songer_origin

D

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. BARLOW v. BUDGE. In re LIBERTY POSTER CO. No. 12008. Circuit Court of Appeals, Eighth Circuit. April 20, 1942. Rehearing Denied May 11, 1942. Louis H. Joss, of Minneapolis, Minn. (M. E. Culhane, of Minneapolis, Minn., on the brief) for appellant. Edward J. Loring, of Minneapolis, Minn. (Albert M. Anderson, of Minneapolis, Minn., on the brief), for appellee. Before SANBORN and JOHNSEN, Circuit Judges, and NORDBYE, District Judge. SANBORN, Circuit Judge. The question for decision is whether the claim of the appellee, who was a director, an officer and a stockholder of The Liberty Poster Company, which has been adjudged a bankrupt, must be subordinated to the claims of other creditors. The bankrupt is a Minnesota corporation, which was organized in 1919 by C. A. Rose, F. H. Paulsen, W. P. Budge and R. E. Morrissey to do a printing business. Its’ capital stock was $20,000, of which each of its stockholders owned one-fourth. In 1925 Paulsen, who had been Vice-President, withdrew and sold his stock to the other stockholders, each of whom thereafter owned one-third of the stock of the corporation. After 1925 its stockholders were Rose, Budge and Morrissey, and its acting and active directors and officers were Rose and Budge. Rose acted as President and General Manager; Budge, as Secretary and Treasurer. In 1938 Morrissey became a director. From 1919 to 1930 the bankrupt’s business was reasonably successful, but, like many other corporations, it then fell upon evil days. In 1931 its net profit was $109.-22, and that was the last year in which it made a profit, except for the year 1935 when a net profit of $332.30 was realized. In the years 1930 and 1931 Budge’s salary of $1,040 per annum was not paid. By 1934 the capital of the bankrupt was impaired to the extent of $2,169.97. In 1935 there were occasions when the bankrupt was without sufficient funds to meet the weekly payroll, and at such times Budge made necessary advances. In 1935 the total advances made by Budge were $3,450. In 1936 a new press was purchased for $13,200. An old press, for which $3,-500 was allowed, was exchanged in part payment. Budge advanced $2,000 in cash, and the $8,000 balance of the purchase price was covered by a mortgage. During 1936 the corporation had gross sales of $55,302, hut by the end of the year the impairment of capital was $2,926.63. In February, 1937, Budge advanced $500 to the bankrupt, and in August, 1937, $250. He received from the bankrupt, in part payment of its indebtedness to him, $2,060 by 1932, $1,000 in 1936, and $250 on September 8, 1937. Budge advanced to. the bankrupt a total of $6,200; it owed him for salary for the years 1931 and 1932, $2,080; and it had paid him $3,310, leaving an unpaid balance due him of $4,970. He made no advances after August, 1937, and received no repayments after September 8, 1937. From July 1, 1937, the claims of other creditors of the bankrupt began to accumulate. At the end of 1937 the bankrupt owed creditors other than Budge $4,913.15, and the impairment of capital was $8,932.29. By the end of 1938 additional indebtedness to creditors amounted to $4,374.18 and capital impairment was $14,634.48. The corporation was adjudged bankrupt April 22, 1939. The schedules showed liabilities (including the indebtedness to Budge) of $14,646.22, and assets of $11,748.81. Budge filed a claim for $4,970. The Trustee objected to the allowance of the claim. A hearing was had before the Referee. Budge testified, in substance, that he had made the loans to the corporation in good faith and to supply necessary funds; that no arrangements were made with other stockholders before the advances were made, but that at times he told Rose lie would put in money; that all of the transactions were shown upon the hooks of the corporation; and that there was no agreement as to the withdrawal of the funds advanced. Budge further testified that he kept the books of the bankrupt and drew its checks. He charged no interest for the advances. He made no charge for his services after 1931. The Trustee conceded that Budge advanced the money he claimed to have advanced and that it was used for corporate purposes. No question was raised as to the reasonableness of Budge’s claim for salary for the years 1930 and 1931, and the Referee evidently treated the salary claim as having been discharged by the repayments made prior to 1935. The charter of the bankrupt limited the indebtedness to $10,000. The by-laws provided for a board of three directors, who should control and manage the corporation. The by-laws also provided that no contract by the “General Manager” for the purchase of equipment involving more than $200 should be entered into without the approval of the board of directors, and that no dividends should be declared which would impair the capital of the corporation. The by-laws provided that the officers’ salaries should be fixed by the hoard of directors. The last action of the board of directors with reference to salaries, as shown by the minutes, was taken at a meeting of stockholders held July 19, 1921. Meetings of stockholders and of directors were held on July 18, 1922, at which Rose, Paulsen and Budge were elected directors and President, Vice-President, Secretary and Treasurer, respectively. There were no records of any other meetings of stockholders or directors from 1922 until 1938. Rose was the manager of the business and was paid $45 a week from the beginning. Rose and Budge ran the business and on many occasions would get together and discuss its affairs. Income, social security, and unemployment tax returns were made by the bankrupt as a corporation. The creditors dealt with it as a corporation. There can be no doubt that Rose and Budge dominated and controlled the affairs of the. bankrupt and that they did .not observe the formalities of corporate management with respect to holding meetings of stockholders and directors. Neither did they observe the charter requirement that the indebtedness of the corporation should not exceed $10,000, for, in the year 1935 and thereafter, the indebtedness was in excess of that amount. They did not procure the formal approval of the board of directors for the purchase of machinery, and ignored the provision of the bylaws in that regard. It is to be noted, however, that the advisability of purchasing the new printing press in 1936 was discussed and presumably its purchase was informally approved by all of the stockholders of the bankrupt. The Referee found that Budge had acted in good faith and that his acts and conduct could not be considered even constructively fraudulent as to other creditors and that he was entitled to share in the assets of the estate on a parity with them. The Trustee petitioned for a review of the Referee’s order. The District Court ordered the claim of Budge allowed, saying: “I find nothing here suggesting ‘the history of a deliberate and carefully planned attempt’ on the part of Budge to accomplish a fraud on creditors such as was the situation in Pepper v. Litton, 308 U.S. 295 [60 S.Ct. 238, 84 L.Ed. 281], upon which the Trustee so heavily relies. The controlling features in this case it seems to me are the presence of the conceded good faith of the claimant and that in this good faith the loans were made for the benefit of the corporation. Under such circumstances equity and good conscience suggest the allowance of the claim.” The appellant contends that the facts compel the subordination of Budge’s claim to the claims of other creditors. He asserts that the domination and control shown to have been exercised by Budge and Rose made them fiduciaries, and that when Budge’s claim was challenged the burden was upon him to show the fairness of his dealings with the assets of the bankrupt on behalf of creditors, and that his evidence shows that the affairs of the corporation were conducted for the benefit of himself and Rose and to the detriment of creditors. The Trustee also asserts that the substance and form of corporate management was disregarded by Budge and Rose, and that they conducted the business as though it were a partnership or joint venture. The Trustee further argues that Budge’s contributions were made to preserve his own investment and should be treated as contributions to capital at least in so far as other creditors are concerned. It can not be said that appellant’s contentions are without merit. While there can be no doubt of the validity of the claim of Budge against the bankrupt, one can believe that, because of the way in wnich he and Rose managed the business and because of their failure to conduct the affairs of the corporation in accordance with the charter and by-laws, Budge’s rights as a creditor should not be placed upon an equitable parity with the rights of other creditors in a distribution of assets. It is probable, we think, that the Referee and the court below could have subordinated the claim of Budge to the claims of other creditors on a finding that his informal and irregular conduct of the affairs of the bankrupt had prejudiced their rights and was a violation of Budge’s duty toward them. We hesitate to say, however, that, under the evidence, the court of bankruptcy was compelled to subordinate Budge’s claim to the claims of other creditors, believing, as it did, that Budge was guilty of no fraud and of no unfairness in his dealings with the bankrupt. As a practical matter, it is difficult to see in what way the informal manner in which the corporate affairs were handled prejudiced the rights of creditors. There is no claim that any creditor was deceived as to the nature of the bankrupt’s business, as to who was in charge of its affairs, or as to its financial condition. The books of account were properly kept and reflected the assets and liabilities of the bankrupt. It is, of course, evident now that from a creditor’s standpoint it was a mistake to attempt to continue the business of the bankrupt after 1930 or 1931. It is not our understanding, however, that a mere mistake of judgment in continuing a business which is in financial difficulties is in any respect akin to fraud or unfairness. The unfavorable business conditions which prevailed during the 1930’s are a matter of common knowledge. Businessmen were urged to continue operations in the face of adverse conditions, to prevent further unemployment and in the hope that their businesses might survive. Legislation, both state and national, was enacted to prevent individuals and corporations from going to the wall. That Budge and Rose met with failure in their attempts to make the bankrupt’s business successful does not seem to us a sufficient basis to justify penalizing Budge for participating in the attempt. All that Budge and Rose did directly and informally, they could have done indirectly and formally. Whatever was done by the bankrupt in borrowing money from Budge was apparently known to and approved or fully acquiesced in by all of the three stockholders. The evidence does not justify an inference that Budge manipulated the affairs of the corporation for his own personal advantage. The inference which is justified by the evidence is that the advances which Budge made were made in good faith to enable the bankrupt to meet pressing obligations and to remain in business. The advances were made before the creditors, to whose claims it is now contended Budge’s claim should be subordinated, had become creditors. The rule appears to he that where a claimant is a person or corporation having complete ownership and control of a bankrupt corporation, which the claimant has organized, controlled and operated as a mere agent, adjunct or instrumentality for his own purposes and benefit, the courts will disregard the corporate entity at least so far as other creditors are concerned and deny to the alleged creditor participation on a parity with them. But, while the dealings of an officer, director or stockholder who files a claim against a bankrupt corporation for money loaned to it will be subjected to rigorous scrutiny and the claimant required to prove the good faith of the transaction upon which the claim is based and also its fairness from the point of view of the corporation and those interested in it (Geddes v. Anaconda Copper Mining Co., 254 U.S. 590, 599, 41 S.Ct. 209, 65 L.Ed. 425; Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 84 L.Ed. 281), his relation to the bankrupt will not prevent the allowance of his claim on a parity with other creditors if he can show that the money was needed by the corporation and was used for proper corporate purposes and that the transaction between him and. the corporation was open, honest and free from unfairness or fault. We think that the duty and responsibility of determining - whether, under the applicable law, the claim of Budge was upon an equitable parity with the claims of other creditors was primarily that of the bankruptcy court, which was charged with the administration of this insolvent estate, and that this Court would not be justified in setting aside the order appealed from unless convinced that it was clearly erroneous. We are not convinced that it was clearly erroneous. The order appealed from is affirm.ed. In re H. Hicks & Son, Inc., 2 Cir., 82 F.2d 277; Forbush Co. v. Bartley, 10 Cir., 78 F.2d 805; In re Kentucky Wagon Mfg. Co., 6 Cir., 71 F.2d 802; In re Burntside Lodge, Inc., D.C., 7 F.Supp. 785; In re Mill Run Lumber Co., D.C., 4 F.Supp. 807; Clere Clothing Co. v. Union Trust & Savings Bank, 9 Cir., 224 F. 363; Pepper v. Litton, 308 U.S. 295, 307-311, 60 S.Ct 238, 84 L.Ed. 281; 8 C.J.S., Bankruptcy, § 385, pp. 1217, 1218. Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 589, 590, 23 L.Ed. 328; Pepper v. Litton, 308 U.S. 295, 306, 307, 60 S.Ct. 238, 84 L.Ed. 281; Finn v. George T. Mickle Lumber Co., 9 Cir., 41 F.2d 676; First National Bank v. Young’s Estate, 6 Cir., 41 F.2d 8; Wheeler v. Smith, 9 Cir., 30 F.2d 59; In re Sassy Jane Mfg. Co., 9 Cir., 4 F.2d 55; In re American Range & Foundry Co., D.C., 22 F.2d 558. See, also, Sanford Fork & Tool Co. v. Howe, Brown & Co., Ltd., 157 U.S. 312, 15 S.Ct. 621, 39 L.Ed. 713. In re Lake Chelan Land Co., 9 Cir., 257 F. 497, 5 A.L.R. 557. 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_issue_2

18

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. WINKELMAN, a minor, by and through his parents and legal guardians, WINKELMAN et ux., et al. v. PARMA CITY SCHOOL DISTRICT No. 05-983. Argued February 27, 2007 Decided May 21, 2007 Kennedy, J., delivered the opinion of the Court, in which Roberts, C. X, and Stevens, Souter, Ginsburg, Breyer, and Alito, JX, joined. Scalia, X, filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas, X, joined, post, p. 535. Jean-Claude André argued the cause and filed briefs for petitioners. David B. Salmons argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Assistant Attorney General Kim, Deputy Solicitor General Garre, David K. Flynn, Gregory B. Friel, and Kent D. Talbert. Pierre H. Bergeron argued the cause for respondent. With him on the brief was Christina Henagen Peer Briefs of amici curiae urging reversal were filed for the Autism Society of America et al. by Barbara E. Etkind, and Ilise L. Feitshans; for the Council of Parent Attorneys and Advocates, Inc., et al. by Lynn S. Preece, Erin McCloskey Maus, and Angela C. Vigil; for the Equal Justice Foundation et al. by Benson A Wolman, Robert J. Krummen, and Robert M. Clyde, Jr.; for the Ohio Coalition for the Education of Children with Disabilities et al. by Thomas C. Goldstein, Eric H. Zagrans, Pamela S. Karlan, Jeffrey L. Fisher, Amy Howe, and Kevin K. Russell; and for Senator Edward M. Kennedy et al. by Jody Manier Kris. Julie Wright Halbert and Pammela Quinn filed a brief for the Council of the Great City Schools as amicus curiae urging affirmance. Julie Carleton Martin, Francisco M. Negron, Jr., Naomi E. Gittins, Thomas E. M. Hutton, and Lisa E. Soronen filed a brief for the National School Boards Association et al. as amici curiae. Justice Kennedy delivered the opinion of the Court. Some four years ago, Mr. and Mrs. Winkelman, parents of five children, became involved in lengthy administrative and legal proceedings. They had sought review related to concerns they had over whether their youngest child, 6-year-old Jacob, would progress well at Pleasant Valley Elementary School, which is part of the Parma City School District in Parma, Ohio. Jacob has autism spectrum disorder and is covered by the Individuals with Disabilities Education Act (Act or IDEA), 84 Stat. 175, as amended, 20 U. S. C. § 1400 et seq. (2000 ed. and Supp. IV). His parents worked with the school district to develop an individualized education program (IEP), as required by the Act. All concede that Jacob’s parents had the statutory right to contribute to this process and, when agreement could not be reached, to participate in administrative proceedings including what the Act refers to as an “impartial due process hearing.” § 1415(f)(1)(A) (2000 ed., Supp. IV). The disagreement at the center of the current dispute concerns the procedures to be followed when parents and their child, dissatisfied with the outcome of the due process hearing, seek further review in a United States District Court. The question is whether parents, either on their own behalf or as representatives of the child, may proceed in court unrepresented by counsel though they are not trained or licensed as attorneys. Resolution of this issue requires us to examine and explain the provisions of IDEA to determine if it accords to parents rights of their own that can be vindicated in court proceedings, or alternatively, whether the Act allows them, in their status as parents, to represent their child in court proceedings. I Respondent Parma City School District, a participant in IDEA’S educational spending program, accepts federal funds for assistance in the education of children with disabilities. As a condition of receiving funds, it must comply with IDEA’S mandates. IDEA requires that the school district provide Jacob with a “free appropriate public education,” which must operate in accordance with the IEP that Jacob’s parents, along with school officials and other individuals, develop as members of Jacob’s “IEP Team.” Brief for Petitioners 3 (internal quotation marks omitted). The school district proposed an IEP for the 2003-2004 school year that would have placed Jacob at a public elementary school. Regarding this IEP as deficient under IDEA, Jacob’s nonlawyer parents availed themselves of the administrative review provided by IDEA. They filed a complaint alleging respondent had failed to provide Jacob with a free appropriate public education; they appealed the hearing officer’s rejection of the claims in this complaint to a state-level review officer; and after losing that appeal they filed, on their own behalf and on behalf of Jacob, a complaint in the United States District Court for the Northern District of Ohio. In reliance upon 20 U. S. C. § 1415(i)(2) (2000 ed., Supp. IV) they challenged the administrative decision, alleging, among other matters: that Jacob had not been provided with a free appropriate public education; that his IEP was inadequate; and that the school district had failed to follow procedures mandated by IDEA. Pending the resolution of these challenges, the Winkelmans had enrolled Jacob in a private school at their own expense. They had also obtained counsel to assist them with certain aspects of the proceedings, although they filed their federal complaint, and later their appeal, without the aid of an attorney. The Winkelmans’ complaint sought reversal of the administrative decision, reimbursement for private-school expenditures and attorney’s fees already incurred, and, it appears, declaratory relief. The District Court granted respondent’s motion for judgment on the pleadings, finding it had provided Jacob with a free appropriate public education. Petitioners, proceeding without counsel, filed an appeal with the Court of Appeals for the Sixth Circuit. Relying on its recent decision in Cavanaugh v. Cardinal Local School Dist., 409 F. 3d 753 (2005), the Court of Appeals entered an order dismissing the Winkelmans’ appeal unless they obtained counsel to represent Jacob. See Order in No. 05-3886 (Nov. 4,2005), App. A to Pet. for Cert. la. In Cavanaugh the Court of Appeals had rejected the proposition that IDEA allows nonlawyer parents raising IDEA claims to proceed pro se in federal court. The court ruled that the right to a free appropriate public education “belongs to the child alone,” 409 F. 3d, at 757, not to both the parents and the child. It followed, the court held, that “any right on which the [parents] could proceed on their own behalf would be derivative” of the child’s right, ibid., so that parents bringing IDEA claims were not appearing on their own behalf, ibid. See also 28 U. S. C. § 1654 (allowing parties to prosecute their own claims pro se). As for the parents’ alternative argument, the court held, nonlawyer parents cannot litigate IDEA claims on behalf of their child because IDEA does not abrogate the common-law rule prohibiting nonlawyer parents from representing minor children. 409 F. 3d, at 756. As the court in Cavanaugh acknowledged, its decision brought the Sixth Circuit in direct conflict with the First Circuit, which had concluded, under a theory of “statutory joint rights,” that the Act accords to parents the right to assert IDEA claims on their own behalf. See Maroni v. Pemi-Baker Regional School Dist., 346 F. 3d 247, 249, 250 (CA1 2003). Petitioners sought review in this Court. In light of the disagreement among the Courts of Appeals as to whether a nonlawyer parent of a child with a disability may prosecute IDEA actions pro se in federal court, we granted certiorari. 549 U. S. 990 (2006). Compare Cavanaugh, supra, with Maroni, supra; see also Mosely v. Board of Ed. of Chicago, 434 F. 3d 527 (CA7 2006); Collinsgru v. Palmyra Bd. of Ed., 161 F. 3d 225 (CA3 1998); Wenger v. Canastota Central School Dist., 146 F. 3d 123 (CA2 1998) (per curiam); Devine v. Indian River Cty. School Bd., 121 F. 3d 576 (CA11 1997). II Our resolution of this case turns upon the significance of IDEA’S interlocking statutory provisions. Petitioners’ primary theory is that the Act makes parents real parties in interest to IDEA actions, not “mer[e] guardians of their children’s rights.” Brief for Petitioners 16. If correct, this allows Mr. and Mrs. Winkelman back into court, for there is no question that a party may represent his or her own interests in federal court without the aid of counsel. See 28 U. S. C. § 1654 (“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel... ”). Petitioners cannot cite a specific provision in IDEA mandating in direct and explicit terms that parents have the status of real parties in interest. They instead base their argument on a comprehensive reading of IDEA. Taken as a whole, they contend, the Act leads to the necessary conclusion that parents have independent, enforceable rights. Brief for Petitioners 14 (citing Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U. S. 50, 60 (2004)). Respondent, accusing petitioners of “knit[ting] together various provisions pulled from the crevices of the statute” to support these claims, Brief for Respondent 19, reads the text of IDEA to mean that any redressable rights under the Act belong only to children, id., at 19-40. We agree that the text of IDEA resolves the question presented. We recognize, in addition, that a proper interpretation of the Act requires a consideration of the entire statutory scheme. See Dolan v. Postal Service, 546 U. S. 481, 486 (2006). Turning to the current version of IDEA, which the parties agree governs this case, we begin with an overview of the relevant statutory provisions. A The goals of IDEA include “ensurjjng] that all children with disabilities have available to them a free appropriate public education” and “ensur[ing] that the rights of children with disabilities and parents of such children are protected.” 20 U. S. C. §§ 1400(d)(1)(A)-(B) (2000 ed., Supp. IV). To this end, the Act includes provisions governing four areas of particular relevance to the Winkelmans’ claim: procedures to be followed when developing a child’s IEP; criteria governing the sufficiency of an education provided to a child; mechanisms for review that must be made available when there are objections to the IEP or to other aspects of IDEA proceedings; and the requirement in certain circumstances that States reimburse parents for various expenses. See generally §§ 1412(a)(10), 1414, 1415. Although our discussion of these four areas does not identify all the illustrative provisions, we do take particular note of certain terms that mandate or otherwise describe parental involvement. IDEA requires school districts to develop an IEP for each child with a disability, see §§ 1412(a)(4), 1414(d), with parents playing “a significant role” in this process, Schaffer v. Weast, 546 U. S. 49, 53 (2005). Parents serve as members of the team that develops the IEP. § 1414(d)(1)(B). The “concerns” parents have “for enhancing the education of their child” must be considered by the team. § 1414(d)(3)(A)(ii). IDEA accords parents additional protections that apply throughout the IEP process. See, e. g., § 1414(d)(4)(A) (requiring the IEP Team to revise the IEP when appropriate to address certain information provided by the parents); § 1414(e) (requiring States to “ensure that the parents of [a child with a disability] are members of any group that makes decisions on the educational placement of their child”). The statute also sets up general procedural safeguards that protect the informed involvement of parents in the development of an education for their child. See, e. g., § 1415(a) (requiring States to “establish and maintain procedures ... to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education”); § 1415(b)(1) (mandating that States provide an opportunity for parents to examine all relevant records). See generally §§1414, 1415. A central purpose of the parental protections is to facilitate the provision of a “‘free appropriate public education,’” §1401(9), which must be made available to the child “in conformity with the [IEP],” §1401(9)(D). The Act defines a “free appropriate public education” pursuant to an IEP to be an educational instruction “specially designed ... to meet the unique needs of a child with a disability,” § 1401(29), coupled with any additional “ ‘related services’ ” that are “required to assist a child with a disability to benefit from [that instruction],” § 1401(26)(A). See also § 1401(9). The education must, among other things, be provided “under public supervision and direction,” “meet the standards of the State educational agency,” and “include an appropriate preschool, elementary school, or secondary school education in the State involved.” Ibid. The instruction must, in addition, be provided at “no cost to parents.” § 1401(29). See generally Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176 (1982) (discussing the meaning of “free appropriate public education” as used in the statutory precursor to IDEA). When a party objects to the adequacy of the education provided, the construction of the IEP, or some related matter, IDEA provides procedural recourse: It requires that a State provide “[a]n opportunity for any party to present a complaint . . . with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” § 1415(b)(6). By presenting a complaint a party is able to pursue a process of review that, as relevant, begins with a preliminary meeting “where the parents of the child discuss their complaint” and the local educational agency “is provided the opportunity to [reach a resolution].” § 1415(f)(l)(B)(i)(IV). If the agency “has not resolved the complaint to the satisfaction of the parents within 30 days,” § 1415(f)(l)(B)(ii), the parents may request an “impartial due process hearing,” § 1415(f)(1)(A), which must be conducted either by the local educational agency or by the state educational agency, ibid., and where a hearing officer will resolve issues raised in the complaint, § 1415(f)(3). IDEA sets standards the States must follow in conducting these hearings. Among other things, it indicates that the hearing officer’s decision “shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education,” § 1415(f)(3)(E)(i), and that, “[i]n matters alleging a procedural violation,” the officer may find a child “did not receive a free appropriate public education,” § 1415(f)(3)(E)(ii), only if the violation “(I) impeded the child’s right to a free appropriate public education; “(II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’ child; or “(III) caused a deprivation of educational benefits.” Ibid. If the local educational agency, rather than the state educational agency, conducts this hearing, then “any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency.” § 1415(g)(1). Once the state educational agency has reached its decision, an aggrieved party may commence suit in federal court: “Any party aggrieved by the findings and decision made [by the hearing officer] shall have the right co bring a civil action with respect to the complaint.” § 1415(i)(2)(A); see also § 1415(i)(l). IDEA, finally, provides for at least two means of cost recovery that inform our analysis. First, in certain circumstances it allows a court or hearing officer to require a state agency “to reimburse the parents [of a child with a disability] for the cost of [private-school] enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child.” § 1412(a)(10)(C)(ii). Second, it sets forth rules governing when and to what extent a court may award attorney’s fees. See § 1415(i)(3)(B). Included in this section is a provision allowing an award “to a prevailing party who is the parent of a child with a disability.” § 1415(i)(3)(B)(i)(I). B Petitioners construe these various provisions to accord parents independent, enforceable rights under IDEA. We agree. The parents enjoy enforceable rights at the administrative stage, and it would be inconsistent with the statutory scheme to bar them from continuing to assert these rights in federal court. The statute sets forth procedures for resolving disputes in a manner that, in the Act’s express terms, contemplates parents will be the parties bringing the administrative complaints. In addition to the provisions we have cited, we refer also to § 1415(b)(8) (requiring a state educational agency to “develop a model form to assist parents in filing a complaint”); § 1415(c)(2) (addressing the response an agency must provide to a “parent’s due process complaint notice”); and § 1415(i)(3)(B)(i) (referring to “the parent’s complaint”). A wide range of review is available: Administrative complaints may be brought with respect to “any matter relating to . . . the provision of a free appropriate public education.” § 1415(b)(6)(A). Claims raised in these complaints are then resolved at impartial due process hearings, where, again, the statute makes clear that parents will be participating as parties. See generally supra, at 525-526. See also § 1415(f)(3)(C) (indicating “[a] parent or agency shall request an impartial due process hearing” within a certain period of time); § 1415(e)(2)(A)(ii) (referring to “a parent’s right to a due process hearing”). The statute then grants “[a]ny party aggrieved by the findings and decision made [by the hearing officer] . . . the right to bring a civil action with respect to the complaint.” § 1415(i)(2)(A). Nothing in these interlocking provisions excludes a parent who has exercised his or her own rights from statutory protection the moment the administrative proceedings end. Put another way, the Act does not sub silentio or by implication bar parents from seeking to vindicate the rights accorded to them once the time comes to file a civil action. Through its provisions for expansive review and extensive parental involvement, the statute leads to just the opposite result. Respondent, resisting this line of analysis, asks us to read these provisions as contemplating parental involvement only to the extent parents represent their child’s interests. In respondent’s view IDEA accords parents nothing more than “collateral tools related to the child’s underlying substantive rights — not freestanding or independently enforceable rights.” Brief for Respondent 25. This interpretation, though, is foreclosed by provisions of the statute. IDEA defines one of its purposes as seeking “to ensure that the rights of children with disabilities and parents of such children are protected.” § 1400(d)(1)(B). The word “rights” in the quoted language refers to the rights of parents as well as the rights of the child; otherwise the grammatical structure would make no sense. Further provisions confirm this view. IDEA mandates that educational agencies establish procedures “to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education.” § 1415(a). It presumes parents have rights of their own when it defines how States might provide for the transfer of the “rights accorded to parents” by IDEA, § 1415(m)(l)(B), and it prohibits the raising of certain challenges “[njotwithstanding any other individual right of action that a parent or student may maintain under [the relevant provisions of IDEA],” §§ 1401(10)(E), 1412(a)(14)(E). To adopt respondent’s reading of the statute would require an interpretation of these statutory provisions (and others) far too strained to be correct. Defending its countertextual reading of the statute, respondent cites a decision by a Court of Appeals concluding that the Act’s “references to parents are best understood as accommodations to the fact of the child’s incapacity.” Doe v. Board of Ed. of Baltimore Cty., 165 F. 3d 260, 263 (CA4 1998); see also Brief for Respondent 30. This, according to respondent, requires us to interpret all references to parents’ rights as referring in implicit terms to the child’s rights— which, under this view, are the only enforceable rights accorded by IDEA. Even if we were inclined to ignore the plain text of the statute in considering this theory, we disagree that the sole purpose driving IDEA’S involvement of parents is to facilitate vindication of a child’s rights. It is not a novel proposition to say that parents have a recognized legal interest in the education and upbringing of their child. See, e. g., Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925) (acknowledging “the liberty of parents and guardians to direct the upbringing and education of children under their control”); Meyer v. Nebraska, 262 U. S. 390, 399-401 (1923). There is no necessary bar or obstacle in the law, then, to finding an intention by Congress to grant parents a stake in the entitlements created by IDEA. Without question a parent of a child with a disability has a particular and personal interest in. fulfilling “our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.” § 1400(c)(1). We therefore find no reason to read into the plain language of the statute an implicit rejection of the notion that Congress would accord parents independent, enforceable rights concerning the education of their children. We instead interpret the statute’s references to parents’ rights to mean what they say: that IDEA includes provisions conveying rights to parents as well as to children. A variation on respondent’s argument has persuaded some Courts of Appeals. The argument is that while a parent can be a “party aggrieved” for aspects of the hearing officer’s findings and decision, he or she cannot be a “party aggrieved” with respect to all IDEA-based challenges. Under this view the causes of action available to a parent might relate, for example, to various procedural mandates, see, e. g., Collinsgru, 161 F. 3d, at 233, and reimbursement demands, see, e. g., § 1412(a)(10)(C)(ii). The argument supporting this conclusion proceeds as follows: Because a “party aggrieved” is, by definition, entitled to a remedy, and parents are, under IDEA, only entitled to certain procedures and reimbursements as remedies, a parent cannot be a “party aggrieved” with regard to any claim not implicating these limited matters. This argument is contradicted by the statutory provisions we have recited. True, there are provisions in IDEA stating parents are entitled to certain procedural protections and reimbursements; but the statute prevents us from placing too much weight on the implications to be drawn when other entitlements are accorded in less clear language. We find little support for the inference that parents are excluded by implication whenever a child is mentioned, and vice versa. Compare, e. g., § 1411(e)(3)(E) (barring States from using certain funds for costs associated with actions “brought on behalf of a child” but failing to acknowledge that actions might also be brought on behalf of a parent) with § 1415(i)(3)(B)(i) (allowing recovery of attorney’s fees to a “prevailing party who is the parent of a child with a disability” but failing to acknowledge that a child might also be a prevailing party). Without more, then, the language in IDEA confirming that parents enjoy particular procedural and reimbursement-related rights does not resolve whether they are also entitled to enforce IDEA’S other mandates, including the one most fundamental to the Act: the provision of a free appropriate public education to a child with a disability. We consider the statutory structure. The IEP proceedings entitle parents to participate not only in the implementation of IDEA’S procedures but also in the substantive formulation of their child’s educational program. Among other things, IDEA requires the IEP Team, which includes the parents as members, to take into account any “concerns” parents have “for enhancing the education of their child” when it formulates the IEP. § 1414(d)(3)(A)(ii). The IEP, in turn, sets the boundaries of the central entitlement provided by IDEA: It defines a “ ‘free appropriate public education’ ” for that parent’s child. § 1401(9). The statute also empowers parents to bring challenges based on a broad range of issues. The parent may seek a hearing on “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” § 1415(b)(6)(A). To resolve these challenges a hearing officer must make a decision based on whether the child “received a free appropriate public education.” § 1415(f)(3)(E). When this hearing has been conducted by a local educational agency rather than a state educational agency, “any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision” to the state educational agency. § 1415(g)(1). Judicial review follows, authorized by a broadly worded provision phrased in the same terms used to describe the prior stage of review: “Any party aggrieved” may bring “a civil action.” § 1415(i)(2)(A). These provisions confirm that IDEA, through its text and structure, creates in parents an independent stake not only in the procedures and costs implicated by this process but also in the substantive decisions to be made. We therefore conclude that IDEA does not differentiate, through isolated references to various procedures and remedies, between the rights accorded to children and the rights accorded to parents. As a consequence, a parent may be a “party aggrieved” for purposes of §1415(i)(2) with regard to “any matter” implicating these rights. See § 1415(b)(6)(A). The status of parents as parties is not limited to matters that relate to procedure and cost recovery. To find otherwise would be inconsistent with the collaborative framework and expansive system of review established by the Act. Cf. Cedar Rapids Community School Dist. v. Garret F., 526 U. S. 66, 73 (1999) (looking to IDEA’S “overall statutory scheme” to interpret its provisions). Our conclusion is confirmed by noting the incongruous results that would follow were we to accept the proposition that parents’ IDEA rights are limited to certain nonsubstantive matters. The statute’s procedural and reimbursement-related rights are intertwined with the substantive adequacy of the education provided to a child, see, e. g., § 1415(f)(3)(E), see also § 1412(a)(10)(C)(ii), and it is difficult to disentangle the provisions in order to conclude that some rights adhere to both parent and child while others do not. Were we nevertheless to recognize a distinction of this sort it would impose upon parties a confusing and onerous legal regime, one worsened by the absence of any express guidance in IDEA concerning how a court might in practice differentiate between these matters. It is, in addition, out of accord with the statute’s design to interpret the Act to require that parents prove the substantive inadequacy of their child’s education as a predicate for obtaining, for example, reimbursement under § 1412(a)(10)(C)(ii), yet to prevent them from obtaining a judgment mandating that the school district provide their child with an educational program demonstrated to be an appropriate one. The adequacy of the educational program is, after all, the central issue in the litigation. The provisions of IDEA do not set forth these distinctions, and we decline to infer them. The bifurcated regime suggested by the courts that have employed it, moreover, leaves some parents without a remedy. The statute requires, in express terms, that States provide a child with a free appropriate public education “at public expense,” §1401(9)(A), including specially designed instruction “at no cost to parents,” § 1401(29). Parents may seek to enforce this mandate through the federal courts, we conclude, because among the rights they enjoy is the right to a free appropriate public education for their child. Under the countervailing view, which would make a parent’s ability to enforce IDEA dependant on certain procedural and reimbursement-related rights, a parent whose disabled child has not received a free appropriate public education would have recourse in the federal courts only under two circumstances: when the parent happens to have some claim related to the procedures employed; and when he or she is able to incur, and has in fact incurred, expenses creating a right to reimbursement. Otherwise the adequacy of the child’s education would not be regarded as relevant to any cause of action the parent might bring; and, as a result, only the child could vindicate the right accorded by IDEA to a free appropriate public education. The potential for injustice in this result is apparent. What is more, we find nothing in the statute to indicate that when Congress required States to provide adequate instruction to a child “at no cost to parents,” it intended that only some parents would be able to enforce that mandate. The statute instead takes pains to “ensure that the rights of children with disabilities and parents of such children are protected.” § 1400(d)(1)(B). See, e. g., § 1415(e)(2) (requiring that States implement procedures to ensure parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education); § 1415(e)(2)(A)(ii) (requiring that mediation procedures not be “used to deny or delay a parent’s right to a due process hearing ... or to deny any other rights afforded under this subchapter”); cf. § 1400(c)(3) (noting IDEA’S success in “ensuring children with disabilities and the families of such children access to a free appropriate public education”). We conclude IDEA grants parents independent, enforceable rights. These rights, which are not limited to certain procedural and reimbursement-related matters, encompass the entitlement to a free appropriate public education for the parents’ child. C Respondent contends, though, that even under the reasoning we have now explained petitioners cannot prevail without overcoming a further difficulty. Citing our opinion in Arlington Central School Dish Bd. of Ed. v. Murphy, 548 U. S. 291 (2006), respondent argues that statutes passed pursuant to the Spending Clause, such as IDEA, must provide “‘clear notice’” before they can burden a State with some new condition, obligation, or liability. Brief for Respondent 41. Respondent contends that because IDEA is, at best, ambiguous as to whether it accords parents independent rights, it has failed to provide clear notice of this condition to the States. See id., at 40-49. Respondent’s reliance on Arlington is misplaced. In Arlington we addressed whether IDEA required States to reimburse experts’ fees to prevailing parties in IDEA actions. “[W]hen Congress attaches conditions to a State’s acceptance of federal funds,” we explained, “the conditions must be set out ‘unambiguously. ’ ” 548 U. S., at 296 (quoting Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981)). The question to be answered in Arlington, therefore, was whether IDEA “furnishes clear notice regarding the liability at issue.” 548 U. S., at 296. We found it did not. The instant case presents a different issue, one that does not invoke the same rule. Our determination that IDEA grants to parents independent, enforceable rights does not impose any substantive condition or obligation on States they would not otherwise be required by law to observe. The basic measure of monetary recovery, moreover, is not expanded by recognizing that some rights repose in both the parent and the child. Were we considering a statute other than the one before us, the Spending Clause argument might have more force: A determination by the Court that some distinct class of people has independent, enforceable rights might result in a change to the States’ statutory obligations. But that is not the case here. Respondent argues our ruling will, as a practical matter, increase costs borne by the States as they are forced to defend against suits unconstrained by attorneys trained in the law and the rules of ethics. Effects such as these do not suffice to invoke the concerns under the Spending Clause. Furthermore, IDEA does afford relief for the States in certain cases. The Act empowers courts to award attorney’s fees to a prevailing educational agency whenever a parent has presented a “complaint or subsequent cause of action ... for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” § 1415(i)(3)(B)(i)(III). This provision allows some relief when a party has proceeded in violation of these standards. Ill The Court of Appeals erred when it dismissed the Winkelmans’ appeal for lack of counsel. Parents enjoy rights under IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf. The decision by Congress to grant parents these rights was consistent with the purpose of IDEA and fully in accord with our social and legal traditions. It is beyond dispute that the relationship between a parent and child is sufficient to support a legally cognizable interest in the education of one’s child; and, what is more, Congress has found that “the education of children with disabilities can be made more effective by . .. strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home.” § 1400(c)(5). In light of our holding we need not reach petitioners’ alternative argument, which concerns whether IDEA entitles parents to litigate their child’s claims pro se. 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 issue of the decision? 01. voting 02. Voting Rights Act of 1965, plus amendments 03. ballot access (of candidates and political parties) 04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action) 05. desegregation, schools 06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions. 07. affirmative action 08. slavery or indenture 09. sit-in demonstrations (protests against racial discrimination in places of public accommodation) 10. reapportionment: other than plans governed by the Voting Rights Act 11. debtors' rights 12. deportation (cf. immigration and naturalization) 13. employability of aliens (cf. immigration and naturalization) 14. sex discrimination (excluding sex discrimination in employment) 15. sex discrimination in employment (cf. sex discrimination) 16. Indians (other than pertains to state jurisdiction over) 17. Indians, state jurisdiction over 18. juveniles (cf. rights of illegitimates) 19. poverty law, constitutional 20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision. 21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits 22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes 23. residency requirements: durational, plus discrimination against nonresidents 24. military: draftee, or person subject to induction 25. military: active duty 26. military: veteran 27. immigration and naturalization: permanent residence 28. immigration and naturalization: citizenship 29. immigration and naturalization: loss of citizenship, denaturalization 30. immigration and naturalization: access to public education 31. immigration and naturalization: welfare benefits 32. immigration and naturalization: miscellaneous 33. indigents: appointment of counsel (cf. right to counsel) 34. indigents: inadequate representation by counsel (cf. right to counsel) 35. indigents: payment of fine 36. indigents: costs or filing fees 37. indigents: U.S. Supreme Court docketing fee 38. indigents: transcript 39. indigents: assistance of psychiatrist 40. indigents: miscellaneous 41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty) 42. miscellaneous civil rights (cf. comity: civil rights) Answer:

songer_state

39

What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". Stephen STACKHOUSE, Appellant, v. Joseph MAZURKIEWICZ, Warden; Sgt. Knepp, C.O. II; William Quick, C.O. I; D.A. Leathers, C.O. III; A. Anderson, C.O. I; Jesse Rush, IV, C.O. II; Tim Yutzy, C.O. Work Boss; Kunes C.O. Work Boss; Carrie Fromm, Institutional Psychologist; Rodriguez, C.O. I. No. 91-5239. United States Court of Appeals, Third Circuit. Submitted under Third Circuit Rule 12(6) Sept. 13, 1991. Decided Dec. 11, 1991. Rehearing Denied Jan. 9, 1992. Stephen Stackhouse, pro se. Ernest D. Preate, Jr., Atty. Gen., Linda C. Barrett, Deputy Atty. Gen., Calvin R. Koons, Senior Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation Section, Office of Atty. Gen., Harrisburg, Pa., for appellees. Before SLOVITER, Chief Judge, and GREENBERG and COWEN, Circuit Judges. OPINION OF THE COURT GREENBERG, Circuit Judge. Appellant Stephen Stackhouse, a former Pennsylvania state prisoner at the State Correctional Institution at Rockview, brought a civil rights action in the district court against various prison officials. His complaint raised numerous claims which we need not describe in detail. We simply point out that in general they assert that he was denied due process of law in disciplinary proceedings and that he was subjected to cruel and unusual punishment. The defendants filed motions for summary judgment and for dismissal to which Stack-house did not respond as required by Middle District Rule 401.6. Consequently, the magistrate judge filed a report and recommendation that the motion to dismiss be granted and the district court by order of February 13, 1991, adopted the report and recommendation and dismissed the action. Neither the magistrate judge nor the court addressed the merits of the complaint. Stackhouse appeals. While we are not unmindful of the problems of the district court in dealing with a large volume of litigation, we nevertheless conclude that under Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168 (3d Cir.1990), this action should not have been dismissed solely on the basis of the local rule without any analysis of whether the complaint failed to state a claim upon which relief can be granted, as provided in Fed.R.Civ.P. 12(b)(6). Local Rule 401.6 should be understood to facilitate the court’s disposition of motions rather than to impose a sanction for failure to prosecute or defend. Anchorage Associates, 922 F.2d at 174. In a similar situation involving a local rule in Anchorage Associates, we held that a district court should not have granted summary judgment solely on the basis that a motion for summary judgment was not opposed. While we acknowledge that Fed.R.Civ.P. 12(b)(6) has no analog to the provision in Fed.R.Civ.P. 56(e), that if the adverse party does not respond to a motion for summary judgment the motion may be granted “if appropriate,” we do not think that this distinguishes the rules for present purposes. The fact is that if a motion to dismiss is granted solely because it has not been opposed, the case is simply not being dismissed because the complaint has failed to state a claim upon which relief may be granted. Rather, it is dismissed as a sanction for failure to comply with the local court rule. In reaching our result, we do not suggest that the district court may never rely on the local rule to treat a motion to dismiss as unopposed and subject to a dismissal without a merits analysis. There may be some cases where the failure of a party to oppose a motion will indicate that the motion is in fact not opposed, particularly if the party is represented by an attorney and in that situation the rule may be appropriately invoked. Nor do we suggest that if a party fails to comply with the rule after a specific direction to comply from the court, the rule cannot be invoked. Thus, our holding is not broad. We realize, of course, that we could make our own analysis of the complaint and, if we found that it failed to state a claim upon which relief could be granted, we could affirm on that basis. In fact we have done that and, while we are reluctant to comment on the merits of the case in its current posture, have concluded that it is possible that some aspects of the complaint might survive a motion to dismiss if addressed on the merits. In these circumstances, we conclude that the complaint should in the first instance be considered substantively by the district court. The order of February 13, 1991, will be reversed and the matter will be remanded to the district court for further proceedings consistent with this opinion. The parties will bear their own costs on this appeal. 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_source

P

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. Tom MALOUFF, Plaintiff in Error, v. UNITED STATES, Defendant in Error. Circuit Court of Appeals, Eighth Circuit January 25, 1929. No. 8129. T. J. Malouff, for plaintiff in error. George Stephan, U. S. Atty., and Charles E. Works, Asst. U. S. Atty., both of Denver, Colo. PER CURIAM. Writ of error dismissed, without costs to either party in this court, for failure to file brief, as provided in stipulation of parties. 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_adminrev

O

What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable". LACHOWICZ v. LACHOWICZ. No. 5213. Court of Appeals of District of Columbia. Dec. 14, 1931. Jean M. Boardman, of Washington, D. C., for appellant. Albert W. Jacobson, of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices. HITZ, Associate Justice. This is an appeal by defendant below from an order of the Supreme Court of the District of Columbia awarding plaintiff below alimony pendente lite upon a bill for limited divorce on the ground of cruelty. The bill was filed February 5, 1930, together with a motion for alimony pendente lite. On February 11,1930, separate motions to dismiss the bill and to strike out certain portions thereof were filed by the defendant. The motion to dismiss was denied, and the motion to strike granted by one order dated February 17, 1930. And on the same date, by a separate order of the court, alimony pendente lite was granted, from which order alone the defendant brings this appeal. He assigns as error: (1) The denial of his motion to dismiss the amended bill of complaint; (2) the awarding of alimony pendente lite to the plaintiff. It is unnecessary to consider the first assignment, or the defendant’s right or procedure on an appeal from the order denying Ms motion to dismiss the bill, because no appeal was taken from that order. As to the second assignment of error, based upon the order awarding alimony pendente lite, it is settled that the granting or refusing of alimony pendente lite rests in the discretion of the trial court, not to be disturbed by the reviewing court, except for a clear abuse. Tolman v. Tolman, 1 App. D. C. 299; Shaw v. Shaw, 2 App. D. C. 204; Lesh v. Lesh, 21 App. D. C. 475; Reed v. Reed, 52 App. D. C. 36, 280 F. 1009; Wygodsky v. Wygodsky, 134 Md. 344, 106 A. 698. But in this ease there is no showing of any abuse of discretion, and no answer to the bill into which we might look for such a showing. The order appealed from is therefore affirmed, with costs. Affirmed. Question: What federal agency's decision was reviewed by the court of appeals? A. Benefits Review Board B. Civil Aeronautics Board C. Civil Service Commission D. Federal Communications Commission E. Federal Energy Regulatory Commission F. Federal Power Commission G. Federal Maritime Commission H. Federal Trade Commission I. Interstate Commerce Commission J. National Labor Relations Board K. Atomic Energy Commission L. Nuclear Regulatory Commission M. Securities & Exchange Commission N. Other federal agency O. Not ascertained or not applicable Answer:

sc_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 BOSTON FIREFIGHTERS UNION, LOCAL 718 v. BOSTON CHAPTER, NAACP, et al. No. 82-185. Argued April 18, 1983 Decided May 16, 1983 John F. McMahon argued the cause for petitioners in Nos. 82-185 and 82-246 and filed briefs for petitioner in No. 82-185. Thomas A. Bamico, Assistant Attorney General of Massachusetts, argued the cause pro hac vice for petitioners in No. 82-259. With him on the briefs were Francis X. Bellotti, Attorney General, Thomas R. Kiley, First Assistant Attorney General, E. Michael Sloman, Assistant Attorney General, and Marc S. Seigle, Special Assistant Attorney General. Kevin P. Phillips filed a brief for petitioner in No. 82-246. James S. Dittmar argued the cause for respondents in all cases. With him on the brief were Judith Bernstein Tracy, Peggy A. Wiesenberg, and Gerald Gillerman. Together with No. 82-246, Boston Police Patrolmen’s Assn., Inc. v. Castro et al.; and No. 82-259, Beecher et al. v. Boston Chapter, NAACP, et al., also on certiorari to the same court. Briefs of amici curiae urging reversal were filed by Solicitor General Lee, Assistant Attorney General Reynolds, Deputy Solicitor General Wallace, Deputy Assistant Attorney General Cooper, Carter G. Phillips, Brian K. Landsberg, Walter W. Barnett, and Dennis J. Dimsey for the United States; by Robert E. Williams, Douglas S. McDowell, and Daniel R. Levinson for the Equal Employment Advisory Council; by J. Albert Wall, Michael H. Gottesman, Robert M. Weinberg, George H. Cohen, and Laurence Gold for the American Federation of Labor and Congress of Industrial Organizations et al.; by Edward J. Hickey, Jr., Michael S. Wolly, and Erick J. Genser for the International Association of Firefighters, AFL-CIO; by Robert A. Helman, Michele Odorizzi, Daniel M. Harris, Justin J. Finger, Jeffrey P. Sinensky, and Meyer Eisenberg for the Anti-Defamation League of B’nai B’rith; and by Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calió for the Washington Legal Foundation. Briefs of amici curiae urging affirmance were filed by J. Clay Smith, Jr., and Herbert 0. Reid, Sr., for the National Bar Association, Inc., et al.; by 0. Peter Sherwood, Clyde E. Murphy, and Barry L. Goldstein for the City of Detroit; by Joaquin G. Avila, Morris J. Bailer, and Carmen A. Estrada for the League of United Latin American Citizens et al.; by Robert L. Harris and Eva Jefferson Paterson for the Officers For Justice et al.; by Judith I. Avner and Anne E. Simon for the National Organization for Women et al.; by Robert H. Chanin, Richard B. Sobol, and Michael B. Trister for the National Education Association; by E. Richard Larson, Burt Neubome, and Paulette M. Caldwell for the National Black Association et al.; and by Robert Lipshutz, pro se, for Robert Lipshutz et al. Briefs of amici curiae were filed by Ronald A. Zumbrun and John H. Findley for the Pacific Legal Foundation; by Jack Greenberg and Eric Schnapper for the NAACP Legal Defense and Educational Fund, Inc.; by Arthur Kinoy and Michael Ratner for the Affirmative Action Coordinating Center et al.; and by Walter S. Nussbaum and Donald J. Mooney, Jr., for the Detroit Police Officers Association. Per Curiam. In these cases, the United States Court of Appeals for the First Circuit upheld the District Court’s August 7, 1981, orders enjoining the Boston Police and Fire Departments from laying off policemen and firefighters in a manner that would reduce the percentage of minority officers below the level obtaining at the commencement of layoffs in July 1981. 679 F. 2d 965 (1982). These orders had the effect of partially superseding the operation of the State’s statutory last-hired, first-fired scheme for civil service layoffs, Mass. Gen. Laws Ann., ch. 31, § 39 (West 1979). Following the Court of Appeals’ decision, Massachusetts enacted legislation providing the city of Boston with new revenues, requiring reinstatement of all police and firefighters laid off during the reductions in force, securing these personnel against future layoffs for fiscal reasons, and requiring the maintenance of minimum staffing levels in the Police and Fire Departments through June 30, 1983. See 1982 Mass. Acts, ch. 190, § 25. In light of these changed circumstances, we vacate the judgment of the Court of Appeals and remand for consideration of mootness in light of 1982 Mass. Acts, ch. 190, § 25. It is so ordered. Justice Marshall took no part in the consideration or decision of these cases. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable Answer:

songer_applfrom

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). John Jeff LaGORGA, a minor, by Joseph LaGorga, his guardian and Joseph LaGorga and Bernadette LaGorga v. The KROGER COMPANY, a corp., Defendant and third-party plaintiff, v. Sidney H. EVANS, Individually and trading and doing business as Evans Manufacturing Co., and Evans Manufacturing Company, Incorporated, third-party defendant. The Kroger Company, third-party plaintiff, Appellant. No. 17082. United States Court of Appeals Third Circuit. Argued Dec. 19, 1968. Decided March 3, 1969. Bruce R. Martin, Pittsburgh, Pa., for appellant. • Wallace E. Edgecombe, Royston, Robb, Leonard, Edgecombe, Miller & Shorrall, Pittsburgh, Pa., for appellee. Before SEITZ, ALDISERT and STAHL, Circuit Judges. OPINION OF THE COURT PER CURIAM. This is an appeal challenging the special verdict in a third party action and the judgment entered thereon. In January, 1965, John Jeff LaGorga, a minor, by Joseph LaGorga, his guardian, and Joseph LaGorga and Bernadette LaGorga brought suit against the Kroger Co. to recover damages arising from injuries allegedly suffered when a jacket purchased from the Kroger Co. and worn by the minor plaintiff caught fire and burned. Kroger Company filed a third party complaint against Sidney H. Evans, individually and doing business as Evans Manufacturing Company (Evans) and against Evans Manufacturing Company, Inc. (Evans, Inc.), hereafter referred to collectively as “appellees.” In the original third party complaint, Kroger charged, inter alia, “Certain jackets identical to the one alleged by the plaintiffs to have been purchased from The Kroger Co. were purchased from and manufactured by appellees.” The third party defendants answered, and denied the charge “as stated” and more specifically averred as a first defense, that (1) Evans, Inc. had not manufactured the jacket in question; (2) Evans had sold certain jackets to the Kroger Co. and (3) Evans “has no knowledge as to whether or not the jacket allegedly worn by the minor plaintiff had been supplied to [The Kroger Co.] by [Evans].” The Kroger Co. (appellant), in an effort to tie the third party defendants to the jacket in question, amended its complaint in October, 1965, to allege, inter alia: “If it is established at the trial that the jacket involved was sold by The Kroger Co. * * * then said jacket was manufactured by and was purchased from Evans Manufacturing Co., also known as Evans Manufacturing Company, Incorporated, or as Sidney H. Evans, individually and trading and doing business as Evans Manufacturing Co.” Appellees did not file an answer to the amended complaint. At trial Kroger took the position that pursuant to Rule 8(d) of the Federal Rules of Civil Procedure, the unanswered allegation of the amended complaint amounted to an admission by the appellees that they manufactured the jacket in question. At the close of Kroger’s case, the district court, on Kroger’s motion and over appellees’ objection, admitted the admission into evidence. Immediately thereafter, counsel for the appellees announced, in his opening statement, that the appellees’ would prove that they had not manufactured the jacket worn by the minor plaintiff. Appellant unsuccessfully objected that the appellees had admitted parentage, i. e., manufacturing the jacket. At the close of the appellees’ case, on appellees’ motion, the “conditional admission” was stricken from evidence. The jury returned a verdict against Kroger in the main suit. In the third party action, by special interrogatories, the jury found that the appellees had not manufactured the jacket worn by the minor plaintiff. Kroger moved for a new trial, which motion was denied. LaGorga v. Kroger Company, 275 F.Supp. 373, 383 (W.D.Pa., 1967). Kroger now appeals from the special verdict in the third party action and the judgment entered thereon. Appellant’s challenge is predicated on its contention that, as against appellant, the appellees admitted- manufacturing the jacket in question when they failed to file an appropriate response to appellant’s amended third party complaint and the district court erred in deciding to the contrary. The district court found that the allegations concerning the parentage issue in the original third party complaint and in the amended third party complaint were substantially the same. Thus, it concluded that appellees’ denial in their answer to the original complaint served equally to deny the averment in the amendment. Appellant attacks the district court’s premise of substantial similarity. The attack lacks merit. It is true, as the appellant urges, that in the amended third party complaint appellees were charged with manufacture of the particular jacket worn by the minor plaintiff, while the original complaint merely alleged that the appellees had manufactured jackets identical to the one in question. However, appellees did not in their first defense address themselves to the failure of the original complaint to charge them with the manufacture of the jacket in question. Instead, their answer had the effect of denying that the appellees manufactured the jacket. While it would have been preferable for the appellees to respond directly to the amended complaint, in the circumstances of this case, the failure to specifically respond did not result in an admission under Rule 8(d) F.R.C.P. Concededly, and as the district court observed, appellant could have been misled by the absence of a specific response to the amended complaint. However, any possible confusion generated in appellant’s mind by the absence of a specific response, should have been dispelled by the pretrial stipulation which appellant’s counsel signed and which antedated the trial by some 7 months. In addition to the foregoing, the appellant’s conduct at trial belies any contention that the appellant was surprised to its prejudice when the trial of the third party action focused on the issue of parentage. To the contrary, it was the appellant who introduced the issue when it called Jack Piet, in its case in chief, for, in the words of appellant’s counsel, “ * * * the very narrow purpose of proving from whom these jackets came.” In these circumstances, accepting appellant’s contention would be to reject the well established principle that, under the federal rules pleading is a vehicle “ 'to facilitate a proper decision on the merits’ ” and not “ ‘a game of skill in which one misstep by counsel may be decisive * * * United States v. Hougham, 364 U.S. 310, 317, 81 S.Ct. 13, 18, 5 L.Ed.2d 8 (1960). Beyond the challenge just discussed, appellant also contends that the district court erred when, at the close of all the testimony, it struck from evidence the paragraph of the amended complaint which appellant had previously introduced as an admission. Fatal to appellant’s contention is our approval of the district court’s determination that there was no admission. It is significant also that, although appellant’s counsel vigorously opposed the motion to strike, and moved for a mistrial when the district court granted the motion,' he neither asked for a continuance to produce further evidence, nor did he ask leave to reopen his case to offer additional testimony or documentary evidence at that time. Accordingly, the judgment of the district court will be affirmed. . The pertinent parts of the pretrial stipulation are set forth in the district court opinion. LaGorga v. Kroger, supra, p. 385, n. 24. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:

sc_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. ROBERTS, ACTING COMMISSIONER, MINNESOTA DEPARTMENT OF HUMAN RIGHTS, et al. v. UNITED STATES JAYCEES No. 83-724. Argued April 18, 1984 Decided July 3, 1984 Brennan, J., delivered the opinion of the Court, in which White, Marshall, Powell, and Stevens, JJ., joined, and in Parts I and III of which O’Connor, J., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, -post, p. 631. Rehnquist, J., concurred in the judgment. Burger, C. J., and Blackmun, J., took no part in the decision of the case. RichardL. Vareo, Jr., Special Assistant Attorney General of Minnesota, argued the cause for appellants. With him on the briefs were Hubert H. Humphrey III, Attorney General, Kent G. Harbison, Chief Deputy Attorney General, Thomas R. Muck, Deputy Attorney General, and Richard S. Slowes, Assistant Attorney General. Carl D. Hall, Jr., argued the cause for appellee. With him on the brief was Clay R. Moore. Briefs of amici curiae urging reversal were filed for the State of New York et al. by Robert Abrams, Attorney General of New York; Lawrence S. Kahn, Rosemarie Rhodes, Shelley B. Mayer and Kim E. Greene, Assistant Attorneys General, John K. Van De Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Marian M. Johnston, Deputy Attorney General; for the Alliance for Women Membership by Danielle E. deBenedictis; for the American Civil Liberties Union et al. by Laurence H. Tribe, Burt Neubome, Isabelle Katz Pinzler, E. Richard Larson, and Charles S. Sims; for Community Business Leaders by Eldon J. Spencer, Jr.; for the NAACP Legal Defense and Educational Fund, Inc., by Jack Greenberg, Beth J. Lief, and Judith Reed; for the National League of Cities et al. by Lawrence R. Velvel and Elaine D. Kaplan; for the National Organization for Women et al. by Judith I. Avner and Charlotte M. Fischman; and for Women’s Issues Network, Inc., by Neil H. Cogan. Briefs of amici curiae urging affirmance were filed for the Boy Scouts of America by Philip A. Lacovara, Malcolm E. Wheeler, George A. Davidson, and David K. Park; for the Conference of Private Organizations by Leonard J. Henzke, Jr.; and for Rotary International by William P. Sutter and Wm. John Kennedy. Justice Brennan delivered the opinion of the Court. This case requires us to address a conflict between a State’s efforts to eliminate gender-based discrimination against its citizens and the constitutional freedom of association asserted by members of a private organization. In the decision under review, the Court of Appeals for the Eighth Circuit concluded that, by requiring the United States Jaycees to admit women as full voting members, the Minnesota Human Rights Act violates the First and Fourteenth Amendment rights of the organization’s members. We noted probable jurisdiction, Gomez-Bethke v. United States Jaycees, 464 U. S. 1037 (1984), and now reverse. I A The United States Jaycees (Jaycees), founded in 1920 as the Junior Chamber of Commerce, is a nonprofit membership corporation, incorporated in Missouri with national headquarters in Tulsa, Okla. The objective of the Jaycees, as set out in its bylaws, is to pursue “such educational and charitable purposes as will promote and foster the growth and development of young men’s civic organizations in the United States, designed to inculcate in the individual membership of such organization a spirit of genuine Americanism and civic interest, and as a supplementary education institution to provide them with opportunity for personal development and achievement and an avenue for intelligent participation by young men in the affairs of their community, state and nation, and to develop true friendship and understanding among young men of all nations.” Quoted in Brief for Appellee 2. The organization’s bylaws establish seven classes of membership, including individual or regular members, associate individual members, and local chapters. Regular membership is limited to young men between the ages of 18 and 35, while associate membership is available to individuals or groups ineligible for regular membership, principally women and older men. An associate member, whose dues are somewhat lower than those charged regular members, may not vote, hold local or national office, or participate in certain leadership training and awards programs. The bylaws define a local chapter as “[a]ny young men’s organization of good repute existing in any community within the United States, organized for purposes similar to and consistent with those” of the national organization. App. to Juris. Statement A98. The ultimate policymaking authority of the Jaycees rests with an annual national convention, consisting of delegates from each local chapter, with a national president and board of directors. At the time of trial in August 1981, the Jaycees had approximately 295,000 members in 7,400 local chapters affiliated with 51 state organizations. There were at that time about 11,915 associate members. The national organization’s executive vice president estimated at trial that women associate members make up about two percent of the Jaycees’ total membership. Tr. 56. New members are recruited to the Jaycees through the local chapters, although the state and national organizations are also actively involved in recruitment through a variety of promotional activities. A new regular member pays an initial fee followed by annual dues; in exchange, he is entitled to participate in all of the activities of the local, state, and national organizations. The national headquarters employs a staff to develop “program kits” for use by local chapters that are designed to enhance individual development, community development, and members’ management skills. These materials include courses in public speaking and personal finances as well as community programs related to charity, sports, and public health. The national office also makes available to members a range of personal products, including travel accessories, casual wear, pins, awards, and other gifts. The programs, products, and other activities of the organization are all regularly featured in publications made available to the membership, including a magazine entitled “Future.” B In 1974 and 1975, respectively, the Minneapolis and St. Paul chapters of the Jaycees began admitting women as regular members. Currently, the memberships and boards of directors of both chapters include a substantial proportion of women. As a result, the two chapters have been in violation of the national organization’s bylaws for about 10 years. The national organization has imposed a number of sanctions on the Minneapolis and St. Paul chapters for violating the bylaws, including denying their members eligibility for state or national office or awards programs, and refusing to count their membership in computing votes at national conventions. In December 1978, the president of the national organization advised both chapters that a motion to revoke their charters would be considered at a forthcoming meeting of the national board of directors in Tulsa. Shortly after receiving this notification, members of both chapters filed charges of discrimination with the Minnesota Department of Human Rights. The complaints alleged that the exclusion of women from full membership required by the national organization’s bylaws violated the Minnesota Human Rights Act (Act), which provides in part: “It is an unfair discriminatory practice: “To deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex.” Minn. Stat. §363.03, subd. 3 (1982). The term “place of public accommodation” is defined in the Act as “a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” §363.01, subd. 18. After an investigation, the Commissioner of the Minnesota Department of Human Rights found probable cause to believe that the sanctions imposed on the local chapters by the national organization violated the statute and ordered that an evidentiary hearing be held before a state hearing examiner. Before that hearing took place, however, the national organization brought suit against various state officials, appellants here, in the United States District Court for the District of Minnesota, seeking declaratory and injunctive relief to prevent enforcement of the Act. The complaint alleged that, by requiring the organization to accept women as regular members, application of the Act would violate the male members’ constitutional rights of free speech and association. With the agreement of the parties, the District Court dismissed the suit without prejudice, stating that it could be renewed in the event the state administrative proceeding resulted in a ruling adverse to the Jaycees. The proceeding before the Minnesota Human Rights Department hearing examiner then went forward and, upon its completion, the examiner filed findings of fact and conclusions of law. The examiner concluded that the Jaycees organization is a “place of public accommodation” within the Act and that it had engaged in an unfair discriminatory practice by excluding women from regular membership. He ordered the national organization to cease and desist from discriminating against any member or applicant for membership on the basis of sex and from imposing sanctions on any Minnesota affiliate for admitting women. Minnesota v. United States Jaycees, No. HR-79-014-GB (Minn. Office of Hearing Examiners for the Dept. of Human Rights, Oct. 9, 1979) (hereinafter Report), App. to Juris. Statement A107-A109. The Jaycees then filed a renewed complaint in the District Court, which in turn certified to the Minnesota Supreme Court the question whether the Jaycees organization is a “place of public accommodation” within the meaning of the State’s Human Rights Act. See App. 32. With the record of the administrative hearing before it, the Minnesota Supreme Court answered that question in the affirmative. United States Jaycees v. McClure, 305 N. W. 2d 764 (1981). Based on the Act’s legislative history, the court determined that the statute is applicable to any “public business facility.” Id., at 768. It then concluded that the Jaycees organization (a) is a “business” in that it sells goods and extends privileges in exchange for annual membership dues; (b) is a “public” business in that it solicits and recruits dues-paying members based on unselective criteria; and (c) is a public business “facility” in that it conducts its activities at fixed and mobile sites within the State of Minnesota. Id., at 768-774. Subsequently, the Jaycees amended its complaint in the District Court to add a claim that the Minnesota Supreme Court’s interpretation of the Act rendered it unconstitutionally vague and overbroad. The federal suit then proceeded to trial, after which the District Court entered judgment in favor of the state officials. United States Jaycees v. McClure, 534 F. Supp. 766 (1982). On appeal, a divided Court of Appeals for the Eighth Circuit reversed. United States Jaycees v. McClure, 709 F. 2d 1560 (1983). The Court of Appeals determined that, because “the advocacy of political public causes, selected by the membership, is a not insubstantial part of what [the Jaycees] does,” the organization’s right to select its members is protected by the freedom of association guaranteed by the First Amendment. Id., at 1570. It further decided that application of the Minnesota statute to the Jaycees’ membership policies would produce a “direct and substantial” interference with that freedom, id., at 1572, because it would necessarily result in “some change in the Jaycees’ philosophical cast,” id., at 1571, and would attach penal sanctions to those responsible for maintaining the policy, id., at 1572. The court concluded that the State’s interest in eradicating discrimination is not sufficiently compelling to outweigh this interference with the Jaycees’ constitutional rights, because the organization is not wholly “public,” id., at 1571-1572, 1573, the state interest had been asserted selectively, id., at 1573, and the antidiscrimination policy could be served in a number of ways less intrusive of First Amendment freedoms, id., at 1573-1574. Finally, the court held, in the alternative, that the Minnesota statute is vague as construed and applied and therefore unconstitutional under the Due Process Clause of the Fourteenth Amendment. In support of this conclusion, the court relied on a statement in the opinion of the Minnesota Supreme Court suggesting that, unlike the Jaycees, the Kiwanis Club is “private” and therefore not subject to the Act. By failing to provide any criteria that distinguish such “private” organizations from the “public accommodations” covered by the statute, the Court of Appeals reasoned, the Minnesota Supreme Court’s interpretation rendered the Act unconstitutionally vague. Id., at 1576-1578. II Our decisions have referred to constitutionally protected “freedom of association” in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties. The intrinsic and instrumental features of constitutionally protected association may, of course, coincide. In particular, when the State interferes with individuals’ selection of those with whom they wish to join in a common endeavor, freedom of association in both of its forms may be implicated. The Jaycees contend that this is such a case. Still, the nature and degree of constitutional protection afforded freedom of association may vary depending on the extent to which one or the other aspect of the constitutionally protected liberty is at stake in a given case. We therefore find it useful to consider separately the effect of applying the Minnesota statute to the Jaycees on what could be called its members’ freedom of intimate association and their freedom of expressive association. A The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State. E. g., Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U. S. 390, 399 (1923). Without precisely identifying every consideration that may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State. See, e. g., Zablocki v. Redhail, 434 U. S. 374, 383-386 (1978); Moore v. East Cleveland, 431 U. S. 494, 503-504 (1977) (plurality opinion); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972); Griswold v. Connecticut, 381 U. S. 479, 482-485 (1965); Pierce v. Society of Sisters, supra, at 535. See also Gilmore v. City of Montgomery, 417 U. S. 556, 575 (1974); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460-462 (1958); Poe v. Ullman, 367 U. S. 497, 542-545 (1961) (Harlan, J., dissenting). Moreover, the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one’s identity that is central to any concept of liberty. See, e. g., Quilloin v. Walcott, 434 U. S. 246, 255 (1978); Smith v. Organization of Foster Families, 431 U. S. 816, 844 (1977); Carey v. Population Services International, 431 U. S. 678, 684-686 (1977); Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974); Stanley v. Illinois, 405 U. S. 645, 651-652 (1972); Stanley v. Georgia, 394 U. S. 557, 564 (1969); Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting). The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family — marriage, e. g., Zablocki v. Redhail, supra; childbirth, e. g., Carey v. Population Services International, supra; the raising and education of children, e. g., Smith v. Organization of Foster Families, supra; and cohabitation with one’s relatives, e. g., Moore v. East Cleveland, supra. Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an association lacking these qualities — such as a large business enterprise — seems remote from the concerns giving rise to this constitutional protection. Accordingly, the Constitution undoubtedly imposes constraints on the State’s power to control the selection, of one’s spouse that would not apply to regulations affecting the choice of one’s fellow employees. Compare Loving v. Virginia, 388 U. S. 1, 12 (1967), with Railway Mail Assn. v. Corsi, 326 U. S. 88, 93-94 (1945). Between these poles, of course, lies a broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State. Determining the limits of state authority over an individual’s freedom to enter into a particular association therefore unavoidably entails a careful assessment of where that relationship’s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments. See generally Runyon v. McCrary, 427 U. S. 160, 187-189 (1976) (Powell, J., concurring). We need not mark the potentially significant points on this terrain with any precision. We note only that factors that may be relevant include size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent. In this case, however, several features of the Jaycees clearly place the organization outside of the category of relationships worthy of this kind of constitutional protection. The undisputed facts reveal that the local chapters of the Jaycees are large and basically unselective groups. At the time of the state administrative hearing, the Minneapolis chapter had approximately 430 members, while the St. Paul chapter had about 400. Report, App. to Juris. Statement A-99, A-100. Apart from age and sex, neither the national organization nor the local chapters employ any criteria for judging applicants for membership, and new members are routinely recruited and admitted with no inquiry into their backgrounds. See 1 Tr. of State Administrative Hearing 124-132, 135-136, 174-176. In fact, a local officer testified that he could recall no instance in which an applicant had been denied membership on any basis other than age or sex. Id., at 135. Cf. Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U. S. 431, 438 (1973) (organization whose only selection criterion is race has “no plan or purpose of exclusiveness” that might make it a private club exempt from federal civil rights statute); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 236 (1969) (same); Daniel v. Paul, 395 U. S. 298, 302 (1969) (same). Furthermore, despite their inability to vote, hold office, or receive certain awards, women affiliated with the Jaycees attend various meetings, participate in selected projects, and engage in many of the organization’s social functions. See Tr. 58. Indeed, numerous nonmembers of both genders regularly participate in a substantial portion of activities central to the decision of many members to associate with one another, including many of the organization’s various community programs, awards ceremonies, and recruitment meetings. See, e. g., 305 N. W. 2d, at 772; Report, App. to Juris. Statement A102, A103. In short, the local chapters of the Jaycees are neither small nor selective. Moreover, much of the activity central to the formation and maintenance of the association involves the participation of strangers to that relationship. Accordingly, we conclude that the Jaycees chapters lack the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women. We turn therefore to consider the extent to which application of the Minnesota statute to compel the Jay cees to accept women infringes the group’s freedom of expressive association. B An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed. See, e. g., Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 294 (1981). According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority. See, e. g. Gilmore v. City of Montgomery, 417 U. S., at 575; Griswold v. Connecticut, 381 U. S., at 482-485; NAACP v. Button, 371 U. S. 415, 431 (1963); NAACP v. Alabama ex rel. Patterson, 357 U. S., at 462. Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. See, e. g., NAACP v. Claiborne Hardware Co., 458 U. S. 886, 907-909, 932-933 (1982); Larson v. Valente, 456 U. S. 228, 244-246 (1982); In re Primus, 436 U. S. 412, 426 (1978); Abood v. Detroit Board of Education, 431 U. S. 209, 231 (1977). In view of the various protected activities in which the Jaycees engages, see infra, at 626-627, that right is plainly implicated in this case. Government actions that may unconstitutionally infringe upon this freedom can take a number of forms. Among other things, government may seek to impose penalties or withhold benefits from individuals because of their membership in a disfavored group, e. g., Healy v. James, 408 U. S. 169, 180-184 (1972); it may attempt to require disclosure of the fact of membership in a group seeking anonymity, e. g., Brown v. Socialist Workers ’74 Campaign Committee, 459 U. S. 87, 91-92 (1982); and it may try to interfere with the internal organization or affairs of the group, e. g., Cousins v. Wigoda, 419 U. S. 477, 487-488 (1975). By requiring the Jaycees to admit women as full voting members, the Minnesota Act works an infringement of the last type. There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire. Such a regulation may impair the ability of the original members to express only those views that brought them together. Freedom of association therefore plainly presupposes a freedom not to associate. See Abood v. Detroit Board of Education, supra, at 234-235. The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. E. g., Brown v. Socialist Workers ’74 Campaign Committee, supra, at 91-92; Democratic Party of United States v. Wisconsin, 450 U. S. 107, 124 (1981); Buckley v. Valeo, 424 U. S. 1, 25 (1976) (per curiam); Cousins v. Wigoda, supra, at 489; American Party of Texas v. White, 415 U. S. 767, 780-781 (1974); NAACP v. Button, supra, at 438; Shelton v. Tucker, 364 U. S. 479, 486, 488 (1960). We are persuaded that Minnesota’s compelling interest in eradicating discrimination against its female citizens justifies the impact that application of the statute to the Jaycees may have on the male members’ associational freedoms. On its face, the Minnesota Act does not aim at the suppression of speech, does not distinguish between prohibited and permitted activity on the basis of viewpoint, and does not license enforcement authorities to administer the statute on the basis of such constitutionally impermissible criteria. See also infra, at 629-631. Nor does the Jaycees contend that the Act has been applied in this case for the purpose of hampering the organization’s ability to express its views. Instead, as the Minnesota Supreme Court explained, the Act reflects the State’s strong historical commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services. See 305 N. W. 2d, at 766-768. That goal, which is unrelated to the suppression of expression, plainly serves compelling state interests of the highest order. The Minnesota Human Rights Act at issue here is an example of public accommodations laws that were adopted by some States beginning a decade before enactment of their federal counterpart, the Civil Rights Act of 1875, ch. 114, 18 Stat. 335. See Discrimination in Access to Public Places: A Survey of State and Federal Accommodations Laws, 7 N. Y. U. Rev. L. & Soc. Change 215, 238 (1978) (hereinafter NYU Survey). Indeed, when this Court invalidated that federal statute in the Civil Rights Cases, 109 U. S. 3 (1883), it emphasized the fact that state laws imposed a variety of equal access obligations on public accommodations. Id., at 19, 25. In response to that decision, many more States, including Minnesota, adopted statutes prohibiting racial discrimination in public accommodations. These laws provided the primary means for protecting the civil rights of historically disadvantaged groups until the Federal Government reentered the field in 1957. See NYU Survey 239; Brief for State of New York et al. as Amici Curiae 1. Like many other States, Minnesota has progressively broadened the scope of its public accommodations law in the years since it was first enacted, both with respect to the number and type of covered facilities and with respect to the groups against whom discrimination is forbidden. See 305 N. W. 2d, at 766-768. In 1973, the Minnesota Legislature added discrimination on the basis of sex to the types of conduct prohibited by the statute. Act of May 24, 1973, ch. 729, § 3, 1973 Minn. Laws 2164. By prohibiting gender discrimination in places of public accommodation, the Minnesota Act protects the State’s citizenry from a number of serious social and personal harms. In the context of reviewing state actions under the Equal Protection Clause, this Court has frequently noted that discrimination based on archaic and overbroad assumptions about the relative needs and capacities of the sexes forces individuals to labor under stereotypical notions that often bear no relationship to their actual abilities. It thereby both deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life.' See, e. g., Heckler v. Mathews, 465 U. S. 728, 744-745 (1984); Mississippi University for Women v. Hogan, 458 U. S. 718, 723-726 (1982); Frontiero v. Richardson, 411 U. S. 677, 684-687 (1973) (plurality opinion). These concerns are strongly implicated with respect to gender discrimination in the allocation of publicly available goods and services. Thus, in upholding Title II of the Civil Rights Act of 1964, 78 Stat. 243, 42 U. S. C. § 2000a, which forbids race discrimination in public accommodations, we emphasized that its “fundamental object. . . was to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’” Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 250 (1964). That stigmatizing injury, and the denial of equal opportunities that accompanies it, is surely felt as strongly by persons suffering discrimination on the basis of their sex as by those treated differently because of their race. Nor is the state interest in assuring equal access limited to the provision of purely tangible goods and services. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 609 (1982). A State enjoys broad authority to create rights of public access on behalf of its citizens. PruneYard Shopping Center v. Robins, 447 U. S. 74, 81-88 (1980). Like many States and municipalities, Minnesota has adopted a functional definition of public accommodations that reaches various forms of public, quasi-commercial conduct. See 305 N. W. 2d, at 768; Brief for National League of Cities et al. as Amici Curiae 15-16. This expansive definition reflects a recognition of the changing nature of the American economy and of the importance, both to the individual and to society, of removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women. See Califano v. Webster, 430 U. S. 313, 317 (1977) (per curiam); Frontiero v. Richardson, supra, at 684-686. Thus, in explaining its conclusion that the Jaycees local chapters are “place[s] of public accommodations” within the meaning of the Act, the Minnesota court noted the various commercial programs and benefits offered to members and stated that “[leadership skills are ‘goods,’ [and] business contacts and employment promotions are ‘privileges’ and ‘advantages’. . . .” 305 N. W. 2d, at 772. Assuring women equal access to such goods, privileges, and advantages clearly furthers compelling state interests. In applying the Act to the Jaycees, the State has advanced those interests through the least restrictive means of achieving its ends. Indeed, the Jaycees has failed to demonstrate that the Act imposes any serious burdens on the male members’ freedom of expressive association. See Hishon v. King & Spalding, 467 U. S. 69, 78 (1984) (law firm “has not shown how its ability to fulfill [protected] functions] would be inhibited by a requirement that it consider [a woman lawyer] for partnership on her merits”); id., at 81 (Powell, J., concurring); see also Buckley v. Valeo, 424 U. S., at 71-74; American Party of Texas v. White, 415 U. S., at 790. To be sure, as the Court of Appeals noted, a “not insubstantial part” of the Jaycees’ activities constitutes protected expression on political, economic, cultural, and social affairs. 709 P. 2d, at 1570. Over the years, the national and local levels of the organization have taken public positions on a number of diverse issues, see id., at 1569-1570; Brief for Appellee 4-5, and members of the Jaycees regularly engage in a variety of civic, charitable, lobbying, fundraising, and other activities worthy of constitutional protection under the First Amendment, ibid., see, e. g., Village of Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 632 (1980). There is, however, no basis in the record for concluding that admission of women as full voting members will impede the organization’s ability to engage in these protected activities or to disseminate its preferred views. The Act requires no change in the Jaycees’ creed of promoting the interests of young men, and it imposes no restrictions on the organization’s ability to exclude individuals with ideologies or philosophies different from those of its existing members. Cf. Democratic Party of United States v. Wisconsin, 450 U. S., at 122 (recognizing the right of political parties to “protect themselves ‘from intrusion by those with adverse political principles’”). Moreover, the Jaycees already invites women to share the group’s views and philosophy and to participate in much of its training and community activities. Accordingly, any claim that admission of women as full voting members will impair a symbolic message conveyed by the very fact that women are not permitted to vote is attenuated at best. Cf. Spence v. Washington, 418 U. S. 405 (1974); Griswold v. Connecticut, 381 U. S., at 483. While acknowledging that “the specific content of most of the resolutions adopted over the years by the Jaycees has nothing to do with sex,” 709 F. 2d, at 1571, the Court of Appeals nonetheless entertained the hypothesis that women members might have a different view or agenda with respect to these matters so that, if they are allowed to vote, “some change in the Jaycees’ philosophical cast can reasonably be expected,” ibid. It is similarly arguable that, insofar as the Jaycees is organized to promote the views of young men whatever those views happen to be, admission of women as voting members will change the message communicated by the group’s speech because of the gender-based assumptions of the audience. Neither supposition, however, is supported by the record. In claiming that women might have a different attitude about such issues as the federal budget, school prayer, voting rights, and foreign relations, see id., at 1570, or that the organization’s public positions would have a different effect if the group were not “a purely young men’s association,” the Jay cees relies solely on unsupported generalizations about the relative interests and perspectives of men and women. See Brief for Appellee 20-22, and n. 3. Although such generalizations may or may not have a statistical basis in fact with respect to particular positions adopted by the Jay cees, we have repeatedly condemned legal deci-sionmaking that relies uncritically on such assumptions. See, e. g., Palmore v. Sidoti, 466 U. S. 429, 433-434 (1984); Heckler v. Mathews, 465 U. S., at 745. In the absence of a showing far more substantial than that attempted by the Jay cees, we decline to indulge in the sexual stereotyping that underlies appellee’s contention that, by allowing women to vote, application of the Minnesota Act will change the content or impact of the organization’s speech. Compare Wengler v. Druggists Mutual Insurance Co., 446 U. S. 142, 151-152 (1980), with Schlesinger v. Ballard, 419 U. S. 498, 508 (1975). In any event, even if enforcement of the Act causes some incidental abridgment of the Jaycees’ protected speech, that effect is no greater than is necessary to accomplish the State’s legitimate purposes. As we have explained, acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent— wholly apart from the point of view such conduct may transmit. Accordingly, like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact, such practices are entitled to no constitutional protection. Runyon v. McCrary, 427 U. S., at 175-176. Compare NAACP v. Claiborne Hardware Co., 458 U. S., at 907-909 (peaceful picketing), with id., at 916 (violence). In prohibiting such practices, the Minnesota Act therefore “responds precisely to the substantive problem which legitimately concerns” the State and abridges no more speech or associational freedom than is necessary to accomplish that purpose. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 810 (1984). Ill We turn finally to appellee’s contentions that the Minnesota Act, as interpreted by the State’s highest court, is unconstitutionally vague and overbroad. The void-for-vagueness doctrine reflects the principle that “a statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Constuction Co., 269 U. S. 385, 391 (1926). The requirement that government articulate its aims with a reasonable degree of clarity ensures that state power will be exercised only on behalf of policies reflecting an authoritative choice among competing social values, reduces the danger of caprice and discrimination in the administration of the laws, enables individuals to conform their conduct to the requirements of law, and permits meaningful judicial review. See, e. g., Kolender v. Lawson, 461 U. S. 352, 357-358 (1983); Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972); Giaccio v. Pennsylvania, 382 U. S. 399, 402-404 (1966). We have little trouble concluding that these concerns are not seriously implicated by the Minnesota Act, either on its face or as construed in this case. In deciding that the Act reaches the Jaycees, the Minnesota Supreme Court used a number of specific and objective criteria — regarding the organization’s size, selectivity, commercial nature, and use of public facilities — typically employed in determining the applicability of state and federal antidiscrimination statutes to the membership policies of assertedly private clubs. See, e. g., Nesmith v. Young Men’s Christian Assn., 397 F. 2d 96 (CA4 1968); National Organization for Women v. Little League Baseball, Inc., 127 N. J. Super. 522, 318 A. 2d 33, aff’d mem., 67 N. J. 320, 338 A. 2d 198 (1974). See generally NYU Survey 223-224, 250-252. The Court of Appeals seemingly acknowledged that the Minnesota court’s construction of the Act by use of these familiar standards ensures that the reach of the statute is readily ascertainable. It nevertheless concluded that the Minnesota court introduced a constitutionally fatal element of uncertainty into the statute by suggesting that the Kiwanis Club might be sufficiently “private” to be outside the scope of the Act. See 709 F. 2d, at 1577. Like the dissenting judge in the Court of Appeals, however, we read the illustrative reference to the Kiwanis Club, which the record indicates has a formal procedure for choosing members on the basis of specific and selective criteria, as simply providing a further refinement of the standards used to determine whether an organization is “public” or “private.” See id., at 1582 (Lay, C. J., dissenting). By offering this counter-example, the Minnesota Supreme Court’s opinion provided the statute with more, rather than less, definite content. The contrast between the Jaycees and the Kiwanis Club drawn by the Minnesota court also disposes of appellee’s contention that the Act is unconstitutionally overbroad. The Jaycees argues that the statute is “susceptible of sweeping and improper application,” NAACP v. Button, 371 U. S., at 433, because it could be used to restrict the membership decisions of wholly private groups organized for a wide variety of political, religious, cultural, or social purposes. Without considering the extent to which such groups may be entitled to constitutional protection from the operation of the Minnesota Act, we need only note that the Minnesota Supreme Court expressly rejected the contention that the Jaycees should “be viewed analogously to private organizations such as the Kiwanis International Organization.” 305 N. W. 2d, at 771. The state court’s articulated willingness to adopt limiting constructions that would exclude private groups from the statute’s reach, together with the commonly used and sufficiently precise standards it employed to determine that the Jaycees is not such a group, establish that the Act, as currently construed, does not create an unacceptable risk of application to a substantial amount of protected conduct. Cf. Erznoznik v. City of Jacksonville, 422 U. S. 205, 216-217 (1975); NAACP v. Button, supra, at 434. See New York v. Ferber, 458 U. S. 747, 769, n. 24 (1982). IV The judgment of the Court of Appeals is Reversed. Justice Rehnquist concurs in the judgment. The Chief Justice and Justice Blackmun took no part in the decision of this case. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:

songer_genapel1

G

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. Richard A. LETIZIA, Plaintiff-Appellant, v. PRUDENTIAL BACHE SECURITIES, INC., a Delaware corporation; Peter Kwee; Melvin A. Selbst; and Mrs. Melvin A. Selbst, Defendants-Appellees. No. 85-2278. United States Court of Appeals, Ninth Circuit. Submitted May 15, 1986 . Submission Deferred June 3, 1986. Resubmitted Oct. 21, 1986 . Decided Oct. 21, 1986. Richard G. Himelrick, Hart, Himelrick & Gulinson, Phoenix, Ariz., for plaintiff-appellant. Robert L. Palmer, Martori, Meyer, Hendricks & Victor, Phoenix, Ariz., for defendants-appellees. Before NELSON, CANBY and JOHN T. NOONAN, Jr., Circuit Judges. Appellant asked that we waive oral argument in this case, a motion appellee opposed. As our order of May 5, 1986, indicates, the panel unanimously found this case appropriate for submission without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 3(f). The case is hereby ordered resubmitted for decision. CANBY, Circuit Judge: Richard Letizia appeals the district court’s dismissal of his action for fraud and violation of the securities laws against Prudential Bache Securities and its employees Peter Kwee and Melvin Selbst. In dismissing the complaint, the district court also granted Bache’s motion to compel arbitration of the dispute pursuant to the brokerage agreement between Bache and Letizia. In May 1982, Letizia opened a securities account with Bache. At that time, he signed the firm’s standard Customer Agreement, which provided, in part, for the arbitration of any dispute arising out of or relating to Letizia’s securities account. Letizia invested about $8000 through Bache. He claims that his account executive, Kwee, and Kwee’s supervisor, Selbst, churned his account and traded securities on his behalf without regard to his investment objectives. By May 1983, he claims that his losses had totalled more than $5000 and that he had paid nearly $2200 in commissions. Letizia first filed an action in Arizona Superior Court in November 1983, alleging state statutory and common law claims. Defendants notified Letizia that they wished to arbitrate the dispute, pursuant to the Customer Agreement. In response, Letizia dismissed his state action and refiled in federal court, alleging violations of sections 12(2) and 17(a) of the Securities Act of 1933, 15 U.S.C. §§ 77/(2), 77q(a), and section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b). His original state law claims and some new state counts were added as pendent claims. Defendants answered the federal complaint without making any demand for arbitration. The parties then proceeded through discovery before defendants first mentioned arbitration. In October 1984, they argued that discovery had shown the state law claims to be severable from the federal claims. They therefore sought dismissal of the state claims and an order compelling their arbitration. The district court denied the motion and set the case for trial on July 16, 1985. On March 4, 1985, the Supreme Court rendered its decision in Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), rejecting the so-called “intertwining doctrine,” which had been the rule in this and several other circuits. Under the intertwining doctrine, a party could not compel arbitration of arbitrable claims if they were factually intertwined with nonarbitrable claims. Claims under section 12(2) had been held nonarbitrable in Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). After Byrd, defendants asked the district court to reconsider their motion to compel arbitration. In addition to urging arbitrability of the state law claims, they argued that, under Byrd, Letizia’s remaining federal claims were now arbitrable. Letizia contended that defendants had waived their right to compel arbitration, that the arbitration clause was unenforceable as an adhesionary contract term, that Bache’s nonsignatory employees were not covered by the agreement, and that the federal claims were not arbitrable. Letizia also sought leave to amend his complaint to attack the validity of the arbitration clause; he sought a jury trial on that issue. The district court, without express analysis or findings, granted defendants’ motion to compel arbitration, denied Letizia’s motions and dismissed the action. Letizia appeals. DISCUSSION I. Waiver of Arbitration Letizia argues that defendants waived any right they may have had to arbitrate the dispute because they did not seek arbitration from the earliest point in the federal litigation. Arbitration, Letizia argues, must be asserted as an affirmative defense when a defendant first answers a complaint. See Fed.R.Civ.P. 8(c). It is undisputed that defendants did not seek arbitration until after the close of discovery, nine months after their answer was filed. Defendants reply, however, that they did not seek arbitration initially because such a move was futile under the then-prevailing law in this circuit. Under facts quite similar to this case, we recently held that there had been no waiver of the right to arbitrate. Fisher v. A.G. Becker Paribas, Inc., 791 F.2d 691 (9th Cir.1986). We stated in Fisher that, although it is certainly possible to waive contractual rights to arbitration, such waivers are not favored. Id. at 694. We stated, “A party seeking to prove such a waiver must demonstrate: (1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts.” Id. As our Fisher decision makes clear, there could be no waiver here because there was no existing right to arbitration. After our decision in DeLancie v. Birr, Wilson & Co., 648 F.2d 1255,1259 n. 4 (9th Cir.1981), the intertwining doctrine was, for all practical purposes, the law of this circuit. See Fisher, 791 F.2d at 694-95. As in Fisher, defendants here correctly perceived that a motion to compel arbitration would have been futile because of the apparent intertwining of arbitrable and nonarbitrable claims. See id. at 695. Clearly, then, there was no existing right to arbitrate when this suit was filed. Thus, there could have been no waiver. See id. at 697. II. Applicability to the Individual Defendants Letizia argues that, even if Bache may submit this dispute to arbitration, the individual defendants, who are nonsignatories to the Customer Agreement, may not. The question is one of first impression in this circuit, and it is reviewed de novo as a question of law. Because the issue involves the arbitrability of a dispute, it is controlled by application of federal substantive law rather than state law. Bayma v. Smith Barney, Harris Upham & Co., 784 F.2d 1023, 1025 (9th Cir.1986). Other circuits have held consistently that nonsignatories of arbitration agreements may be bound by the agreement under ordinary contract and agency principles. See, e.g., Barrowclough v. Kidder, Peabody & Co., 752 F.2d 923, 938 (3d Cir.1985); In re Oil Spill by Amoco Cadiz, 659 F.2d 789, 795-96 (7th Cir.1981); Interocean Shipping Co. v. National Shipping & Trading Corp., 523 F.2d 527, 539 (2d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976); cf. Alyeska Pipeline Serv. Co. v. International Bhd. of Teamsters, 557 F.2d 1263, 1267 (9th Cir. 1977) (local union bound by arbitration clause in its collective bargaining agreement even though it did not represent the particular employees involved in picketing activities at the time the agreement was signed). The rule is an outgrowth of the strong federal policy favoring arbitration. See generally Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., — U.S. -, 105 S.Ct. 3346, 3353-54, 87 L.Ed.2d 444 (1985). Several courts have addressed the problem of nonsignatories in cases factually similar to this one. In virtually every case, they have held the brokerage firm employees bound by the arbitration agreement. See, e.g., Barrowclough, 752 F.2d at 938; Brown v. Dean Witter Reynolds, Inc., 601 F.Supp. 641, 644 (S.D.Fla.1985); see also Hartford Fin. Sys., Inc. v. Florida Software Serv., Inc., 550 F.Supp. 1079, 1086 (D.Me.1982), app. dismissed, 712 F.2d 724 (1st Cir.1983); but see Bengiovi v. Prudential-Bache Securities, Inc., [1984-85 Transfer Binder] Fed.Sec.L.Rep. (CCH) 1192,012, at 91,013, 91,017 n. 9 (D.D.C.1985) (holding employee was not entitled to rely on the arbitration agreement but citing no authority). We find the majority view persuasive. All of the individual defendants’ allegedly wrongful acts related to their handling of Letizia’s securities account. Bache has clearly indicated its intention to protect its employees through its Customer Agreement. We conclude that the arbitration clause is applicable to Kwee and Selbst. III. Validity of the Arbitration Clause Letizia next argues that the district court erred in refusing to permit him to amend his complaint to allege that the arbitration agreement was invalid as an adhesionary term and as a product of fraud and abuse of fiduciary relationship. Letizia sought a jury trial on the arbitration clause’s validity. Denial of a motion to amend is reviewed here for an abuse of discretion. Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313-14 (9th Cir.1984). Our recent decision in Bayma v. Smith Barney, 784 F.2d at 1025, makes clear that the validity of the arbitration agreement is a question of federal and not state law. Under 9 U.S.C. § 4, district courts are to proceed summarily to trial of the issue whenever the existence of a valid arbitration clause is in question. It is true that Letizia’s new claims appear to be little more than bare allegations. Letizia admits that he never read the contract and that arbitration terms like the one here are not per se unconscionable. Moreover, he presents here only a generalized attack on the use of form contracts without specific facts that indicate overreaching or abuse by defendants. Furthermore, his argument of fraud and abuse of fiduciary duty presupposes the existence a fiduciary relationship from the first time Letizia spoke with Kwee, a contention for which he offers no legal support. We also recognize that doubts should generally be resolved in favor of arbitration, see, e.g., Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983), and that attacks on the validity of arbitration agreements must be supported by some factual showing, Mitsubishi Motors, 105 S.Ct. at 3357. Nonetheless, we believe Letizia should have been given the chance to make his case. Under Fed.R.Civ.P, 15(a), leave to amend should be freely granted when justice requires. Although leave is properly denied when the amendment is “futile” or legally insufficient to support the requested relief, Jones v. Community Redevelopment Agency, 733 F.2d 646, 650 (9th Cir.1984), we conclude that this was not the case here. It was premature for the district court to require a factual showing from Letizia. Letizia was asking only to amend his complaint. After the amendment, Letizia certainly would be required to produce more than the mere allegations we have before us; such generalized attacks will not suffice. Letizia had been expecting to go to trial on the merits of his case; it is not surprising that he did not develop fully any proof he might have that the arbitration agreement is unenforceable. We cannot say that Letizia could develop no set of facts under his proposed amended complaint that would entitle him to relief from the arbitration agreement. Accordingly, we must conclude that the district court abused its discretion in denying Letizia the opportunity to amend his complaint and to prove his allegations concerning the enforceability of the arbitration agreement. IV. Arbitrability of the Federal Claims Finally, Letizia challenges the district court’s determination that his federal securities claims were arbitrable. The arbitrability of a claim is a question of law, reviewed by this court de novo. Marchese v. Shearson Hayden Stone, Inc., 734 F.2d 414, 423 (9th Cir.1984). A. Claims under Section 10(b) of the 1934 Act The arbitrability of section 10(b) claims was the primary issue before this court in Conover v. Dean Witter Reynolds, Inc., 794 F.2d 520 (9th Cir.1986). In Conover, we held that claims under section 10(b) are not arbitrable. 794 F.2d at 522-27. We adhere to that recent decision; the district court erred when it ruled otherwise. B. Claims under Section 17(a) of the 1933 Act Because of the “minimal differences between § 17(a) of the 1933 Act and § 10(b) of the 1934 Act,” Stephenson v. Calpine Conifers II, Ltd., 652 F.2d 808, 815 (9th Cir.1981), we conclude that the Conover decision regarding the arbitrability of section 10(b) claims should also control the question concerning section 17(a) claims. Thus, we hold that claims under section 17(a) of the Securities Act of 1933 are not subject to arbitration. CONCLUSION There was no waiver of any right to arbitrate here because any request by defendants for arbitration when this proceeding commenced would have been futile. Nonetheless, we conclude that it was improper for the district court to order arbitration when it did. Letizia should have been permitted an opportunity to amend his complaint and show the arbitration agreement unenforceable. To the extent that the agreement is found enforceable, it applies equally to Bache and the nonsignatory employee defendants. Finally, Letizia’s claims under the federal securities laws are not arbitrable. The judgment of the district court is reversed and the cause is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. . As part of the pretrial order, plaintiff had stipulated to dismissal of his section 12(2) claim. . Any doubts the parties may have had concerning our adherence to the intertwining doctrine were absolutely erased only three weeks after Bache answered the complaint in this case when we announced our decision in Byrd v. Dean Witter Reynolds, Inc., 726 F.2d 552 (9th Cir. 1984), rev'd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). . Defendants actively pursued their right to arbitrate as soon as they believed, in good faith, that they had such a right. Once discovery indicated that the arbitrable issues might be severable, defendants sought arbitration, although their request was denied. Moreover, in light of our conclusion that some of Letizia’s claims are nonarbitrable, see infra Part V, Letizia has failed to show that he was prejudiced by his pretrial litigation preparation. . Defendants also argue that Letizia’s proposed amendment to his complaint constituted a generalized claim that the Customer Agreement was fraudulently induced. Under Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 1805-06, 18 L.Ed.2d 1270 (1967), these claims cannot be considered by a federal court. Instead, they are treated as any other dispute under the contract and must be referred to arbitration. See also Schacht v. Beacon Ins. Co., 742 F.2d 386, 389-90 (7th Cir.1984); Merrill Lynch, Pierce, Fenner & Smith v. Haydu, 637 F.2d 391, 398 (5th Cir.1981). Only a claim that the arbitration clause itself was independently induced by fraud can be brought before the' court under 9 U.S.C. § 4. Although defendants’ statement of the law is accurate, we cannot agree that Letizia’s proposed amendment is designed to impugn the entire agreement. Although some ambiguous language in the proposed amendment could be read that way, it can also be read to argue that only the arbitration agreement is invalid. Indeed, the record shows that defendants argued before the district court that Letizia’s attack was directed to the arbitration clause. Distinguishing between attacks on the underlying agreement and attacks on the arbitration clause can be a "puzzling" problem. See Matterhorn, Inc. v. NCR Corp., 763 F.2d 866, 868-69 (7th Cir.1985). Without exploring the problem in great detail, we note simply that district courts must examine a party’s attack in light of all of the circumstances. The determination should not turn on which party wins the game of more artful pleading. Instead, the court should attempt to ascertain the party’s reason- able intent in light of the procedural posture of the case, prior pleadings, representations of the parties and other case-specific factors in addition to the strong federal policy favoring arbitration. Here, Letizia intended to attack only the arbitration clause. Before defendants’ request for arbitration, Letizia never denied that a contract existed between defendants and himself, and he never attacked any terms of that contract. Nor does his proposed amendment, fairly read, attack the underlying agreement between the parties. Instead, it essentially asserts that defendants imposed upon Letizia an agreement to waive his right to litigate a potential dispute with defendants without disclosures or any real opportunity to bargain. We think this is an attack on the arbitration clause within the meaning of 9 U.S.C. § 4. . Our ruling makes it unnecessary to resolve Letizia’s question whether the district court’s dismissal of his action was with or without prejudice. The dismissal clearly contemplated arbitration. When arbitration is ordered, a stay, rather than a dismissal, of the federal litigation is appropriate. See 9 U.S.C. § 3 (1982). Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_source

F

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. AMERICAN PRESIDENT LINES, LTD., et al., Petitioners, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents. No. 17104. United States Court of Appeals District of Columbia Circuit. Argued Jan. 31, 1963. Decided March 28, 1963. Mr. Elkan Turk, Jr., New York City, with whom Mr. Elkan Turk, New York City, was on the brief, for petitioners. Mr. Joel E. Hoffman, Atty., Dept. of Justice, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. James L. Pimper, Gen. Counsel, Federal Maritime Commission, Robert E. Mitchell, Deputy Gen. Counsel, and Thomas D. Wilcox, Atty., Federal Maritime Commission, were on the brief, for respondents. Mr. Irwin A. Seibel, Atty., Dept. of Justice, also entered an appearance for respondents. Messrs. Arthur E. Tarantino, Gordon Poole, Washington, D. C., John R. Ma-honey and Elmer C. Maddy, New York City, filed a brief on behalf of the Steamship Conferences and their member lines as amici curiae, urging reversal. Messrs. John F. Donelan, Dickson R. Loos and John M. Cleary, Washington, D. C., filed a brief on behalf of the National Industrial Traffic League, as amicus curiae, urging dismissal. Before Washington, Bastían and Burger, Circuit Judges. BURGER, Circuit Judge. Petitioners, common carrier steamship lines, engaged in commerce between American and foreign ports, are members of the Far East Conference, a voluntary association established pursuant to § 15 of the Shipping Act of 1916, 39 Stat. 733, as amended, 46 U.S.C. § 814, to fix uniform rates for carriers who are members of the Conference. The Far East Conference employs a dual rate contract system whereby shippers who agree to deal exclusively with members of the Conference rather than with independent carriers in the same trade, receive the benefit of uniform conference rates which are lower than those charged to shippers who do not so agree. As a result of the dual rate system Conference members stabilize their rates. The schedules of tariffs charged by the Conference members are filed with the Federal Maritime Commission. However, a number of carriers in the trade are not members of the Conference and are free to negotiate rates with individual shippers. This often operates to the detriment of the Conference members because a non-Conference carrier may lower his rates at will, while-members of the Conference can only reduce their rates pursuant to the rules of the Conference and deliberative action of Conference members. In order to compete more effectively with the independent carriers it has been the practice of the Conference to “open” and “close” rates on particular commodities listed in the Conference tariff. A rate is “opened” when the Conference announces that the published rate is no longer applicable and the members are then free to negotiate their own rates with shippers to meet competition. The process of opening and closing rates to meet competition gives the Conference to some extent the benefits of both regulated rates and competitive rates. Section 14b of the Shipping Act, provides in part: “The carrier or conference of carriers may on ninety days’ notice terminate without penalty the contract rate system herein authorized, in whole or with respect to any commodity: Provided, however, That after such termination the carrier or conference of carriers may not reinstitute such contract rate system or part thereof so terminated without prior permission by the Commission in accordance with the provisions of this section.” On March 2, 1962, the Commission, without notice or hearing, published a rule interpreting this statutory provision. 27 Fed.Reg. 2046. The petitioners then filed with the Commission a petition for “amendment or repeal of the Rule” in which they requested, among other things, an opportunity to present evidence and arguments to the Commission which, they contend, might cause it to alter its interpretation of Section 14b. The petition was denied by the Commission by an order dated April 19, 1962. This order stated in part: “The interpretative rule was properly issued as an interpretative rule under Section 4 of the Administrative Procedure Act, and, is merely declarative of the Commission’s view of the proper interpretation of Section 14b of the Shipping Act, 1916. “The arguments advanced in the petition of the Far East Conference [petitioners] fail to state reasons sufficient to warrant modification of the rule.” (Emphasis added.) One of the petitioners’ major objections to the actions of the Commission concerns the failure to permit petitioners and other interested parties to participate in a hearing. Insofar, however, as the petition seeks a judicial declaration that petitioners are presently entitled to participate in a hearing, that claim has been rendered moot by action of the Commission, taken while this appeal was pending, granting a hearing on these very issues in the near future. Petitioners nevertheless contend that the rule is presently reviewable, notwithstanding any future changes or new promulgation that may result from the projected rule making proceedings. This contention rests on the ground that the interpretative rule when promulgated was a legislative rule enforcible independent of the statute it purports to interpret. While this rule undeniably deals with a matter of great importance to petitioners’ business activities, we need not reach the question of whether it would be reviewable if it were an independently en-forcible legislative rule. The record reveals that the rule was issued in response to requests by various shipping conferences for a statement by the Commission setting forth its views of the meaning of the amended section of the Shipping Act. It was denominated an “interpretative rule” from the time it was published. The Commission explicitly invoked Section 4 of the Administrative Procedure Act as its authority for not complying with other provisions of the statute applying to legislative rule making. The Commission’s position, as it is on this appeal, is that such a rule has no independent binding effect on carriers, and that the only penalties for action contrary to the rule are those penalties which were applicable before promulgation of the rule and independent of the rule, i. e., the penalties provided for violation of the Shipping Act itself. Whatever practical or psychological effect this rule may have on the conduct of petitioners, — and we do not doubt that it may have some pragmatic consequences — its legal effect is essentially that of an opinion of the legal staff. Neither the affected parties nor the courts are bound by it unless they elect to adopt it as a correct interpretation of the statute. Hence the Commission’s action in promulgating its interpretation of the statute does not constitute action which is subject to judicial review. The petition for review is therefore Dismissed. . 75 Stat. 762 (1861), 46 U.S.C. § 813a. . . “Any termination of the contract rate system with respect to any commodity or group of commodities, may only be accomplished after giving 90 days’ notice to all contract signatories. Any opening of rates on a commodity or commodities subject to a contract system will be considered a termination of the contract system as to such commodity or commodities within the meaning of the above quoted portion of section 14(b), and there can be no temporary suspension or limited termination of the contract system for any period of time, be it called temporary open rates, suspension of contract rates, or otherwise, which would not be a termination of the contract system within the meaning of the quoted provision. Furthermore, under any circumstances where a contract system has been terminated as to any commodity or group of commodities, by opening of rates or otherwise, regardless of whether considered by the carrier or conference as temporarily suspended or terminated and regardless of whether such termination was before or after October 3, 1961, the carrier or conference may not reinstitute or reinstate the contract system as to such commodity or commodities without prior permission by the Federal Maritime Commission in accordance with section 14 (b).” . On January 3, 1963, after the present case had been calendared by this court for oral argument, the Commission published in tbe Federal Register, 28 Fed. Reg. 74, a series of proposed rules on the subject of dual rate contract systems. Section 2.3 of the proposed rules covers the same ground as the interpretative rule with which we are concerned in this proceeding. The notice of rule making invited interested parties to participate. . “General notice of proposed rule making shall be published in the Federal Register * * *. [T]his subsection shall not apply to interpretative rules, general statements of policy * * * or in any situation in which the agency for good cause finds * ® * that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 1003. The Commission’s interpretative rule of March 2 comes squarely within this provision. . “In addition to the power to enact legally binding regulations conferred upon many of the agencies, all of them may, if they wish, issue interpretations, rulings, or opinions upon the laws they administer, without statutory authorization to do so. * * * Some agencies which issue interpretations couched in general terms rather than rulings upon particular facts are careful to distinguish them from regulations that have the force of law, other agencies simply promulgate their interpretations as regulations which are indistinguishable in form from those that have statutory force. “Administrative rule-making, in any » event, includes the formulation of both \ legally binding regulations and inter- ' pretative regulations. The former receive statutory force upon going into effect. The latter do not receive statutory force and their validity is subject to challenge in any court proceeding in which their application may be in question. The statutes themselves and not the regulations remain in theory the sole criterion of what the law authorizes or compels and what it forbids. An interpretative regulation even of long standing will be rejected if it is deemed to be in conflict with a clear and unambiguous statute.” (Emphasis added and footnotes omitted.) Report of the Attorney General’s Committee on Administrative Procedure (1941), pp. 99-100. 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_respond1_7_2

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. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). James ROCHE, Petitioner-Appellee, v. G. H. SIZER, Warden, Federal Correctional Institution, The United States Parole Commission, and William French Smith, Attorney General of the United States, Respondents-Appellants. No. 422, Docket 81-2236. United States Court of Appeals, Second Circuit. Argued Feb. 1, 1982. Decided April 1, 1982. Barry K. Stevens, Asst. U. S. Atty. for the District of Connecticut, Hartford, Conn. (Alan H. Nevas, U. S. Atty., District of Connecticut, Bridgeport, Conn., of counsel), for respondents-appellants. John L. Pottenger, Jr., Jerome N. Frank Legal Services Organization, Yale Law School, New Haven, Conn. (Stephen Wizner, Renee D. Chotiner, P. J. Pittman, New Haven, Conn., on the brief), for petitionerappellee. Before LUMBARD and VAN GRAAFEILAND, Circuit Judges, and BONSAL, District Judge . Of the United States District Court for the Southern District of New York, sitting by designation. BONSAL, District Judge: On January 29, 1979 petitioner, James Roche, was arrested by federal agents, charged with conspiracy to distribute cocaine and marijuana (the Federal charges), and was sent to the Connecticut Correctional Institution at Hartford (“CCI Hartford”) where federal defendants are held while awaiting trial. On March 20, 1979 the State of Connecticut issued a warrant for petitioner’s arrest, charging him with the sale of cocaine in violation of the Connecticut General Statutes (the Connecticut charges). On April 30,1979 petitioner posted a bond with respect to the Federal charges. However, since he had not posted bond with respect to the Connecticut charges, he remained incarcerated at CCI Hartford. On May 7,1979 Chief Judge Clarie issued a writ of habeas corpus ad prosequendum directing that petitioner be turned over to the United States Marshal for trial on the Federal charges, the writ providing that “immediately after prosecution has been concluded, the United States Marshal for the District of Connecticut . .. shall return the said James Roche to the Connecticut Commissioner of Corrections, Community Correctional Center, Hartford, Connecticut____” On June 13, 1979 petitioner pled guilty to the Federal charges and was sentenced by Judge Clarie to imprisonment for three years. He was then returned to Connecticut custody at CCI Hartford pursuant to the writ of habeas corpus ad prosequendum. On September 20, 1979, having pled guilty to the Connecticut charges, petitioner was sentenced to one-to-two years’ imprisonment by Judge Brennan of the Connecticut Superior Court and was incarcerated in the Connecticut Correctional Institution, Somers, Connecticut. On December 3, 1979 petitioner was released on parole from Connecticut custody and, pursuant to a federal detainer, was delivered to the Federal Correctional Institution at Danbury to commence his federal sentence (18 U.S.C. § 3568 (1976)). He was given credit for time served for the period from January 29, 1979, the date of his arrest on the Federal charges, to April 30, 1979, the date on which he posted bond with respect to the Federal charges. On January 5, 1981 petitioner moved for a reduction of sentence pursuant to Rule 35, Fed.R.Crim.P. “to recover jail time credit due to him for time served in State custody.” Chief Judge Clarie reduced petitioner’s sentence an additional 45 days to give him credit for the period from April 30, 1979, on which date petitioner posted bond on the Federal charges, to June 13, 1979, the date on which he was sentenced on the Federal charges. On April 8,1981 petitioner filed a petition for habeas corpus in the district court, contending that his sentence on the Federal charges began to run from the date of his sentencing, June 13, 1979, rather than December 3, 1979, the date on which he was incarcerated in the Federal Correctional Institution in Danbury. Petitioner argues that his range for release on parole was 20-26 months, according to the guidelines of the United States Parole Commission, and that he was notified by the Parole Commission that his incarceration would be continued to a presumptive parole after service of 26 months. Petitioner alleges that he has been incarcerated more than 26 months, using the date of his sentencing, June 13, 1979, as the starting date. On May 20, 1981 the district court, Ellen B. Burns, J., directed the Parole Commission to credit petitioner with the time he was incarcerated between the date of sentencing before Judge Clarie, June 13, 1979, and December 3, 1979 when he commenced to serve his federal sentence, and stated that if such credit was not accorded by the close of business on June 5, 1981 the petition for a writ of habeas corpus would be granted and petitioner released as though he were on parole. This decision conflicts with two other recent eases, Zeldes v. United States, Civil No. B-79-257 (D.Conn. April 15, 1980), aff’d. 636 F.2d 1206 (2d Cir. 1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1521, 67 L.Ed.2d 819 (1981), and Betres v. Hambrick, Civil No. N-81-322 (D.Conn. Sept. 21,1981), in which the court below found under similar circumstances that the federal government had yielded primary jurisdiction. The .petitioner in Zeldes pled guilty to federal charges and was released on bail pending sentencing. He was then arrested on unrelated New York charges and held in New York custody. He appeared in federal court pursuant to a writ of habeas corpus ad prosequendum and was sentenced to a five-year term. He was then returned to a New York facility to await trial on the New York charges. In the meantime, a second New York charge was filed against him and he was sentenced to a term of six months “to run concurrently with [his] Federal sentence.” He served his sentence but remained in New York custody awaiting trial on the first set of charges. After trial, he was sentenced to a term to run consecutively to his federal sentence. He was then transferred to federal prison. Petitioner argued that his federal sentence began on the day he was sentenced rather than the day he was returned to federal custody. The court refused to grant petitioner credit on his federal sentence for the time spent in New York custody, noting that while the general rule is that the first arresting sovereign obtains, primary jurisdiction, that jurisdiction can be yielded. The court found that the federal government had yielded primáry jurisdiction because it had allowed petitioner to be imprisoned by New York authorities without challenging their jurisdiction. ' The court also found the use of the writ of habeas corpus ad prosequendum to obtain petitioner’s presence for sentencing to be persuasive. Petitioner attempted to rely on a letter showing that the judge intended that his sentence commence on the date of sentencing, but the letter was not a part of the record and the court refused to give it any weight. The fact that Roche was placed in a Connecticut facility rather than a federal one while he was a federal pretrial detainee has no significance since there were no federal facilities available. We find, as in Zeldes, that primary jurisdiction over Roche passed to Connecticut when he posted bond on the Federal charges. We find that the disposition below runs counter to the federal statute governing commencement of sentence and credit for presentence jail time (18 U.S.C. § 3568). Under 18 U.S.C. § 3568, petitioner’s sentence commenced on December 3, 1979 when he was released from Connecticut custody and delivered to the Federal Correctional Institution at Danbury to commence his federal sentence. Moreover, during the period between April 30, 1979 when he posted bail with respect to the Federal charges but not with respect to the Connecticut charges and May 7, 1979 when Judge Clarie issued the writ of habeas corpus ad prosequendum, he was under Connecticut custody and not federal custody. He returned to federal custody only for the period between May 7, 1979, the date of the writ of habeas corpus ad prosequendum, and June 13, 1979 when he was sentenced on the Federal charges and returned to Connecticut custody. The effect of the decision below would be to grant petitioner credit for the same period of time against both his federal and state sentences, which we find inconsistent with 18 U.S.C. § 3568, Zeldes v. United States, supra; Crawford v. Jackson, 589 F.2d 693 (D.C.Cir.1978), cert. denied, 441 U.S. 934, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979); Wolcott v. Norton, 365 F.Supp. 138 (D.Conn.), aff’d, 487 F.2d 513 (2d Cir. 1973). Reversed, 516 F.Supp. 961. . 18 U.S.C. § 3568 provides in pertinent part: “The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.... No sentence shall prescribe any other method of computing the term.” Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:

songer_majvotes

2

What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. VIRGINIA STATE CORPORATION COMMISSION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, North American Telephone Association, et al., Intervenors. No. 83-1136. United States Court of Appeals, Fourth Circuit. Argued Oct. 7, 1983. Decided June 18, 1984. Rehearings and Rehearings In Banc Denied Oct. 3, 1984. Widener, Circuit Judge, dissented and filed opinion. Russell W. Cunningham (Donald G. Ow-. ens, Sherry H. Bridewell, Richmond, Va., David E. Blabey, Washington, D.C., Lawrence G. Malone, Albany, N.Y., Lynwood J. Evans, Phoenix, Ariz., Richard P. Rosen-berry, Lawrence F. Barth, Columbus, Ohio, Lloyd N. Moore, Jr., Montgomery, Ala., Donald A. Low, Topeka, Kan., Rosemary O’Leary, Lawrence, Kan., Harris S. Leven, Jonathan L. Heller, Columbus, Ohio, Jean E. Heilman, St. Paul, Minn., Lee McCul-loch, Little Rock, Ark., Jack Shreve, Benjamin H. Dickens, Jr., Tallahassee, Fla., Steven W. Hamm, Raymond E. Lark, Jr., Russell H. Putman, Jr., Columbia, S.C., Joseph I. Lieberman, New Haven, Conn., Peter J. Jenkelunas, New Britain, Conn., Janice E. Kerr, San Francisco, Cal., Gretchen Dumas, Sacramento, Cal., J. Calvin Simpson, San Francisco, Cal., Douglas N. Owens, Olympia, Wash., Steven R. Shanahan, Cheyenne, Wyo., Bruce W. Renard, Tallahassee, Fla., Diane L. Mclntire, Washington, D.C., Steven M. Schur, Madison, Wis., Jon E. Kingstad, Milwaukee, Wis., Paul Rodgers, Charles D. Gray, Washington, D.C., Frank J. Kelley, Atty. Gen., Detroit, Mich., Louis J. Caruso, Sol. Gen., Don L. Keskey, John M. Dempsey, Asst. Attys. Gen., Chicago, 111., Ronald D. Eastman, Sp. Asst. Atty. Gen., Linda Mounts, Joel B. Shifman, Charleston, W.Va., on brief), for petitioner. John E. Ingle, Deputy Associate Gen. Counsel, Washington, D.C. (Bruce E. Fein, Gen. Counsel, Great Falls, Va., Daniel M. Armstrong, Associate Gen. Counsel, Washington, D.C., on brief), for respondents. Michael Boudin, Washington, D.C. (Leonard R. Stein, San Francisco, Cal., Raymond F. Scully, Philadelphia, Pa., Lester G. Stiel, Cleveland, Ohio, W. Preston Granbery, New York City, Earl R. Huffman, David Horn, Cincinnati, Ohio, Thomas L. Jones, John Wohlstetter, Richard McKenna, James Hobson, Albert H. Kramer, John W. Hunter, Carolyn C. Hill, Washington, D.C., Maria A. Kendro, Kansas City, Mo., on brief), for intervenors supporting respondents. Before WIDENER, MURNAGHAN and SPROUSE, Circuit Judges. MURNAGHAN, Circuit Judge: The controversy here presented involves an order of the Federal Communications Commission (FCC) entitled “Uniform System of Accounts and Petition for Declaratory Ruling on Question of Federal Preemption.” CC Docket No. 79-105, FCC 82-581 (released Jan. 6, 1983). The order provides that, when the FCC has prescribed depreciation rates and methods for classes of property used by telephone companies, state regulation of the same matter is thereby preempted. Petitioner, Virginia State Corporation Commission, along with multiple PetitionerIntervenors representing regulatory agencies of other states, argues that the states’ fixing of depreciation rates and accounting methods for intrastate ratemaking purposes is preempted neither by the express language of the Federal Communications Act of 1934, 47 U.S.C. § 151 et seq. (1976) (the Act), nor by FCC rules explicitly governing depreciation of telephone equipment and facilities that are used interchangeably to provide both interstate and intrastate service. We agree with the FCC that its order released January 6, 1983 preempts state regulation of the depreciation rates and methods here involved, and thereby reemphasize our recognition in North Carolina Utilities Commission v. F.C.C., 552 F.2d 1036 (4th Cir.1977) (“NCUC II”), cert. denied, 434 U.S. 874, 98 S.Ct. 222, 54 L.Ed.2d 154 (1977), that “FCC regulations must preempt any contrary state regulations where the efficiency ... of the national communications network is at stake____” Id. at 1046. I. Background Under the current state of the telecommunications art, local telephone companies provide “telephone plant” (facilities and equipment) that serve both interstate and intrastate communications needs. Section 152 of the Act provides in subsection (a) that the statute “shall apply to all interstate and foreign communication by wire,” but in subsection (b) that “nothing in this chapter shall be construed to apply or to give the Commission jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire ____” Within this framework of divided authority, the Commission’s statutory mandate is a broad one, “to make available ... to all the people of the United States a rapid, efficient, Nationwide, and world-wide wire ... communication service with adequate facilities at reasonable charges____” 47 U.S.C. § 151. In order to achieve the mandated goal, the FCC is specifically empowered under 47 U.S.C. § 220 to prescribe depreciation practices to be followed by interstate carriers. At the same time, the Act recognizes the continued vitality of state regulation of intrastate service. Section 221(b) provides that “nothing in this chapter shall be construed to apply, or to give the Commission jurisdiction, with respect to charges, classifications, practices, services, facilities, or regulations for or in connection with wire ... exchange service ... even though a portion of such exchange service constitutes interstate ... communication, in any case where such matters are subject to regulation by a State commission or by local governmental authority.” Because most of the nation’s telephone plant is used interchangeably to serve both interstate and intrastate telecommunications needs, the potential for conflict between federal and state regulatory action is obvious. The conflict at issue on this appeal had its genesis in two separate orders issued by the FCC in 1980 and 1981; both orders were designed to compel carriers to employ depreciation practices that more truly reflected actual depreciation rates in light of technological reality. After seven years of study, the FCC first determined in 1980 that the prior practice of “vintage year” grouping for depreciation purposes was inaccurate, and ordered that the “equal life group” method be. used. See Docket No. 20188, 83 F.C.C.2d 267 (1980). The equal life method permitted greater precision in allocating costs of service to current consumers, and allowed more rapid capital recovery for plant having a short useful life. Thus, while the prior “vintage year” method was thought to “stifle innovation and inhibit the introduction of new technology,” 83 F.C.C.2d at 281, the “equal life” method was intended to bolster the competitive market structure that the FCC sought to foster. The same 1980 order also replaced the “whole life” method of depreciation with the “remaining life” method, which allowed a carrier to recoup the full cost of plant by making corrections in useful life estimates over time. 83 F.C.C.2d at 288-90. The FCC’s 1981 order provided that inside wiring in homes and businesses no longer should be treated as a capital investment to be depreciated over time, but rather as a cost to be “expensed” to current users. Again, the thrust of the rule change was to ensure that consumers actually requesting and benefitting from installed wiring pay for that benefit. By expensing the wiring, the burden of costs associated with such station connections would be placed on the causative ratepayer, and other consumers would not be forced to bear rates unduly inflated by a depreciation component for wiring services previously provided. 85 F.C.C.2d 818, 824 (1981). The two orders were first challenged on April 30, 1981, when the National Association of Regulatory Utility Commissioners (“NARUC”) filed a Petition for Clarification of the 1981 wiring order. Specifically, NARUC requested that the FCC issue a statement that the provisions of the wiring order were not binding upon state regulatory commissions insofar as intrastate communications service was concerned. The FCC responded to the petition in a Memorandum Opinion and Order of April 27, 1982, in which it concluded that in light of the relevant legislative history of the Act, “where state [accounting and depreciation] regulation is reconcilable with federal policies or rules, there is no occasion for us to override state agency actions in furtherance of legitimate state regulatory objectives.” 89 F.C.C.2d 1094, 1108 (1982). In response to the FCC’s opinion and order, the American Telephone and Telegraph Company filed a Petition for Reconsideration on June 7, 1982. General Telephone Company of Ohio likewise petitioned for a Declaratory Ruling that inconsistent state action was foreclosed under the Act. After further pleadings and comments, the FCC reversed its earlier position in a second Memorandum Opinion and Order of January 6, 1983. C.C. Docket No. 79-105, F.C.C. No. 82-581, slip op. (Jan. 6, 1983). After it carefully resurveyed the legislative history and decisional law, and reexamined the express language of the Act, the FCC adopted the view that the most logical and reasonable interpretation of the Act “is that where the Commission prescribes depreciation rates for classes of property [and the depreciation methods to be used], state commissions are precluded from departing” from those rates and methods. Id. at 17, ¶ 44. In reversing itself, the FCC espoused the notion that the plain terms of section 220 of the Act appear “clearly to preempt the states in connection with depreciation expense determinations and the related accounting.” Id. at 6, 1117. Moreover, .the FCC found that, even if section 220 did not possess a preemptive effect as a matter of law, the FCC’s own policies and rulings would preempt inconsistent state regulatory action as a matter of federal supremacy. Id. at 17, 1145. Supported by numerous state and local regulatory commissions, the Virginia State Corporation Commission (“VSCC”) filed a Petition for Review of the January 6, 1983 Order. VSCC alleged that preemption was required neither as a matter of law nor as a result of regulatory action taken by the FCC. Relying in part on this Court’s prior decisions in NCUC I and NCUC II, and relevant decisions of other Circuits, we hold that inconsistent state regulation of depreciation methods and classes of property to be depreciated has been preempted by the rulings of the FCC. Because we have determined that the affirmative regulatory action taken by the FCC suffices to preempt inconsistent state action, we find it unnecessary to decide whether, as a matter of law, the language of the Act itself requires preemption. II. Discussion . While it is true that the Act does reserve to the states the authority to prescribe rates for intrastate telephone service, that reservation is not to be read as preserving the states’ sphere of intrastate jurisdiction at the expense of an efficient, viable interstate telecommunications network. Section 152(b) of the Act does make the broad pronouncement that “nothing in [the] chapter shall be construed ... to give the Commission jurisdiction with respect to ... intrastate communication service.” Section 221(b) further supports state authority by providing that the FCC shall have no jurisdiction “even though a portion of [an] exchange service constitutes interstate or foreign communication, in any case where such matters are subject to regulation by a State commission or by local governmental authority.” Nonetheless, the foregoing provisions are rendered against a statutory backdrop that places primary emphasis upon a “rapid, efficient, Nationwide, and world-wide” communication service. Given that overriding concern, the 1983 Opinion by the FCC construing the accounting and wiring orders of 1980 and 1981 is most reasonably interpreted as valid exercise of statutory authority by the FCC, preempting inconsistent state action by virtue of the Supremacy Clause. While VSCC and Petitioner-Intervenors argue that “§ 221(b) has been given an unduly narrow interpretation in recent years,” we do not view as “narrow” an interpretation which recognizes that the Act does not sanction a “state regulation, formally restrictive only of intrastate communication, that in effect encroaches substantially upon the Commission’s authority” over interstate telecommunications. NCUC I, 537 F.2d at 793. Such a finding comports well with the recent Supreme Court decision in Fidelity Federal Savings & Loan Co. v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). The court stated in de la Cuesta, that “[e]ven where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when ... state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Id. at 153, 102 S.Ct. at 3022 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)). Although the holding in de la Cuesta arose in the context of the Home Owner’s Loan Act of 1938, 12 U.S.C. § 1461 et seq. (1982), the basic analysis applies to this appeal as well: an appellate court is not to focus narrowly on Congress’ own intent specifically to supersede state regulation. Rather, the Court must determine whether the federal agency entrusted with administering the act meant to preempt, and whether such preemptive action is within the scope of the agency’s authority. 458 U.S. at 154, 102 S.Ct. at 3022. First, it is quite clear that the FCC did intend to preempt inconsistent state regulation governing depreciation methods and classes of depreciable property. The 1983 Memorandum Opinion and Order stated in no uncertain terms that “we find that this Commission’s depreciation policies and rates, including the expensing of inside wiring, preempt inconsistent state depreciation policies and rates.” C.C. Docket No. 79-105, F.C.C. No. 82-581 (Jan. 6, 1983), slip op. at 17, ¶ 45. Second, the regulatory action taken by the FCC was also within its authority to ensure efficient operation of the interstate telephone network. In ordering that certain depreciation methods be followed, the FCC was merely exercising its power under section 220(b) of the Act to prescribe classes of property and percentages to be allowed as depreciation. To be sure, that prescription does have an effect on intrastate rates, but the effect will only be ancillary to the FCC’s primary statutory directive to regulate interstate communications. While Petitioner VSCC would seek to prohibit even an ancillary effect on intrastate communications, such a result does not harmonize with the FCC’s broader mission. As the FCC observed in Katz, supra, it is incumbent upon the FCC to exercise its authority in a manner best calculated to serve the needs of the public, and “[t]he fact that the same instruments are used for both interstate and intrastate services and that intrastate service is subject to state and local regulation does not alter the Commission’s duties and obligations with respect to interstate telephone facilities.” 43 F.C.C.2d at 1332. Although the FCC noted in its 1982 Memorandum Opinion and Order that it had “never attempted to prevent any State commission from departing from [federal] accounting and depreciation rules,” 89 F.C. C.2d at 1106-07, the fáct of the matter is that the FCC never found it necessary to do so until the current decade. During the years of monopoly power, when state commissions tended voluntarily to follow federal directives, there was no realistic need to speak in terms of preemption. In the instant case, however, several state commissions refused to follow the FCC’s determinations concerning depreciation. Although flexibility in depreciation practice presented little threat to the efficient operation of a monopolistic telecommunications industry, improper capital recovery does pose a trué threat in today’s competitive market. Thus, the FCC reasonably decided to preempt by issuing orders intended to speed capital recovery and improve accuracy of depreciation calculations, thereby enhancing competition. VSCC makes much of the argument that the FCC was silent on the issue of depreciation for some forty-seven years, but that prior silence does not vitiate the ongoing authority of the FCC to act once it decides that industry conditions merit preemptive regulation. As the Supreme Court observed in Smith v. Illinois Bell, 282 U.S. 133, 159-60, 51 S.Ct. 65, 72, 75 L.Ed. 255 (1930), a state’s prerogative to regulate survives “until action has been taken” by a federal agency vested with jurisdiction over the matter. (Emphasis added). Supporting the FCC’s decision to regulate is the consideration that a full seventy-five percent of all investment in new plant falls within the intrastate services category. If that large amount of equipment investment should fail properly to reflect its true, rapid depreciation, interstate service would then suffer the effects of delayed innovation. As noted above, decisions of other Circuits have recognized the necessity for federal preemption of inconsistent state telecommunications policy. In Computer and Communications Industry Ass’n v. F.C.C., 693 F.2d 198 (D.C.Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 2109, 77 L.Ed.2d 313 (1983), it was found that state tariffing of customer premises equipment (“CPE”) “must necessarily yield to the federal regulatory scheme.” Id. at 214. The federal scheme required that charges for CPE (e.g., home computer terminals, data processing units) be separated from ordinary transmission service charges. Since CPE is used interchangeably for both interstate and intrastate service, such a decision would have a clear ancillary effect on intrastate rates. Nonetheless, the Court refused to perceive any distinction between the preemption principles to be applied in the case of state ratemaking issues, and those applicable to other state powers. Id. at 216. Thus, ancillary effect on intrastate rates was permitted in order to achieve the federal goals of unfettered CPE selection, market competition, and a greater number of equipment and payment options. The Court in Computer and Communications Industry relied in large part on this Circuit’s decisions in NCUC I and NCUC II to support preemption. In NCUC I, we held that state regulation that “encroaches substantially” upon federal authority was preempted. 537 F.2d at 793. The conflict in that case dealt directly with policies concerning physical interconnection of non-carrier provided CPE to transmission facilities used jointly for interstate and intrastate needs. Preemption was required, even though we recognized that the FCC had no authority “over local services, facilities and disputes that in their nature and effect are separable from and do not substantially affect the conduct or development of interstate communications.” Id. While it may be true that the effects of depreciation policies are more attenuated than the very direct effect produced by physical connection of equipment to interchangeable lines, it cannot be said that depreciation policies are “separable from” interstate communications. Indeed, the conduct and development of interstate communications would undoubtedly be affected by the states’ imposition of depreciation policies that slowed capital recovery and innovation. See also NCUC II, in which we recognized the preemptive effect, or “federal primacy,” of the Commission’s registration program for terminal equipment subject to interchangeable use: “If it is admitted — as we think it must be — that the FCC has full statutory authority to regulate joint terminal equipment to ensure the safety of the national network, then we can discover no statutory basis for the argument that FCC regulations serving other important interests of national communications policy are subject to approval by state utility commissions.” 552 F.2d at 1046-47. The finding of federal priinaey was echoed by the Court of Appeals for the Second Circuit in New York Telephone Co. v. F.C.C., 631 F.2d 1059 (2d Cir.1980), a case which involved an assertion of federal jurisdiction over local exchange service when used in connection with interstate foreign exchange services. Citing Northwestern Bell for the proposition that state regulation continued unabated only when the federal agency “had not yet regulated in [the] area,” 631 F.2d at 1066, the Court held that once the FCC acted to impose its own tariff regulations, inconsistent state regulation was necessarily preempted. Finally, the Court of Appeals for the First Circuit explicitly adopted the rationale of NCUC I in Puerto Rico Telephone Co. v. F.C.C., 553 F.2d 694 (1st Cir.1977). The Court first acknowledged that federal primacy would have the “anomalous” result of ousting Puerto Rico’s jurisdiction over equipment used primarily for intrastate calls. However, the Court found it “even more anomalous, in light of FCC’s broad [statutory] mandate ... that § 152(b) ousts federal jurisdiction over all facilities that are also used for intrastate telephone service.” Id. at 700. It is true that Puerto Rico Telephone, like NCUC I, involved a federal policy relating to physical interconnection of CPE that was nonseverable from the interstate communications system. By contrast, the instant appeal raises no question of actual physical impossibility of complying with dual federal and state regulation; presumably, the carriers could keep accounts in which assets would be separately depreciated for intrastate and interstate purposes. Nonetheless, physical impossibility is but one ground for preemption; frustration of federal objectives provides a rationale at least equally valid. Since inconsistent state regulation poses an impediment to rapid development of interstate facilities, preemption is justified in this case even if “physical impossibility” is not at issue. In deciding the case, we have been mindful of an observation made by Chief Justice Burger when a member of the Court of Appeals for the District of Columbia in General Telephone Company of California v. F.C.C., 413 F.2d 390 (D.C.Cir.1969), cert. denied, 396 U.S. 888, 90 S.Ct. 173, 24 L.Ed.2d 163 (1969). Applying the Act in the context of cable television broadcasting, Chief Justice Burger stated that “[t]he Act must be construed in light of the needs for comprehensive regulation and the practical difficulties inhering in state by state regulation of parts of an organic whole.” Id. at 398. To be sure, practical difficulties have come to abound in this age of technological innovation since Chief Justice Burger rendered his opinion almost fifteen years ago. In response to some of the difficulties, the FCC’s decision to preempt inconsistent state depreciation practices emerges as a reasonable one, designed to foster the statutory goal of an efficient nationwide telecommunications service. Our review satisfies us that the FCC’s Memorandum Opinion and Order of January 6, 1983 should be AFFIRMED. . Section 220(b) provides that: The Commission shall, as soon as practicable, prescribe for such carriers the classes of property for which depreciation charges may be properly included under operating expenses, and the percentagés of depreciation which shall be charged with respect to each of such classes of property____ The Commission may, when it deems necessary, modify the classes and percentages so prescribed. Such carriers shall not, after the Commission has prescribed the classes of property for which depreciation charges may be included, charge to operating expenses any depreciation charges on classes of property other than those prescribed by the Commission, or after the Commission has prescribed percentages of depreciation, charge with respect to any class of property a percentage of depreciation other than that prescribed therefor by the Commis-sion____ (g) After the Commission has prescribed the forms and manner of keeping of accounts ... it shall be unlawful for [the carrier] to keep any other accounts ..-. than those so prescribed ... or to keep accounts in any manner other than that prescribed or approved by the Commission____ . This Court has already recognized that tandem use of telephone plant to serve both interstate and intrastate needs is quite common. See North Carolina Utilities Commission v. F.C.C., 537 F.2d 787, 794 (4th Cir.1976) ("NCUC I”), cert. denied, 429 U.S. 1027, 97 S.Ct. 651, 50 L.Ed.2d 631 (1976) (quoting Katz v. A.T. & T., 43 F.C.C. 1328, 1332 (1953)), to the effect that, “[w]ere the Commission to exercise its jurisdiction only where the telephone facilities in question were exclusively interstate in character, it would result in virtually complete abdication from the field of telephone regulation____” . For example, under the "vintage year” method, all types of telephone cable installed during one year (regardless of variations in useful lives of the cables) would be classed together and depreciated over the average useful life of the group. By contrast, the "equal life” method broke plant into smaller subgroups (e.g., indoor cable as opposed to underground cable) that were depreciated separately, more in keeping with the plant’s actual useful life. . Under the "whole life” method, underrecovery had become a common problem, since carriers were locked into inaccurate, overly long estimates of useful life in an industry in which innovation and resulting obsolescence were the order of the day. See 83 F.C.C.2d at 289-90. . Writing for a 4-3 majority of the Commissioners, Secretary William J. Tricarico found that portions of the Act were geared “to achieve as much uniformity as possible without coercing any state commission to use ratemaking methods it found unacceptable.” Tricarico also emphasized that the Commission had always given “special consideration to the needs and views of state commissions, in developing accounting and depreciation rules and most State commissions have chosen to follow most accounting and depreciation rules prescribed by this Commission.” 89 F.C.C.2d at 1106. Commissioners Fogarty, Jones, and Rivera issued a Joint Dissenting Statement, in which they recognized the "clear preemptive thrust” of the wiring order and refused to defer to the states on a “critical capital recovery [issue] affecting the continued viability and competitiveness of our Nation’s telephone industry in providing increasingly essential interstate, as well as intrastate, facilities and services.” Id. at 1111. . In its petition, General Telephone noted that the Ohio state regulatory agency had explicitly rejected use of the "remaining life” and "equal life group” methods adopted in the FCC’s 1980 order. General Telephone therefore perceived a direct conflict between federal and state regulatory action, which would frustrate important interests of national communications policy. . See Computer and Communications Industry Ass'n v. F.C.C., 693 F.2d 198 (D.C.Cir.1982), cert. denied, — U.S.-, 103 S.Ct. 2109, 77 L.Ed.2d 313 (1983); New York Telephone Co. v. F.C.C., 631 F.2d 1059 (2nd Cir.1980); and Puerto Rico Telephone Co. v. F.C.C., 553 F.2d 694 (1st Cir. 1977), discussed in text infra. Contra Southwestern Bell Telephone Co. v. Arkansas Public Service Comm’n, 584 F.Supp. 1087 (D.C.Ark.1984) (Court holds that FCC lacked jurisdiction to issue the January 6, 1983 Order and refuses to enforce it as ultra vires). . 47 U.S.C. § 151. But see Southwestern Bell Telephone Co. v. Arkansas Public Service Comm’n, 584 F.Supp. 1087, 1089 (D.C.Ark.1984) (holding that FCC lacked jurisdiction to issue the January 6, 1983 Order, the Arkansas District Court refuses to permit FCC’s mandate to provide efficient, nationwide service to "allow the FCC to bootstrap itself into preempting" intrastate ratemaking determinations). . "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. . Referring explicitly to this Court's decision in NCUC I, counsel for VSCC requested at oral argument that we "revisit” the doctrine adopted in that case, which recognized that the FCC’s authority to regulate had "primacy" over state regulatory action purporting to affect the interconnection of customer-provided telephone equipment. See NCUC I, 537 F.2d 787, 788 (1976). . Construing the Federal Alien Registration Act of 1940 in Hines, the Court recognized that there cannot be any “rigid formula or rule which can be used as a universal pattern" in determining Congress’ intention to preempt. 312 U.S. at 67, 61 S.Ct. at 404. The factual setting in which each case arises will thus shape the contours of a preemption determination. See also Pacific Gas and Electric Co. v. State Energy Resources Conservation Development Commision, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 732 (1983), in which the Court again noted that preemption is proper when state law frustrates important federal goals. In Pacific Gas, the Court found that agency regulations issued pursuant to the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq. (1976), did not preempt state authority to curtail the development of nuclear power for economic reasons. Because the Nuclear Regulatory Commission’s regulations dealt with plant safety, while the state regulations dealt with plant economy, compliance with both sets of regulations was possible without thwarting the federal objective. Id. at —, 103 S.Ct. at 1731. . The Court explicitly stated in de la Cuesta, 458 U.S. at 153-54, 102 S.Ct. at 3022: Federal regulations have no less preemptive effect than federal statutes. Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily. United States v. Shimer, 367 U.S. 374, 381-382 [81 S.Ct. 1554, 1559-1560, 6 L.Ed.2d 908] (1961). When the administrator promulgates regulations intended to pre-empt state law, the court’s inquiry is similarly limited: “If [h]is choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.” Id. at 383, 81 S.Ct. at 1560. . Under section 220(i) of the Act, the FCC is required to give notice to each state commission involved, and to allow a reasonable opportunity for each commission to present its views regarding any requirements prescribed. Moreover, the FCC is required to "receive and consider such views and recommendations.” Tripartite meetings were commonly held between the FCC, state carriers, and state regulatory agencies, with the FCC often able to accommodate state goals without compromising federal policy. See FCC Order of January 28, 1982, 88 F.C.C.2d 1223 (1982) (since late 1940s, FCC prescribed depreciation rates after conferring with carrier representatives and staffs of respective state commissions). . Indeed, the FCC itself observed in its initial Memorandum Opinion and Order of 1982 that it was being asked “to repudiate nearly forty years of administrative practice and applicable state court proceedings by adopting an interpretation of Section 220 that would require an unwilling state commission to follow all accounting and depreciation methods prescribed by this Commission. A very compelling showing would be required to persuade us to follow such a course.” 89 F.C.C.2d at 1107. Nonetheless, since the FCC "is not barred from overruling past precedents when it decides that a previously declared rule is no longer sound or appropriate,” New York Telephone Co. v. F.C.C., 631 F.2d 1059, 1065 (2d Cir.1980), certainly it should not be bound to maintain silence once it determines that articulation of a uniform federal policy is warranted. . In Smith, the Court found that, in the absence of federal regulatory action "which could be deemed validly to affect the amount to be charged in connection with intrastate business so as to affect intrastate rates,” the jurisdiction of the state is "not to be gainsaid" in determining depreciation amounts for intrastate telephone business. 282 U.S. at 159-60, 51 S.Ct. at 72. See also Northwestern Bell Telephone Co. v. Nebraska State Railway Commission, 297 U.S. 471, 56 S.Ct. 536, 80 L.Ed. 810 (1936), in which the Court found that pending action by the FCC to establish depreciation rates, state control over such rates remained unimpaired. The Act "contemplated no restriction of state control over depreciation rates until the [FCC] had prescribed its own rates.” Id. at 478, 56 S.Ct. at 539. Whereas the decisions in Smith and Northwestern Bell were predicated upon the FCC’s inaction, the instant appeal presents a clear case of affirmative, preemptive action properly taken by the agency. . Section 152(b) provides, "[N]othing in this chapter shall ... give the Commission jurisdiction with respect to ... charges, classifications, or practices, services, facilities, or regulations for or in connection with intrastate communication service____” . But see People of the State of California v. F.C.C., 567 F.2d 84, 86 (D.C.Cir.1977), cert. denied, 434 U.S. 1010, 98 S.Ct. 721, 54 L.Ed.2d 753 (1978). In that case, the Court observed that requiring the maintenance of '“two redundant facilities or [investment] in expensive additional equipment’ would frustrate the Commission’s responsibility ‘to make available, so far as possible ... a rapid, efficient, Nationwide and worldwide wire ... communications service with adequate facilities at reasonable charges,’" (quoting 47 U.S.C. § 151). Likewise, the expense associated with dual accounting could needlessly inflate the cost of services provided to consumers. Question: What is the number of judges who voted in favor of the disposition favored by the majority? 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. PUERTO RICO PORTS AUTHORITY, Plaintiff, Appellee, v. M/V MANHATTAN PRINCE, et al., Defendants, Appellees. SUJEEN TRADING PTE., LTD., Claimant, Appellant, v. CROWLEY TOWING & TRANSPORTATION CO., Defendant, Appellee. No. 88-1533. United States Court of Appeals, First Circuit. Feb. 22, 1990. Paul E. Calvesbert, with whom Jaime Morgan-Stubbe and Calvesbert & Brown, were on brief, for claimant, appellant. William A. Graffam, with whom Jiminez, Graffam & Lausell, were on brief for, defendant, appellee Crowley Towing. Hector Cuebas Tanon, with whom Vin-cente & Cuebas, were on brief, for plaintiff, appellee Puerto Rico Ports Authority. Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges. BOWNES, Circuit Judge. Shortly after 8 p.m. (2012 hours) on August 15, 1985, the tanker Manhattan Prince, while in the process of docking, collided with a pier. The allision occurred in the Army Terminal Turning Basin, Puer-to Nuevo Channel, San Juan Harbor, Puer-to Rico. An in rem action against the vessel was brought by the Puerto Rico Ports Authority (PRPA) and the Puerto Rico Electric Authority for damages caused to facilities on the pier owned by both authorities. Shortly thereafter, Su-jeen Trading PTE., LTD., (Sujeen), the owner of the tanker, brought an action for damage to the tanker’s bow incurred in the allision and damages due to loss of hire against Crowley Towing and Transportation Company (Crowley) and against Captain Oscar Camacho, the compulsory pilot. Crowley was the owner of two tugboats, the Borinquen and El Morro, which had been hired by the tanker to help her dock. The claim against Crowley by the tanker was based on the alleged negligence of the tug Borinquen; the tug El Morro is not involved in the case. In both eases, the defendants filed cross claims and counterclaims against each other. The cases were consolidated for trial and a bench trial was held in August, 1987. The district court found the vessel and the pilot “jointly, severally and equally liable” for damages to the pier facilities, which amounted to $53,000. It found Crowley and the Electric Authority not liable to Sujeen for damages to the tanker. It found the pilot, Comacho, liable to Sujeen for half of the vessel’s damages. These amounted to $194,723.40 for repairs to the bow of the tanker and $142,951.49 for loss of hire. The court further found that the PRPA was not liable for the negligence of the pilot. The court addressed the vicarious liability of the PRPA in an opinion published at 669 F.Supp. 34 (D.P.R.1987). Sujeen has appealed the holding that the ship was at fault for the allision and the ruling that the PRPA was not vicariously liable for the negligence of the pilot. The pilot has not appealed, and there has been no appeal on the computation of damages. There are, therefore, two basic issues to be reviewed: whether the tanker was 50% at fault for the allision, and whether the PRPA is responsible for the negligence of the pilot. We start with the negligence issue. I. A. Standard of Review We review the district court’s finding of fact under the clearly erroneous standard, the same as that set forth in Fed.R.Civ.P. 52(a). McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954). “A finding is clearly erroneous when ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed_’” Id. (citations omitted). See DiMillo v. Sheepscot Pilots, Inc., 870 F.2d 746, 749 (1st Cir.1989); EAC Timberlane v. Pisces Ltd., 745 F.2d 715, 722 (1st Cir.1984); Capt’n Mark v. Sea Fever Corp., 692 F.2d 163, 166 (1st Cir.1982). In United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), the Court jettisoned the old rule of divided damages in admiralty collision cases that required an equal division of property damage whatever the relative degree of fault of the tortfeasors may have been. It held that: when two or more parties have contributed by their fault to cause property damage in maritime collision or stranding, liability for such damage is to be allocated among the parties proportionately to the comparative degree of their fault, and that liability for such damages is to be allocated equally only when the parties are equally at fault or when it is not possible fairly to measure the comparative degree of their fault. Id. at 411, 95 S.Ct. at 1715-16 (emphasis added). In this case, the court explicitly found: “Because it is impossible to fairly allocate proportional degrees of fault, the damages shall be equally divided between the ‘Manhattan Prince’ and Oscar Camacho. United States v. Reliable Transfer, 421 U.S. 397 [95 S.Ct. 1708, 44 L.Ed.2d 251] (1975).” The clearly erroneous standard applies to the apportionment of liability. Getty Oil Co. v. USS Ponce De Leon, 555 F.2d 328, 335 (2d. Cir.1977); cf. Hanover Ins. Co. v. Puerto Rico Lighterage Co., 553 F.2d 728, 731 (1st Cir.1977) (Jury verdicts on percentages of negligence not entitled to a trial de novo; district judge reviewed verdict and found it was neither clearly erroneous nor grossly excessive). The clearly erroneous standard also applies to depositions and other documentary evidence. United States v. Gypsum Co., 333 U.S. 364, 394-95, 68 S.Ct. 525, 541-42, 92 L.Ed. 746 (1948); San Francisco Real Estate Investors v. Real Estate, 701 F.2d 1000, 1002 (1st Cir.1983). We end our exposition of the standard of review by noting that a district court’s application of an improper standard to the facts is to be corrected as a matter of law. United States v. Singer Mfg. Co., 374 U.S. 174, 194 n. 9, 83 S.Ct. 1773, 1784 n. 9, 10 L.Ed.2d 823 (1963). B. The Facts Most of the facts are undisputed; it is the conclusions drawn from them by the district court that has drawn Sujeen’s fire. The tanker, Manhattan Prince, was carrying 34,800 metric tons of fuel oil to San Juan. The vessel is 805 feet long, has a 124 foot beam, and at the time of the allision had a draft of approximately 32 feet, since she was fully loaded. The vessel was powered by a diesel engine with one righthand screw. The Manhattan Prince was manned by Polish officers and crew. Neither the captain nor the two mates had been to San Juan Harbor prior to August 15, 1985, the date of the allision. None of the ship’s officers spoke or understood Spanish. The compulsory pilot, Oscar Comacho, did not speak or understand Polish. He boarded the ship about 2lk miles from the entrance to San Juan Harbor at 7:12 p.m. (1912 hours). The pilot had never before docked a ship of the size of the Manhattan Prince. He did not know when he first went on board where the ship was to dock. He obtained this information by radio from Port Control. At the time the pilot boarded the ship, darkness had fallen. After a discussion with the captain about the maneuverability and other characteristics of the vessel and the layout of San Juan Harbor, the pilot stationed himself in the port wing of the bridge. The captain moved back and forth across the bridge as conditions dictated. The pilot guided the ship by giving course and speed orders to the captain in English who relayed them in Polish to the crew member responsible for carrying them out. At times the pilot gave orders directly to a crew member. The second mate of the Manhattan Prince was on the bow. His responsibility was to act as a lookout and count down the distances as the ship approached the dock. The course the ship followed was through the mouth of San Juan Harbor, down the Bar Channel to Anegado Channel, then a turn to port and down Anegado Channel to Army Terminal Channel. The ship then turned to starboard and followed Army Terminal Channel to the Army Terminal Turning Basin where it docked. The tugs owned by Crowley, the Borin-quen and El Morro, tied onto the tanker in Anegado Channel before she turned into Army Terminal Channel. The Borinquen was secured to the starboard bow with two lines; the El Morro was made fast to the starboard quarter. The tugs were manned by Puerto Ricans so the only one who could talk to the tug captains was the pilot which he did via a VHF radio in Spanish and “Spanglish,” a combination of Spanish and English. From his position on the port wing of the bridge, the pilot was unable to see the Borinquen. The second mate who was stationed on the bow could see the tug but could not talk to its crew because of the language barrier and because his VHF radio, which enabled him to talk with the tanker captain, was on a different frequency from the radios of the pilot and the tug captains. This meant that the pilot could not hear the communications between the bow and the captain of the tanker, the tug captains could not hear the communications between the tanker’s captain and the bow, and the bow could not hear the communications between the tug captains and the pilot. In addition to the communications problems, the ship was attempting to dock at night in a constricted area. It was commanded by a master who had never even seen San Juan Harbor prior to this, much less transited it by ship, and it was piloted by one who had never before guided a vessel of this size. This was a prescription for an accident. The tanker and tugs proceeded down Army Terminal Channel to the turning basin. The basin is at the south end of the channel, which runs almost directly from north to south. At its widest point, the basin measures about 200 yards. The distance from the basin entrance to the pier at which the ship was to dock was approximately 400 yards. Two piers jutted out into the water at the southern terminus of the basin. The Army Terminal pier, which was where the tanker was to dock, lay to the west of Catano pier. Both piers are about 150 yards long. The Catano pier is considerably narrower than the Terminal pier. The piers are about 100 yards apart. The depth of the basin is between twenty-eight and thirty-nine feet. On the west side of the Terminal pier, where the ship was to be docked, the water depth is thirty-six to thirty-seven feet. There are two buoys on the east side of the basin, numbered 7 and 9, marking the beginning of shallow water (3 to 5 feet). It must be kept in mind that the ship was a little more than 268 yards long, its beam was 41.3 yards and it had a draft of about 32 feet. There was not much room for maneuvering. When the tanker entered the turning basin, it was moving forward. The estimates of its speed vary from less than 1 knot to 4 knots. The first task for the ship and tugs was to keep the stern from going aground in the shallow waters marked by buoys 7 and 9. This was accomplished. The ship, which continued to move forward, had to be positioned so that it would dock with its port side next to the Terminal pier. This meant that it had to be moved to the starboard (west) of the Catano pier and then just past the Terminal pier so its port side could be nudged against the pier. The ship continued its forward and sidewards motion past the Catano pier. At some point, the pilot asked the captain of the tug Borin-quen how far the ship was from the pier. When it was about fifty feet from the Terminal pier, the tug Borinquen cast off its lines and backed off. There is a dispute as to how far and in what direction the tug moved. The ship continued forward and struck the front of the Terminal pier at a 90% angle — head on. The Borinquen picked up the lines and the ship, which was now dead in the water, was brought alongside the Terminal pier and docked. C. The Findings and Conclusions of the District Court The district court found that the allision occurred because the vessel was travelling too fast down Army Terminal Channel and was not slowed down sufficiently for a safe docking. The court did not credit the testimony of the pilot that he had ordered slow astern at buoy number 6 in the channel, which is about 900 yards from the dock. The court’s conclusion as to the pilot’s negligence was as follows: The pilot’s negligence and failure to exercise due care in docking the vessel was a proximate cause of the allision which caused damages to the “MANHATTAN PRINCE” and the dock facilities. The pilot was negligent in attempting to dock the vessel at an excessive speed. Due to the large size of the vessel, the restricted space in the turning basin, and the pilots, [sic] lack of previous experience in docking a vessel the size of the “MANHATTAN PRINCE,” the proper method would have been to stop the tanker dead in the water before attempting the final maneuvers to the dock. A prudent pilot would have proceeded with extreme caution given the situation. The court’s assessment of liability on the part of the ship was stated thus: The Court has found that distances were not relayed to the pilot by the master even though the bow watch was relaying the distances of the master upon approaching the dock. The pilot was forced to request a distance report from the captain of the “BORINQUEN” at a time when the vessel was too close to impact to matter. Whether this lack of communication resulted from the mishmash of languages being spoken over the various radios, from the inconsistency occurring in the pilot sometimes giving commands through the master and sometimes directly, as evidenced by the statement of the chief officer who was stationed on the lee helm on the bridge, or from sheer negligence on the part of the master, this crucial information did not reach the pilot’s ears. Responsibility for this omission must be attributed to the “MANHATTAN PRINCE.” Thus, the ship’s failure to report distances to the pilot, under these circumstances, was also a proximate cause of the allision. Had the pilot been better apprised of the ship’s proximity to the dock and of the rate of the rapidly decreasing distances he could have better judged the ship’s speed and distance and taken appropriate maneuvers to avoid allision. In concluding that the tug Borinquen’s actions were not a proximate cause of the allision, the court found that the tug was “in extremis.” It stated: The extremely close passage by the Cata-no Oil Dock, her [the tug’s] position near the bow of the tanker, and the tanker’s massive size and continued forward way and 90° angle to the dock at a position only 30-50 feet from the dock, all conspired to put the “BORINQUEN” in ex-tremis. The captain of the “BORIN-QUEN” was reasonable in letting go the lines. Whether the allision could have been avoided or mitigated if the “BOR-INQUEN” had held steady is mere speculation. The captain of the “BORIN-QUEN” cannot be held negligent for not choosing to risk his tug or the lives of his crew by holding fast to the ship while it allided with the dock. D. The Issues Sujeen mounts a four-pronged attack on the negligence findings of the district court: (1) the district court misapplied the in extremis doctrine and therefore the tug Borinquen should have been found negligent for casting off its lines when it did; (2) the Manhattan Prince was not negligent; (3) the admission in evidence of the Coast Guard’s report of the accident was error; and (4) the tug Borinquen breached its implied warranty of performance in a workmanlike manner and is therefore liable for the damages suffered by the tanker. We reject all four claims and affirm the district court’s negligence findings. We note at the outset that although appellant pays lip service to the clearly erroneous standard, its brief is written as if we were reviewing the facts de novo; its oral argument also proceeded on the same tack. (1) The In Extremis Finding The doctrine of in extremis has long been a part of admiralty law. In The Blue Jacket, 144 U.S. 371, 392, 12 S.Ct. 711, 719, 36 L.Ed. 469 (1892), the rule was stated as follows: As was held in The Bywell Castle, 4 Prob.Div. 219, “where one ship has, by wrong manoeuvres, placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong, and has not been manoeuvred with perfect skill and presence of mind.” The doctrine was invoked again by the Court in The Oregon, 158 U.S. 186, 204, 15 S.Ct. 804, 812, 39 L.Ed. 943 (1895), where it stated, “the judgment of a competent sailor in extremis cannot be impugned.” In Bucolo, Inc. v. S/V Jaguar, 428 F.2d 394, 396 (1st Cir.1970), we stated: “This doctrine is applicable only when the party asserting it was free from fault until the emergency arose.” One of the most recent applications of the doctrine was in a case remarkably similar to this one, Chevron U.S.A., Inc. v. Vessel J. Louis, 702 F.Supp. 887 (M.D.Fla.1988). The court there found that the allision occurred because of “the negligence of the pilot and vessel master in navigating the vessel at an excessive rate of speed so that she ran aground.... ” Id. at 891. As here, there was a tug tied to the vessel, and it loosened its line to the vessel to avoid being crushed against the dock. The court found the tug to be without fault, stating: The tug was placed, by the pilot and master of the vessel, in a position of sudden peril and emergency, which situation did not arise as a result of the tug’s own previous fault. Therefore, even if the Court were to decide that the Tampa was somehow negligent in failing to keep the towline from slipping as it backed full astern, as the pilot ordered, such alleged negligence must be excused under the in extremis doctrine. Id. at 891. There was no misapplication of the in extremis doctrine here. The captain of the tug Borinquen testified in effect as follows: He had no problem communicating with the pilot. After the ship cleared the Catano dock, the pilot told him to stop pushing. At that time, the tug was between the head of the Catano dock and the bulkhead of the terminal pier. He told the pilot that he was about 50 feet from the pier, that there would be a collision, and he was going to release the lines because the tug was in danger. It was his judgment that if the tug had not backed away from the tanker, it would have been sandwiched between the tanker and the Catano pier. Robert Leith, shipping agent for the Manhattan Prince, was on the pier waiting for it to dock. He testified that the ship approached the pier at a steady speed of between four and seven knots. He had seen vessels dock at this pier for thirty years and they approached at much less speed and much less under the control of tugs. Leith testified that the bow tug (Borinquen) “got out of there” when its captain saw that there was going to be a collision with the dock. It was Leith’s testimony that the tug dropped its lines and backed away from the tanker, when the vessel was 50 to 60 feet from the pier. It was the opinion of expert witness John Deck III that even if the tug Borinquen had not dropped the lines, the tanker would still have hit the pier. Captain Stillwaggeon, an expert witness with extensive experience as a pilot, testified that if the tug had not dropped its lines it would have been endangered. He further testified that the tug did not desert the ship, but simply moved to a safe position and that the tug could not have prevented the collision. From this evidence the court could have found that the tug did not do anything to create the emergency, that the safety of the tug and its crew was put in peril as the ship continued forward towards the piers and that casting off the lines was a reasonable response to the danger thrust upon the tug by the tanker. The testimony is more than sufficient to sustain the district court’s finding that the tug Borinquen was in extremis when it cast off the lines and therefore did not act negligently. (2) The Negligence of the Manhattan Prince The district court invoked a presumption of negligence against “all parties participating in the management of the vessel” because the vessel was moving and collided with a stationary object. It specifically found that the presumption applied to the tug Borinquen and the pilot as well as the vessel. It found that only the Borinquen overcame the presumption because it went forward and proved that when it cast off the lines, it was in extremis. The court found that neither the ship nor the pilot overcame the presumption. This presumption of negligence goes back at least to The Louisiana, 70 U.S. 164, 18 L.Ed. 85 (1865). In that case the Court held: The streamer Flushing being aground on Hampton Bar, out of the channel or course of vessels navigating the bay or harbor, and incapable of motion, cannot be justly charged with any participation in causing the collision. The collision being caused by the Louisiana drifting from her moorings, she must be liable for the damages consequent thereon, unless she can show affirmatively that the drifting was the result of inevitable accident, or a vis major, which human skill and precaution, and a proper display of nautical skill could not have prevented. Id. at 173. See Weyerhaeuser Co. v. Atropos Island, 777 F.2d 1344, 1347 (9th Cir.1985). Although the circumstances here did not involve a vessel that had broken loose from her moorings as in The Louisiana and Atropos Island, it was not error to invoke the presumption against the Manhattan Prince. When a fully manned vessel accompanied by two tugs strikes a pier head-on, it ought to be presumed, unless the vessel proves otherwise, that the vessel was negligent. Under the facts here, however, considering especially the communication obstacles between the pilot, the ship’s officers and the tug and the evidence of the speed of the ship in the turning basin, no presumption of negligence was needed; with or without such presumption the pilot and the ship were clearly negligent. There is no reason to regurgitate the evidence establishing the tanker’s negligence. We have read the entire record, including all depositions bearing on the issue and have examined carefully all pertinent exhibits. We hold that the district court’s finding that the Manhattan Prince was 50% at fault was not clearly erroneous. (3) The Coast Guard Report The United States Coast Guard investigated the accident. Its report of the accident was admitted in evidence. The report gives three conclusions as to the cause of the accident: the use of improper speed by the pilot, the failure of the master of the Manhattan Prince to take over command and control of the vessel from the pilot, and the action of the tug Borinquen in dropping its lines. Appellant argues that the admission of the report in evidence was error. Both sides agree that Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988), controls the admissibility of the report. Rainey concerned the admission in a jury trial of an investigative report by the Navy of a plane crash. The court held: We hold, therefore, that portions of investigatory reports otherwise admissible under Rule 803(8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report. Id. 109 S.Ct. at 450 (footnote omitted). Although the report here states, “a narrative report will not be submitted,” there is no doubt that the Coast Guard made a full investigation of the allision. That a narrative report was not submitted does not mean that an investigation was not made. The deposition of Wilfredo Ale-man, the Coast Guard officer who investigated the accident, was admitted in evidence. He questioned the ship’s officers, the pilot, and the captain of the tug Borin-quen within a short time after the accident. There can be no serious question as to the trustworthiness of the report. But even if the report’s conclusions were inadmissible under Rainey, as appellant argues, there is another factor to the equation. In its opinion the district court dropped a footnote with the signal at the end of the following sentence: “The pilot was negligent in attempting to dock the vessel at an excessive speed.” The footnote reads: “Though the Coast Guard report on the allision came to the same conclusion, and was admitted into evidence, the Court made its own conclusion based on all the evidence submitted and presented at trial. Only the fact-based portions of the report were considered by the Court.” We accept, of course, the court’s statement that it relied on the trial evidence, not the report, for its conclusions. We point out that except as to the pilot, the court's negligence conclusions differed markedly from those of the Coast Guard. Thus, even were the admission of the report error, it was harmless. (4) Breach of the Tug Borinquen’s Implied Warranty of Performance in a Workmanlike Manner Because this issue was not raised below, we do not reach it. See Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.1987); United States v. Ven Fuel, Inc., 758 F.2d 741, 760 (1st Cir.1985); McPhail v. Municipality of Culebra, 598 F.2d 603, 607 (1st Cir.1979); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979). Moreover, it seems obvious that the in extremis finding, which we have upheld, swallows this issue completely. II. LIABILITY OF PUERTO RICO PORTS AUTHORITY FOR PILOT NEGLIGENCE The district court ruled that the defense of sovereign immunity was not available to the PRPA. It also held that the PRPA was not vicariously liable to Sujeen, owner of the Manhattan Prince, under the doctrine of respondeat superior, for the negligence of the pilot. Puerto Rico Ports Authority v. M/V Manhattan Prince, 669 F.Supp. 34 (D.P.R.1987). For the reasons that follow, we hold that the shield of sovereign immunity as embodied in the eleventh amendment insulates the PRPA against liability. This does not mean that the district court labored in vain because we have found its findings and rulings pertinent to the question of sovereign immunity. The general principles applicable to sovereign immunity and the protection afforded to states against suits by the eleventh amendment are well settled. The significance of the eleventh amendment “lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III.” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984). Absent abrogation by Congress or waiver by the state, the eleventh amendment insulates states from damage suits in federal court. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). And the protection of the eleventh amendment is in no way altered or reduced when the suit is based on admiralty jurisdiction. Lane v. First Nat. Bank of Boston, 871 F.2d 166, 173 (1st Cir.1989). That these principles apply to the Commonwealth of Puerto Rico is beyond dispute. “The Commonwealth of Puerto Rico is treated as a state for Eleventh Amendment purposes.” In re San Juan Dupont Plaza Hotel Fire Litigation, 888 F.2d 940, 942 (1st Cir.1989); see also Ramirez v. Puerto Rico Fire Service, 715 F.2d 694, 697 (1st Cir.1983). We now move from the general to the specific: is the PRPA entitled to eleventh amendment immunity. The factors going into this determination and the case law establishing them have been summarized in Ainsworth Aristocrat Intern. Pty. v. Tourism Co., 818 F.2d 1034, 1037 (1st Cir.1987): local law and decisions defining the nature of the agency involved; whether payment of any judgment will come out of the state treasury; whether the agency is performing a governmental or proprietary function; the agency’s degree of autonomy; the power of the agency to sue and be sued and enter into contracts; whether the agency’s property is immune from state taxation and whether the state has insulated itself from responsibility for the agency’s operations. See also Figueroa-Rodriquez v. Aquino, 863 F.2d 1037, 1044 (1st Cir.1988). We first examine the Puerto Rico statute establishing and defining the authority of the PRPA. The PRPA consists of the Governor of Puerto Rico, the Secretary of Transportation and Public Works of Puerto Rico and the Secretary of Agriculture and Commerce of Puerto Rico. The members of the PRPA are not entitled to compensation for their services. The PRPA is a successor to the Puerto Rico Transportation Authority. It is a governmental instrumentality and public corporation. P.R.Laws Ann. tit. 23, ch. 25 § 333(a) & (b). The executive powers of the PRPA are exercised by the Economic Development Administrator. Id. § 334. The purpose of the PRPA is to “develop and improve, own, operate and manage any and all types of transportation facilities and marine services in, to and from ... Puerto Rico and to make available the benefits thereof in the widest economic manner; thereby promoting the general wel-fare_” M § 336. Following this general statement is a detailed listing of the PRPA’s specific powers. Id. Among its powers are: “to sue and be sued, § 336(e); to raise revenue through rents and fees, § 336(()(1), or through the issuance of bonds, § 336(o) and § 342, and to acquire real and personal property for its use. § 336(h) — (j). Section 338 provides in pertinent part: “All moneys of the Authority shall be deposited in qualifed [sic] deposi-taries for funds of the Commonwealth Government, but they shall be kept in a separate account or accounts in the name of the Authority.” Section 339a gives the PRPA the authority to acquire property through condemnation procedures. There is another statute bearing on the question of sovereign immunity, the Dock and Harbor Act of 1968, P.R.Laws Ann. tit. 23, ch. 101. Its pertinent provisions follow. The PRPA is in charge of the execution and administration of the Act and “all sums collected under its provisions shall be covered [sic] into the funds of the Authority.” Id. § 2105. The PRPA is given “control of the navigation and of the marine trade in navigable waters of Puerto Rico in its harbors and docks as provided in this chapter.” Id. § 2201. There is a section limiting the liability of individual members, employees and agents of the PRPA: The damages caused through the action or omission of the Administrator or of any officer, employee or agent of the Authority, while acting in his official capacity and within the scope of his function, employment or commitment as an agent of the Government of the Commonwealth of Puerto Rico under the provisions of this chapter (in contraposition as when acting in the exercise of the property rights of the Authority as a public corporation) intervening fault or negligence, shall exclusively be requira-ble [sic] to the Commonwealth of Puerto Rico as provided by law. Id. § 2303(b). “The pilot service in the harbors of Puerto Rico shall be under the control of the Authority.” Id. § 2401. The PRPA has the power to issue, suspend and revoke pilot licenses. Id. §§ 2406 & 2407. Puerto Rico is a compulsory pilot jurisdiction. No ship, with specific exemptions not applicable in this case, may enter or leave a harbor of Puerto Rico “without obtaining pilot service from a pilot licensed by the Authority for said harbor.” Id. § 2412. The following undisputed findings were made by the district court based on a stipulation filed by the parties and evidence introduced at trial. PRPA does not have the power to control the actions of the pilot while he is on the bridge. For the services of the pilot, the shipowner or agent pays a fee directly to the pilots and also into a trust fund, created by PRPA, for the pilots' pension. Fees are set by PRPA after a public hearing before a Hearing Officer named by the Secretary of Transportation and Public Works. The pilots set their own monthly schedule in advance and notify PRPA of it. Any last minute changes in the schedule are made among the pilots themselves. Ships have no choice between pilots. The pilots pay rent to PRPA for the use of their pilot house. Pilots provide their own pilot boats and other equipment. Puerto Rico Ports Authority v. M/V Manhattan Prince, 669 F.Supp. at 37. After examining the pertinent statutes, we conclude that whether the PRPA is entitled to eleventh amendment protection depends upon the type of activity it engages in and the nature of the claim asserted against it. The specific question here is whether the PRPA’s relationship with ship pilots is a proprietary function or one exercised as an arm of the state. The district court in denying the defense of sovereign immunity to the PRPA simply stated that the issue was “resolved” by Canadian Transport Co. v. Puerto Rico Ports Authority, 333 F.Supp. 1295 (D.P.R.1971). While the court in Canadian Transport held that the PRPA was a “pub-lie corporation with sufficient identity and distinction, vis-a-vis the Commonwealth government, so as to be liable to be sued herein,” id. at 1297, the court also recognized that such may not always be the case. The court stated that the PRPA “did not demonstrate that its specific activities which gave rise to this case are governmental actions, vis-a-vis proprietary actions, to use the dichotomy resorted to in defendant Authority’s memorandum. Rather, the allegations merely point out that some of the Authority’s activities are governmental.” Id. at 1296. Unfortunately, the court failed to include any of the underlying facts on which it based its holding, thereby rendering its precedential value minimal for our purpose. The district court held that the PRPA’s function of providing harbor pilots was proprietary. It based this holding on a Ninth Circuit case, City of Long Beach v. American President Lines, 223 F.2d 853 (9th Cir.1955), the facts of which are similar to the case at bar. A shipping company sued both the compulsory pilot and the City of Long Beach for damages arising from an allision between one of the company’s ships and a pier. Id. at 855. The court determined that Long Beach in maintaining and operating its harbor, which included the compulsory use of harbor pilots, was engaged in a proprietary function. Id. at 856. In part, this determination stemmed from the fact that the city received full payment from the ships for the pilot service and then remitted the company furnishing the pilots service sixty percent of the payment and retained forty percent for itself. Id. at 857 n. 4. The Ninth Circuit later distinguished this holding in Kitanihon—Oi S.S. Co. v. General Const. Co., 678 F.2d 109 (9th Cir.1982). In Kitanihon, a shipping company claimed that the city port authority should be liable for the negligent actions of a compulsory pilot. The issue before the court did not involve eleventh amendment immunity but was whether there was an “implied warranty of nonnegligent per-formanee” between the port authority and the ships using the pilot service. Id. at 110. In addressing this issue, the court examined whether the port authority’s compulsory pilotage requirement was proprietary in nature. In finding the port authority not liable, the court distinguished the City of Long Beach: The present case differs from City of Long Beach in one significant way. Here, Shipowner paid the pilot directly, and the Port itself paid no fees to the pilot. The Port commissions a limited number of pilots in order to protect the earning capacity of those commissioned, who in February 1977 numbered eight. The standard pilot’s fee schedule is arrived at by negotiations between the Bay Area pilots and the maritime steamship associations conducted at meetings which the Port attends. Shipowners must use a commissioned ship’s pilot to comply with the compulsory pilotage clause of the Port’s tariff. The Port’s primary relationship with the pilot is as the source of his commission, which the pilot holds at the pleasure of the Port through its Pilot Advisory Board. While the Port’s power to decommission a pilot temporarily or permanently at its sole discretion gives teeth to its rules and regulations governing commissioned pilots and use of the Channel, the Port does not hire the pilot either directly or indirectly. Id. at 111 (footnotes omitted). This arrangement between the port authority and the pilots is strikingly similar to the one in Puerto Rico. Appellant makes two arguments for holding the PRPA liable for the negligence of the pilot. It first contends that the PRPA should be found to be a surety of the pilots because it failed to comply with the statutory mandate requiring the posting of a sufficient bond. The argument runs as follows: Under The Dock & Harbor Act, P.R.Laws ann. tit. 123, ch. 101 § 2405, the PRPA is forbidden to issue a pilot’s license or renew one unless the applicant “renders a bond to the satisfaction of the director [of the PRPA] for a reasonable sum ... to answer for the faithful compliance of his duties as pilot.” Section 2410 of the Act provides that any pilot causing damages to another person or to the PRPA shall be civilly responsible, and section 2411 provides that the damage liability of a pilot shall be a lien against his bond. The amount of a pilot’s bond required by the PRPA at the time of this accident was $5,000, an amount appellant contends was totally inadequate. Moreover, appellant avers, the bond was useless because it stated: “It is further understood and agreed that this bond guarantees the faithful performance of the PRINCIPAL’S duties and responsibilities as Port Pilot and not the damages that he may cause due to his fault or negligence.” Appellant argues that the amount of the bond and its exculpatory clause violated the purpose and requirements of a bond for pilots, and, therefore, the PRPA must become surety for the pilots. It cites as authority for this proposition, Hanover Insurance Company v. Liberian Oceanway Corp., 398 F.Supp. 104 (D.P.R.1975). In Hanover, a pilot had not been required to post a bond by the PRPA, contrary to the requirements of section 2405 of The Dock & Harbor Act. The ship the pilot was guiding hit the cassion gate of a dry dock while maneuvering to dock. The court held: Since the Ports Authority, through its negligent omission has, in effect, waived the bond requirement for harbor pilots, then it is only fair and equitable that it warrants to vessel owners and operators, and the owners of pier’s [sic] facilities within Puerto Rico, that it (Ports Authority) will guarantee payment of damages caused by the improper performance of a harbor pilot in carrying out his duties. Id. at 108. Appellee PRPA states baldly that Hanover “is bad law and should be overturned.” We find it hard to square this holding with P.R.Laws Ann. tit. 23, ch. 101, § 2303(b) stating that a negligent act or omission of a member of the PRPA, while acting in his official capacity and within the scope of his function as an agent of the government of Puerto Rico, is attributable only to the Commonwealth of Puerto Rico. Moreover, there is no discussion in the case of the eleventh amendment and sovereign immunity. We decline to follow Hanover and reject appellant’s surety argument. Appellant’s second argument is more straightforward: the district court erred as a matter of law in holding that the PRPA could not be found liable for pilot negligence. We agree with the district court that there can be no respondeat superior liability by the PRPA for the negligence of a pilot in taking a ship into a harbor of Puerto Rico. We endorse its rulings that: PRPA’s control is aimed at ensuring safe passage through the harbor. Its functions are related to licensing and the competency of pilots. PRPA acts like a public service commission, setting and enforcing standards within the industry (harbor services in general and pilotage in particular). Puerto Rico Ports Authority v. M/V Manhattan Prince, 669 F.Supp. at 37. We hold, however, contrary to the district court, that in its relationship with pilots, the PRPA acts as an arm of the state and not in a proprietary manner. The PRPA, under The Dock & Harbor Act, has the duty to license pilots. Its sanction for the negligence of a pilot is suspension or revocation of a pilot’s license. Although the PRPA has the duty to examine the qualifications of a pilot before issuing a license, it does not train pilots. It has no control over pilot ship assignments. The PRPA derives no revenue from the compulsory pilot system. After consideration of PRPA’s enabling statute, The Dock & Harbor Act of 1968 and the pertinent case law, we hold that in its relationship with pilots the PRPA acts as arm of the Commonwealth. It follows that the eleventh amendment is a bar to the action by appellant against it. Affirmed. Costs awarded to appellees. . Jurisdiction is under 28 U.S.C. § 1333. . A number of depositions were admitted in evidence, either in whole or in part. The most important were the complete depositions of the captain and second mate of the tanker. . The protection of the eleventh amendment does not extend to municipalities. See Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 281, 97 S.Ct. 568, 573, 50 L.Ed.2d 471 (1977). 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_stid

01

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is a respondent. OLIVER et al. v. UNITED STATES et al. No. 13309. Circuit Court of Appeals, Eighth Circuit. June 24, 1946. Igoe, Carroll, Keefe & Cobum, Richmond C. Coburn, and Thomas L. Croft, all of St. Louis, Mo., and Robert V. Niedner, of St. Charles, Mo., for appellants. Adams, Adams & Adams and Arthur N. Adams, Sr., all of Kansas City, Mo., and Cobbs, Logan, Roos & Armstrong, Wm. H. Armstrong, and J. Terrell Vaughan, all of St. Louis, Mo., for appellee Kansas City Title Ins. Co. J. Edward Williams, Acting Head, Lands Division, of Washington, D.C., and Harry C. Blanton, U. S. Atty., of Sikeston, Mo., and Roger P. Marquis and Miss Wilma C. Martin, Attys., Department of Justice, both of Washington, D. C., for appellee United States. Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges. RIDDICK, Circuit Judge. This is one of the so-called Weldon Springs cases which arose out of the efforts of the War Department to acquire by purchase a site in St. Charles County, Missouri, for the location of an ordnance plant. After having accepted approximately 270 contracts with individual landowners for the purchase of their lands, the War Department conceived the idea that the contracts were prohibited by statute, and acting upon this assumption caused condemnation proceedings to be instituted in the name of the, United States against all landowners whose contracts had not been fully executed. The appellants were parties to one of the contracts which the United States attempted to repudiate and were defendants in one of the ensuing condemnation proceedings. United States v. Certain Lands in St. Charles County, Mo., etc., D.C., 60 F.Supp. 741; Oliver et al. v. United States, 8 Cir., 155 F.2d 73. The facts and questions of law common to all the condemnation actions may be found in the opinions of the Supreme Court and of this court in Muschany et al. v. United States, 324 U.S. 49, 65 S.Ct. 442, 89 L.Ed. 744; United States v. Muschany et al., 8 Cir., 139 F.2d 661; and Oliver et al. v. United States, supra. It is enough to say here that the cases cited determined that appellants’ contract with the United States for the sale of their land was valid; that 'the purchase price stipulated in the contract fixed the amount of the award to be made in the condemnation action brought by the United States; that this purchase price included the sum which the appellants agreed to accept in payment for their lands, plus five per cent of that amount to cover the commission of an agent employed by the War Department to negotiate the purchase contracts, and plus one and one-half per cent of the same amount to cover the charges of the Kansas City Title Insurance Company for preparing at the landowners’ expense certificates of title and a deed showing good title in the United States upon conveyance by appellants to the United States; and that with the consent of all parties an arrangement, carried out in the settlement of all contracts not repudiated, was adopted whereby one voucher payable to the vendors was issued for the total of all items included in the stipulated purchase price. After the decision of the Muschany case by the Supreme Court, the United States paid into the court the sum of $70,000, the purchase price stipulated in appellants’ contract, and judgment was entered fixing that sum as the award in the condemnation action. At the suggestion of the United States an order was also entered requiring claimants to a share in the award to file their intervening petitions. The Kansas City Title Insurance Company filed its intervention claiming a share in the award as the owner of one and one-half per cent of the amount stipulated in the purchase contract. This appeal is from the judgment of the District Court allowing the Title Company’s claim. The United States is not interested in the result. In the District Court the Title Company introduced in evidence parts of the records in the Muschany and Oliver cases, supra, on which the conclusions and findings in those cases were made. The appellants offered no evidence. They objected to the jurisdiction of the District Court to entertain appellee’s claim on the grounds: (1) that only those who have an estate in lands taken by condemnation may share in the award in the condemnation proceeding; and (2) that there was no diversity of citizenship as between appellee and appellants. They also contended that the evidence on behalf of appellee was not sufficient to show that appellants had agreed to pay, appellee for its services. We think the evidence was sufficient to establish the employment of the appellee by the appellants for the examination and certification of appellants’ title to the land. Appellants were required by their contract for the sale of their land to employ the appellee for this purpose, and they are bound by the decision in the Muschany case, which was a test case for the determination of the validity and the interpretation of this contract. Appellants’ objections to the jurisdiction of the District Court are without merit. In the ordinary condemnation case the award in favor of the owners of the land condemned stands in lieu of the land. In such cases it goes without saying that only those who had an estate in the land have an interest in the fund which takes its place. In the present case, however, the fund to be distributed by the court included not only compensation to the owners of the land, but in addition, funds payable by appellants to the Kansas City Title Insurance Company for its services to them. A Federal court having acquired possession of a fund in the course of a proceeding within its jurisdiction also has jurisdiction of the conflicting claims to ownership of the fund, regardless of the citizenship of the claimants. Loy v. Alston, 8 Cir., 172 F. 90, 95. By Rule 24(a) (3) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, one claiming a share in a fund in court is entitled as of right to intervene in distribution proceedings for the protection of his interest. Appellants’ argument that Rule 24(a) (3) is not applicable in the present case, because of the provisions of Rule 81(a) (7) that the Rules of Civil Procedure do not apply in proceedings for condemnation, must be denied because the present action does not involve proceedings for condemnation within the meaning of the Rule relied on. It is true that the funds to be distributed came into the hands of the court as the result of proceedings for condemnation. But those proceedings were terminated before the present action began. The judgment of the District Court is affirmed. 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:

songer_habeas

B

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. Ronald MAY, Appellant, v. Donald WYRICK, Warden, Appellee. No. 80-1731. United States Court of Appeals, Eighth Circuit. Submitted Jan. 12, 1981. Decided Jan. 15, 1981. Vernon R. Dawdy, Fenton, Mo., for appellant. John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, Mo., for appellee. Before HEANEY, ROSS and ARNOLD, Circuit Judges. PER CURIAM. Ronald May appeals the district court’s denial of his application for a writ of habe-as corpus. In June 1977, petitioner was convicted of manslaughter in the State of Missouri and was sentenced to ten years imprisonment. Petitioner alleges that the state trial court committed four errors of constitutional magnitude. The four errors raised are as follows: (1) the trial court allowed a key state witness to testify that she had received threats, as an attempt to explain her prior inconsistent statements; (2) the evidence was insufficient to constitute a submissible case; (3) the trial court refused to allow petitioner to call a certain defense witness; (4) the trial court refused to give a requested self-defense instruction. These claims are the same four raised by petitioner on direct appeal in state court. State v. May, 587 S.W.2d 331 (Mo.App.1979). The United States Magistrate also reviewed the same four issues under federal law and recommended that the application for a writ of habeas corpus be denied. The district court adopted the findings and recommendation of the magistrate. We have carefully studied the record, including the magistrate’s findings and the briefs of the parties to this action. We find no merit to petitioner’s arguments, and accordingly affirm pursuant to Rule 14 of the Rules of this court on the basis of the magistrate’s findings as adopted by the district court. 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_appsubst

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 "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. Mary Alyce ORAHOOD, Appellant, v. The BOARD OF TRUSTEES OF the UNIVERSITY OF ARKANSAS and Robert Ross, Appellees. No. 80-1387. United States Court of Appeals, Eighth Circuit. Submitted Jan. 16, 1981. Decided April 10, 1981. William H. Trice, III, Howell & Price, P.A., Little Rock, Ark., for appellant. Ray Trammell, Gen. Counsel, University of Arkansas, Fayetteville, Ark., Nelwyn Davis, Asst. Atty. Gen., Little Rock, Ark., for appellees. Before BRIGHT, STEPHENSON and McMILLIAN, Circuit Judges. STEPHENSON, Circuit Judge. Plaintiff-appellant Mary Alyce Orahood brought suit in district court alleging defendants-appellees discriminated against her on the basis of sex in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Orahood raised essentially three claims at trial — that defendants violated the Equal Pay Act and that they committed two acts of discriminatory treatment in violation of Title VII. The district court found, with regard to the Equal Pay Act claim and one claim under Title VII, that Orahood had failed to make a prima facie case, and, that even if she had, defendants had rebutted it by showing that their actions were based on reasons other than her sex. With regard to her third allegation, the district court held that although she established a prima facie case which had not been rebutted, the EEOC charge was not filed within 180 days of the violation and therefore the court was without jurisdiction. We affirm. I. FACTS Orahood was initially employed as a secretary by Little Rock University in 1963. In 1970, the institution joined the state university system and became the University of Arkansas at Little Rock (UALR). Or-ahood’s position became that of Assistant to the Registrar. In 1973, she began work in the Office of Institutional Studies at UALR, with a job title of Research Associate. In 1977, her job title became the present one, that of Research Project Analyst. Twice during her employment with the Office of Institutional Studies the top position in the Office, that of Director, became vacant. This occurred from November 1973 through August 1974, and from November 1977 through April 1978. At both times Orahood was the highest ranking employee in the Office. During these periods the university official with direct supervisory duties over the Office of Institutional Studies was Mr. Neyland Hester, Director of Administrative Services. Mr. Hester indicated that during these periods Orahood was the acting director of the Office of Institutional Studies, although never formally classified as such. It was common to have “working titles” at UALR which differed from the official titles, and Mr. Hester testified that in 1977 he had approved the use of the working title of “Assistant Director of Institutional Studies” for Ora-hood, at a time when she was the “number two” person in the Office. In March 1978, Orahood requested a change in the status of her job position and an increase in salary. A job status “reclassification” was necessary for a salary increase because Orahood was earning the maximum salary for someone with her job title. The titles suggested for Orahood were those of “Assistant Director,” “Associate Director,” or “Research Coordinator.” In May 1978, Dr. G. L. Mears, who had just begun as the new Director of Institutional Studies, recommended a change in job status and increase in salary to $17,500. Mr. Hester, as Dr. Mears’ superior, concurred in this view in a letter to Chancellor Robert Ross, a defendant herein. Chancellor Ross did not approve in a change of status at that time. In June 1978, Mr. Leslie Carruth, an investigator from the Wage and Hour Division of the United States Department of Labor, began an on-campus investigation of UALR. Carruth met personally with several employees of UALR, including Orahood, as well as with several UALR officials. In November 1978, he notified UALR that the cases of plaintiff and a female physical education instructor were situations where a female employee was paid less than a male employee for equal work. The physical education instructor received a pay increase, but Orahood’s salary remained unchanged. In July 1978, Orahood filed a grievance with the Faculty-Staff Appeals Committee. In November 1978, the Committee recommended that Orahood’s salary be increased $4,500 a year and that she be given a new job title to properly reflect her status as the number two person in the department. The Committee also recommended that she be given back pay for the period from November 1977 to April 1978, when she served as acting director of the Office of Institutional Studies. After reviewing the recommendations of the Faculty-Staff Appeals Committee, Chancellor Ross requested that the Arkansas Department of Higher Education conduct a “job audit” of Orahood’s employment position. This state agency’s response was that the position was properly classified. There was no reclassification of Orahood’s position. This lawsuit followed. II. EQUAL PAY CLAIM Orahood brings a claim of unequal pay for equal work under both Title VII and the Equal Pay Act. In examining a sex discrimination case involving unequal compensation, Title VII and the Equal Pay Act must be construed in harmony. Strecker v. Grand Forks County Social Service Board, 640 F.2d 96 at 99-100 (8th Cir. 1980), adopted en banc, (8th Cir. March 10, 1981); Di Salvo v. Chamber of Commerce of Greater Kansas City, 568 F.2d 593, 596 (8th Cir. 1978). See Gunther v. County of Washington, 623 F.2d 1303, 1311, 1313, 1321 (9th Cir. 1979), cert. granted,-U.S.-, 101 S.Ct. 1343, 67 L.Ed.2d 330 (1980). “For purposes of [this claim], ‘equal’ means ‘substantially equal’; male and female jobs may be compared even if they are not identical.” Horner v. Mary Institute, 613 F.2d 706, 713 (8th Cir. 1980). The inquiry is therefore whether the performance of the jobs requires substantially equal skill, effort and responsibility under similar working conditions. 29 U.S.C. § 206(d)(l). We look to the actual job requirements and performance, not on-job classifications or titles. Horner v. Mary Institute, supra, 613 F.2d at 714. In support of her equal pay claim, Ora-hood compares her wages and job to that of a male employee, Ed Kremers, whose job title is Assistant Controller in the Controller’s Office at UALR. There is no dispute that Kremers and Orahood have received substantially different salaries over the relevant period. During 1979-80, Kremers was classified at a Grade 20 with a salary of $20,462, while Orahood was classified at a Grade 18 with a salary of $14,404. The district court examined the jobs in detail and found that they did not require substantially equal skill, effort, and responsibility. We must uphold this finding unless it is clearly erroneous. Fed.R.Civ.P. 52. See Horner v. Mary Institute, supra, 613 F.2d at 713. The district court first observed the similarities between the positions of Orahood and Kremers: (1) both the Office of Institutional Studies and the Controller’s Office are administrative, rather than academic, offices of UALR: (2) both the plaintiff and Kremers hold the number two positions in their departments; (3) both employees coordinate, supervise and review the work of lower level employees; (4) both assist in the development of policies and procedures in the departments; (5) both coordinate department needs with computer systems; (6) both are responsible for preparing reports; and (7) both deal with other university and governmental agencies in behalf of their departments. Orahood v. Board of Trustees, No. LR C 78 457, slip op. at 5 (E.D.Ark. April 16, 1980). The district court then examined the content of the jobs and found that they could not be equated. It found the Controller’s Office to be much larger than the Office of Institutional Studies, and that Kremers had many more employees to supervise than did Orahood. The district court determined Kremers’ position required knowledge and work in financial and accounting matters, while Orahood’s position dealt with statistics and supplying these materials to university and government agencies as requested. It noted that Kremers’ position required a bachelor’s degree in accounting or a related field and four years experience, while Orahood’s position required a baccalaureate degree in statistics or a related field and two years experience. Kremers had been given the authority to hire and fire, while Orahood had only input into these decisions. The district court had before it substantial evidence indicating that the jobs were not substantially equivalent. It also had before it substantial conflicting evidence that the jobs were substantially equal, given by Mr. Carruth from the Wage and Hour Division, and given by another expert, Dr. Charles Kenney, who was a psychologist with a consultant firm. Support for this position also came from the testimony of Orahood and Kremers. The district court weighed the evidence and discredited much of the underlying bases for the testimony of plaintiff’s experts. It found the differences in the jobs to be more than inconsequential. Weighing of the evidence and making credibility judgments is for the district court. We cannot say that its findings in this regard are clearly erroneous. III. DISPARATE TREATMENT CLAIMS Orahood has alleged under Title VII other acts of sex discrimination in her compensation. Title VII may properly be invoked in situations of discrimination involving inadequate compensation where the plaintiff’s work is comparable (but not substantially equal) work or where the position held by the plaintiff is unique. See Gunther v. County of Washington, supra, 623 F.2d at 1311, 1313, 1321. Orahood raises essentially two claims of disparate treatment under Title VII. First, she alleges the fact that she was a woman was the reason that she was denied a job reclassification and salary increase which had been recommended by several parties, including her supervisors; the Faculty-Staff Appeals Committee; and the Wage and Hour investigator, Mr. Carruth. Second, she alleges that because she was a woman she was not given an increase in salary during her tenure as- “acting director” when the Director of the Office of Institutional Affairs position was vacant. A. Failure to Reclassify Job Status As a part of her prima facie case, Ora-hood attempted to demonstrate a pattern and practice at UALR of paying women in administrative positions less than men. Her proof included the Higher Education Staff Information (EEO-6) Report and figures indicating that job audits were conducted in response to requests for reclassifi-cations of women at a much higher rate than for men. Under the EEO-6 report Orahood was classified with full-time professional non-faculty personnel. UALR employed 21 males and 34 females in this category. Twelve of the 21 males earned in excess of $16,000, while only six of 34 females earned over that amount. The district court was unpersuaded by these “raw numbers” because there was no evidence indicating the experience, education, seniority or other qualifications of the employees. The EEO-6 report also did not give a description of the exact jobs involved. The district court also found the job audit requests inconclusive because they did not indicate if any of the women audited were denied reclassification as Orahood was. Twelve of the 14 job audits performed during 1978-79 were for positions held by women. Reclassification often occurs at UALR without a job audit. Chancellor Ross admitted his request for the job audit in Orahood’s case was the only one he had personally initiated. This disparate treatment case does not fit neatly into the requirements for a prima facie case as established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). However, that case stated that the elements necessary for a prima facie case would vary according to the factual situations. Id. at 802 n.13, 93 5. Ct. at 1824 n.13. More generally, plaintiff can establish a prima facie case by “showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a discriminatory criterion illegal under [Title VII].’ ” Fumco Construction Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (quoting in part International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977)). See Texas Department of Community Affairs v. Burdine, - U.S. -, -, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). See generally Heymann v. Tetra Plastics Corp., 640 F.2d 115 at 119-120, (8th Cir. 1981). Although the statistical data is insufficient to establish a pattern and practice, it, together with the several recommendations that Orahood be reclassified, leads us to conclude that Orahood had established a prima facie case here. Without other explanations, the inference is that sex played an impermissible role in the decision not to reclassify Orahood. The district court erred in its conclusion otherwise. However, the district court also found that even if Orahood had established a prima facie case, the defendants had sufficiently rebutted it by showing that Dr. Ross refused to recommend reclassification for a reason other than Orahood’s sex. Dr. Ross testified that the Office of Institutional Studies was not large enough to require the services of two supervisory personnel. The Office had a director and five positions authorized, three of which were filled at the time of trial. Orahood could not be given a salary increase without a job reclassification to the title of “assistant director” or “associate director,” and Dr. Ross stated that it had never been his intention to have such a position in the Office of Institutional Studies. He testified that by having a doctorate requirement for the Director position, the Director was to make the discretionary and policy decisions with the rest of the staff providing support of a more technical nature. Orahood has not shown this reason to be pretextual. She has not demonstrated “that the proffered reason was not the true reason for the employment decision.” Texas Department of Community Affairs v. Burdine, supra, 101 S.Ct. at 1095, 49 U.S.L.W. at 4216. We agree with the district court that the defendants have rebutted the prima facie case. B. Time Served as Acting Director The district court found that Ora-hood had established a prima facie case of sex discrimination because she was not given a temporary increase in salary while she served as acting director of her office. It was established that she served in this capacity and that the evidence indicated that males serving in a similar capacity in other offices, namely Ed Kremers and a Mr. Norris, received salary increases by the processing of change of status forms. We agree with the district court. This evidence established a prima facie case and the defendants’ proffered reasons for the action were pretextual. Nevertheless, the district court concluded that it had no jurisdiction to remedy the discrimination because Orahood had not met the jurisdictional requirement of filing the charge with the EEOC within 180 days of the discriminatory act. Orahood served as acting director from November 1,1977 to May 1,1978. The charge was filed with the EEOC on December 7, 1978, which is more than 180 days after the last date of her service as acting director, which the district court assumed was the last act of discrimination. Orahood seeks to establish that the charge was timely filed because defendants’ discriminatory acts were continuing in nature or, in the alternative, that there should be an equitable tolling of the 180 day requirement. To establish a continuing violation, Ora-hood argues on appeal that the evidence showed not only that males were given a salary increase while they were acting directors of a department, but that their salary was not stepped back down after the period ended. Therefore the defendants’ discriminatory acts continue each pay period that the defendants do not lower the salary of the males or, in the alternative, increase Orahood’s salary. This issue involves difficult questions of interpretation of-the Supreme Court rulings in this area, e. g., United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) and Delaware State College v. Ricks,-U.S. -, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). However, it is our view that we need not decide this question. Although the district court did not make express findings as to whether the salary increases remained after the term of acting directorship terminated, implicit in its conclusion is a finding that Orahood did not establish this to be a practice among the males who served as acting directors. The evidence supports this conclusion. An examination of the deposition testimony of Ed Kremers indicates that he served as acting director three times, the last two times for which he was given a salary increase. After his second tenure as acting director ended, his salary was apparently not reduced, but for the third tenure as acting director it was so reduced. This one isolated incident involving Kremers is the only evidence Ora-hood points to in order to establish a continuing violation. We conclude that Orahood has not demonstrated a practice whereby males who were given a salary increase to serve as acting director had this income continue after the acting directorship ended. Given the above conclusion, it is clear the last discriminatory act of pay discrimination occurred on May 1, 1978, when Orahood’s acting directorship ended. The district court properly concluded that the EEOC charge was filed more than 180 days later and that it was without jurisdiction to afford the plaintiff relief. Orahood argues that if no continuing violation exists, nevertheless the 180 day requirement for filing an EEOC charge should be tolled with regard to her claim of discrimination in the refusal to grant her a salary increase for her tenure as acting director. The basis for this argument is that she was unaware of the practice of continuing the salary increase even after the acting directorship period ended. Because of our conclusion that no such practice was shown by the evidence, we need not discuss whether the 180 day filing period could be equitably tolled. The district court is affirmed. . The Honorable William R. Overton, United States District Judge for the Eastern District of Arkansas. . There are two categories of employees at UALR, “classified” and “unclassified.” Ora-hood was a classified employee and was, therefore, under the Arkansas Uniform Classification and Compensation Act, which established predetermined salaries according to an assigned “Grade” and “Step” for each classified position. As a Research Project Analyst, Ora-hood was Grade 18, Step 3, entitling her to a salary of $14,404. . Under a pure claim of unequal pay for equal work, the standards of the Equal Pay Act apply whether the suit alleges a violation of that Act or Title VII. See Gunther v. County of Washington, 623 F.2d 1303, 1321 (9th Cir. 1979), cert. granted, -U.S.-, 101 S.Ct. 1343, 67 L.Ed.2d 330 (1980). Where the claim is one involving inadequate compensation, but a comparison with equal work is not possible, Title VII may still provide relief. Id. The four affirmative defenses in the Equal Pay Act, see 29 U.S.C. § 206(d), have been incorporated into Title VII, 42 U.S.C. § 2000e-2(h). Therefore a defendant who establishes one of those defenses cannot be held liable under either Title VII or the Equal Pay Act. Gunther v. County of Washington, supra, 623 F.2d at 1311-13. See generally Strecker v. Grand Forks County Social Service Board, 640 F.2d 96 at 99-100 n.l, (8th Cir. 1980), adopted en banc, (8th Cir. March 10, 1981). . The district court held that even if a prima facie case under the Equal Pay Act was established, the defendants showed the pay differential was for a reason other than sex. Chancellor Ross testified that the Controller’s Office at UALR served a far more important function than did the Office of Institutional Studies. Because we affirm the district court’s finding that Orahood did not meet her burden of proving the jobs were equal, we need not consider whether defendant proved their affirmative defense of the existence of a factor other than sex. See Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974); Usery v. Richman, 558 F.2d 1318, 1321 n.5 (8th Cir. 1977). See also Hodgson v. Robert Hall Clothes, Inc., 473 F.2d 589 (3d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 50, 38 L.Ed.2d 85 (1973). . See note 3 supra. . Although the district court expressed the view that Orahood could have been classified in the report under the “technical/paraprofessional” category, where the salary disparity based upon sex was less, it is our view that the more important consideration is the category in which the Department of Labor actually placed her. . There was also some evidence that Orahood could have been given the job title “Research Coordinator” which allowed for greater pay than her present title. The district court found it unnecessary to consider the Research Coordinator title because the position had never been assigned to the Office of Institutional Studies, or any other office. Further, there was insufficient evidence of the qualifications necessary for the job, and no evidence that applications had ever been sought to fill this job title. We agree with the district court that no prima facie case was established with reference to the job of Research Coordinator. . The Supreme Court stated the employee could satisfy this burden “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Texas Dep’t of Community Affairs v. Burdine, - U.S. -, -, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). . The courts of appeals have had difficulty in determining when, under United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), a “present violation exists” or, alternatively, when there exists a practice which merely “gives present effect to a past act of discrimination.” Id. at 558, 97 S.Ct. at 1889. Compare, e. g., Farris v. Board of Education, 576 F.2d 765 (8th Cir. 1978) with Jenkins v. Home Insurance Co., 635 F.2d 310 (4th Cir. 1980) and Satz v. ITT Financial Corp., 619 F.2d 738 (8th Cir. 1980). See also In re Consolidated Pretrial Proceedings, 582 F.2d 1142, 1148-50 (7th Cir. 1978), Zipes v. Trans World Airways, Inc. cert. granted, - U.S. -, 101 S.Ct. 1511, 67 L.Ed.2d 813 (1981). . See Satz v. ITT Financial Corp., supra, 619 F.2d at 745 n.ll. 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:

sc_respondent

045

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. PITTSBURGH TOWING CO. v. MISSISSIPPI VALLEY BARGE LINE CO. et al. No. 319. Decided November 7, 1966. Ernie Adamson for appellant. Arthur L. Winn, Jr., Samuel H. Moerman, J. Raymond Clark and James M. Henderson for appellees. Per Curiam. The motion to dismiss is granted for failure of appellant to comply with the time requirement of Rule 13 (1) of the Rules of this Court in docketing its appeal. This appeal was docketed 22 days after expiration of the 60-day period provided by the Rule. During that period, appellant made no application for an enlargement of time, either to the District Court or to a Justice of this Court (see Rule 13 (1)), nor did any explanation accompany the untimely docketing of the appeal. The jurisdictional statement itself is silent on the subject. Not until appellee moved to dismiss pursuant to Rule 14 (2) did appellant comment upon its default. Its reply to the Motion to Dismiss states that the “delay was occasioned by a misunderstanding between Counsel for appellant.” It does not elaborate. This Court has been generous in excusing errors of counsel, but if there are to be rules, there must be some limit to our willingness to overlook their violation. While we are inclined to be generous in exercising our discretion to forgive a mistake and waive the consequences of negligence, fairness to other counsel and to parties with business before the Court as well as due regard for our own procedures leads us to believe that this case does not warrant our indulgence. 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_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 defendant. 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. Ellis Thayer VAN NATTAN, Appellant, v. UNITED STATES of America, Appellee. No. 8368. United States Court of Appeals Tenth Circuit. March 1, 1966. David R. Dickey, Oklahoma City, Old., for appellant. James R. Ward, Asst. U. S. Atty. (Newell A. George, U. S. Atty., and Guy L. Goodwin, Asst. U. S. Atty., on the brief), for appellee. Before PICKETT, LEWIS and HILL. Circuit Judges. HILL, Circuit Judge. This is a direct appeal from a conviction upon a jury verdict of guilty of unlawfully entering a federally insured bank with the intent to commit a felony affecting such bank, as defined by 18 U.S.C. § 2113(a). Appellant makes three points here, namely (1) that the evidence upon the issue of intent was insufficient for the submission of the case to the jury, (2) prejudice because of remarks by government counsel in his closing argument, and (3) that the services of court-appointed counsel were forced upon the appellant by the trial court in violation of his rights under the Sixth Amendment. An appellate court, in determining the sufficiency of the evidence to support a jury verdict, cannot weigh the evidence in light of existing contradictions or inconsistencies. It can only determine whether there is substantial evidence to support the verdict and in so doing in a criminal case must view the evidence in a light most favorable to the prosecution. It is fundamental that the issue of criminal intent is usually a question of fact for the jury to decide. It is seldom susceptible of proof by direct evidence and in most eases must be proved by inference from the facts and circumstances of the particular case. On this point we need not detail all of the evidence in the case but a recitation of the supporting substantial evidence is necessary. The undisputed evidence shows that appellant walked into the Security National Bank in Kansas City, Kansas, during banking hours, on December 23, 1964. He first went to one of the customer tables in the lobby of the bank and wrote a note on the back of a withdrawal receipt blank, then proceeded to a teller’s window and handed the note to the teller. After reading the note, the teller began talking with him. She first asked him if he was sure he wanted to do this because it would cause trouble. Some discussion was had between them about an alarm and then she asked him how much money he needed and he said ten dollars. The teller then reached into her own purse and took out seven dollars and handed it to him. He thanked her and walked out of the door and was arrested on the street a short distance from the bank. Within a few minutes after his arrest, he was questioned by an Agent of the F.B.l. and gave a voluntary written statement concerning the incident. In this statement he said, in pari, that “About 1:00 p. m. today, December 23, 1964, I decided to rob the Security National Bank in Kansas City, Kansas.” This in substance was the evidence before the jury as to the guilt of the appellant. Van Nattan took the witness stand in his own defense. He first admitted numerous previous felony convictions and then denied any intent to rob the bank. He stated that he only wanted to be arrested so that he could receive needed medical attention. We certainly agree that the facts do not reveal the usual pattern of bank robbery cases. But be it usual or unusual, our only inquiry now goes to the sufficiency of the evidence on the element of intent. As a matter of law, the written statement that Van Nattan gave to the F.B.I. Agent minutes after the arrest was sufficient to take the question of intent to the jury as a question of fact. Although not a part of the written signed statement, the F.B.I. Agent testified that Van Nattan told him that “he went into the bank with the intention of robbing the bank.” In addition, the handwritten note Van Nattan gave to the teller certainly was strong evidence of an intent to rob the bank. With all of this evidence in the record, as a matter of law, the trial judge properly submitted the question of intent to the jury as an issue of fact. The jury, by its verdict of guilty, found that intent had been proven. We will not disturb the jury verdict. Government counsel, during his closing argument, referred to appellant “as a narcotics user” and “as a man who was addicted to narcotics.” No objection was made to such references at the trial. For that reason we are precluded from considering the point unless we can say it was plain error affecting appellant’s substantial rights under Rule 52, F.R.Crim.P. There was evidence in the case to the effect that Van Nattan had been a user of narcotics and marijuana and that he had been convicted of possession of both marijuana and narcotics. In view of this evidence, even had timely objection been made, the government prosecutor’s statements were within the bounds of proper argument. We certainly cannot say that the argument constituted clear error. In considering appellant’s last point we must review the facts surrounding the appointment of counsel prior to trial. The formal charge was originally filed in Kansas City, Kansas. After an attorney was appointed to represent Van Nattan, a motion was filed by the defendant asking that the case be transferred for trial to Wichita. The transfer was ordered and the appointed counsel was relieved from the appointment. After the transfer, a Wichita lawyer was appointed to represent the defendant. This appointment was requested by the defendant and after talking with the appointed counsel Van Nattan in open court stated that the appointment was satisfactory with him. Soon after this appointment, Van Nattan wrote the trial judge a letter complaining about the appointed lawyer’s failure to subpoena certain witnesses. As a result Van Nattan was brought into court and the record discloses a lengthy colloquy between the trial judge, the appointed counsel and Van Nattan. It was explained to Van Nattan that a trial date had not been set so witness subpoenas could not be issued. The names of the suggested witnesses and the nature of their testimony are not disclosed anywhere in the record. The colloquy does disclose the preparation that appointed counsel had made up to that time in the case, which was extensive. From Van Nattan’s answers to questions put to him at this time, it appears that he was satisfied with counsel except for the disagreement between them concerning the proposed witnesses. The record does not show any further complaints by Van Nat-tan to the court about his appointed counsel and the case proceeded to jury trial. There was no request by Van Nattan at any time that he be permitted to represent himself or that he waive the right to counsel, neither did he, at any time during the trial, complain to the court about his attorney’s failure to call certain witnesses or about anything else concerning the conduct of the trial. An indigent defendant in a criminal case is entitled to have the effective assistance of counsel at all critical stages of the prosecution of the case against him. This is a Federal Constitutional right and, of course, the trial judge no doubt was prompted by this Constitutional directive when he appointed counsel in this case. The record shows that he carefully questioned Van Nattan about his desire in the matter and then wisely made Van Nattan’s acquiescence in the appointment a matter of record. It is true, as pointed out by counsel, that an indigent defendant may waive his Constitutional right to counsel, if done intelligently and understanding^, and by statute, he is given the right to represent himself. But this is not one of those eases. This man requested counsel and an able and experienced trial lawyer was appointed to represent him. At no time did he indicate a desire to waive the right to counsel or to defend himself. We have carefully read the trial record and it shows beyond any doubt that the court appointed counsel ably and skillfully conducted the defense but the jury didn’t agree with the defense. Affirmed. . Cummings v. United States, 10 Cir., 289 F.2d 904, cert. denied, 368 U.S. 850, 82 S.Ct. 83, 7 L.Ed.2d 48. . Tlio note read as follows: “ ‘STICK UP’ ” “Give me a stack of bills'3" high and act natural. No $1.00 bills. Be calm & no one will bo harmed.” . Sanders v. United States, 10 Cir., 238 F.2d 145. . Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. . 28 U.S.C. § 1654. See also Rule 44, F.R.Crim.P. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:

songer_usc2sect

145

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Nagel Jacob MAROON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 17926. United States Court of Appeals Eighth Circuit. Aug. 25, 1966. James Daleo, Kansas City, Mo., for petitioner; Norman E. Greene, Kansas City, Mo., on the brief. Paul Nejelski, Attorney, Department of Justice, Washington, D. C., for respondent ; Maurice A. Roberts, Attorney, Dept. of Justice, Washington, D. C., Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., and Stephen H. Gilmore, St. Louis, Mo., on the brief. Before VOGEL and MATTHES, Circuit Judges and REGAN, District Judge. REGAN, District Judge. Before us is a petition for review of a final order of deportation. We have jurisdiction to determine the validity of the deportation order under Section 106 (a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a). The District Director should not have been named or joined as a party-respondent. We substitute the Immigration and Naturalization Service as respondent. 8 U.S.C. § 1105a(a) (3). An Order to Show Cause dated November 16, 1962, was served upon petitioner. In substance, the order alleges that petitioner is neither a native nor a national of the United States, but is a native and citizen of Mexico, who last entered the United States on or about October 5, 1909, and that he is subject to deportation pursuant to Section 241(a) (4) of the Immigration and Nationality Act, in that he had been convicted on September 29, 1950, for the offenses proscribed by Section 145(b), 26 U.S.C., of willfully and knowingly attempting to evade a large part of his income tax due for each of the calender years of 1946, 1947, and 1948, and that said offenses did not arise out of a single scheme of criminal misconduct. A hearing on the order to show cause was held in four sessions before a special inquiry officer. Evidence bearing on the issues of alien-age and deportability was introduced. The petition for review, filed after all administraitve remedies were exhausted, relates to both issues. We consider them in inverse order. Deportability Petitioner makes no contention that he was not in fact convicted of two crimes involving moral turpitude which did not arise out of a single scheme of criminal misconduct. Under the evidence, the special inquiry officer could not have fairly reached any other conclusion. Petitioner frankly admitted several times his convictions for the three offenses alleged in the order to show cause, and that the allegations relating thereto were true. These admissions were with respect to the specific offenses alleged in the order to show cause, including the date of sentencing and the length of sentence imposed upon him after conviction. The sole points urged by petitioner on the issue of deportability are that Exhibits 3 and 3A were inadmissible on the theory that they were not properly authenticated, and that in any event Exhibit 3 was not actually received in evidence. Exhibit 3 is the record of conviction consisting of a copy of the indictment returned in the United States District Court for the Western District of Missouri against Nagel J. Maroon, also known as Jake Maroon, charging him in four separate counts with the crimes of income tax evasion for the years 1945, 1946, 1947 and 1948, and a copy of the judgment, sentence and commitment on counts 2, 3 and 4. In his original decision, dated June 17, 1963, the special inquiry officer found, inter alia, that petitioner was deportable because of his conviction for the three income tax evasion offenses. On appeal to the Board of Immigration Appeals, petitioner challenged the admissibility of Exhibit 3 as not being properly authenticated in accordance with the procedure set forth in Rule 44 of the Federal Rules of Civil Procedure. Thereafter, on August 23, 1963, the Board ordered the case remanded to the special inquiry officer “for authentication of the exhibits which serve as the basis for the finding of deportability”, suggesting that although Rule 44 does not control in an administrative proceeding, the procedure therein set forth should be followed to the extent possible. The hearing was then reopened on November 20, 1963, at which time Exhibit 3A was introduced in evidence. This exhibit is an exemplification certificate (AO Form 132) of the United States District Court for the Western District of Missouri. Petitioner argues that the exhibit was erroneously admitted “because of the failure of the attesting officer to certify that he has custody of the record of which the exhibits is a copy.” The exemplification certificate, attested by the Clerk of the United States District Court for the Western District of Missouri, states in part, “I, J. C. TRUMAN, Clerk of the United States District Court for the Western District of Missouri, and keeper of the records and seal thereof, hereby certify that the documents attached hereto are true copies of Indictment — FILED June 29, 1950 and Judgment and Commitment — FILED September 29, 1950 in our criminal case No. 17802 wherein the United States is plaintiff and Nagel J. Maroon, also known as Jake Maroon is defendant. In testimony whereof I hereunto sign my name and affix the seal of said Court, in said District, at Kansas City, Mo., this 11th day of September, 1963.” On the same date, immediately under the foregoing attestation, Judge Floyd R. Gibson, then United States District Judge for the Western District of Missouri, certified that, “J. C. TRUMAN, whose name is above written and subscribed, is and was at the date thereof, Clerk of said Court, duly appointed and sworn, and keeper of the records and seal thereof, and that the above certificate by him made, and his attestation of record thereof, is in due form of law.” Was Exhibit 3 sufficiently authenticated? We think so. We judicially know that “the clerk is the legal custodian of the records in his office”. 14 C.J.S. Clerk of Courts § 39, page 1246. “He has custody of the court’s records and seals, with power to certify to the correctness of the transcripts from such records * * * ”. 15 Am.Jur.2d, Clerks of Courts, § 1, page 515. “As a general rule the officer who is required to keep a judicial record is authorized, and is the only person authorized, to give certified copies thereof.” 32 C.J.S. Evidence § 665, page 867. In our view, the Clerk of the United States District Court, who is the “keeper” of the records and seal of his court, is necessarily the “legal custodian” of such records. It follows that the certificate that Mr. Truman is the Clerk of the District Court and the “keeper” of the records and seal of such court sufficiently constitutes a certificate that Mr. Truman has the “legal custody” of the records of that court. Petitioner cites Chung Young Chew v. Boyd, 9 Cir., 309 F.2d 857, and Mullican v. United States, 5 Cir., 252 F.2d 398, as indicating an opposite conclusion. We do not so read these cases. The reported opinion in Chung Young Chew v. Boyd does not sufficiently enlighten us factually concerning either the official capacity of the attesting officer or the content of his certificate. The court held that “[t]he method (of authenticating the copy of the judgment, sentence and conviction) which was followed provided no assurance that the attesting officer had actual custody of the original record, without which he would not be in a position to make such attestation.” We are not advised as to what method was used in that case. Here, the method of authenticating the record does provide adequate assurance that the Clerk of the United States District Court for the Western District of Missouri had actual custody of the original records of that court and that he was in a position to make such attestation. The other case relied on by petitioner, Mullican v. United States, 5 Cir., 252 F.2d 398, is clearly distinguishable on its facts. One of the exhibits there involved was a group of photostatic copies of documents which were certified by the Acting Director of the Bureau of Prisons to be true and accurate photocopies of documents, the originals of some of which were recited to be on file at the penitentiary in Atlanta, and the original of another was stated to be in the files of the United States Marshal in Houston. Obviously, the Bureau of Prisons did not have actual custody of the files of the United States Marshal. And even as to those documents, the originals of which were in the custody of the Bureau of Prisons, the certificate wholly failed to show “that the copies, from which the photocopies were made, were of themselves official documents, or that they were true copies of the originals.” The other exhibit which Mullican held to be erroneously admitted in evidence was a group of photostatic copies of certain documents which were certified by the Chairman of the United States Board of Parole to be “exact copies” of official documents issued by that Board. The certificate “in addition to having some of the infirmities inherent in” the other exhibit, contained no recitation whatever that the officer making the certificate had the custody of the records. However, we find nothing in Mullican holding that Rule 44 mandatorily requires that the specific word “custody” be employed, the court’s concern there being with the absence of any showing that the certifying officer had the necessary nexus to the documents. We note that the court also held that proof of conviction was shown by copies of district court records “authenticated by the certificate of the clerk of the court with the seal of the court affixed.” Section 1738, 28 U.S.C., enacted pursuant to the full faith and credit clause of the Constitution, sets forth a method for proving the records and judicial proceedings of the several states, territories and possessions. It is sufficent thereunder that the copies of such records be attested by the clerk with seal of the court annexed, if a seal exists, together with a certificate of a judge of the court which states that the attestation is in proper form. This statute does not even require that the clerk’s certificate or attestation show that the clerk has charge of the records of the court. 32 C.J.S. Evidence § 670b, page 876, note 26. Here, the clerk of the United States district court certified that he is the keeper of the records of the court and attested to the correctness of the copy of records contained in the files of the court of which he is clerk, and the judge of the court also certified to the official capacity of the clerk, that he is the official keeper of the records and seal of the court, and that his certificate and attestation is in due form. We hold that the “totality” of the certificate is a substantial compliance sufficient to meet the requirements of Rule 44. Cf. United States v. Klissas, D.C.Md., 218 F.Supp. 880, 882. In our opinion, Exhibit 3, the record of conviction, is sufficiently authenticated. We further note that the exacting requirements of judicial admissibility are not ordinarily applicable to administrative proceedings, Bufalino v. Holland, 3 Cir., 277 F.2d 270, 275, except to the extent that due process is involved. Williams v. Butterfield, D.C. Mich., 145 F.Supp. 567, 569; Navarrette-Navarrette v. Landon, 9 Cir., 223 F.2d 234, 237. There has been no showing of a violation of due process. Petitioner makes the contention that the record of conviction was not technically admitted in evidence. Again, we disagree. As we read the record, Exhibit 3 was originally admitted in evidence on February 19, 1963, without objection. On remand (November 20, 1963), the government, in compliance with the order of the Board of Immigration Appeals, offered in evidence “the authenticated copy of Exhibit 3, conviction record which supports findings of deportability.” The special inquiry officer then asked counsel for petitioner whether he had “any objection to having this Exhibit 3 with the certificate of authentication made part of the record.” Objection was made on the ground that the clerk’s certificate does not state that the documents “are part of his records and in his custody.” The objection was overruled “and the certificate of authentication on Exhibit 3 is made part of the record marked Exhibit 3A.” True, more precise language could have been employed by the special inquiry officer, but there can be no doubt that the exhibits were in fact received in evidence and that petitioner was then fully aware thereof. Thereafter, the hearing was reopened by order of the Board of Immigration Appeals, upon the petitioner’s insistence that the language of Rule 44 must be followed to the letter, “for the proper authentication” of Exhibit 3 in accordance with the procedure set forth in Rule 44 of the Federal Rules of Civil Procedure, and “for the introduction of the authenticated documents certified in accordance with the said Rule 44.” At the reopened hearing, held, on June 9, 1964, evidence was introduced relating to the position of the Administrative Office of the United States Courts that the exemplification certificate constituted a proper certification of Exhibit 3 (a position which we have sustained and which the Board of Immigration Appeals subsequently accepted) and that no change in the form of the certificate would be made. In this posture of the case, there was no need to reintroduce the exhibits which were already in evidence. We have heretofore adverted to petitioner’s own admissions (which he made both at the hearing on the order to show cause and in a statement given 'on February 20, 1957 to an Immigrant Inspector while he was incarcerated in Leavenworth), that he was convicted of the very offenses set forth in the Order to Show Cause. These admissions constitute substantive evidence. Similar admissions have been held sufficient to support a finding of deportability. United States ex rel. Chartrand v. Karnuth, D.C.N.Y., 31 F.Supp. 799; GoncalvesRosa v. Shaughnessy, D.C.N.Y., 151 F.Supp. 906, 908. This evidence further distinguishes the instant ease from Chung Young Chew v. Boyd, in which there was an entire absence of substantial evidence other than the improperly authenticated certificate to prove that the petitioner had been convicted of the crimes alleged. The evidence of deportability is well-nigh conclusive. Alienage Petitioner’s remaining point relates to the admissibility and probative value of Exhibits 10 and 10A, which bear on the issue of alienage. Exhibit 10 is the file of the Immigration and Naturalization Service relating to the sworn Application for Registry of petitioner’s father as an alien, dated August 18, 1942. Exhibit 10A is the certification of this Application, under date of June 9, 1964. According to the record, Exhibit 10 consists of the originals, not copies, of the Application for Registry and related papers. It appears to have been admitted into evidence on March 20, 1963, apparently without objection at that time. In its order of March 19, 1964, again remanding the case to the special inquiry officer, the Board of Immigration Appeals directed that in addition to “the proper authentication” of Exhibit 3, Exhibit 10 be properly authenticated “pursuant to Rule 44.” At the reopened hearing, the documents comprising Exhibit 10 were certified by the District Director, Kansas City District, of the Immigration and Naturalization Service to be the original documents, and as so certified were marked and introduced into evidence as Exhibit 10A. As we have indicated supra, the Federal Rules of Civil Procedure, including Rule 44, govern procedure in United States district courts and are not necessarily applicable to administrative proceedings. Parenthetically, we note that during the pendency of this review, Rule 44 has been amended, but the amendment does not affect the issue here considered. The rule provides in part that an official record “may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has the custody.” The language of this portion of the rule necessarily contemplates (aside from the official publications) that the record be evidenced by an authenticated copy of the record. On its face, the portion of the rule relied upon by petitioner has no application to original official documents such as Exhibit 10. Petitioner’s contention that Exhibit 10A was not properly authenticated is based upon the erroneous premise that the documents comprising Exhibit 10 are copies of the originals in the files of the Immigration and Naturalization Service. What he has done is to confuse Exhibit 10 with Exhibit 12, the latter being a certified copy of the microfilmed record of the naturalization proceedings relating to petitioner’s father. When Exhibit 12 was offered in evidence, petitioner objected on the sole ground that the statements made therein by his father constituted hearsay evidence. No complaint was then made nor is any made now of any alleged deficiencies in the certification of Exhibit 12, which, just as Exhibit 10A, was also made by the District Director of the Naturalization and Immigration Service, Kansas City. Both exhibits contain essentially the same information which bear upon the alienage of petitioner. If we assume, as do the parties in their briefs, that the documents therein are copies, it is our view that Exhibit 10 was sufficiently authenticated to substantially meet the requirements of Rule 44. The District Director of the Immigration and Naturalization Service is the officer in charge of the district, and as such he acts as the authorized delegate to the Attorney General. 8 U.S.C. 1103 (a); 8 CFR 103.7. Legal custody of the records is in the Attorney General. However, Rule 44 specifically authorizes the attestation to be made by the deputy of the officer having the legal custody. The District Director is the deputy of the Attorney General within the meaning of the rule. United States v. Ansani, D.C.Ill., 138 F.Supp. 454, 461. In Exhibit 10 (the Application for Registry of an Alien), petitioner’s father stated his nationality as Syrian, and that he arrived by train from Mexico on September 15, 1908, accompanied by his wife and two sons, James and Jacob (petitioner). Jacob’s place of birth was given as Mexico. Exhibit 12 reflects the fact that there were two petitions for naturalization, the first, filed in 1922, being denied and the second, filed in 1944, being granted, in both of which petitioner’s father stated under oath that he entered the United States by railroad from Mexico on September 15, 1908, and that his son Jacob (petitioner) was born in Mexico on June 15, 1908. Petitioner argues that Exhibit 10 constitutes no probative evidence of his alienage, contending that even if the exhibit is properly authenticated, the contents thereof come within the hearsay rule. Of course, hearsay evidence does have some probative value in many situations. Such evidence is ordinarily excluded, however, for the reason that its accuracy and trustworthiness cannot be tested by cross-examination. There are numerous exceptions to the hearsay rule, particularly applicable where, as in this ease, the declarant is dead. Unquestionably, petitioner’s father had firsthand personal knowledge of the facts recited in the document. Petitioner’s mother died before the father’s statements were made, so she is equally with petitioner’s father unavailable. There is no contention that the father had any motive to falsify the information contained in Exhibit 10, or in Exhibit 12 for that matter. Facts of family history and pedigree have long been admissible in judicial proceedings under a recognized exception to the hearsay rule. See Wong You Henn v. Brownell, 93 U.S.App.D.C. 43, 207 F.2d 226, 227. The Application for Registry of an Alien (Exhibit 10) was filed over 20 years ago, and the statements therein were made under oath. We believe that what petitioner’s father said about petitioner’s birth and nationality, at a time when there was no controversy with respect thereto, is sufficiently trustworthy to have some probative value, particularly since it is consistent with all of the other evidence relating to the issue of alienage. Exhibit 12, the admission of which is not complained of in this review proceeding, contains the same information, but with more specificity. Moreover, petitioner himself testified to similar unequivocal declarations about his birth and alienage which his father had made to him, namely that petitioner was born in Mexico on June 15, 1908 and was a citizen of Mexico. Petitioner testified, “My father said I was born there (Mexico) when he got (the naturalization) papers.” Cf. Moncado v. Ramsey, 8 Cir., 167 F.2d 191, 195. In our opinion, in the circumstances of this case, the statements made by petitioner’s father in Exhibits 10 and 12 meet the test of trustworthiness and reliability. It has been well said, “There is no procedural canon against the exercise of common sense in deciding the admissibility of hearsay evidence.” Dallas County v. Commercial Union Assurance Co., 5 Cir., 286 F.2d 388, 397. We fail to see any prejudice whatever to petitioner in the admission into evidence of the written declarations of his father which are contained in Exhibit 10. Evidence of petitioner’s alienage was not limited to the father’s declarations contained in Exhibits 10 and 12 and petitioner’s corroboration of such declarations. Even if the exhibits were excluded, the result would be no different. Petitioner has consistently given his date of birth as June 15, 1908, a date which is earlier in time than the date his parents entered this country. In 1940, petitioner filed an Alien Registration Form, reciting his birth in Mexico on June 15, 1908, and his citizenship as Mexican. In the same year, petitioner filed an Application for Registry of an Alien, which sets forth (mostly in his own handwriting) that petitioner was born in Mexico on June 15, 1908, that he entered the United States on October 5, 1909, accompanied by his father, mother and brother, and that his nationality was Mexican. A Certificate of Lawful Entry was finally granted on this application on April 15, 1942. In February, 1941, petitioner made a sworn oral statement to a naturalization examiner who was then investigating a charge that petitioner had falsely represented himself to be a citizen of the United States. In this statement, petitioner verified the date of his birth as June 15,1908, and his place of birth as Mexico, based on statements his father had made to petitioner. Petitioner then claimed that he first learned that he was born in Mexico about two years previously: “Q. What made you wonder if you were a citizen? A. To hold my (WPA) job I had to be one. I was foreman on the job and I couldn’t sign that paper, so I resigned after I was positive after poppa said he didn’t have his (citizenship) papers.” And again, “In the last 8 months I have known that I am not a citizen.” In 1942, petitioner filed a petition for naturalization, once again reciting his birth in Mexico on June 15,1908, and his entry into the United States by railroad on October 5, 1909. Earlier, in 1940, petitioner filed an Application for Certificate of Arrival and Preliminary Form for Petition for Citizenship, which, in his own handwriting, states that he was born in Mexico on June 15, 1908, and that he entered the United States from Mexico with his father, mother and brother James. While serving his sentence at Leavenworth for income tax evasion, petitioner signed an Alien Address Report Card giving his nationality as Mexican. He testified he filed such report cards each January as required by law. In his February 20, 1957 signed and sworn statement to the Immigrant Inspector, petitioner again recited his birth in Mexico on June 15, 1908, and his citizenship as Mexican. Finally, although we accord it no probative value, we note that the birth certificate of petitioner’s daughter, filed in August, 1930, which was produced and admitted in evidence at petitioner’s instance, (on another issue), affirmatively states that petitioner’s birthplace was Mexico City. At the hearing, petitioner testified that he did not know whether he was a citizen of the United States or of some other nation, and so could not truthfully state whether the allegation in the Order to Show Cause, to the effect that he is a citizen of Mexico, is true or false. Even in his petition for review, he makes no affirmative averment that he is a national of the United States, stating simply, “He was born on the 15th day of June, 1908, and is of the belief that he was born in the United States of America.” In this situation, petitioner’s present claim to be a national of the United States, wholly unsupported by any substantial evidence whatever, and utterly inconsistent with the documents admittedly executed by him, would appear to be frivolous. Petitioner has made no showing to the contrary, as required' by § 1105a(a) (5), 8 U.S.C. In any event, on this record, no genuine issue of material fact is presented as to petitioner’s alienage. The evidence of alienage which supports the order of deportation is overwhelming and uncontradicted. Hence, in our independent determination of the issue of alienage, we find and rule that petitioner is not a national of the United States. The final order of deportation is affirmed. . The petition for review does not challenge the denial of the application for suspension of deportation under Section 244 (a) (2), 8 U.S.C. § 1254(a) (2). The finding that petitioner failed to establish his good moral character for the requisite period is supported by reasonable, substantial and probative evidence. Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number. Answer:

sc_lcdispositiondirection

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations MALONE, COMMISSIONER OF LABOR AND INDUSTRY FOR MINNESOTA v. WHITE MOTOR CORP. et al. No. 76-1184. Argued January 10, 1978 Decided April 3, 1978 White, J., delivered the opinion of the Court, in which Marshall, Rehnquist, and Stevens, JJ., joined. Stewart, J., post, p. 515, and Powell, J., post, p. 516, filed dissenting opinions, in which Burger, C. J., joined. Brennan and Blackmun, JJ., took no part in the consideration or decision of the case. Richard B. Allyn, Solicitor General of Minnesota, argued the cause for appellant. With him on the briefs were Warren Spannaus, Attorney General, and Kent G. Harbison, Richard A. Lockridge, and Jon K. Murphy, Special Assistant Attorneys General. Frank C. Heath argued the cause for appellees. With him on the brief were Curtis L. Roy, Erwin Griswold, and John L. Strauch. Allan A. Rycrn, Jr., argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General McCree. John S. Irving, Carl L. Taylor, Norton J. Come, Linda Sher, and David S. Fishback. Peter G. Nash, Eugene B. Granof, and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States as amicus curiae urging affirmance. J. Albert Woll and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae. Mr. Justice White delivered the opinion of the Court. A Minnesota statute, the Private Pension Benefits Protection Act, Minn. Stat. § 181B.01 et seq. (1976) (Pension Act), passed in April 1974, established minimum standards for the funding and vesting of employee pensions. The question in this case is whether this statute, which since January 1, 1975, has been pre-empted by the federal Employee Retirement Income Security Act of 1974 (ERISA), was pre-empted prior to that time by federal labor policy insofar as it purported to override or control the terms of collective-bargaining agreements negotiated under the National Labor Relations Act (NLRA). A Federal District Court held that it was not, 412 F. Supp. 372 (Minn. 1976), but the Court of Appeals for the Eighth Circuit disagreed and held the Pension Act invalid. 545 F. 2d 599 (1976). Because the case fell within our mandatory appellate jurisdiction pursuant to 28 U. S. C. § 1254 (2), we noted probable jurisdiction. 434 U. S. 813. We reverse. I In 1963, White Motor Corp. and its subsidiary, White Farm Equipment Co. (hereafter collectively referred to as appellee), purchased from another company two farm equipment manufacturing plants, located in Hopkins, Minn., and Minneapolis, Minn, (on Lake Street). The employees at these plants, represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), were covered by a pension plan established through collective bargaining. Under the 1971 collective-bargaining contract, the Pension Plan provided that an employee who attained the age of 40 and completed 10 or more years of credited service with the company was entitled to a pension. The amount of the pension would depend upon the age at which the employee retired. In language unchanged since 1950, the 1971 Plan provided that “ [p] ensions shall be payable only from the Fund, and rights to pensions shall be enforceable only against the Fund.” App. 155. The Plan, however, was to be funded in part on a deferred basis. The unpaid past service liability— the excess of accrued liability over the present value of the assets of the Fund — was to be met through contributions by the employer from its continuing operations. Section 10.02 of the Plan provided that “[t]he Company shall have the sole right at any time to terminate the entire plan.” During the 1968 and 1971 negotiations, however, the UAW obtained from appellee guarantees that, upon termination, pensions for those entitled to them would remain at certain designated levels, though lower than those specified in the Plan. By virtue of these guarantees, appellee assumed a direct liability for pension payments amounting to $7 million above the assets in the Fund. Appellee exercised its contractual right to terminate the Pension Plan on May 1, 1974. A few weeks before, however, the Pension Act had been enacted. This statute imposed “a pension funding charge” directly against any employer who ceased to operate a place of employment or a pension plan. This charge would be sufficient to insure that all employees with 10 or more years of service would receive whatever pension benefits had accrued to them, regardless of whether their rights to those benefits had “vested” within the terms of the Plan. The funds obtained through the pension funding charge would then be used to purchase an annuity payable to the employee when he reached normal retirement age. Although the Pension Act did not compel an employer to adopt or continue a pension plan, it did guarantee to employees with 10 or more years’ service full payment of their accrued pension benefits. Pursuant to the Pension Act, the appellant, Commissioner of Labor and Industry of the State of Minnesota, undertook an investigation of the pension plan termination here involved and later certified that the sum necessary to achieve compliance with the Pension Act was $19,150,053. Under the Pension Act, a pension funding charge in this amount became a lien on the assets of appellee. Appellee promptly filed this suit in Federal District Court. Appellee’s complaint, as amended, asserted violations of the Supremacy Clause, the Contract Clause, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. The Supremacy. Clause claim was based on the argument that the Pension Act was in conflict with several provisions of the NLRA, as amended, 29 U. S. C. § 151 et seq., because it “interferes with the right of Plaintiffs to free collective bargaining under federal law and . . . vitiates collective bargaining agreements entered into under the authority of federal law, by imposing upon Plaintiffs obligations which, by the express terms of such collective bargaining agreements, Plaintiffs were not required to assume.” App. A-9 — A-10. Appellee moved for partial summary judgment or, alternatively, for a preliminary injunction based on the pre-emption claim. Distinguishing Teamsters v. Oliver, 358 U. S. 283 (1959), and relying on evidence of congressional intent contained in the federal Welfare and Pension Plans Disclosure Act (Disclosure Act), 72 Stat. 997, as amended, 76 Stat. 35, 29 U. S. C. § 301 et seq., the District Court held that the Pension Act was not pre-empted by federal law. 412 P. Supp. 372 (Minn. 1976). On appeal, the Court of Appeals for the Eighth Circuit held that the Pension Act was pre-empted by federal labor law, and reversed the District Court. 545 P. 2d 599 (1976). The reason was that the Pension Act purported to override the terms of the existing pension plan, arrived at through collective bargaining, in at least three ways: It granted employees vested rights not available under the pension plan; to the extent of any deficiency in the pension fund, it required payment from the general assets of the employer, while the pension plan provided that benefits shall be paid only out of the pension fund; and the Pension Act imposed liability for post-termination payments to the pension fund beyond those specifically guaranteed.- This, the court ruled, the State could not do; for if, under Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132 (1976), “states cannot control the economic weapons of the parties at the bargaining table, a fortiori, they may not directly control the substantive terms of the contract which results from that bargaining.” 545 F. 2d, at 606. Further, as the court understood the opinion in Oliver, supra, “a state cannot modify or change an otherwise valid and effective provision of a collective bargaining agreement.” 545 F. 2d, at 608. Finally, the Court of Appeals found that the pre-emption disclaimer in the Disclosure Act relied on by the District Court related only “to state statutes governing those obligations of trust undertaken by persons managing, administrating or operating employee benefit funds, the violation of which gives rise to civil and criminal penalties. Accordingly, no warrant exists for construing this legislation to leave to a state the power to change substantive terms of pension plan agreements.” Id., at 609. II It is uncontested that whether the Minnesota statute is invalid under the Supremacy Clause depends on the intent of Congress. “The purpose of Congress is the ultimate touchstone.” Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963). Often Congress does not clearly state in its legislation whether it intends to pre-empt state laws; and in such instances, the courts normally sustain local regulation of the same subject matter unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States. Ray v. Atlantic Richfield Co., ante, at 157-158; Jones v. Rath Packing Co., 430 U. S. 519, 525, 540-541 (1977); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). “We cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers and unions; obviously, much of this is left to the States.” Motor Coach Employees v. Lockridge, 403 U. S. 274, 289 (1971). The Pension Act “leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible.” Garner v. Teamsters, 346 U. S. 485, 488 (1953). Here, the Court of Appeals concluded that the Minnesota statute was invalid because it trenched on what the court considered to be subjects that Congress had committed for determination to the collective-bargaining process. There is little doubt that under the federal statutes governing labor-management relations, an employer must bargain about wages, hours, and working conditions and that pension benefits are proper subjects of compulsory bargaining. But there is nothing in the NLRA, including those sections on which appellee relies, which expressly forecloses all state regulatory power with respect to those issues, such as pension plans, that may be the subject of collective bargaining. If the Pension Act is pre-empted here, the congressional intent to do so must be implied from the relevant provisions of the labor statutes. We have concluded, however, that such implication should not be made here and that a far more reliable indicium of congressional intent with respect to state authority to regulate pension plaps is to be found in § 10 of the Disclosure Act. Section 10.(b) provided: “The provisions of this Act, except subsection (a) of this section and section 13 and any action taken thereunder, shall not be held to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of the United States or of any State affecting the operation or administration of employee welfare or pension benefit plans, or in any manner to authorize the operation or administration of any such plan contrary to any such law.” Also, § 10 (a), after shielding an employer from duplicating state and federal filing requirements, makes clear that other state laws remained unaffected: “Nothing contained in this subsection shall be construed to prevent any State from obtaining such additional information relating to any such plan as it may desire, or from otherwise regulating such plan.” Contrary to the Court of Appeals, we believe that the foregoing provisions, together with the legislative history of the 1958 Disclosure Act, clearly indicate that Congress at that time recognized and preserved state authority to regulate pension plans, including those plans which were the product of collective bargaining. Because the 1958 Disclosure Act was in effect at the time of the crucial events in this case, the expression of congressional intent included therein should control the decision here. Congressional consideration of the problems in the pension field began in 1954, after the President sent a message to Congress recommending that “Congress initiate a thorough study of welfare and pension funds covered by collective bargaining agreements, with a view of enacting such legislation as will protect and conserve these funds for the millions of working men and women who are the beneficiaries.” In the next four years, through hearings, studies, and investigations, a Senate Subcommittee canvassed the problems of the nearly unregulated pension field and possible solutions to them. Although Congress turned up extensive evidence of kickbacks, embezzlement, and mismanagement, it concluded: “The most serious single weakness in this private social insurance .complex is not in the abuses and failings enumerated above. Overshadowing these is the too frequent practice of withholding from those most directly affected, the employee-beneficiaries, information which will permit them to determine (1) whether the program is being administered efficiently and equitably, and (2) more importantly, whether or not the assets and prospective income of the programs are sufficient to guarantee the benefits which have been promised to them.” S. Rep. No. 1440, 85th Cong., 2d Sess., 12 (1958) (hereinafter S. Rep.). As a first step toward protection of the workers’ interests in their pensions, Congress enacted the 1958 Disclosure Act. The statute required plan administrators to file with the Labor Department and make available upon request both a description of the plan and an annual report containing financial information. In the case of a plan funded through a trust, the annual report was to include, inter alia, “the type and basis of funding, actuarial assumptions used, the amount of current and past service liabilities, and the number of employees both retired and nonretired covered by the plan . . . as well as a valuation of the assets of the fund. The statute did not, however, prescribe any substantive rules to achieve either of the two purposes described above. The Senate Report explained: “[T]he legislation proposed is not a regulatory statute. It is a disclosure statute and by design endeavors to leave regulatory responsibility to the States.” S. Rep. 18. This objective was reflected in §§ 10 (a) and 10 (b), quoted above. As the Senate Report explained, the statute was designed “to leave to the States the detailed regulations relating to insurance, trusts and other phases of their operations.” S. Rep. 19. There was “no desire to get the Federal Government involved in the regulation of these plans but a disclosure statute which is administered in close cooperation with the States could also be of great assistance to the States in carrying out their regulatory functions.” Id., at 18. There is also no doubt that the Congress which adopted the Disclosure Act recognized that it was legislating with respect to pension funds many of which had been established by collective bargaining. The message from the President which had prompted the original inquiry had focused on the need to protect workers “covered by collective bargaining agreements.” The problems that Congress had identified were characteristic of bargained-for plans as well as of others. The Reports of both the Senate and House Committees explained that pension funds were frequently established through the collective-bargaining process. S. Rep. 8; H. R. Rep. No. 2283, 85th Cong., 2d Sess., 9 (1958) (hereinafter H. R. Rep.). The Senate Report emphasized the need for protection even where the plan was incorporated in a collective-bargaining agreement. S. Rep. 4, 8, 14. Congressmen explaining the bill on the floor also made clear that the bill would apply to pension plans “whether or not they have been brought into existence through collective bargaining.” 104 Cong. Rec. 16420 (1958) (remarks of Cong. Lane); id., at 16425 (remarks of Cong. Wolverton); see id., at 7049-7052 (remarks of Sen. Kennedy). Indeed, the bill met opposition in both the Senate and the House on the ground that its approach would “require employers to surrender to labor unions economic and bargaining power which should be negotiated through the normal channels of collective bargaining.” S. Rep. 34 (minority view of Sen. Allott); accord, H. R. Rep. 25 (minority views). Yet neither the bill as enacted nor its legislative history drew a distinction between collectively bargained and all other plans, either with regard to the disclosure role of the federal legislation or the regulatory functions that would remain with the States. Appellee argues that the Disclosure Act’s allocation of regulatory responsibility to the States is irrelevant here because the Disclosure Act was “enacted to deal with corruption and mismanagement of funds.” Brief for Appellees 36. We think that the appellee advances an excessively narrow view of the legislative history. Congress was concerned not only with corruption, but also with the possibility that honestly managed pension plans would be terminated by the employer, leaving the employees without funded pensions at retirement age. The Senate Report specifically stated: “Entirely aside from abuses or violations, there are compelling reasons why there should be disclosure of the financial operation of all types of plans.” S. Rep. 16. The Report then reproduced a chart showing the number of pension plans registered with the Internal Revenue Service that had been terminated during a 2-month period. Ibid. The Senate Committee also observed: “Trusteed pension plans commonly limit benefits, even though fixed, to what can be paid out of the funds in the pension trust.” Id., at 15. As an illustration, the Report quoted language from a collectively bargained pension plan disclaiming any liability of the company in the event of termination. Ibid. The Senate Report also showed an awareness of the problems posed by vesting requirements and expressed concern that “employees whose rights do not mature within such contract period must rely upon the expectation that their union will be able to renew the contract or negotiate a similar one upon its termination.” Id., at 8. Thus, Congress was concerned with many of the same issues as are involved in this case — unexpected termination, inadequate funding, unfair vesting requirements. In preserving generally state laws “affecting the operation or administration of employee welfare or pension benefit plans,” 72 Stat. 1003, Congress indicated that the States had and were to have authority to deal with these problems. Moreover, it should be emphasized that § 10 of the Disclosure Act referred specifically to the “future,” as well as “present” laws of the States. Congress was aware that the States had thus far attempted little regulation of pension plans. The federal Disclosure Act was envisioned as laying a foundation for future state regulation. The Congress sought “to provide adequate information in disclosure legislation for possible later State . . . regulatory laws.” H. R. Rep. 2. Senator Kennedy, a manager of the bill, explained to his colleagues: “The objective of the bill is to provide more adequate protection for the employee-beneficiaries of these plans through a uniform Federal disclosure act which will . . . make the facts available not only to. the participants and the Federal Government but to the States, in order that any desired State regulation can be more effectively accomplished.” 104 Cong. Rec. 7050 (1958). See also S. Rep. 18.. Senator Kennedy had “no doubt that this [was] an area in which the States [were] going to begin to move.” 104 Cong. Rec. 7053 (1958). The aim of the Disclosure Act was perhaps best summarised by Senator Smith, the ranking Republican on the Senate Committee and a supporter of the bill. He stated: “It seems to be the policy of the pending legislation to extend beyond the problem of corruption. As stated in the language of the bill, one of its aims is to make available to the employee-beneficiaries information which will permit them to determine, first, whether the program is being administered efficiently and equitably; and, second, more importantly, whether or not the assets and prospective income of the programs are sufficient to guarantee the benefits which have been promised to them. “This present bill provides for far more than anti-corruption legislation directed against the machinations of dishonest men who betray their trust. Rather, it inaugurates a new social policy of accountability. . . . “This policy could very well lead to the establishment of mandatory standards by which these plans must be governed.” Id., at 7517. It is also clear that Congress contemplated that the primary responsibility for developing such “mandatory standards” would lie with the States. Although Congress came to a quite different conclusion in 1974 when ERISA was adopted, the 1958 Disclosure Act clearly anticipated a broad regulatory role for the States. In light of this history, we cannot hold that the Pension Act is nevertheless implicitly pre-empted by the collective-bargaining provisions of the NLRA. Congress could not have intended that bargained-for plans, which were among those that had given rise to the very problems that had so concerned Congress, were to be free from either state or federal regulation insofar as their substantive provisions were concerned. The Pension Act seeks to protect the accrued benefits of workers in the event of plan termination and to insure that' the assets and prospective income of the plan are sufficient to guarantee the benefits promised — exactly the kind of problems which the 85th Congress hoped that the States would solve. This conclusion is consistent with the Court’s decision in Teamsters v. Oliver, 358 U. S. 283 (1959), which concerned a claimed conflict between a state antitrust law and the terms of a collective-bargaining agreement specially adapted to the trucking business. The agreement prescribed a wage scale for truckdrivers and, in order to prevent evasion, provided that drivers who own and drive their own vehicles should be paid, in addition to the prescribed wage, a stated minimum rental for the use of their vehicles. An Ohio court had invalidated this portion of the collective-bargaining agreement under Ohio antitrust law. This Court reversed, noting that “[t]he application [of the Ohio law] would frustrate the parties’ solution of a problem which Congress has required them to negotiate in good faith toward solving, and in the solution of which it imposed no limitations relevant here.” Id., at 296. The Oliver opinion contains broad language affirming the independence of the collective-bargaining process from state interference: “Federal law here created the duty upon the parties to bargain collectively; Congress has provided for a system of federal law applicable to the agreement the parties made in response to that duty . . . and federal law sets some outside limits (not contended to be exceeded here) on what their agreement may provide .... We believe that there is no room in this scheme for the application here of this state policy limiting the solutions that the parties’ agreement can provide to the problems of wages and working conditions.” Ibid, (citations omitted). The opinion nevertheless recognizes exceptions to this general rule. One of them, necessarily anticipated, was the situation where it is evident that Congress intends a different result: “The solution worked out by the parties was not one of a sort which Congress has indicated may be left to prohibition by the several States. Cf. Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U. S. 301, 307-312.” Ibid. As we understand the 1958 Disclosure Act and its legislative history, the collective-bargaining provisions at issue here dealt with precisely the sort of subject matter “which Congress . . . indicated may be left to [regulation] by the several states.” Congress clearly envisioned the exercise of state regulation power over pension funds, and we do not depart from Oliver in sustaining the Minnesota statute. Ill Insofar as the Supremacy Clause issue is concerned, no different conclusion is called for because the Minnesota statute was enacted after the UAW-White Motor Corp. agreement had been in effect for several years. Appellee points out that the parties to the 1971 collective-bargaining agreement therefore had no opportunity to consider the impact of any such legislation. Although we understand the equitable considerations which underlie appellee’s argument, they are not material to the resolution of the pre-emption issue since they do not render the Minnesota Pension Act any more or less consistent with congressional policy at the time it was adopted. Our decision in this case is, of course, limited to appellee’s claim that the Minnesota statute is inconsistent with the federal labor statutes. Appellee’s other constitutional claims are not before us. It remains for the District Court to consider on remand the contentions that the Minnesota Pension Act impairs contractual obligations and fails to provide due process in violation of the United States Constitution. Without intimating any views on the merits of those questions, we note that appellee’s claim of unfair retroactive impact can be considered in that context. All that we decide here is that the decision of the Court of Appeals finding federal preemption of the Minnesota Pension Act should be and hereby is Reversed. Mr. Justice Brennan and Mr. Justice Blackmun took no part in the consideration or decision of this case. ERISA, 88 Stat. 832, 29 U. S. C. § 1001 et seq. (1970 ed., Supp. Y), provides for comprehensive federal regulation of employee pension plans, and contains a provision expressly pre-empting all state laws regulating covered plans. § 1144 (a) (1970 ed., Supp. Y). Because ERISA did not become effective until January 1, 1975, and expressly disclaims any effect with regard to events before that date, it does not apply to the facts of this case. Section 6.17 of the Plan also stated: “No benefits other than those specifically provided for are to be provided under this Plan. No employee shall have any vested right under the Plan prior to his retirement and then only to the extent specifically provided herein.” App. to Jurisdictional Statement A-29. Section 9.04, “Rights of Employees in Fund,” is also relevant: “No employee, participant or pensioner shall have any right to, or interest in any part of any Trust Fund created hereunder, upon termination of employment or otherwise, except as provided under this Plan and only to the extent therein provided. All payments of benefits as provided for in this Plan shall be made only out of the Fund or Funds of the Plan, and neither the Company nor any Trustee nor any Pension Committee or Member thereof shall be liable therefore in any manner or to any extent.” App. to Jurisdictional Statement A-7. The 1971 version of the Plan contained a provision which required the employer to fund the net deficiency over a period of 35 years, beginning in 1971. The 1968 version contained a similar provision which contemplated that the deficiency would be amortized over a 30-year period. The effect of the guarantees was to assure that the employees would receive pension benefits at a level about 60% of that specified in the Plan. In January 1972, after several years of losses, appellee informed the UAW that it intended to close both of the plants at issue. As a result of negotiations, the Hopkins plant continued to operate, but the Lake Street plant was closed. At the time the Lake Street plant was closed, there was a net deficiency in the Pension Fund of $14 million. As of January 1, 1975, there were 981 retirees under the Plan and 233 persons eligible for deferred pensions. In addition, there were 44 terminated employees who at the time of the termination had 10 years of service but had not attained the age of 40. Two hundred and sixty employees continued to work at the Hopkins plant. Appellee also attempted to terminate the Pension Plan on June 30, 1972, but the UAW challenged this action on the ground that the Plan could not be terminated until expiration of the collective-bargaining agreement on May 1, 1974. An arbitrator upheld the union’s position. See International Union, UAW v. White Motor Corp., 505 F. 2d 1193 (CA8 1974). The complaint claimed a conflict with the provisions and policies of §§ 1, 7, 8 (a) (5), 8 (b) (3), and 8 (d) of the NLRA, 29 U. S. C. §§ 151, 157,158 (a) (5), 158 (b) (3), and 158 (d). The Disclosure Act, codified at 29 U. S. C. § 301 et seq., was specifically repealed by ERISA. 29 U. S. C. §1031 (a) (1970 ed., Supp. V). However, ERISA was enacted on September 2, 1974 — after the operative events in this case — and the repeal did not take effect until January 1, 1975. § 1031 (b)(1) (1970 ed., Supp. V). See generally n. 1, supra. Public Papers of The Presidents, Dwight D. Eisenhower, 1954, ¶ 5, p. 43 (1960). Opponents of the bill argued that the legislation would “seriously interfere with . . . bargaining relationships” by giving labor unions access to information about the costs of certain employer-administered benefit plans. 104 Cong. Rec. 7209 (1958) (remarks of Sen. Allott). In these level-of-benefit plans, the employer guaranteed to his employees specified benefits and then undertook the full cost and management of the plan. The unions were often not told the annual cost of providing benefits under the plan. Senator Allott, the principal opponent of the bill, argued on the floor: “Where the employer, either on his own initiative or as a result of collective bargaining, agrees to provide a level-of-benefits plan, the question of whether employees or their representatives should have further information is one to be bargained between them. How the employer intends to meet this financial obligation, or how the financial operation of the fund is set up to pay the benefits, is a matter to be settled by the parties concerned — not granted by operation of law.” Id., at 7208. Congressman Bosch, the leading opponent of the bill in the House, argued bluntly: “.Those level-of-benefits plans which now operate under collective bargaining contracts were agreed to with the full knowledge by the unions involved, that the cost, operation and management were the exclusive right of the persons responsible under the plans and, if the unions desired it otherwise, they could have bargained on some other basis than level-of-benefits. If the labor unions wish to change this situation, they should do it through the normal channels of collective bargaining and not by legislation.” Id., at 16424. Amendments proposed by Senator Allott and Congressman Bosch seeking to exempt level-of-benefits plans from the statute were defeated. Id., at 7333, 16442. The Report quoted “representative language” from a General Motors-UAW contract which provided: “The pension benefits of the plan shall be only such as can be provided by the assets of the pension fund or by any insured fund, and there shall be no liability or obligation on the part of the corporation to make any further contributions to the trustee or the insurance company in event of termination of the plan. No liability for the payment of pension benefits under the plan shall be imposed upon the corporation, the officers, directors, or stockholders of the corporation.” S. Rep. 15. Among the “basic facts” noted by the Committee were: “9. The employees covered by these group plans have no specific rights until they meet the conditions of the particular plans. For example, in the case of a pension plan this might involve 30 years’ service and the attainment of age 65 .... “10. Although these plans envisaged a continuing operation to provide benefits for all employees covered — in plans which are not collectively bargained, which constitute the majority of all plans and which are predominantly administered by employers, there is actually no assurance that the benefits will be forthcoming in view of a universally employed clause in such plans to the effect that the employer can terminate the plan at his discretion. Even in collectively bargained plans the employer’s agreement to provide for part or all the costs of the benefits is a short-term contract of 1 to 5 years,” Id., at 4. Senator Ives, who had served as chairman of the Senate Investigating Committee during the 83d Congress, explained: "Six States already have enacted legislation on the general subject of pension and welfare plans. Other States are considering such legislation.” 104 Cong. Rec. 7186-7187 (1958). The coverage of extent state legislation was more fully discussed in S. Rep. 18. The Court also pointed out: “We have not here a case of a collective bargaining agreement in conflict with a local health or safety regulation; the conflict here is between the federally sanctioned agreement and state policy which seeks specifically to adjust relationships in the world of commerce.” 358 TJ. S., at 297. The State claims that the statute is a health or safety regulation that would be valid under Oliver, wholly aside from the Disclosure Act. We need not pass on this contention. We note that the United States as amicus curiae, argues that the Minnesota statute is not pre-empted. Its view is that application of the Minnesota Pension Act to pre-1974 labor agreements is not disruptive of the federal labor scheme. In Fleck v. Spannaus, 449 F. Supp. 644 (Minn. 1977), a three-judge District Court upheld the Minnesota Pension Act against a federal institutional challenge based on the Contract Clause, as well as other constitutional provisions. We have noted probable jurisdiction in that case sub nom. Allied Structured Steel Co. v. Spannaus, 434 U. S. 1045, but have not yet heard oral argument. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable Answer:

sc_threejudgefdc

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts. Walter FERNANDEZ, Petitioner v. CALIFORNIA. No. 12-7822. Supreme Court of the United States Argued Nov. 13, 2013. Decided Feb. 25, 2014. Syllabus* Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams coming from one of the apartments. They knocked on the apartment door, which was answered by Roxanne Rojas, who appeared to be battered and bleeding. When the officers asked her to step out of the apartment so that they could conduct a protective sweep, petitioner came to the door and objected. Suspecting that he had assaulted Rojas, the officers removed petitioner from the apartment and placed him under arrest. He was then identified as the perpetrator in the earlier robbery and taken to the police station. An officer later returned to the apartment and, after obtaining Rojas' oral and written consent, searched the premises, where he found several items linking petitioner to the robbery. The trial court denied petitioner's motion to suppress that evidence, and he was convicted. The California Court of Appeal affirmed. It held that because petitioner was not present when Rojas consented to the search, the exception to permissible warrantless consent searches of jointly occupied premises that arises when one of the occupants present objects to the search, Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208, did not apply, and therefore, petitioner's suppression motion had been properly denied. Held : Randolph does not extend to this situation, where Rojas' consent was provided well after petitioner had been removed from their apartment. Pp. 1131 - 1137. (a) Consent searches are permissible warrantless searches, Schneckloth v. Bustamonte, 412 U.S. 218, 228, 231-232, 93 S.Ct. 2041, 36 L.Ed.2d 854, and are clearly reasonable when the consent comes from the sole occupant of the premises. When multiple occupants are involved, the rule extends to the search of the premises or effects of an absent, nonconsenting occupant so long as "the consent of one who possesses common authority over [the] premises or effects" is obtained. United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242. However, when "a physically present inhabitan[t]" refuses to consent, that refusal "is dispositive as to him, regardless of the consent of a fellow occupant." Randolph, 547 U.S., at 122-123, 126 S.Ct. 1515. A controlling factor in Randolph was the objecting occupant's physical presence. See, e.g.,id., at 106, 108, 109, 114, 126 S.Ct. 1515. Pp. 1131 - 1134. (b) Petitioner contends that, though he was not present when Rojas consented, Randolph nevertheless controls, but neither of his arguments is sound. Pp. 1134 - 1137. (1) He first argues that his absence should not matter since it occurred only because the police had taken him away. Dictum in Randolph suggesting that consent by one occupant might not be sufficient if "there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection," 547 U.S., at 121, 126 S.Ct. 1515, is best understood to refer to situations in which the removal of the potential objector is not objectively reasonable. Petitioner does not contest the fact that the police had reasonable grounds for his removal or the existence of probable cause for his arrest. He was thus in the same position as an occupant absent for any other reason. Pp. 1134 - 1135. (2) Petitioner also argues that the objection he made while at the threshold remained effective until he changed his mind and withdrew it. This is inconsistent with Randolph in at least two important ways. It cannot be squared with the "widely shared social expectations" or "customary social usage" upon which Randolph 's holding was based. 547 U.S., at 111, 121, 126 S.Ct. 1515. It also creates the sort of practical complications that Randolph sought to avoid by adopting a "formalis[tic]" rule, id., at 121, 126 S.Ct. 1515,e.g., requiring that the scope of an objection's duration and the procedures necessary to register a continuing objection be defined. Pp. 1134 - 1137. (c) Petitioner claims that his expansive interpretation of Randolph would not hamper law enforcement because in most cases where officers have probable cause to arrest a physically present objector they also have probable cause to obtain a warrant to search the premises that the objector does not want them to enter. But he misunderstands the constitutional status of consent searches, which are permissible irrespective of the availability of a warrant. Requiring officers to obtain a warrant when a warrantless search is justified may interfere with law enforcement strategies and impose an unmerited burden on the person willing to consent to an immediate search. Pp. 1136 - 1137. 208 Cal.App.4th 100, 145 Cal.Rptr.3d 51, affirmed. ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, THOMAS, and BREYER, JJ., joined. SCALIA, J., and THOMAS, J., filed concurring opinions. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined. Jeffrey L. Fisher, Stanford, CA, for Petitioner. Louis W. Karlin, Los Angeles, CA, for Respondent. Joseph R. Palmore, for the United States as amicus curiae, by special leave of the Court, supporting the respondent. Jeffrey L. Fisher, Counsel of Record, Pamela S. Karlan, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, Kevin K. Russell, Goldstein & Russell, P.C., Washington, DC, Gerald P. Peters, Law Office of Gerald Philip Peters, Thousand Oaks, CA, for Petitioner. Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Donald E. DeNicola, Deputy State Solicitor General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Deputy Attorney General, Louis W. Karlin, Deputy Attorney General, Counsel of Record, Los Angeles, CA, Counsel for Respondent. Justice ALITO delivered the opinion of the Court. Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants 1 consents. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). In Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared. I A The events involved in this case occurred in Los Angeles in October 2009. After observing Abel Lopez cash a check, petitioner Walter Fernandez approached Lopez and asked about the neighborhood in which he lived. When Lopez responded that he was from Mexico, Fernandez laughed and told Lopez that he was in territory ruled by the "D.F.S.," i.e., the "Drifters" gang. App. 4-5. Petitioner then pulled out a knife and pointed it at Lopez' chest. Lopez raised his hand in self-defense, and petitioner cut him on the wrist. Lopez ran from the scene and called 911 for help, but petitioner whistled, and four men emerged from a nearby apartment building and attacked Lopez. After knocking him to the ground, they hit and kicked him and took his cell phone and his wallet, which contained $400 in cash. A police dispatch reported the incident and mentioned the possibility of gang involvement, and two Los Angeles police officers, Detective Clark and Officer Cirrito, drove to an alley frequented by members of the Drifters. A man who appeared scared walked by the officers and said: " '[T]he guy is in the apartment.' " Id., at 5. The officers then observed a man run through the alley and into the building to which the man was pointing. A minute or two later, the officers heard sounds of screaming and fighting coming from that building. After backup arrived, the officers knocked on the door of the apartment unit from which the screams had been heard. Roxanne Rojas answered the door. She was holding a baby and appeared to be crying. Her face was red, and she had a large bump on her nose. The officers also saw blood on her shirt and hand from what appeared to be a fresh injury. Rojas told the police that she had been in a fight. Officer Cirrito asked if anyone else was in the apartment, and Rojas said that her 4-year-old son was the only other person present. After Officer Cirrito asked Rojas to step out of the apartment so that he could conduct a protective sweep, petitioner appeared at the door wearing only boxer shorts. Apparently agitated, petitioner stepped forward and said, " 'You don't have any right to come in here. I know my rights.' " Id., at 6. Suspecting that petitioner had assaulted Rojas, the officers removed him from the apartment and then placed him under arrest. Lopez identified petitioner as his initial attacker, and petitioner was taken to the police station for booking. Approximately one hour after petitioner's arrest, Detective Clark returned to the apartment and informed Rojas that petitioner had been arrested. Detective Clark requested and received both oral and written consent from Rojas to search the premises.2 In the apartment, the police found Drifters gang paraphernalia, a butterfly knife, clothing worn by the robbery suspect, and ammunition. Rojas' young son also showed the officers where petitioner had hidden a sawed-off shotgun. B Petitioner was charged with robbery, Cal.Penal Code Ann. § 211 (West 2008), infliction of corporal injury on a spouse, cohabitant, or child's parent, § 273.5(a), possession of a firearm by a felon, § 12021(a)(1)(West 2009), possession of a short-barreled shotgun, § 12020(a)(1), and felony possession of ammunition, § 12316(b)(1). Before trial, petitioner moved to suppress the evidence found in the apartment, but after a hearing, the court denied the motion. Petitioner then pleaded nolo contendere to the firearms and ammunition charges. On the remaining counts-for robbery and infliction of corporal injury-he went to trial and was found guilty by a jury. The court sentenced him to 14 years of imprisonment. The California Court of Appeal affirmed. 208 Cal.App.4th 100, 145 Cal.Rptr.3d 51 (2012). Because Randolph did not overturn our prior decisions recognizing that an occupant may give effective consent to search a shared residence, the court agreed with the majority of the federal circuits that an objecting occupant's physical presence is "indispensible to the decision in Randolph." Id., at 122, 145 Cal.Rptr.3d, at 66.3 And because petitioner was not present when Rojas consented, the court held that petitioner's suppression motion had been properly denied. Id., at 121, 145 Cal.Rptr.3d, at 65. The California Supreme Court denied the petition for review, and we granted certiorari. 569 U.S. ----, 133 S.Ct. 2388, 185 L.Ed.2d 1103 (2013). II A The Fourth Amendment prohibits unreasonable searches and seizures and provides that a warrant may not be issued without probable cause, but "the text of the Fourth Amendment does not specify when a search warrant must be obtained." Kentucky v. King, 563 U.S. ----, ----, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). Our cases establish that a warrant is generally required for a search of a home, Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), but "the ultimate touchstone of the Fourth Amendment is 'reasonableness,' " ibid.; see also Michigan v. Fisher, 558 U.S. 45, 47, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) ( per curiam ). And certain categories of permissible warrantless searches have long been recognized. Consent searches occupy one of these categories. "Consent searches are part of the standard investigatory techniques of law enforcement agencies" and are "a constitutionally permissible and wholly legitimate aspect of effective police activity." Schneckloth v. Bustamonte, 412 U.S. 218, 228, 231-232, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). It would be unreasonable-indeed, absurd-to require police officers to obtain a warrant when the sole owner or occupant of a house or apartment voluntarily consents to a search. The owner of a home has a right to allow others to enter and examine the premises, and there is no reason why the owner should not be permitted to extend this same privilege to police officers if that is the owner's choice. Where the owner believes that he or she is under suspicion, the owner may want the police to search the premises so that their suspicions are dispelled. This may be particularly important where the owner has a strong interest in the apprehension of the perpetrator of a crime and believes that the suspicions of the police are deflecting the course of their investigation. An owner may want the police to search even where they lack probable cause, and if a warrant were always required, this could not be done. And even where the police could establish probable cause, requiring a warrant despite the owner's consent would needlessly inconvenience everyone involved-not only the officers and the magistrate but also the occupant of the premises, who would generally either be compelled or would feel a need to stay until the search was completed. Michigan v. Summers, 452 U.S. 692, 701, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981).4 While it is clear that a warrantless search is reasonable when the sole occupant of a house or apartment consents, what happens when there are two or more occupants? Must they all consent? Must they all be asked? Is consent by one occupant enough? The Court faced that problem 40 years ago in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). In that case, Matlock and a woman named Graff were living together in a house that was also occupied by several of Graff's siblings and by her mother, who had rented the house. While in the front yard of the house, Matlock was arrested for bank robbery and was placed in a squad car. Although the police could have easily asked him for consent to search the room that he and Graff shared, they did not do so. Instead, they knocked on the door and obtained Graff's permission to search. The search yielded incriminating evidence, which the defendant sought to suppress, but this Court held that Graff's consent justified the warrantless search. As the Court put it, "the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared." Id., at 170, 94 S.Ct. 988. In Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), the Court reaffirmed and extended the Matlock holding. In Rodriguez, a woman named Fischer told police officers that she had been assaulted by Rodriguez in what she termed " 'our' apartment." 497 U.S., at 179, 110 S.Ct. 2793. She also informed the officers that Rodriguez was asleep in the apartment, and she then accompanied the officers to that unit. When they arrived, the officers could have knocked on the door and awakened Rodriguez, and had they done so, Rodriguez might well have surrendered at the door and objected to the officers' entry. Instead, Fischer unlocked the door, the officers entered without a warrant, and they saw drug paraphernalia and containers filled with white powder in plain view. After the search, the police learned that Fischer no longer resided at the apartment, and this Court held that she did not have common authority over the premises at the time in question. The Court nevertheless held that the warrantless entry was lawful because the police reasonably believed that Fischer was a resident. Id., at 188-189, 110 S.Ct. 2793. B While consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search, we recognized a narrow exception to this rule in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). In that case, police officers responded to the Randolphs' home after receiving a report of a domestic dispute. When the officers arrived, Janet Randolph informed the officers that her estranged husband, Scott Randolph, was a cocaine user and that there were "items of drug evidence" in the house. Id., at 107, 126 S.Ct. 1515 (internal quotation marks omitted). The officers first asked Scott for consent to search, but he "unequivocally refused." Ibid. The officers then turned to Janet, and she consented to the search, which produced evidence that was later used to convict Scott for possession of cocaine. Without questioning the prior holdings in Matlock and Rodriguez, this Court held that Janet Randolph's consent was insufficient under the circumstances to justify the warrantless search. The Court reiterated the proposition that a person who shares a residence with others assumes the risk that "any one of them may admit visitors, with the consequence that a guest obnoxious to one may nevertheless be admitted in his absence by another." 547 U.S., at 111, 126 S.Ct. 1515. But the Court held that " a physically present inhabitant's express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant." Id., at 122-123, 126 S.Ct. 1515 (emphasis added). The Court's opinion went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present. Again and again, the opinion of the Court stressed this controlling factor. See id., at 106, 126 S.Ct. 1515 ("present at the scene"); ibid. ("physically present"); id., at 108, 126 S.Ct. 1515 ("a co-tenant who is present"); id., at 109, 126 S.Ct. 1515 ("physically present"); id., at 114, 126 S.Ct. 1515 ("a present and objecting co-tenant"); id., at 119, 126 S.Ct. 1515 (a co-tenant "standing at the door and expressly refusing consent"); id., at 120, 126 S.Ct. 1515 ("a physically present resident"), id., at 121, 126 S.Ct. 1515 ("a physically present fellow tenant objects"); ibid. ("[A] potential defendant with self-interest in objecting is at the door and objects"); id., at 122, 126 S.Ct. 1515 ("[A] physically present inhabitant's express refusal of consent to a police search is dispositive as to him"). The Court's opinion could hardly have been clearer on this point, and the separate opinion filed by Justice BREYER, whose vote was decisive, was equally unambiguous. See id., at 126, 126 S.Ct. 1515 (concurring) ("The Court's opinion does not apply where the objector is not present 'and object[ing]' "). III In this case, petitioner was not present when Rojas consented, but petitioner still contends that Randolph is controlling. He advances two main arguments. First, he claims that his absence should not matter since he was absent only because the police had taken him away. Second, he maintains that it was sufficient that he objected to the search while he was still present. Such an objection, he says, should remain in effect until the objecting party "no longer wishes to keep the police out of his home." Brief for Petitioner 8. Neither of these arguments is sound. A We first consider the argument that the presence of the objecting occupant is not necessary when the police are responsible for his absence. In Randolph, the Court suggested in dictum that consent by one occupant might not be sufficient if "there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection." 547 U.S., at 121, 126 S.Ct. 1515. We do not believe the statement should be read to suggest that improper motive may invalidate objectively justified removal. Hence, it does not govern here. The Randolph dictum is best understood not to require an inquiry into the subjective intent of officers who detain or arrest a potential objector but instead to refer to situations in which the removal of the potential objector is not objectively reasonable. As petitioner acknowledges, see Brief for Petitioner 25, our Fourth Amendment cases "have repeatedly rejected" a subjective approach. Brigham City, 547 U.S., at 404, 126 S.Ct. 1943 (alteration and internal quotation marks omitted). "Indeed, we have never held, outside limited contexts such as an 'inventory search or administrative inspection ..., that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment.' " King, 563 U.S., at ----, 131 S.Ct., at 1859. Petitioner does not claim that the Randolph Court meant to break from this consistent practice, and we do not think that it did. And once it is recognized that the test is one of objective reasonableness, petitioner's argument collapses. He does not contest the fact that the police had reasonable grounds for removing him from the apartment so that they could speak with Rojas, an apparent victim of domestic violence, outside of petitioner's potentially intimidating presence. In fact, he does not even contest the existence of probable cause to place him under arrest. We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason. This conclusion does not "make a mockery of Randolph," as petitioner protests. Brief for Petitioner 9. It simply accepts Randolph on its own terms. The Randolph holding unequivocally requires the presence of the objecting occupant in every situation other than the one mentioned in the dictum discussed above. B This brings us to petitioner's second argument, viz., that his objection, made at the threshold of the premises that the police wanted to search, remained effective until he changed his mind and withdrew his objection. This argument is inconsistent with Randolph 's reasoning in at least two important ways. First, the argument cannot be squared with the "widely shared social expectations" or "customary social usage" upon which the Randolph holding was based. See 547 U.S., at 111, 121, 126 S.Ct. 1515. Explaining why consent by one occupant could not override an objection by a physically present occupant, the Randolph Court stated: "[I]t is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, 'stay out.' Without some very good reason, no sensible person would go inside under those conditions." Id., at 113, 126 S.Ct. 1515. It seems obvious that the calculus of this hypothetical caller would likely be quite different if the objecting tenant was not standing at the door. When the objecting occupant is standing at the threshold saying "stay out," a friend or visitor invited to enter by another occupant can expect at best an uncomfortable scene and at worst violence if he or she tries to brush past the objector. But when the objector is not on the scene (and especially when it is known that the objector will not return during the course of the visit), the friend or visitor is much more likely to accept the invitation to enter. 5 Thus, petitioner's argument is inconsistent with Randolph 's reasoning. Second, petitioner's argument would create the very sort of practical complications that Randolph sought to avoid. The Randolph Court recognized that it was adopting a "formalis[tic]" rule, but it did so in the interests of "simple clarity" and administrability. Id., at 121, 122, 126 S.Ct. 1515. The rule that petitioner would have us adopt would produce a plethora of practical problems. For one thing, there is the question of duration. Petitioner argues that an objection, once made, should last until it is withdrawn by the objector, but such a rule would be unreasonable. Suppose that a husband and wife owned a house as joint tenants and that the husband, after objecting to a search of the house, was convicted and sentenced to a 15-year prison term. Under petitioner's proposed rule, the wife would be unable to consent to a search of the house 10 years after the date on which her husband objected. We refuse to stretch Randolph to such strange lengths. Nor are we persuaded to hold that an objection lasts for a "reasonable" time. "[I]t is certainly unusual for this Court to set forth precise time limits governing police action," Maryland v. Shatzer, 559 U.S. 98, 110, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010), and what interval of time would be reasonable in this context? A week? A month? A year? Ten years? Petitioner's rule would also require the police and ultimately the courts to determine whether, after the passage of time, an objector still had "common authority" over the premises, and this would often be a tricky question. Suppose that an incarcerated objector and a consenting co-occupant were joint tenants on a lease. If the objector, after incarceration, stopped paying rent, would he still have "common authority," and would his objection retain its force? Would it be enough that his name remained on the lease? Would the result be different if the objecting and consenting lessees had an oral month-to-month tenancy? Another problem concerns the procedure needed to register a continuing objection. Would it be necessary for an occupant to object while police officers are at the door? If presence at the time of consent is not needed, would an occupant have to be present at the premises when the objection was made? Could an objection be made pre-emptively? Could a person like Scott Randolph, suspecting that his estranged wife might invite the police to view his drug stash and paraphernalia, register an objection in advance? Could this be done by posting a sign in front of the house? Could a standing objection be registered by serving notice on the chief of police? Finally, there is the question of the particular law enforcement officers who would be bound by an objection. Would this set include just the officers who were present when the objection was made? Would it also apply to other officers working on the same investigation? Would it extend to officers who were unaware of the objection? How about officers assigned to different but arguably related cases? Would it be limited by law enforcement agency? If Randolph is taken at its word-that it applies only when the objector is standing in the door saying "stay out" when officers propose to make a consent search-all of these problems disappear. In response to these arguments, petitioner argues that Randolph 's requirement of physical presence is not without its own ambiguity. And we acknowledge that if, as we conclude, Randolph requires presence on the premises to be searched, there may be cases in which the outer boundary of the premises is disputed. The Court confronted a similar problem last Term in Bailey v. United States, 568 U.S. ----, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013), but despite arguments similar to those now offered by petitioner, the Court adopted a rule that applies only when the affected individual is near the premises being searched. Having held that a premises rule is workable in that context, we see no ground for reaching a different conclusion here. C Petitioner argues strenuously that his expansive interpretation of Randolph would not hamper law enforcement because in most cases where officers have probable cause to arrest a physically present objector they also have probable cause to search the premises that the objector does not want them to enter, see Brief for Petitioner 20-23, but this argument misunderstands the constitutional status of consent searches. A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant. Even with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search, the magistrate who must review the warrant application, and the party willing to give consent. When a warrantless search is justified, requiring the police to obtain a warrant may "unjustifiably interfer[e] with legitimate law enforcement strategies." King, 563 U.S., at ----, 131 S.Ct., at 1860. Such a requirement may also impose an unmerited burden on the person who consents to an immediate search, since the warrant application procedure entails delay. Putting the exception the Court adopted in Randolph to one side, the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent. Such an occupant may want the police to search in order to dispel "suspicion raised by sharing quarters with a criminal." 547 U.S., at 116, 126 S.Ct. 1515; see also Schneckloth, 412 U.S., at 243, 93 S.Ct. 2041 (evidence obtained pursuant to a consent search "may insure that a wholly innocent person is not wrongly charged with a criminal offense"). And an occupant may want the police to conduct a thorough search so that any dangerous contraband can be found and removed. In this case, for example, the search resulted in the discovery and removal of a sawed-off shotgun to which Rojas' 4-year-old son had access. Denying someone in Rojas' position the right to allow the police to enter her home would also show disrespect for her independence. Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power. * * * The judgment of the California Court of Appeal is affirmed. It is so ordered. Question: Was the case heard by a three-judge federal district court? A. Yes B. No 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". Michael YAKIM, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, United States of America, Appellee. No. 78-1295. United States Court of Appeals, Third Circuit. Submitted Sept. 28, 1978. Decided Nov. 16, 1978. Charles A. Bressi, Jr., Pottsville, Pa., for appellant. S. John Cottone, U. S. Atty., Harry A. Nagle, Asst. U. S. Atty., M.D.Pa., Lewis-burg, Pa., Stephanie W. Naidoff, Regional Atty., Fred J. Marinucci, Asst. Regional Atty., Dept, of H.E.W., Philadelphia, Pa., for appellee. Before ROSENN and WEIS, Circuit Judges, and FISHER, District Judge. Honorable Clarkson S. Fisher, United States District Judge for the District of New Jersey, sitting by designation. OPINION OF THE COURT WEIS, Circuit Judge. In 1978 Congress amended the portion of the Federal Coal Mine Health and Safety Act relating to black lung benefits by enlarging the eligible class of claimants and liberalizing evidentiary requirements to establish a claim. Appeals to the courts since that event raise the recurring question whether the new amendments, particularly those on evidentiary matters, are to be applied retroactively. After careful scrutiny of the statute and its legislative history, we answer that question negatively. Claimant Yakim was denied black lung benefits by the Social Security Administration, and summary judgment was entered against him in his appeal to the district court. The administrative law judge who heard the case at the agency level made unfavorable findings to the claimant based in part on a rereading of the x-rays by radiologists selected by the Secretary, and refused to credit claimant’s self-employment service in the mines. The Black Lung Benefits Reform Act of 1977, Pub.L. No. 95-239, §§ 1-20, 92 Stat. 95 (amending 30 U.S.C. §§ 901-941 (1976)), changed the law with respect to both of these matters in a manner more favorable to the claimant and, if applicable to this appeal, would require remand to the Secretary. Chief Justice Marshall, in United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801), articulated the general rule that an appellate court is bound by law which comes into effect after judgment was entered but before the appeal is decided. This time-tested principle was reaffirmed in Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). In Bradley, the Court rejected the notion that a newly enacted statute would apply to pending cases only where mandated by its explicit terms. To the contrary, the presumption is that the new law will be applied unless there is statutory direction or legislative history to the contrary, or where an exception is necessary to avoid manifest injustice. Accord, Cort v. Ash, 422 U.S. 66, 77, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Given this standard, we turn first to the text of the Black Lung Benefits Reform Act of 1977, and find no explicit direction on the retroactivity issue. Section 20 merely provides that “the provisions . shall take effect on the date of the enactment of this Act [March 1, 1978].” Arguably, this language standing alone would be insufficient to overcome the presumption of retroactivity created by Bradley and The Schooner Peggy. There is evidence in the legislative history, however, supporting the premise that Congress decided against having the Act apply to cases presently pending in the courts. The original house bill, H.R. 4544, 95th Cong., 1st Sess. §§ 8, 16 (1977), contained a provision mandating retroactive application of amendments affecting certain evidentiary matters. In disapproving the Department of Health, Education and Welfare’s practice of rereading x-rays, terming it “second-guessing,” the Committee report stated, “[t]he Committee therefore intends that this provision be retroactively applied to denied and pending claims as well as to new ones. . . . Because of administrative omissions in this regard, the amendment is made retroactive to December 30, 1969.” H.R.Rep. No. 151, 95th Cong., 1st Sess. 21, reprinted in [1978] U.S. Code Cong. & Admin.News, pp. 465, 485. Significantly, this provision was removed from the final bill by the Senate-House Conference Committee. The Conference Committee report made no direct reference to the deletion, simply stating that “[t]he conference substitute provides that the amendments will take effect on the date of enactment.” H.R.Rep. No. 864, 95th Cong., 2d Sess. 29, reprinted in [1978] U.S.Code Cong. & Admin.News, pp. 536, 550. Nevertheless, the striking of the retroactivity provision weighs heavily against application of the evidentiary amendments to pending cases. See Bradley v. Richmond School Board, supra at 716 n. 23, 94 S.Ct. at 2018. There are additional grounds for concluding that this case does not follow in the wake of The Schooner Peggy. Section 15 of the Reform Act establishes an elaborate plan for review of pending and previously denied claims. Upon request of the claimant, the Secretary of H.E.W. is required to review a pending or denied claim “taking into account the amendments made by the Black Lung Benefits Reform Act of 1977.” On approval, the claim is then referred to the Secretary of Labor for payment. If H.E.W. disapproves the claim, it may be considered again by the Secretary of Labor. But subsection (c) of § 15 provides that a claim which is approved under that section may establish entitlements to retroactive benefits beginning for a period not earlier than January 1, 1974. The Court of Appeals for the Fourth Circuit in Treadway v. Califano, 584 F.2d 48 (4th Cir. 1978) (in banc), reviewed § 15(c) at length and concluded that it disclosed a congressional intention to make the Reform Act non-retroactive as to cases pending in the courts. The court was also in accord with the Secretary of H.E.W.’s conclusion that a claimant could proceed to have his pending claim processed in the Department or the courts “under the old law but without consideration of the recent changes,” simultaneously with an administrative review under § 15, using the new standards. We agree that § 15(c) is an indication that Congress was aware of the retro-activity problem and decided to limit any such effect to those cases eligible for a fresh review under the Reform Act. It would thus be inconsistent with the new statutory scheme to hold that the evidentiary liberalization was intended to be fully retroactive. Therefore, review of cases filed in the courts before March 1, 1978 should not be governed by the Black Lung Reform Act of 1977, but by the “old law” in effect before that date. In accordance with this standard, we have reviewed the record in the case before us and conclude that there was substantial evidence to support the finding of the Secretary. Accordingly, the district court did not err in granting summary judgment and it will be affirmed, without prejudice, however, to the claimant’s right to request administrative review under § 15 of the Reform Act. . Among the changes, the amendments enlarged the definition of miner, see Pub.L. No. 95-239, § 2(b), 92 Stat. 95 (amending 30 U.S.C. § 902 (1976)), and disapproved of the Secretary’s practice of rereading a Board-certified or Board-eligible radiologist’s x-rays “except where the Secretary has reason to believe that the claim has been fraudulently represented,” id. § 5(a), 92 Stat. 97 (amending 30 U.S.C. § 923 (1976)). . We express no view on the possible implication of Treadway that the retroactive limitation of § 15(c) applies to all cases and is not confined to those made eligible for reconsideration under the specific terms of that section. 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_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. Roy Lee SMARTT, Petitioner-Appellant, v. Lynn BOMAR, Warden, Respondent-Appellee. No. 15832. United States Court of Appeals Sixth Circuit. Jan. 26, 1965. Robert L. Seaver, Cincinnati, Ohio (court appointed), Taft, Stettinius & Hollister, Cincinnati, Ohio, on the brief), for appellant. Henry C. Fouteh, Asst. Atty. Gen., Nashville, Tenn. (George F. MeCanless, Atty. Gen., State of Tennessee, Nashville, Tenn., of counsel), for appellee. Before MILLER, O’SULLIVAN and PHILLIPS, Circuit Judges. PER CURIAM. Petitioner-appellant, Roy Lee Smartt, is a prisoner of the State of Tennessee. He is confined under a fifteen year sentence which followed his conviction by a jury of robbery with a deadly weapon. In his trial in the Criminal Court of Shelby County, he was represented by privately employed counsel. Smartt is also serving a five year concurrent sentence imposed following his plea of guilty to a separate offense of robbery with a deadly weapon. He appeals from dismissal of his habeas corpus petition to the United States District Court for the Middle District of Tennessee. Counsel was appointed to assist him in such habeas corpus proceeding and two hearings were had thereon, at each of which petitioner was present in person and by counsel. The District Court memorandum filed January 30, 1964, directing the dismissal of Smartt’s petition adequately sets forth his claims and correctly disposes of them. We add our comment on one point. Smartt asserts that his constitutional rights were infringed by the state trial judge’s failure to appoint counsel to process an appeal on his behalf. He relies on Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); and Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). His situation does not fit the rule of those cases. After Smartt’s conviction, his counsel moved for a new trial, which was denied. Smartt’s opportunity to appeal was then protected by his counsel’s praying for and being granted an appeal on Smartt’s behalf. Tenn. Code Anno. § 27-111 allowed Smartt 30 days to file a bill of exceptions to implement an appeal, or within said 30 days to obtain an extension of time for such filing. Smartt’s counsel had been retained only for the trial, and recommended to him that an attorney be employed to prepare and file a bill of exceptions, and to prosecute the appeal. No attorney was employed and the time for filing a bill of exceptions went by. In the other cause then pending against Smartt — the cause in which he ultimately received a five year sentence upon his plea of guilty — his retained counsel was given leave to withdraw as such upon representation that Smartt had not paid attorney fees owed and was uncooperative, and he was thereafter represented by the Public Defender. In the case which had been tried to a jury, the technical record — the record without a bill of exceptions — was forwarded to the Supreme Court of Tennessee and Smartt’s conviction was there affirmed. A bill of exceptions would have been necessary to expose error of the sort claimed in Smartt’s conviction. He contends that the Tennessee trial judge should have appointed counsel to perfect and carry on his appeal. No request therefor was made by Smartt. Neither was the trial court informed of Smartt’s indigency, if such was the fact. Smartt, although given the opportunity to testify at the hearing in the District Court, gave no evidence that the trial or appellate courts were in any way apprised of his indigency. He contends, however, that the state trial judge should have assumed such from his dispute over fees with his own retained counsel and should have appointed counsel for him sua sponte. We find no merit in this contention. See State ex rel. Dych v. Bomar, 213 Tenn. 699, 378 S.W.2d 772 (1964); Horton v. Bomar, 335 F.2d 583 (CA 6, 1964) ; McCoy v. Bomar, 333 F.2d 959 (CA 6, 1964); cf. Polk v. Bomar, 336 F.2d 330 (CA 6, 1964). The principle stated in Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), that counsel must be provided where constitutionally required regardless of whether the defendant so requests, does not apply where the defendant has been represented throughout the trial by retained counsel and there is no indication that he is unable, rather than unwilling, to pay counsel fees. We express appreciation for the capable services rendered by Robert L. Seaver, of the Cincinnati Bar, appointed by us to present Smartt’s appeal to, this Court. Judgment 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_r_natpr

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Walter F. KENDALL v. UNITED STATES. No. 17575. United States Court of Appeals Eighth Circuit. Jan. 31, 1964. Theodore L. Richling, U. S. Atty., for appellant. Michael L. Lazer, Lincoln, Neb., for appellee. PER CURIAM. Appeal permitted to be docketed without payment of fee; leave to proceed further in forma pauperis denied; appeal dismissed as frivolous. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:

sc_lcdispositiondirection

A

What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE et al. v. WILLIAMS, REVENUE COMMISSIONER. No. 783. Decided June 1, 1959. Robert L. Carter, Frank-D. Reeves and A. T. Walden for petitioners. Eugene Cook, Attorney General of Georgia, Robert H. Hall, Assistant Attorney General, and E. Freeman Leverett, Deputy Assistant Attorney General, for respondent. Per Curiam. The motion to substitute Dixon Oxford in.the place of T. V. Williams as the party respondent is granted. The State represents to us that no fine against petitioner has been finally determined and assessed: Accordingly, the petition for a writ of certiorari is denied, leaving petitioner free to' take further proceedings here when the judgment below becomes final or the jurisdiction of this Court may otherwise be appropriately invoked. Mr. Justice Douglas. With some doubts I bow to the conclusion that this judgment is not final within the meaning of the jurisdictional statute, 28 U. S. C. § 1257. It ordered thé petitioner to “produce all its books, records and other data bearing on said corporation’s income, disbursements and expenses prepared or used by said corporation in die conduct of its-'business during said taxable years wherever said business was transacted, whether within’ or without this state (except such as may be otherwise theretofore produced’ hereunder) . . .■ within thirty-five days . . . [and] that said corporation forthwith pay Into the registry of the Clerk of this Court a fine of twenty-five thousand dollars, to be hereafter assessed and apportioned remedially and punitively, as shall appear just and appropriate to the Court, the Court reserving jurisdiction, after the production of the books, records and data hereby ordered, to reduce the amount of said fine if such should be-just under the circumstances then existing.” By the terms of this judgment, the Georgia court reserves the power to réduce the amount of the fine. One question tendered by the petitioner would turn on the amount of the fine. It is the issue of “cruel and unusual punishments” which is outlawed by the Eighth Amendment that is in turn made applicable to the States by thé Fourteenth, Francis v. Resweber, 329 U. S. 459, 463. That .is a subsidiary question and one that the State contends is not properly here because, it is said, no such assignment of error was included in the bill of exceptions. The central issue in the case has nothing to do with the amount of the fine. It seems that the order to produce the records and the citation for contempt followed each other in a matter of a few hours. The basic question is whether holding petitioner in eontempt and imposing any fine comported with that due process required of every government under our Bill of Rights. Were that question here alone,. I would- think the judgment was final. But since the issue of “cruel and unusual punishment” is also tendered and since a reduction of the fine may eliminate it from the case, I acquiesce in the denial of certiorari’ at this stage of the proceedings. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable Answer:

songer_genapel1

G

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. James A. CISCO, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Acting Through the ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee. No. 84-1799. United States Court of Appeals, Seventh Circuit. Argued Jan. 16, 1985. Decided March 28, 1985. Publication Ordered May 30, 1985. Before WOOD and FLAUM, Circuit Judges, and GRANT, Senior District Judge. Honorable Robert A. Grant, Senior District Judge for the Northern District of Indiana, sitting by designation. Order Plaintiffs-Appellants [hereinafter Cisco] appeal the dismissal of their suit filed under the Federal Torts Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1976 & Supp. V 1981) [hereinafter FTCA]. The district court found that the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), barred Cisco’s claim and accordingly dismissed Cisco’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). We AFFIRM. The United States Supreme Court has recently addressed the discretionary function exception contained in § 2680(a), and that Court has found the following factors useful when applying § 2680(a) to the acts of Government employees: First, it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case____ Thus, the basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee — whatever his or her rank — are of the nature and quality that Congress intended to shield from tort liability. Second, whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals. Time and again the legislative history refers to the acts of regulatory agencies as examples of those covered by the exception, and it is significant that the early tort claims bills considered by Congress specifically exempted two major regulatory agencies by name. See supra, at-. This emphasis upon protection for regulatory activities suggests an underlying basis for the inclusion of an exception for discretionary functions in the Act: Congress wished to prevent judicial “second-guessing” of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. By fashioning an exception for discretionary governmental functions, including regulatory activities, Congress took “steps to protect the Government from liability that would seriously handicap efficient government operations.” United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963). United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), — U.S. -, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984) (footnote omitted). Cisco contends that the United States, acting through the Environmental Protection Agency [hereinafter EPA], was negligent in failing to warn the members of several Jefferson County, Missouri households that dirt contaminated by 2, 3, 7, 8 tetrachlorodibenzo-para-dioxin had been used as residential landfill, negligent in failing to require that the contaminated dirt be removed, and negligent in failing to protect the households from exposure to the toxin. Whether the EPA acted negligently or even abused its discretion has no effect on the applicability of the discretionary function exception. General Public Utilities Corporation v. United States, 745 F.2d 239, 245 (3d Cir.1984). This Court must only consider whether the exception applies. The Resource Conservation and Recovery Act of 1976, § 1003, 42 U.S.C. § 6902 (1976) has the objective of promoting the protection of health and the environment by, among other things, prohibiting open dumping of hazardous wastes, regulating the disposal of those wastes, and promulgating guidelines for the disposal of hazardous wastes. Under § 3008 of the Act, the Administrator of the EPA may issue compliance orders or may begin civil actions against violators of the Act. 42 U.S.C. § 6928(a)(1) (1976 & Supp. IV 1980). Under the proper circumstances, the Administrator may order the owner of a hazardous waste site or facility to monitor, test, analyze and report the extent and nature of a suspected hazard. Id. § 6934(a). The Administrator may also conduct the monitoring, testing, and analyzing himself or authorize a state or local authority to do so. Id. § 6934(d)(1). Executive Order No. 12316, 46 Fed.Reg. 42237 (1981) gives the Administrator the authority to act under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub.L. No. 96-510, 94 Stat. 2767 to act, consistent with the national contingency plan, 40 C.F.R. § 300 (1984), to remove hazardous wastes or to take any response to protect public health or the environment. See 42 U.S.C. § 9604(a)(1) (1976 & Supp. IV 1980). Nothing in these acts, statutes and regulations requires the EPA to warn property owners that residential landfalls have been contaminated by highly toxic wastes or to remove those wastes. Congress has left to the EPA to decide the manner in which, and the extent to which, it will protect individuals and their property from exposure to hazardous wastes. When an agency makes decisions regarding the supervision of private individuals, it is exercising discretionary regulatory authority of the most basic kind. Decisions as to the manner of enforcing regulations directly affect the feasibility and practicality of the Government’s regulatory program; such decisions require the agency to establish priorities for the accomplishment of its policy objectives by balancing the objectives sought to be obtained against such practical considerations as staffing and funding.... Judicial intervention in such decisionmaking through private tort suits would require the courts to “second-guess” the political, social, and economic judgments of an agency exercising its regulatory function. It was precisely this sort of judicial intervention in policymaking that the discretionary function exception was designed to prevent. Varig Airlines, 104 S.Ct. at 2768. In deciding not to warn Cisco about the contaminated landfill and in deciding not to remove the contaminated dirt from the landfill, the EPA made political, social and economic judgments pursuant to its grant of authority. Cisco may not challenge those judgments under the FTCA because they fall within the discretionary function exception of 28 U.S.C. § 2680(a). Because of our disposition of this appeal, this Court need not discuss the “Good Samaritan” theory advanced by Cisco or the applicability of the misrepresentation exception to the FTCA. The district court’s order of dismissal is AFFIRMED. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_appel1_1_4

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. 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 "financial institution". Your task is to determine what subcategory of business best describes this litigant. LAW ENFORCEMENT INSURANCE COMPANY, LTD., Plaintiff-Appellant, v. James P. CORCORAN, Defendant-Appellee. No. 312, Docket 86-7658. United States Court of Appeals, Second Circuit. Argued Oct. 24, 1986. Decided Dec. 12, 1986. Frank H. Wright, New York City (Grand & Ostrow, New York City, of counsel), for plaintiff-appellant. Thomas M. Campbell, New York City (Mathias E. Mone, Marc J. Korpus, Cahill, Gordon & Reindel, New York City, of counsel), for defendant-appellee. Before KAUFMAN, NEWMAN and PRATT, Circuit Judges. IRVING R. KAUFMAN, Ciruit Judge: We are required in this case to revisit a recurring tension in our dual system of justice. The federal courts have a fundamental obligation to adjudicate controversies within their jurisdiction. Yet they also have a duty to abstain from doing so when the case falls within one of the narrow recognized categories of instances in which, because of related state proceedings, action by the federal courts would be thoroughly unproductive. We have concluded that this is one of those rare cases in which the federal courts should, in deference to a state forum, withhold access from a suitor properly invoking their jurisdiction. Specifically, because continuation of the federal action here would disrupt New York’s unified administrative and judicial framework for the administration of the estates of insolvent insurance companies, we hold that the federal plaintiff must, in the first instance at least, seek relief from the New York courts. FACTS The relevant' facts are straightforward and not in dispute. Law Enforcement Insurance Company, Ltd. (“LEICL”) is a Bermuda insurance company that was established in 1977 to provide coverage to law enforcement personnel against liabilities arising from civil rights actions. In December of 1983, LEICL entered into an agreement with Ideal Mutual Insurance Company (“Ideal”), a New York company. The parties agree that this agreement required Ideal to assume the obligation to provide reinsurance on various LEICL policies. In addition, LEICL claims that the agreement required Ideal to assume LEICL’s direct insurance obligation on the policies that had been issued during the year 1977. In late December of 1983, the Superintendent of Insurance of the State of New York (“Superintendent”) commenced a proceeding in the Supreme Court, New York County, pursuant to N.Y.Ins.L. § 7402 alleging that Ideal was insolvent and asking to be named as rehabilitator. An order to this effect was entered by that court on December 26, 1984. In January of 1985, having concluded that further attempts to rehabilitate Ideal would be futile, the Superintendent sought from the same court an order pursuant to N.Y.Ins.L. § 7417 terminating the rehabilitation proceeding and vesting the business of Ideal in himself for the purpose of liquidating it. On February 7, 1985, the court entered the requested order, which, pursuant to N.Y.Ins.L. § 7419, included a provision enjoining all persons with claims against Ideal “from bringing or further prosecuting any action at law, suit in equity, special or other proceeding against the said corporation or its estate, or the Superintendent and his successors in office, as Liquidator thereof.” LEICL informed the Superintendent of its view that Ideal was obligated under the 1983 agreement to defend and pay claims on the 1977 policies, and received in response a letter rejecting its position. On February 7, 1986, LEICL filed an action against the Superintendent in the United States District Court for the Southern District of New York. Premising jurisdiction upon diversity of citizenship, the action sought a declaration that Ideal was obligated as a direct insurer on the 1977 policies. The Superintendent responded to the complaint by moving for an order dismissing the action in deference to the state liquidation proceedings. After full briefing and oral argument, the district court granted the motion. In an opinion reported at 640 F.Supp. 271 (S.D.N.Y.1986), it held that, under the doctrine of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), it should abstain from exercising its jurisdiction. LEICL appeals. DISCUSSION The Supreme Court of the United States has identified four categories of cases in which federal courts should abstain in deference to state courts, two of which are relevant here. While usefully separated for purposes of analysis, these categories are not watertight, and in considering the factors applicable to each category, the federal courts are not to apply “a mechanical checklist,” but rather are to conduct “a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 16, 103 S.Ct. 927, 937, 74 L.Ed.2d 765 (1983). Because these factors are “to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand,” id., at 21,103 S.Ct. at 940, the district court is granted some latitude in its decisionmaking; our review applies an abuse of discretion standard. Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d 325, 327 (2d Cir.1986). With these principles in mind, we consider the application to this case of two categories of abstention. Since the district court confined its consideration to the possible applicability of Colorado River, supra, we begin our analysis at that point. I. Colorado River Abstention In Colorado River, the Supreme Court faced a factual situation in which state court litigation seeking to settle certain water rights threatened to proceed concurrently with a suit on the same subject brought by the United States on its own behalf and that of several Indian tribes against some 1,000 defendants in a distant federal courthouse. Faced with facts that did not fall within any of the narrow recognized grounds for abstention, the Court decided to recognize a new limited class of “exceptional” cases in which “for reasons of wise judicial administration” and conservation of resources, a federal court should defer to concurrent state proceedings, Colorado River, supra, 424 U.S. at 818, 96 S.Ct. at 1246. In Moses H. Cone, the Court reaffirmed the doctrine, while emphasizing the rarity of its application by declining to apply it to the facts at hand, adding, as noted, that the federal courts’ weighing of cases must be “with the balance heavily weighted in favor of the exercise of jurisdiction,” Moses H. Cone, supra, 460 U.S. at 16, 103 S.Ct. at 937. In light of this “heavy presumption favoring the exercise of jurisdiction,” Bethlehem Contracting, supra, 800 F.2d at 327, we believe that the decision of the district court to dismiss on Colorado River grounds was erroneous. This conclusion follows from a considered weighing of the various factors which the precedents counsel are to be evaluated in determining whether the circumstances are “exceptional.” (a) Avoidance of Piecemeal Litigation The district court viewed as the strongest exceptional circumstance here that opening the doors of the federal courthouse to LEICL would similarly open them to “countless other plaintiffs” nationwide. While this fear was soundly based, it did not of itself provide a basis for Colorado River abstention. The “danger of piecemeal litigation” was the paramount factor in the Supreme Court’s approval of abstention in Colorado River, which involved a federal statute, the McCarran Amendment, whose “primary policy” was the avoidance of piecemeal litigation. Moses H. Cone, supra, 460 U.S. at 19 & 20 n. 22, 103 S.Ct. at 938 & 939 n. 22. In Moses H. Cone, in contrast, the Court agreed that the result of a refusal to abstain would be duplicative litigation, but refused to give this consequence any weight, since it resulted from the demands of the relevant federal law, in that case the federal Arbitration Act. Id. at 20, 103 S.Ct. at 939. Here, the danger of suits nationwide arises solely as a result of the existence of diversity jurisdiction. And while there have been many scholarly and judicial expressions of doubt as to the desirability of its continuation, so long as Congress chooses to have us exercise diversity jurisdiction, we must do so unflaggingly. LEICL informs us in its brief that it chose a federal forum because of “concern that its status as a foreign corporation and the fact that LEICL was suing the New York Superintendent of Insurance would redound to prejudice LEICL’s position in a state court action.” Whatever our view of the validity of that fear, Congress has given LEICL — and, by extension, plaintiffs in the same position — the right to act on it, and “we have a duty to respect that right.” Giardina v. Fontanta, 733 F.2d 1047,1053 (2d Cir.1984). Thus, the factor upon which the district court relied most heavily was not an exceptional circumstance within the meaning of Colorado River. It was, rather, an unremarkable result of the application to this case of a considered federal policy. Cf. Lumbermens Mutual Casualty Co. v. Connecticut Bank & Trust Co., 806 F.2d 411 (2d Cir.1986) (nationwide suits against insurance company exceptional circumstance under Colorado River where failure to abstain could lead to inconsistent interpretations of same policy). (b) Control of a Res In Colorado River, the Court noted a line of cases holding that a “court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts.” Colorado River, supra, 424 U.S. at 818, 96 S.Ct. at 1246. However, the mere fact that the federal and state proceedings concern the same subject matter does not make a case exceptional. Colorado River, supra, 424 U.S. at 816, 96 S.Ct. at 1245. Rather, this rationale applies only where the exercise by one court of its jurisdiction would tend to impede or embarrass the other court in the exercise of its jurisdiction. See, e.g., Tol-free v. New York Title & Mortgage Co., 72 F.2d 702 (2d Cir.1934). Viewing the present case in isolation, that is, without consideration of New York’s statutory scheme for the liquidation of insolvent insurance companies (which we discuss in Part II), this concern is not implicated here. LEICL could obtain in federal court the declaration it seeks and then present its claim to the New York liquidation court without any unseemly interference on the part of the federal courts in state court proceedings. Indeed, it is the general rule that there is no need for deference where the proceedings in one court seek no more than a declaration of rights to property being administered by another. General Baking Co. v. Harr, 300 U.S. 433, 57 S.Ct. 540, 81 L.Ed. 730 (1937); Commonwealth Trust Co. of Pittsburgh v. Bradford, 297 U.S. 613, 56 S.Ct. 600, 80 L.Ed. 920 (1936); Dempsey v. Pink, 92 F.2d 572 (2d Cir.1937), cert. denied, 303 U.S. 648, 58 S.Ct. 747, 82 L.Ed. 1109 (1938); Slotkin v. Brookdale Hospital Center, 357 F.Supp. 705, 707-08 (S.D.N.Y.1972). (c) Other Factors Various other factors canvassed by the Supreme Court are of relatively minor significance here. None of them, individually or in combination, provides “the clearest of justifications,” which alone will warrant a dismissal. Colorado River, supra, 424 U.S. at 819, 96 S.Ct. at 1247. In Colorado River, the Supreme Court gave weight to the inconvenience of concurrent state and federal proceedings in light of the 300-mile distance between the state and federal courthouses. In this case, the two courthouses are adjacent to each other. Nor is this a case where any weight may be put on the order in which the federal and state cases were begun. Again considering LEICL’s claim individually, the state forum had not made any substantial progress towards assessing its merits when the federal suit was filed. See Moses H. Cone, supra, 460 U.S. at 21, 103 S.Ct. at 939. While state rather than federal law provides the rule of decision in this diversity case, only elementary contract principles, rather than novel or obscure state law issues, are involved. See Bethlehem Contracting, supra, 800 F.2d at 328. Cf. Telesco v. Telesco Fuel and Masons’ Materials, Inc., 765 F.2d 356, 363 (2d Cir.1985). And, as more fully discussed below, the relief available in the state and federal courts seems to be of approximately equal efficacy. There is a closer question concerning the weight to be given to the state court injunction. However, particularly considering the undesirability of permitting state court injunctions to control federal courts in the exercise of their jurisdiction, we do not consider this factor as being of nearly sufficient weight to tip the balance. Rather, following Dempsey, supra, we read the injunction narrowly, as not precluding the purely declaratory relief sought here. See Slotkin, supra. From what has been said, it should be clear that we are unable to agree with the district court “that this is one of the rare cases in which Colorado River abstention is appropriate.” 640 F.Supp. at 272. Indeed, if LEICL’s claim had come to us in isolation, we should be constrained to reverse. But, as we now discuss, LEICL’s claim cannot, and should not, be wrenched from the context in which the state court acted, the context of a unified administrative/judicial proceeding. II. Burford Abstention Burford, supra, was an attack by an oil company in federal district court on a decision of the Texas Railroad Commission granting a drilling permit to a competitor. The Supreme Court held that the case was one for abstention because: (1) the order under attack was part of a unified regulatory scheme on a complex subject matter of special state interest, a scheme in which the state administrative agency and the state courts cooperated closely to safeguard the values of uniformity, expertise, and due process; (2) the state had expressed its interest in unified decisionmaking by creating a system on the state level to avoid multiple inconsistent adjudications, a system that would be disrupted by the exercise of jurisdiction by the federal courts; and (3) the issues sought to be adjudicated in federal court were largely ones of state law. The facts here closely parallel those in Burford. New York has set up a comprehensive plan of regulation of insurance companies, with particularly detailed provisions concerning their rehabilitation and liquidation. In doing so, New York has legislated on a matter of special state concern — so declared by the federal McCarran-Ferguson Act, 15 U.S.C. §§ 1011-15. The New York courts have long been active partners in the state’s regulatory plan. See Motlow v. Southern Holding & Securities Corp., 95 F.2d 721, 724 (8th Cir.), cert. denied, 305 U.S. 609, 59 S.Ct. 68, 83 L.Ed. 388 (1938). Not only have they on a number of occasions reviewed in considerable detail the propriety of liquidators’ decisions to grant or disallow claims, see, e.g., Matter of New York Title & Mortgage Co., 277 N.Y. 66, 13 N.E.2d 41 (1938), on later appeal 257 App.Div. 19, 11 N.Y.S.2d 828 (1st Dept.), rearg. den., 257 A.D. 822, 12 N.Y.S.2d 1021, app. dis’d., 281 N.Y. 829, 24 N.E.2d 491 (1939); In re Guardian Casualty Co., 161 Misc. 859, 293 N.Y.S. 142 (Sup.Ct., N.Y. Co. 1937), they have implemented the state’s policy of unified adjudication by requiring all claims and challenges to be centralized in the court supervising the liquidation or rehabilitation. See, e.g., Knickerbocker Agency, Inc. v. Holz, 4 N.Y.2d 245, 173 N.Y.S.2d 602, 149 N.E.2d 885 (1958); General Accident Fire & Life Assurance Corp. v. Hawkins, 115 A.D.2d 357, 495 N.Y.S.2d 398 (1st Dept. 1985); Powell v. All City Insurance Company, 74 A.D.2d 942, 426 N.Y.S.2d 135 (3d Dept.1980); Matter of Allcity Insurance Company, 66 A.D.2d 531, 413 N.Y.S.2d 929 (1st Dept.), app. den., 48 N.Y.2d 629, 421 N.Y.S.2d 192, 396 N.E.2d 474 (1979); Schenck v. Coordinated Coverage Corp., 50 A.D.2d 50, 376 N.Y.S.2d 131 (1st Dept. 1975); In re Bean, 207 App.Div. 276, 201 N.Y.S. 827 (4th Dept.1923); In re National Surety Co., supra. Indeed, that is the purpose of injunctions such as the one the liquidation court entered here. And while we do not read that injunction as barring this action of its own force, we do give it weight as an expression of state policy. More significantly, the policy itself is an important one. As the court below recognized, the structure of the New York system serves the state’s strong interest in centralizing claims against an insolvent insurer into a single forum where they can be efficiently and consistently disposed of. 640 F.Supp. at 272, citing Fidelity Mortgage Investors v. Camelia Builders, 550 F.2d 47, 53, 55 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977); see Ambiance, Inc. v. Commodore General Insurance Co., 553 F.Supp. 285, 289 (S.D.N.Y.1982). Cf. Lumbermens Mutual Casualty Co. v. Connecticut Bank & Trust Co., supra (abstaining so as to permit single inclusive determination concerning insurance coverage). For all of these reasons, in Levy v. Lewis, 635 F.2d 960, 963-64 (2d Cir.1980), we applied Burford to abstain from deciding a case virtually identical to this one — a case in which the Superintendent as liquidator had disallowed a creditor’s claim, and the creditor had brought a federal action in response. We emphasized New York’s “complex administrative and judicial system for regulating and liquidating domestic insurance companies,” the expertise of the Superintendent, the necessity of marshall-ing the claims and assets in one place, and the “express federal policy of noninterference in insurance matters” embodied in the McCarran-Ferguson Act. All of these considerations are as relevant today as they were when Levy was decided, and persuade us that the same result should follow in this case as in that one. See Mathias v. Lennon, 474 F.Supp. 949, 954-55 (S.D.N.Y.1979) (abstaining on Burford grounds from deciding claims against Superintendent). This is particularly so since, in contrast to Levy, the current case presents no issues of federal law. Because New York provides “a unified method for the formation of policy and determination of cases by the [Superintendent] and by the state courts,” Burford, supra, 319 U.S. at 333-34, 63 S.Ct. at 1107, a method which would only be impaired by federal court intervention, the district court acted correctly in abstaining. Affirmed. . This case does not involve abstention to permit state courts to interpret a state statute in a way that might avoid a federal constitutional question, see Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) or abstention from interference in ongoing state criminal or quasi-criminal proceedings, see Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); see also Trai-nor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). . This case, then recently decided, was called to our attention on oral argument. In the interests of all concerned, we urge counsel who discover previously uncited authority to avail themselves of the mechanism of Fed.R.App.P. 28(j) to call it to the attention of both ourselves and opposing counsel in writing. . We note, however, that since Colorado River abstention applies, if at all, only in cases where traditional forms of abstention do not, Moses H. Cone, supra, 460 U.S. at 14-15, 103 S.Ct. at 936; Colorado River, supra, 424 U.S. at 817, 96 S.Ct. at 1246, district courts should ordinarily consider the traditional abstention doctrines first, thereby reducing the chances of either unnecessary or incomplete legal discussions. . As we discuss in Part II, this concern would have had a good deal of force in an analysis under Burford v. Sun Oil, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). But the district court expressly disclaimed such an analysis, 640 F.Supp. at 272. . In view of the disagreements subsisting between the parties as to LEICL’s rights under state law, LEICL will remain free after pursuing its state remedies pursuant to our decision to return to the district court in the event that it is able to present evidence to the effect that its rights may not be adequately asserted by proceedings in the liquidation court. . Although the opinion in Dempsey does not mention the fact specifically, the record of that case reveals that the Supreme Court, New York County, had entered an injunction virtually identical to the one here. . These provisions are set forth in Article 74 of the New York Insurance Law. Sections 7408-15 of that Article constitute the New York enactment of the Uniform Insurance Liquidation Act. In summary, the statutory plan calls for the Superintendent to apply when he deems it appropriate to the Supreme Court in the judicial district in which the insolvent insurer is located foi an order naming himself as its rehabilitator or liquidator, depending on whether he believes that the business should be run as a going concern or should be terminated. In either event, if the order is granted, the Superintendent takes control of the company’s assets and conducts its business subject to the supervision of the court. See N.Y.Ins.L. § 7428. . Although our holding does not turn on the procedural details of how that court discharges its responsibilities, we are confident that LEICL’s objection to the Superintendent’s disallowance of its claim could be heard by motion in the liquidation proceeding itself. We were informed at oral argument that a retired New York State judge has been appointed as referee to hear and report to the court on the appropriate disposition of such matters, and this appears to be the common practice. See generally In re Manhattan Casualty Co., 75 Misc.2d 357, 346 N.Y.S.2d 911 (Sup.Ct.N.Y.Co. 1972); In re National Surety Co., 176 Misc. 53, 26 N.Y.S.2d 370 (Sup.Ct.N.Y.Co.1941). In any event, it seems clear from Prince Carpentry Inc. v. Cosmopolitan Mutual Insurance Company, 124 Misc.2d 919, 479 N.Y.S.2d 284 (Sup.Ct.N.Y.Co.1984), that LEICL could obtain review by commencing in Supreme Court, New York County either a proceeding pursuant to N.Y. C.P.L.R. Art. 78 or a declaratory judgment action. As stated in note 5, supra, however, if LEICL’s pursuit of its state remedies should show us to be wrong in our understanding that it has open to it adequate review by the liquidation court, LEICL is free to return to the district court. . Before the federal case in Levy was brought, the Superintendent had moved in the state liquidation court for approval of his disallowance of the claim. As a result, in abstaining we relied also on grounds analogous to those in Younger, supra. In addition, we relied on Colorado River, a reliance which, for the reasons explained in Part I, may not survive Moses H. Cone. . Although not controlling, we note in this regard that by relegating claimants to a single proceeding centered in the state of domicile of the insolvent insurer, we further the state policies of uniformity that have led well over half of the states to join New York in adopting the Uniform Insurance Liquidation Act. See Emons Industries, Inc. v. Liberty Mutual Fire Insurance Company, 545 F.Supp. 185, 189-91 (S.D.N.Y. 1982); G.C. Murphy Co. v. Reserve Insurance Co., 54 N.Y.2d 69, 444 N.Y.S.2d 592, 429 N.E.2d 111 (1981). . In light of our holding, we find it unnecessary to address the Superintendent’s other contentions, notably that the order below should be sustained as an exercise of the district court’s discretion under the Declaratory Judgment Act, 28 U.S.C. § 2201. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant? A. bank B. insurance C. savings and loan D. credit union E. other pension fund F. other financial institution or investment company G. unclear Answer:

sc_certreason

A

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. WISSNER et al. v. WISSNER. No. 119. Argued December 6-7, 1949. Decided February 6, 1950. Carlos J. Badger argued the cause, for appellants. With him on the brief were W. Coburn Cook and Vernon F. Gant. Leslie A. Cleary argued the cause for appellee. With him on the brief was William Zefj. By special leave of Court, Morton Hollander argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison and Paul A. Sweeney. Mr. Justice Clark delivered the opinion of the Court. We are to determine whether the California community property law, as applied in this case, conflicts with certain provisions of the National Service Life Insurance Act of 1940; and if so, whether the federal law is consistent with the Fifth Amendment to the Constitution of the United States. The cause is here on appeal from the final judgment of a California District Court of Appeal, the Supreme Court of California having denied a hearing. Reading the opinion below as a decision that the federal statute was unconstitutional, we noted probable jurisdiction. 28 U. S. C. § 1257 (1). The material facts are not in dispute. Appellants are the parents, and appellee the widow, of Major Leonard O. Wissner, who died in India in 1945 in the service of the United States Army. He had enlisted in the Army in November 1942 and in January 1943 subscribed to a National Service Life Insurance policy in the principal sum of $10,000, which policy was in effect at the date of his death. The opinion below indicates that the decedent and appellee were estranged at the time he entered the Army or shortly thereafter. In January 1943 he requested his attorney to “get an insurance policy away” from appellee. After six months in the service decedent stopped the allotment to his wife, and in September 1943 expressed the wish that he “could find some way of forcing plaintiff to a settlement and a divorce.” It is not surprising, therefore, that, without the knowledge or consent of his wife, the Major named his mother principal and his father contingent beneficiary under his National Service Life Insurance policy. Since his death the United States Veterans’ Administration has been paying his mother the proceeds of the policy in monthly installments. In 1947 the Major’s widow brought action against the appellants in the Superior Court for Stanislaus County, State of California, alleging that under California community property law she was entitled to one-hálf the proceeds of the policy. Appellants answered that their designation as beneficiaries was “final and conclusive as against any claimed rights” of appellee. The court found that the decedent and his widow had been married in 1930, and until the date of Major Wissner’s death had been legally domiciled there and subject to the state’s community property laws. Major Wissner’s army pay, which was held to be community property under California law, was the source of the premiums paid on the policy. But no claim was made for the premiums; the widow sought the proceeds of the insurance. The court concluded that, consistent with California law in the ordinary insurance case, the proceeds of this policy “were and are the community property” of the widow and the decedent, and entered judgment for appellee for one-half the amount of payments already received, plus interest, and required appellants to pay appellee one-half of all future payments “immediately upon the receipt thereof” by appellees or either thereof. The District Court of Appeal affirmed, 89 Cal. App. 2d 759, 201 P. 2d 837 (1949), holding that appellee had a “vested right” to the insurance proceeds, and the Supreme Court of California denied a hearing, one judge dissenting. We are of the opinion that the decision below was incorrect. The National Service Life Insurance Act is the congressional mode of affording a uniform and comprehensive system of life insurance for members and veterans of the armed forces of the United States. A liberal policy toward the serviceman and his named beneficiary is everywhere evident in the comprehensive statutory plan. Premiums are very low and are waived during the insured’s disability; costs of administration are borne by the United States; liabilities may be discharged out of congressional appropriations. The controlling section of the Act provides that the insured “shall have the right to designate the beneficiary or beneficiaries of the insurance [within a designated class], . . . and shall ... at all times have the right to change the beneficiary or beneficiaries . . . .” 38 U. S. C. § 802 (g). Thus Congress has spoken with force and clarity in directing that the proceeds belong to the named beneficiary and no other. Pursuant to the congressional command, the Government contracted to pay the insurance to the insured’s choice. He chose his mother. It is plain to us that the judgment of the lower court, as to one-half of the proceeds, substitutes the widow for the mother, who was the beneficiary Congress directed shall receive the insurance money. We do not share appellee’s discovery of congressional purpose that widows in community property states participate in the payments under the policy, contrary to the express direction of the insured. Whether directed at the very money received from the Government or an equivalent amount, the judgment below nullifies the soldier’s choice and frustrates the deliberate purpose of Congress. It cannot stand. The judgment under review has a further deficiency so far as it ordered the diversion of future payments as soon as they are paid by the Government to the mother. At least in this respect, the very payments received under the policy are to be “seized,” in effect, by the judgment below. This is in flat conflict with the exemption provision contained in 38 U. S. C. § 454a, made a part of this Act by 38 U. S. C. § 816: Payments to the named beneficiary “shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. . . .” We recognize that some courts have ruled that this and similar exemptions relating to pensions and veterans’ relief do not apply when alimony or the support of wife or children is in issue. See Schlaefer v. Schlaefer, 71 App. D. C. 350, 112 F. 2d 177 (1940); Tully v. Tully, 159 Mass. 91, 34 N. E. 79 (1893); Hodson v. New York City Employees’ Retirement System, 243 App. Div. 480, 278 N. Y. Supp. 16 (1935); In re Guardianship of Bagnall, 238 Iowa 905, 29 N. W. 2d 597 (1947), and cases therein cited. But cf. Brewer v. Brewer, 19 Tenn. App. 209, 239-241, 84 S. W. 2d 1022, 1040 (1933). We shall not attempt to epitomize a legal system at least as ancient as the customs of the Visigoths, but we must note that the community property principle rests upon something more than the moral obligation of supporting spouse and children : the business relationship of man and wife for their mutual monetary profit. See de Funiak, Community Property, § 11 (1943). Venerable and worthy as this community is, it is not, we think, as likely to justify an exception to the congressional language as specific judicial recognition of particular needs, in the alimony and support cases. Our view of those cases, whatever it may be, is irrelevant here. Further, Congress has provided in the National Service Life Insurance Act that the chosen beneficiary of the life insurance policy shall be, during life, the sole owner of the proceeds. The constitutionality of the congressional mandate above expounded need not detain us long. Certainly Congress in its desire to afford as much material protection as possible to its fighting force could wisely provide a plan of insurance coverage. Possession of government insurance, payable to the relative of his choice, might well directly enhance the morale of the serviceman. The exemption provision is his guarantee of the complete and full performance of the contract to the exclusion of conflicting claims. The end is a legitimate one within the congressional powers over national defense, and the means are adapted to the chosen end. The Act is valid. McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). And since the statute which made the insurance proceeds possible was explicit in announcing that the insured shall have the right to designate the recipient of the insurance, and that “No person shall have a vested right” to those proceeds, 38 U. S. C. § 802 (i), appellee could not, in law, contemplate their capture. The federal statute establishes the fund in issue, and forestalls the existence of any “vested” right in the proceeds of federal insurance. Hence no constitutional question is presented. However “vested” her right to the proceeds of nongovernmental insurance under California law, that rule cannot apply to this insurance. Compare W. B. Worthen Co. v. Thomas, 292 U. S. 426 (1934); Lynch v. United States, 292 U. S. 571 (1934). See Hines v. Lowrey, 305 U. S. 85 (1938); Norman v. Baltimore & Ohio R. Co., 294 U. S. 240 (1935); Ruddy v. Rossi, 248 U. S. 104 (1918). The judgment below is Reversed. Mr. Justice Douglas took no part in the consideration or decision of this case. 54 Stat. 1008, as amended, 38 U. S. C. § 801 et seq. Amendments added in 1946, 60 Stat. 781, do not concern us here. We assume the correctness of the lower court’s statement of state law. See also French v. French, 17 Cal. 2d 775, 112 P. 2d 235 (1941). The view we take of this case makes it unnecessary to decide whether California is entitled to call army pay community property. See Lobingier, An Historical Introduction to Community Property Law, 8 Nat. Univ. L. Rev. (No. 2), p. 45 (1928); de Funiak, Community Property, c. II (1943). There are, of course, support aspects to the community property principle, and in some cases they may be of considerable importance. Likewise alimony may not be limited to the amount essential to support the divorced spouse. But we do not think the Congress would have intended decision to turn on factual variations in the spouse’s need. If there is a distinction to be drawn, we think it must be based upon a generalization as to the dominating characteristics of a particular class of cases — alimony cases, support cases, community property cases. The alimony cases have uniformly been decided on that basis. 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_dissent

0

What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting. Charles Thomas BUCHANNON, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent-Appellee. No. 72-3590 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 9, 1973. Charles Buehannon, pro se. Robert L. Shevin, Atty. Gen., Nelson Bailey, Asst. Atty. Gen., Tallahassee, Fla., Fredrie J. Scott, Asst. Atty. Gen., W. Palm Beach, Fla., for respondent-ap-pellee. Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges. Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: The district court denied the petition of Buehannon, a Florida state prisoner, for a writ of habeas corpus. We affirm. The appellant was convicted upon trial by jury of robbery and assault with intent to commit first degree murder and was sentenced to concurrent terms of 35 and 20 years, respectively. The conviction was affirmed on direct appeal. Buchannon v. Wainwright, Fla.App. 1970, 239 So.2d 608. In his habeas petition filed below, appellant alleged several grounds for relief. First he alleged that he was initially arrested pursuant to a justice of the peace warrant, but after a preliminary hearing it was found there was no probable cause for the arrest and he was released. Subsequently the state attorney filed an information against appellant, he was again arrested, and proceeded to trial without a preliminary hearing. Appellant contends he was illegally rearrested and was illegally denied a second preliminary hearing. The contentions are without merit. The state was obviously within its rights to file an information after appellant was initially released. There is nothing in the state law which requires a preliminary hearing after an information has been filed. Also, appellant has no constitutional right to a preliminary hearing. Jackson v. Smith, 5th Cir. 1970, 435 F.2d 1284; Scarbrough v. Dutton, 5th Cir. 1968, 393 F.2d 6. Appellant contended that his convictions are invalid because he was prosecuted on a bill of information and not on an indictment. The states are free to proceed on an information since the indictment clause of the constitution is not applicable to the states. Gaines v. Washington, 1928, 277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793; Hurtado v. California, 1884, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232; Henderson v. Cronvich, 5th Cir. 1968, 402 F.2d 763. He also contended that the trial court erred in admitting conflicting testimony and admitting evidence regarding a pistol owned by appellant. A state court’s rulings on admissibility of evidence do not present grounds for federal review. Lisenba v. California, 1941, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Pleas v. Wainwright, 5th Cir. 1971, 441 F.2d 56; Williams v. Wainwright, 5th Cir. 1970, 427 F.2d 921. Appellant contended that his sentence is excessive because his co-defendants received lower sentences. This likewise presents no grounds for federal habeas corpus relief. United States v. Harbolt, 5th Cir. 1972, 455 F.2d 970; Rodriquez v. United States, 5th Cir. 1968, 394 F.2d 825. He also alleged that a determination of the voluntariness of his confession was not made by the trial court. The district court found that no confession or statement was introduced as evidence against him. A review of the trial transcript reveals no clear error in that finding. Finally, appellant contended that housewives and 18-20 year olds were excluded from his jury. Appellant stated only a conclusion, offering no factual allegations to support that conclusion. There being no merit to appellant’s contentions, the judgment below is affirmed. Affirmed. Question: What is the number of judges who dissented from the majority? Answer:

songer_treat

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. UNITED STATES of America, Plaintiff-Appellee, v. Arloha Mae PINTO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Marcel Samuel LAMBERT, Defendant-Appellant. Nos. 87-1023, 87-1045. United States Court of Appeals, Tenth Circuit. Jan. 29, 1988. Linda L. Sybrant, Sp. Asst. U.S. Atty., Kansas City, Mo. (Benjamin L. Burgess, Jr., U.S. Atty., Kansas City, Kan., with her on the brief), for plaintiff-appellee. James L. Eisenbrandt, Morris, Larson, King and Stamper, Overland Park, Kan., for defendant-appellant Arloha Mae Pinto. Bruce C. Houdek, James, Millert, Hou-dek, Tyrl & Sommers, Kansas City, Mo., for defendant-appellant Marcel Samuel Lambert. Before MOORE, McWILLIAMS and BALDOCK, Circuit Judges. BALDOCK, Circuit Judge. On April 1, 1986, defendant-appellant Marcel Samuel Lambert (Lambert) and his wife, defendant-appellant Arloha Mae Pinto (Pinto), were named in a seven-count indictment. They were jointly charged with one count of conspiring to defraud the United States, in violation of 18 U.S.C. § 371, and one count of falsifying a tax return, in violation of 26 U.S.C. § 7206(1) and 18 U.S. C. § 2. Defendant Lambert also was charged with five counts of tax evasion, in violation of 26 U.S.C. § 7201. A jury found defendants guilty on all counts. The court sentenced defendant Lambert to seven consecutive two-year terms of imprisonment and defendant Pinto to concurrent three-year terms of imprisonment. Both defendants appeal, contending that: 1) the evidence was insufficient to support the convictions; 2) the trial court erroneously admitted co-conspirator hearsay; 3) there was a fatal variance, as to the conspiracy count, between the indictment and the evidence presented at trial; 4) the trial court erred in denying severance; 5) the conspiracy count should have been dismissed because the statute of limitations had expired; and 6) the trial court failed to give defendants’ instruction regarding their theory of defense and improperly instructed the jury regarding the cash expenditure method of proving tax evasion. We affirm. The rather complex factual background of these cases will be briefly summarized, with additional facts discussed as they pertain to the issues raised by defendants. At trial, the government presented its case in two parts, initially introducing evidence pertaining to the joint charges of conspiring to conceal taxable income derived from the sale and distribution of marijuana in 1977 and of claiming a false home mortgage interest expense on Pinto’s 1980 tax return. The essence of the government’s theory was that defendants concealed $150,000 in marijuana income by using cash to purchase the first in a series of three homes and later obtaining sham mortgages to create the appearance that the purchase money came from loans. Marty Ritschel and Michael Bono testified that they purchased substantial quantities of marijuana from Lambert over an approximately two-year period commencing in 1976. Sally Robinson Wells testified that in September of 1977, Lambert “fronted” 300 pounds of marijuana to her former husband, Bruce Robinson, and another man. Robinson testified that the bales were weighed in defendants’ basement and transported in Lambert's car to a “stash” house. The marijuana was then stolen. Soon after the theft was discovered, the parties to the transaction held a meeting, at which time Pinto demanded payment for the stolen marijuana and identified the lost $100,000 as hers. Regarding the series of real estate transactions, it was revealed that during the final two months of 1977, Pinto took $149,-000 in cash and purchased eighteen cashier’s checks from sixteen different banks in the Kansas City area. With the cashier’s checks, $1,154.66 in cash and a mortgage in favor of the builder, Pinto bought a $190,-500 home in Leawood, Kansas. Neither Pinto nor Lambert reported the $150,000 on their respective 1977 income tax returns. In November of the following year, defendants sold the house. With the proceeds from that sale, plus an additional $31,-960.19 in cash, Pinto purchased outright a second home in Leawood for $220,050. On December 5,1978, Pinto presented her realty company with a $150,000 note and mortgage, which had been executed in favor of a Cayman Islands corporation formed by Lambert, and requested that a lien be filed against the residence she had purchased outright the previous month. In early 1980, defendants bought yet another residence, again in Leawood. The mortgage on the second home was rolled over into a new note in favor of the offshore corporation. On March 25,1981, Pinto filed her 1980 income tax return and reported a deductible home mortgage interest expense of $20,424.00, an amount arrived at by computing interest on the $150,-000 note. Defendants sold the third residence in November of 1985. On November 8, 1985, they gave the title insurance company a Deed of Release, dated November 20, 1984, which stated that the second mortgage was released “in consideration of the full payment” of the debt. Following a summary of the evidence admitted on the joint charges, the government, employing the cash expenditure method of proof, endeavored to prove the tax evasion charges filed against Lambert. An analysis of defendants’ financial activities for the years 1974 through 1978 established that they spent $115,913.96 more cash than they had available, signifying that Lambert did not have an appreciable amount of cash on hand in 1979, the beginning of the indictment period. The government then analyzed the tax years 1979 through 1983 and established that Lambert’s cash expenditures far exceeded his reported income. Additional evidence was presented to show that Lambert took steps to conceal income and thereby evade the payment of taxes. The government established that Lambert dealt almost exclusively in cash, and that among his sizeable cash expenditures were the purchases a number of automobiles, none of which were registered in his name or titled in the state of Kansas. In 1980, Lambert directed his brother, who was preparing their parents' estate tax returns, to report a non-interest bearing loan of $50,000, which Lambert represented their father had made to him in 1976, and also to report $60,000 cash on hand, an amount which Lambert represented had been given to him by their parents. I. Both defendants strenuously argue that the evidence was insufficient to support their convictions. Our standard for evaluating the sufficiency of the evidence is well established. We view all the evidence, both direct and circumstantial, together with the reasonable inferences to be drawn therefrom, in the light most favorable to the government. United States v. Hooks, 780 F.2d 1526, 1529 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). We then must determine whether a reasonable jury could find the defendants guilty beyond a reasonable doubt. Id. at 1531. A. Defendant Lambert claims that the evidence was insufficient to show that he had substantial income from the sale and distribution of marijuana. In a related argument, defendant Pinto asserts that the evidence was insufficient to show that she intended to join a conspiracy to evade taxes on that income. It is true, as defendants point out, that the Internal Revenue Service (IRS) agents who testified were unable to state the amount of defendants’ income from drug trafficking. Nevertheless, there was substantial evidence to support the jury’s conclusion that defendants derived a significant amount of income from the sale and distribution of marijuana. At one time, Lambert described himself as the “main man” for supplying marijuana in Kansas City. Ritschel testified that he had paid Lambert more than $200,000 for the marijuana that he had purchased between 1976 and 1978. Bono testified that he had purchased marijuana from Lambert on six occasions, each time buying quantities of twenty-five to fifty pounds at a price of $285 per pound. That testimony, along with other evidence indicating that defendants dealt almost exclusively in cash and failed to report the $150,000 used to purchase the first residence, supports a reasonable inference that the funds used by Pinto to purchase the residence were derived from the sale of marijuana. In arguing that the government failed to show that she had the requisite intent to join the conspiracy, defendant Pinto similarly alleges that there was no evidence of marijuana income, and in addition asserts that there was no evidence to show that she had knowledge of marijuana profits realized by Lambert or of the illegitimate nature of the two mortgages. We cannot agree. Contrary to Pinto’s assertion, she does not stand convicted without proof of her knowledge of the conspiracy’s objective or solely because of her relationship with Lambert. See, e.g., United States v. Jones, 808 F.2d 754, 756 (10th Cir.1987); United States v. McMahon, 562 F.2d 1192, 1196-97 (10th Cir.1977). “The essence of the crime of conspiracy is an agreement to violate the law.” United States v. Troutman, 814 F.2d 1428, 1446 (10th Cir.1987). In a conspiracy prosecution, the evidence must support a finding that the conspirators had a unity of purpose or a common design and understanding. United States v. Kendall, 766 F.2d 1426, 1431 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed. 2d 889 (1986). The existence of an agreement to accomplish an unlawful objective “may be inferred from a ‘development and a collocation of circumstances.’ ” United States v. Pack, 773 F.2d 261, 265-66 (10th Cir.1985) (quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)). The government was required to show that Pinto knew of the conspiracy to evade taxes on marijuana profits and knowingly participated in the conspiracy. United States v. Kendall, 766 F.2d at 1431-32. Despite the fact that the majority of the evidence regarding the marijuana trafficking directly implicated only her husband, there was evidence which linked Pinto to the trafficking and thus supported a reasonable inference that she knew of the existence of profits derived from the sale of marijuana. For instance, it was shown that large quantities of marijuana were stored in the basement of the house where she lived with Lambert. When the $100,-000 drug deal went awry, Pinto claimed ownership of the stolen marijuana and demanded payment of the money lost as a result of the theft. Her knowledge of both the existence of marijuana profits and the use of the sham mortagages to conceal those profits was demonstrated by the fact that her purchase of the first residence was, in effect, a cash transaction, the bulk of the purchase price having been comprised of cashier’s checks which she had acquired earlier with $149,000 in cash. Moreover, as discussed below, there was other evidence which indicated that Pinto had knowledge of the illegitimate nature of the mortgages. B. Both defendants assert that the government failed to prove either that Pinto did not have a legitimate home mortgage or that she did not pay mortgage interest as stated on her 1980 income tax return. The nature of the purported mortgages and Pinto’s failure to pay any mortgage interest can be inferred from the evidence presented. In the latter half of 1978, Lambert set up a corporation in the Bahamas, Luxaco Limited (Luxaco), and another corporation in the Cayman Islands, Yarrabee International Limited (Yarrabee). At that time, the secrecy laws of the Bahamas and the Cayman Islands prevented the United States government from investigating corporations established in those countries. Pursuant to a 1984 agreement between the United States and the Cayman Islands, the government obtained public records pertaining to Yarrabee as well as records kept by the law firm and the management company which represented the corporation. Those records revealed that Yarrabee was a subsidiary of Luxaco and that the corporation had issued only three shares of stock at a price of one dollar per share. No mortgages or schedules of payments were found. A letter dated March 17, 1980, provided that there would be no further use for the corporation after the release of the mortgage had been finalized. The transcript also reflects the testimony of the designated agent for Yarrabee, a Kansas City attorney, who testified that Pinto made no interest payments to his law firm. C. Defendant Lambert makes a three-pronged attack on the sufficiency of the evidence presented to show that he had taxable income in excess of that reported on his returns for the years 1979 through 1983. He contends that the government failed to 1) show that he did not have cash on hand in 1979, 2) offer an accurate cash on hand figure for the beginning of each taxable year in the indictment period and 3) establish a likely source of income. The government employed the cash expenditure method of proof, which permits circumstantial proof of a defendant’s taxable income in cases where the prosecution is unable to show directly specific items of such income. United States v. Bianco, 534 F.2d 501, 503 (2d Cir.), cert. denied, 429 U.S. 822, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976). Under the ‘cash expenditures’ method, after taking into account the amount of resources the taxpayer had on hand at the beginning of a period, the income received by the taxpayer for the same period is compared with his expenditures that are not attributable to his resources on hand or non-taxable receipts during the period. A substantial excess of expenditures over the combination of reported income, non-taxable receipts, and cash on hand may establish the existence of unreported income. United States v. Citron, 783 F.2d 307, 310 (2d Cir.1986). The relevant issue is whether expenditures in excess of reported income can be accounted for by assets available at the outset of the prosecution period or non-taxable receipts during the period. Taglianetti v. United States, 398 F.2d 558, 565-66 (1st Cir.1968), aff'd, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969); see also United States v. Pack, 773 F.2d at 264-65 (establishing unreported income by cash expenditure method of proof). While the opening net worth of the taxpayer, including cash on hand, must be demonstrated “to a reasonable certainty,” it need not be established by a formal net worth statement. United States v. Citron, 783 F.2d at 315. Here, the government compared defendants’ cash expenditures during the years 1974 to 1978 with the amount of income reported on their tax returns, plus other funds they had available, resulting in a showing that cash expenditures exceeded reported income and other funds by $115,913.96. See United States v. Terrell, 754 F.2d 1139, 1146-47 (5th Cir.), cert. denied, 472 U.S. 1029, 105 S.Ct. 3505, 87 L.Ed.2d 635 (1985). That comparison tended to show that defendant could not have had a significant amount of cash on hand and thus supports the jury’s conclusion that Lambert had insufficient assets at the beginning of the prosecution period to have supported his expenditures in any of those years. United States v. Bianco, 534 F.2d at 505. Nor was the government required to offer an accurate cash on hand figure, as part of opening net worth, for the beginning of each taxable year in the indictment period. See United States v. Mastropieri, 685 F.2d 776, 784 (2d Cir.), cert. denied, 459 U.S. 945, 103 S.Ct. 260, 74 L.Ed.2d 203 (1982). In a cash expenditure case, reasonable certainty may be established without presenting opening net worth positions for each of the taxable years so long as the proof “makes clear the extent of any contribution which beginning resources or a diminution of resources over time could have made to expenditures.” Taglianetti v. United States, 398 F.2d at 565. Thus, there need not be any formal opening net worth statement, which would include cash on hand, so long as sources of available funds are identified and quantified. Id. at 565 n. 7. The purpose of including an accurate identification of any diminution of resources is to enable the jury to determine if expenditures were financed by a liquidation of assets, depletion of a cash hoard or unreported income. United States v. Citron, 783 F.2d at 315. For example, if an asset is sold, an accounting must be made of that fact because the proceeds could be used to finance expenditures during the year in question. See Taglianetti v. United States, 398 F.2d at 564. The government accounted for the sale or disposal of assets during the indictment period, and none of the assets acquired by Lambert during that time were income-producing. The evidence presented was sufficient to enable the jury to determine whether the expenditures in excess of reported income could be accounted for by assets available at the opening of the prosecution period or by non-taxable receipts during the period. Id. at 565-66. Defendant’s final contention, that the government did not establish a probable source of income, is also unavailing. By presenting evidence pertaining to Lambert’s involvement in marijuana and cocaine trafficking, the government met its burden of showing “at least one ‘likely source’ of taxable income.” United States v. Bianco, 534 F.2d at 506; see United States v. Mastropieri, 685 F.2d at 784-86. Such evidence was sufficient to support the inference that the cash expenditures proved were attributable to currently taxable income. See United States v. Bianco, 534 F.2d at 506-07. Upon a careful review of the record, we conclude that defendants’ sundry claims are without merit and hold that the evidence was sufficient to support the jury’s verdict. II. Defendant Pinto next asserts that the trial court erred in admitting certain hearsay statements. She argues that the court failed to follow the preferred order of proof for the admission of co-conspirator hearsay and erroneously found that the government had shown the existence of a conspiracy. At the outset of the trial, Ritschel and Bono testified about their marijuana dealings with Lambert. During the testimony of Sally Wells, defense counsel objected to the admission of any statements made by Lambert to Wells concerning Lambert’s involvement in marijuana trafficking and his identification of boxes in defendants’ basement as containing marijuana. In allowing the testimony, the court apparently agreed with the government’s argument that the statements were admissible as admissions made by Lambert and therefore were not hearsay. Rec. vol. Ill at 81-88; see Fed.R. Evid. 801(d)(2). Wells then testified that during the meeting about the stolen marijuana, Pinto identified the lost $100,000 as hers. Upon the succeeding direct examination of Wells’ ex-husband, Bruce Robinson, a question was asked about Robinson’s discussions with Lambert concerning marijuana distribution. Counsel for Pinto again objected on grounds of hearsay. The court found that there was substantial evidence, independent of the statements at issue, that a conspiracy existed, that both defendants were members of the conspiracy and that the statements were made during the course and in furtherance of the conspiracy. Rec. vol. Ill at 101. The court subsequently restated its finding that the government had shown the existence of a conspiracy. Rec. vol. VII at 789. Defendant apparently is arguing that the court failed to follow the preferred order of proof” by admitting co-conspirator hearsay before finding the existence of a conspiracy. That argument fails, primarily because the hearsay statements offered in the course of direct examination of Wells were admitted as admissions by Lambert. Even assuming the statements were admitted as co-conspirator hearsay, they would have been conditionally admissible subject to being connected up. See United States v. Hernandez, 829 F.2d 988, 994 (10th Cir.1987). The other statements which defendant now contends were improperly admitted were allowed after the trial court had found the existence of a conspiracy. Defendant further claims that the government had not shown the existence of the conspiracy as charged. Co-conspirator hearsay is properly admitted if the trial court makes a factual determination that the government has established, by a preponderance of the evidence, that: 1) a conspiracy existed; 2) the declarant and the defendant were members of the conspiracy; and 3) the hearsay statements were made in the course and in furtherance of the conspiracy. United States v. Esch, 832 F.2d 531, 537 (10th Cir.1987). There was substantial evidence of the existence of a conspiracy. Ritschel and Bono testified that they had purchased large quantities of marijuana from Lambert and each testified about obtaining marijuana which had been stored in defendants’ basement. Wells then testified that Pinto claimed ownership of the stolen marijuana. Wells’ testimony, which was not hearsay as to Pinto, linked Pinto to the drug trafficking, which was an integral part of the alleged conspiracy to evade taxes on income generated by the sale and distribution of marijuana. The trial court did not err in admitting the contested testimony. III. Defendant Pinto next claims that there was a fatal variance between the conspiracy as charged and the evidence adduced at trial, which she maintains indicated the existence of a second, uncharged conspiracy to possess, sell and distribute marijuana. Consequently, defendant argues, her convictions were based on a theory not charged in the indictment. A variance occurs when the evidence presented at trial establishes facts different from those alleged in the indictment. Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193, 60 L.Ed.2d 743 (1979); United States v. Dickey, 736 F.2d 571, 581 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). In assessing a claim of a fatal variance, the pivotal inquiry is whether there has been a variance in proof which affects the substantial rights of the accused. United States v. Morris, 623 F.2d 145, 149 (10th Cir.), cert. denied, 449 U.S. 1065, 101 S.Ct. 793, 66 L.Ed.2d 609 (1980). This court has previously stated that such a variance occurs when the accused could not have anticipated from the indictment what evidence would be presented at trial. Id. “Another source of prejudice is the transference of guilt to an accused from incriminating evidence presented in connection with the prosecution of another in the same trial for a crime in which the accused did not participate.” Id. The indictment charged that “[t]he object of the defendants’ conspiracy was to knowingly and willfully hide substantial income from the sale and distribution of marijuana and to evade the payment of taxes on that and other income,” which was accomplished by creating the appearance that funds used to purchase the series of residences came from loans when, as defendants knew, the funds came from the sale and distribution of marijuana. Rec. vol. I, doc. 1, at 2. In setting out the overt acts committed in furtherance of the conspiracy, the indictment alleged that during 1977, defendants possessed, sold and distributed, and aided and abetted in the possession, sale and distribution, of marijuana. Id. at 3. Although Pinto was not charged with conspiring to sell drugs, she could anticipate from the indictment what evidence would be presented at trial, in particular her involvement in the alleged overt act of possessing, selling and distributing marijuana. United States v. Morris, 623 F.2d at 149. Also meritless is Pinto’s argument that she was prejudiced by an improper transference of guilt resulting from the evidence submitted on the tax evasion charges which indicated Lambert’s post-1977 drug activities. As to the joint conspiracy charge, the evidence indicated that defendants acted in concert to effectuate the common illicit goal of evading taxes by concealing income derived from the sale and distribution of marijuana. See United States v. Dickey, 736 F.2d at 582. Pinto’s allegation of prejudice arising from the evidence showing Lambert’s likely source of income during the tax evasion indictment period is more pertinent to the issue of severance, and, in any event, the evidence of Lambert’s post-1977 drug activities did not result in a transference of guilt affecting her substantial rights. IV. Defendant Pinto next contends that the trial court committed reversible error in denying her motion for severance. She argues that she was prejudiced by the great disparity in the weight of the evidence admitted solely against Lambert, the disparity being exacerbated by the fact of their marital relationship. The general rule in this circuit is that individuals jointly indicted should be jointly tried. United States v. Rinke, 778 F.2d 581, 590 (10th Cir.1985). The trial court’s decision whether to sever is made within its sound discretion, and will not be reversed absent a strong showing of prejudice. United States v. Esch, 832 F.2d at 537. In ruling on a motion to sever, the trial court must weigh any potential prejudice caused by the joinder against considerations of economy and expedition in judicial administration. Id.; United States v. Rinke, 778 F.2d at 590. The government presented the testimony and exhibits relating to the joint charges during the first portion of the trial, concluding with the summary testimony of IRS Special Agent Kenneth Wissel. The evidence that followed pertained to the tax evasion counts filed against Lambert. The government’s order of proof facilitated the separation of the evidence and served to mitigate any potentially adverse effect of the evidence submitted solely against Lambert. Throughout the trial, the court admonished the jury to consider certain evidence only as to Lambert. As a result, the jury was able to compartmentalize the evidence as to each of the defendants and to properly apply it as the court instructed. United States v. Pack, 773 F.2d at 267. Further, we cannot agree with Pinto’s claim that her right to a fair trial was undermined by the disparity in the evidence against Lambert as compared to the alleged dearth of evidence implicating her. In a conspiracy case, a quantitative disparity in the evidence, without more, provides no justification for severance. United States v. Hack, 782 F.2d 862, 871 (10th Cir.), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986). Given the government’s order of proof, the trial court’s continuous admonitions and the fact that the interests of judicial economy were served by the avoidance of duplicitous separate trials, the trial court did not abuse its discretion in denying the motion for severance. V. Both defendants next argue that the trial court erred in not dismissing the conspiracy count because the statute of limitations had expired before the charges were filed on April 1,1986. Their theory is that the offense of evading tax due on income derived from the sale and distribution of marijuana in 1977 was completed no later than April 15, 1978, the due date for the filing of their tax returns. Under the Internal Revenue Code, the statute of limitations for a conspiracy to defraud the United States is six years. 26 U.S.C. § 6531; United States v. Brunetti, 615 F.2d 899, 901-02 (10th Cir.1980). It therefore was incumbent upon the government to prove that the conspiracy was still in existence on April 1, 1980, and that at least one overt act in furtherance of the conspiracy was performed after that date. Grunewald v. United States, 353 U.S. 391, 396, 77 S.Ct. 963, 969, 1 L.Ed.2d 931 (1957); United States v. Brunetti, 615 F.2d at 901. Defendants’ theory, that the central purpose of the conspiracy was accomplished with the filing of the tax returns, ignores both the object of their conspiracy as charged in the indictment and the evidence presented at trial to establish the conspiracy. They were charged with conspiring to defraud the United States, in violation of 18 U.S.C. § 371, “by impeding, impairing, obstructing, and defeating the lawful governmental functions” of the IRS “in the ascertainment, computation, assessment, and collection of income taxes____” Rec. vol. I, doc. 1, at 1. The indictment was based on one continuing conspiracy, the central object of which was not merely to evade taxes on marijuana income in 1978, but rather to immunize defendants from prosecution for tax evasion. Forman v. United States, 361 U.S. 416, 422-23, 80 S.Ct. 481, 485-86, 4 L.Ed.2d 412 (1960); see Grunewald v. United States, 353 U.S. at 405, 77 S.Ct. at 974 (distinguishing between acts of concealment done in furtherance of the main criminal objectives of the conspiracy and acts of concealment done solely for the purpose of covering up the crime). The object of defendants’ conspiracy, the concealment of income derived from the sale and distribution of marijuana in 1977, did not end with the filing of their income tax returns in 1978. The filing of the returns was but the first step in the process of evading taxes on that income, with additional overt acts subsequently undertaken to conceal the marijuana income in an attempt to make the evasion succeed. Forman v. United States, 361 U.S. at 423-24, 80 S.Ct. at 485-86. Because at least one overt act was committed within six years prior to the filing of the indictment, the trial court properly denied defendants’ motion to dismiss the conspiracy count. United States v. Brunetti, 615 F.2d at 901. VI. Defendants’ final contention is that the trial court erred by failing to give their tendered instruction setting out their theory of defense. Defendant Lambert also contends that the court erred in giving instruction 38, which addressed the cash expenditure method of proving tax evasion. Jury instructions must be evaluated as a whole. United States v. Grissom, 814 F.2d 577, 580 (10th Cir.1987). The trial court is given substantial discretion in tailoring and formulating its instructions, so long as they correctly state the law and fairly and adequately cover the issues presented. United States v. Pack, 773 F.2d at 267. Although a defendant is entitled to an instruction regarding his theory of defense, the trial court need not follow the exact language in an instruction tendered by the defendant. United States v. Hoffner, 777 F.2d 1423, 1426 (10th Cir.1985). The defendants tendered the following instruction: If the evidence fails to establish beyond a reasonable doubt that defendants had taxable income from sales of marijuana in 1977 then you must find the defendants not guilty as to Count I. In instructions 9 through 15, the court advised the jury of the law pertaining to the conspiracy charge. Rec. vol. II, doc. 78, at 23-31. Instruction 10 provided that the government had the burden of proving beyond a reasonable doubt every essential element of the crime charged, including the existence of the conspiracy charged in the indictment. Id. at 24. Instruction 2 contained the substance of the indictment, in which defendants were charged with conspiring to conceal income received in 1977 from the sale and distribution of marijuana. Id. at 4. While defendants reiterate their previously rejected claim that there was no evidence to show such income, the fact remains that the jury was properly instructed that it had to find beyond a reasonable doubt that defendants had income in 1977 from the sale and distribution of marijuana. The trial court did not err in refusing to give the tendered instruction when the substance of the instruction was contained in the charge given to the jury. Regarding instruction 38, defendant Lambert contends that the instruction was erroneous because it failed to require the government to prove his net worth at both the beginning and end of the indictment period and in addition was confusing and internally inconsistent. Due to the government’s employment of the cash expenditure method of proof, it was not required to present formal net worth statements. United States v. Citron, 783 F.2d at 315; Taglianetti v. United States, 398 F.2d at 564-66. As to Lambert’s corollary contention, we note that he did not submit a tendered instruction on the cash expenditure method of proof, and conclude that the trial court’s instruction was neither confusing nor inconsistent, but rather properly directed the jury to determine whether expenditures in excess of reported income could be accounted for by assets available at the outset of the prosecution period. See Taglianetti v. United States, 398 F.2d at 565-66. AFFIRMED. . During the indictment period, Lambert’s cash expenditures far exceeded his reported income: in 1979, his income was $36,000, while cash expenditures totalled $132,098.31; in 1980, his income was $6,000, while cash expenditures to-talled $134,265.44; in 1981, his income was $6,000, while cash expenditures totalled $100,-820.79; in 1982, his income was $7,000, while cash expenditures totalled $34,160.21; and in 1983, his income was $30,000, while cash expenditures totalled $158,901.39. . In Bianco, the defendant’s contention that the government failed to negate the possibility of a cash hoard was rejected because there was no evidence to indicate that the defendant had such a cache. United States v. Bianco, 534 F.2d at 505. As the court explained, [o]f course, as in any criminal prosecution, the defendant is under no obligation to prove any particular set of facts, including the existence of a non-taxable source, such as a ‘cash hoard’ from which his expenditures were made. But once the government has introduced sufficient evidence from which the jury could conclude with reasonable certainty that no such assets existed, the defendant remains silent at his own peril. Id. at 505-06 (citations omitted). . This court recently clarified the meaning of the term "preferred order of proof’ as it pertains to the admission of co-conspirator hearsay. In United States v. Hernandez, 829 F.2d 988 (10th Cir.1987), we stated that the "preferred order of proof' simply refers to the requirement that the trial court make the requisite factual determination of the existence of a conspiracy prior to allowing co-conspirator hearsay statements to be heard by the jury. Id. at 994 n. 6. We further stated that “this order of proof does not involve a right to a pretrial hearing on admissibility, and in no way precludes the trial judge from exercising his considerable discretion and conditionally admitting the statements subject to later being connected up.” Id. . 26 U.S.C. § 6531 provides in pertinent part: No person shall be prosecuted, tried, or punished for any of the various offenses arising under the internal revenue laws unless the indictment is found or the information instituted within 3 years next after the commission of the offense, except that the period of limitation shall be 6 years— (1) for offenses involving the defrauding or attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner; (8) for offenses arising under section 317 of Title 18 of the United States Code, where the object of the conspiracy is to attempt in any manner to evade or defeat any tax or the payment thereof. . 18 U.S.C. § 371 provides in pertinent part: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. 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_geniss

F

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". LOCAL NO. 6, BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA et al., Plaintiffs-Appellants, v. BOYD G. HEMINGER, INC., and Frank Fulton, Inc., Defendants-Appellees. No. 72-2199. United States Court of Appeals, Sixth Circuit. Argued April 9, 1973. Decided Aug. 9, 1973. James O. Cross, Akron, Ohio, for plaintiffs-appellants. Charles A. Morgan, Jr., of Amerman, Burt & Jones Co., Canton, Ohio, for defendants-appellees. Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge. PHILLIPS, Chief Judge. This is a suit to compel arbitration. The District Court refused to order arbitration, rendering judgment in favor of the appellee employer, Boyd G. Hem-inger, Inc. The three labor unions appeal. Although Frank Fulton, Inc. also was a party to this litigation in the District Court, the unions, in this appeal, seek only a remand for direction of arbitration with Heminger. Jurisdiction is founded on § 301 of the Labor Management Relations Act, as amended. 29 U. S.C. § 185. We reverse and remand. Each of the three unions is party to individual collective bargaining agreements with the Heminger corporation, which is in the construction industry. The bricklayers’ agreement requires that seventy per cent of all the employer’s bricklayers must be union members, if they are available and competent. The carpenters’ agreement requires that all unemployed carpenters in a four-county area in and around Canton, Ohio, be hired before any outside help is employed. The Ironworkers’ agreement provides that other than a minimum of key employees, all of Heminger’s iron-workers shall be furnished by the union. The unions allege that Heminger violated each of these union security provisions by creating a sham corporation (appellee Frank Fulton, Inc.) to operate with non-union employees in the geographical areas covered by the agreements. A demand for arbitration for breach of the above provisions was made by each union on June 14, 1972. This suit was instituted after Heminger refused to arbitrate. The bricklayers’ arbitration agreement provides that the arbitration procedure will be used to settle “any disputes occurring during life of this Agreement in a peaceful manner .” The carpenters’ arbitration agreement provides for arbitration “(i)n the event any . . . difference of opinion or dispute occurs, whether they concern the interpretation of the . . . Agreement or otherwise The Ironworkers’ arbitration agreement provides “(t)he Board of Arbitration shall have jurisdiction over all questions involving the interpretation and application of any section of this Agreement.” The District Court, in its opinion, detailed the unions’ allegations concerning the creation of the sham corporation and examined the evidence on the merits of the claim. The court concluded “this court can go no further than to determine whether or not plaintiffs have made out a prima facie case based on the alter ego or single employer theory.” It refused to send the matter to arbitration because “the evidence and testimony indicate a lack of sufficient common factors to illustrate a single employer or alter ego theory.” Any inquiry into the applicable law in this area must begin with the Steelworkers’ Trilogy. United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The teaching of the Trilogy is that arbitration is preferred in the field of labor disputes. “An order to arbitrate . . . should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” Warrior & Gulf, supra, 363 U.S. at 582-583, 80 S.Ct. at 1353. Cf. International Union of Operating Engineers, Local 150, AFL-CIO v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972). The role of the court in these cases “is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract.” American Mfg., supra, 363 U.S. at 568, 80 S.Ct. at 1346 (emphasis added). See Amalgamated Clothing Workers of America, AFL-CIO v. Ironall Factories Co., Inc., 386 F.2d 586, 591 (6th Cir. 1967). The Fifth Circuit has termed the standard to be applied the “arguably arbitrable” test. International Union of Operating Engineers Local 279 v. Sid Richardson Carbon Co., 471 F.2d 1175 (5th Cir. 1973); Jacksonville Newspaper Printing Pressmen & Assistants’ Union No. 57 v. Florida Publishing Co., 468 F.2d 824 (5th Cir. 1972), cert. denied, 411 U.S. 906, 93 S.Ct. 1531, 36 L.Ed.2d 196 (1973). We hold that the District Court misconstrued its mandate. The duty of the courts is not to determine whether a prima facie case on the merits has been put forth by the party seeking arbitration. It is not the province of the court to look into the facts of the case. Chambers v. Beaunit Corp., 404 F.2d 128, 130 (6th Cir. 1968); American Radiator & Standard Sanitary Corp. v. Local 7, International Brotherhood of Operative Potters, 358 F.2d 455, 458 (6th Cir. 1966). The arbitrator is not to be viewed as a special master who will be called in after a prima facie case on the merits has been made out. In the context of this ease, the burden of the unions was not to present a prima facie case on the creation of a sham or alter ego corporation by the employer. The burden was to show that, assuming there was a sham or alter ego corporation created by the Heminger Corp., there would then be a violation of the collective bargaining agreements. We have no doubt that such an asserted violation would be within the scope of the three arbitration agreements in question. In signing these arbitration agreements, the parties agreed to “submit all grievances to arbitration, not merely those that a court may deem to be meritorious.” American Mfg., supra, 363 U.S. at 567, 80 S.Ct. at 1346. Heminger has promised to arbitrate grievances concerning the application and interpretation of the collective bargaining agreement. This employer must be held to its promise. We find inapposite two N.L.R.B. decisions relied on heavily by Heminger: Carpenters District Council of Houston & Vicinity et al. and Baxter Construction Co., Inc., 201 N.L.R.B. No. 16 (1973); and Gerace Construction, Inc. et al. v. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 1654 et al., 193 N.L.R.B. No. 91 (1971). Both of these unfair labor practice proceedings were concerned with the presence or absence of a single employer. There was no issue of arbi-trability in either of those cases. We emphasize that this court is not faced with the question of whether there was a single employer. We simply decide the arbitrability of that claim. Reversed and remanded with directions to the District Court to order arbitration between the unions and Boyd G. Heminger, Inc. 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_alj

B

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court support the decision of an administrative law judge? Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. W.A.D. RENTALS LIMITED d/b/a Kelly’s Private Car Service, Respondent. No. 442, Docket 90-4062. United States Court of Appeals, Second Circuit. Argued Oct. 1, 1990. Decided Nov. 27, 1990. Stuart M. Kirshenbaum, Mineóla, N.Y., for respondent W.A.D. Rentals, Inc. Margaret G. Bezou, Washington, D.C. (Peter Winkler, Supervisory Atty., Jerry M. Hunter, Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., of .counsel), for petitioner N.L.R.B. Before CARDAMONE and MINER, Circuit Judges, and POLLACK, District Judge . Hon. Milton Pollack, Senior Judge, United States District Court for the Southern District of New York, sitting by designation. CARDAMONE, Circuit Judge: We have a petition for enforcement by the National Labor Relations Board (Board) of its decision and order dated June 9, 1988, reported at 289 N.L.R.B. No. 9. The Board found that respondent W.A.D. Rentals, Limited, d/b/a Kelly’s Private Car Service, violated §§ 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (5) (Act), and required it to cease and desist from unfair labor practices, more specifically to recognize and bargain with the union, and to post a remedial notice. Respondent’s principal argument is that there has been inordinate delay, in the first instance, on the union’s part in filing charges and, in the second instance, on the Board’s part in petitioning for enforcement. In the meanwhile, respondent says, a high employee turnover rate in its business has left few of the original employees now on its payroll that voted nine years ago for union representation. We have no doubt, as has often been observed, that procrastination is the thief of time. In this case, the union and the Board share slightly in the blame, but the chief culprit in our view is the employer, which first stalled and then later engaged in lengthy litigation thereby causing the delay of which it now complains. I Respondent operates a taxi service providing passenger service to and from the Long Island Railroad Station in Bayside, Queens, New York. Its drivers may not accept street fares. Instead fares are obtained by telephone calls from customers or from passengers picked up at the railroad station. The charges in this case were filed five years ago on July 2, 1985 by Local 3036, Taxi Drivers and Allied Workers Union, Service Employees International Union, AFL-CIO-CLC. Local 3036 began organizing respondent’s drivers in 1980 and executed a Stipulation for Certification upon Consent Election on December 15, 1980, which was followed by an election on January 9, 1981 that resulted in a 15-14 vote in favor of the union. About a year later, in February 1982, the Regional Director certified Local 3036 as the bargaining representative of the company’s employees. A number of negotiating sessions were held over the next several years but no collective bargaining agreement was signed. An earlier unfair labor practice charge brought against the respondent company was dismissed by the Regional Director in 1984 because the union had failed to prepare and submit to respondent a draft agreement. Testimony before the Administrative Law Judge (AU) in the instant case regarding the delay in reaching a meeting of the minds on the terms of a collective bargaining agreement revealed that numerous telephone calls made in 1983 and in 1984 by union representatives to respondent’s lawyer were not returned for one reason or another. The AU credited the union’s substantially uncontradicted testimony on this issue. Meanwhile, between 1981 and 1985 the company had an employee turnover of 500 percent — a rate characteristic of the industry — so that by the time the AU held the hearing on the present unfair labor charges, only three of the employees who had originally voted on union representation remained with the company. The AU determined that the parties had never come to a meeting of the minds on a collective bargaining agreement, but that the company had a continuing obligation to negotiate with the union. He rejected respondent’s claims that because the Local did not represent a majority of the employees it was no longer the employees’ bargaining representative, as well as its further claim that because of the passage of time and the employee turnover rate, the company was entitled to have a good faith doubt as to the union’s majority status. Instead, the AU found the company violated §§ 8(a)(1) and (5) of the Act by withdrawing recognition from Local 3036 and by refusing to bargain with it in good faith. In his recommended order, the hearing officer required the company to cease and desist from such unfair labor practices, from interfering with or coercing employees in the exercise of their rights to conduct union activity, to post a remedial notice, and to bargain with the union. The Board summarily approved the AU’s decision and order on June 9, 1988 and — as the company has since refused to bargain with the union — now petitions for enforcement of its order. II We discuss first respondent’s contention that the union and then the Board were guilty of such delay as to render the Board’s direction to engage in collective bargaining moot. Focusing on the lapse of time between the activities that are the subject of the complaint of unfair labor practices and the remedy granted, none of the delay prior to the earlier July 1985 filing by the Local of an unfair labor practice charge may be ascribed to delay on the part of the union. With respect to the period from its certification in 1981 until it filed charges in July 1985, there is substantial evidence in the record viewed as a whole to support a finding that Local 3036 neither knew nor could have known of the employer’s refusal to bargain because it had an ongoing bargaining relationship with the employer. With respect to the subsequent period, the record shows that the unfair labor practice charge now before us was filed on July 2, 1985 and, after investigation, the Regional Director issued a complaint and notice of hearing on September 16. On September 25, the company filed an answer denying the complaint’s allegations and moved on December 30 for summary judgment. On April 9, 1986, the Board denied the motion, and hearings were held in July 1986. On April 28, 1987, after the parties had filed briefs, the AU issued its 51-page recommended decision, which the Board adopted on June 9, 1988. The company then advised the Regional Office that it would comply and posted the remedial notice. Only later, after further investigation, did the Regional Office conclude that the employer was in fact continuing to engage in dilatory tactics and persisting in its unlawful refusal to bargain. As a result, the case was referred for enforcement in May 1989. This recitation demonstrates that the company vigorously litigated this case at every stage, and it was on account of its tactics that the initiation of the instant enforcement proceeding was delayed. Hence, the processing of this case, though time consuming, has not been marked by undue delay. The June 9, 1988 order of the N.L.R.B. is enforceable, notwithstanding the passage of time and the employee turnover rate since the company’s purported withdrawal of recognition from the union. The respondent appeals essentially to our equitable powers, since the National Labor Relations Act contains no time limit for the enforcement of the Board’s orders. See N.L.R.B. v. Katz, 369 U.S. 736, 748 n. 16, 82 S.Ct. 1107, 1114 n. 16, 8 L.Ed.2d 230 (1962); Continental Web Press, Inc. v. N.L.R.B., 742 F.2d 1087, 1095 (7th Cir.1984). Although we have the power to deny enforcement where it is unnecessary or futile, see Emhart Industries v. N.L.R.B., 907 F.2d 372, 378-80 (2d Cir.1990); N.L.R.B. v. Maywood Plant of Grede Plastics, 628 F.2d 1, 7 (D.C.Cir.1980), the purposes that the Act was enacted to serve argue against denying enforcement in this case. Ill We consider next the 500 percent employee turnover. During the year following its certification, a union enjoys a conclusive presumption of majority employee support and, thereafter, it enjoys a re-buttable presumption of such support. See Brooks v. N.L.R.B., 348 U.S. 96, 104, 75 S.Ct. 176, 181, 99 L.Ed. 125 (1954); N.L.R.B. v. Aquabrom, Div. of Great Lakes Chem. Corp., 855 F.2d 1174, 1183 (6th Cir.), amended on other grounds, 862 F.2d 100 (1988). The policy behind the presumption of continuing majority support not only allows time for the bargaining process to work, see Franks Bros. Co. v. N.L.R.B., 321 U.S. 702, 705, 64 S.Ct. 817, 819, 88 L.Ed. 1020 (1944), but, in addition, insisting on continued majority employee support, in an industry — such as the private car rental service — where there is a high employee turnover rate, would encourage an employer to commit unfair labor practices. An employer not anxious, for example, to have its employees organized would quickly realize that employee turnover would work in its favor, so that after the passage of time the only remedy available upon complaint of an unfair labor practice would be a cease and desist order and a new election. By playing a waiting game, the employer could indefinitely postpone serious bargaining with the union. See Chromalloy Mining & Mineral's Alaska Div., Chromalloy American Corp. v. N.L.R.B., 620 F.2d 1120, 1132 (5th Cir.1980). Where such tactics are shown, as we believe they are in the instant record, they should not be countenanced. We recognized these policy considerations in refusing to require a new election when there had been some employee turnover between a union’s selection by the employees and the Board’s petition for enforcement of a bargaining order. See N.L.R.B. v. Patent Trader, Inc., 426 F.2d 791, 792 (2d Cir.1970) (in banc). To allow an employer first to stall and then to engage in lengthy litigation and later to claim that in the meantime its high employee turnover rate has effectively left none of the employees on its payroll who originally voted for the union, would give employers an incentive to use such tactics. Providing such an incentive would serve only to encourage the commission of unfair labor practices. See Glomac Plastics, Inc. v. N.L.R.B., 592 F.2d 94, 101-02 (2d Cir.1979); N.L.R.B. v. All Brand Printing Corp., 594 F.2d 926, 931 (2d Cir.1979). CONCLUSION Although the administrative delay in petitioning for enforcement is regrettable, the appropriate remedy is to allow the employees, if they are so advised, to petition for decertification, not to require another election, particularly when union recognition originated through an election. See N.L.R.B. v. Koenig Iron Works, Inc., 856 F.2d 1, 2-3 (2d Cir.1988). Enforcement of the Board’s order is accordingly granted. Question: Did the court support the decision of an administrative law judge? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_appel1_1_3

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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. BRANDIR INTERNATIONAL, INC., Plaintiff-Appellant, v. CASCADE PACIFIC LUMBER CO., d/b/a Columbia Cascade Co., Defendant-Appellee, and David L. Ladd, Register of Copyrights, United States Copyright Office, Third-Party Defendant. No. 828, Docket 86-6260. United States Court of Appeals, Second Circuit. Argued March 2, 1987. Decided Dec. 2, 1987. Blum Kaplan, New York City (Lawrence Rosenthal, Laura E. Goldbard, Anita K. Yeung, New York City, of counsel), for plaintiff-appellant. Fish & Neave, New York City (Donald E. Degling, Susan Progoff, Eric M. Lee, New York City, of counsel), for defendant-appel-lee. Before OAKES and WINTER, Circuit Judges, and ZAMPANO, District Judge. Of the United States District Court for the District of Connecticut, sitting by designation. OAKES, Circuit Judge: In passing the Copyright Act of 1976 Congress attempted to distinguish between protectable “works of applied art” and “industrial designs not subject to copyright protection.” See H.R.Rep. No. 1476, 94th Cong., 2d Sess. 54, reprinted in 1976 U.S. Code Cong. & Admin.News ,5659, 5667 (hereinafter H.R.Rep. No. 1476). The courts, however, have had difficulty framing tests by which the fine line establishing what is and what is not copyrightable can be drawn. Once again we are called upon to draw such a line, this time in a case involving the “RIBBON Rack,” a bicycle rack made of bent tubing that is said to have originated from a wire sculpture. (A photograph of the rack is contained in the appendix to this opinion.) We are also called upon to determine whether there is any trademark protection available to the manufacturer of the bicycle rack, appellant Brandir International, Inc. The Register of Copyright, named as a third-party defendant under the statute, 17 U.S.C. § 411, but electing not to appear, denied copy-rightability. In the subsequent suit brought in the United States District Court for the Southern District of New York, Charles S. Haight, Jr., Judge, the district court granted summary judgment on both the copyright and trademark claims to defendant Cascade Pacific Lumber Co., d/b/a Columbia Cascade Co., manufacturer of a similar bicycle rack. We affirm as to the copyright claim, but reverse and remand as to the trademark claim. Against the history of copyright protection well set out in the majority opinion in Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411, 415-18 (2d Cir.1985), and in Denicola, Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful Articles, 67 Minn.L. Rev. 707, 709-17 (1983), Congress adopted the Copyright Act of 1976. The “works of art” classification of the Copyright Act of 1909 was omitted and replaced by reference to “pictorial, graphic, and sculptural works,” 17 U.S.C. § 102(a)(5). According to the House Report, the new category was intended to supply “as clear a line as possible between copyrightable works of applied art and uncopyrighted works of industrial design.” H.R.Rep. No. 1476, at 55, U.S. Code Cong. & Admin.News 1976, p. 5668. The statutory definition of “pictorial, graphic, and sculptural works” states that “the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101. The legislative history added gloss on the criteria of separate identity and independent existence in saying: On the other hand, although the shape of an industrial product may be aesthetically satisfying and valuable, the Committee’s intention is not to offer it copyright protection under the bill. Unless the shape of an automobile, airplane, ladies’ dress, food processor, television set, or any other industrial product contains some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of that article, the design would not be copyrighted under the bill. H.R.Rep. No. 1476, at 55, U.S.Code Cong. & Admin.News 1976, p. 5668. As courts and commentators have come to realize, however, the line Congress attempted to draw between copyrightable art and noncopyrightable design “was neither clear nor new.” Denicola, supra, 67 Minn. L.Rev. at 720. One aspect of the distinction that has drawn considerable attention is the reference in the House Report to “physically or conceptually" (emphasis added) separable elements. The District of Columbia Circuit in Esquire, Inc. v. Ringer, 591 F.2d 796, 803-04 (D.C.Cir.1978) (holding outdoor lighting fixtures ineligible for copyright), cert. denied, 440 U.S. 908, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979), called this an “isolated reference” and gave it no significance. Professor Nimmer, however, seemed to favor the observations of Judge Harold Leventhal in his concurrence in Esquire, who stated that “the overall legislative policy ... sustains the Copyright Office in its effort to distinguish between the instances where the aesthetic element is conceptually severable and the instances where the aesthetic element is inextricably interwoven with the utilitarian aspect of the article.” 591 F.2d at 807; see 1 Nimmer on Copyright § 2.08[B] at 2-93 to 2-96.2 (1986). But see Gerber, Book Review, 26 U.C.L.A.L.Rev. 925, 938-43 (1979) (criticizing Professor Nimmer’s view on conceptual separability). Looking to the section 101 definition of works of artistic craftsmanship requiring that artistic features be “capable of existing independently of the utilitarian aspects,” Professor Nim-mer queries whether that requires physical as distinguished from conceptual separability, but answers his query by saying “[t]here is reason to conclude that it does not.” See 1 Nimmer on Copyright § 2.08[B] at 2-96.1. In any event, in Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 993 (2d Cir.1980), this court accepted the idea that copyrightability can adhere in the “conceptual” separation of an artistic element. Indeed, the court went on to find such conceptual separation in reference to ornate belt buckles that could be and were worn separately as jewelry. Kieselstein-Cord was followed in Norris Industries, Inc. v. International Telephone & Telegraph Corp., 696 F.2d 918, 923-24 (11th Cir.), cert. denied, 464 U.S. 818, 104 S.Ct. 78, 78 L.Ed.2d 89 (1983), although there the court upheld the Register’s refusal to register automobile wire wheel covers, finding no “conceptually separable” work of art. See also Transworld Mfg. Corp. v. Al Nyman & Sons, Inc., 95 F.R.D. 95 (D.Del.1982) (finding conceptual separability sufficient to support copyright in denying summary judgment on copy-rightability of eyeglass display cases). In Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir.1985), a divided panel of this circuit affirmed a district court grant of summary judgment of noncopyrightability of four life-sized, anatomically correct human torso forms. Carol Barnhart distinguished Kieselstein-Cord, but it surely did not overrule it. The distinction made was that the ornamented surfaces of the Kieselstein-Cord belt buckles “were not in any respect required by their utilitarian functions,” but the features claimed to be aesthetic or artistic in the Carol Barnhart forms were “inextricably intertwined with the utilitarian feature, the display of clothes.” 773 F.2d at 419. But cf. Animal Fair, Inc. v. Amfesco Indus., Inc., 620 F.Supp. 175, 186-88 (D.Minn.1985) (holding bear-paw design conceptually separable from the utilitarian features of a slipper), aff'd mem., 794 F.2d 678 (8th Cir.1986). As Judge Newman’s dissent made clear, the Carol Barnhart majority did not dispute “that ‘conceptual separability’ is distinct from ‘physical separability’ and, when present, entitles the creator of a useful article to a copyright on its design.” 773 F.2d at 420. “Conceptual separability” is thus alive and well, at least in this circuit. The problem, however, is determining exactly what it is and how it is to be applied. Judge Newman’s illuminating discussion in dissent in Carol Barnhart, see 773 F.2d at 419-24, proposed a test that aesthetic features are conceptually separable if “the article ... stimulate^] in the mind of the beholder a concept that is separate from the concept evoked by its utilitarian function.” Id. at 422. This approach has received favorable endorsement by at least one commentator, W. Patry, Latman’s The Copyright Law 43-45 (6th ed. 1986), who calls Judge Newman's test the “temporal displacement” test. It is to be distinguished from other possible ways in which conceptual separability can be tested, including whether the primary use is as a utilitarian article as opposed to an artistic work, whether the aesthetic aspects of the work can be said to be “primary,” and whether the article is marketable as art, none of which is very satisfactory. But Judge Newman’s test was rejected outright by the majority as “a standard so ethereal as to amount to a ‘nontest’ that would be extremely difficult, if not impossible, to administer or apply.” 773 F.2d at 419 n. 5. Perhaps the differences between the majority and the dissent in Carol Barnhart might have been resolved had they had before them the Denicola article on Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful Articles, supra. There, Professor Denicola points out that although the Copyright Act of 1976 was an effort “ ‘to draw as clear a line as possible,’ ” in truth “there is no line, but merely a spectrum of forms and shapes responsive in varying degrees to utilitarian concerns.” 67 Minn.L.Rev. at 741. Denicola argues that “the statutory directive requires a distinction between works of industrial design and works whose origins lie outside the design process, despite the utilitarian environment in which they appear.” He views the statutory limitation of copyrightability as “an attempt to identify elements whose form and appearance reflect the unconstrained perspective of the artist,” such features not being the product of industrial design. Id. at 742. “Copyrightability, therefore, should turn on the relationship between the proffered work and the process of industrial design.” Id. at 741. He suggests that “the dominant characteristic of industrial design is the influence of nonaesthetic, utilitarian concerns” and hence concludes that copyrightability “ultimately should depend on the extent to which the work reflects artistic expression uninhibited by functional considerations.” Id. To state the Denicola test in the language of conceptual separability, if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences, conceptual separability exists. We believe that Professor Denicola’s approach provides the best test for conceptual separability and, accordingly, adopt it here for several reasons. First, the approach is consistent with the holdings of our previous cases. In Kieselstein-Cord, for example, the artistic aspects of the belt buckles reflected purely aesthetic choices, independent of the buckles’ function, while in Carol Barnhart the distinctive features of the torsos — the accurate anatomical design and the sculpted shirts and collars— showed clearly the influence of functional concerns. Though the torsos bore artistic features, it was evident that the designer incorporated those features to further the usefulness of the torsos as mannequins. Second, the test’s emphasis cn the influence of utilitarian concerns in the design process may help, as Denicola notes, to “alleviate the de facto discrimination against nonrepresentational art that has regrettably accompanied much of the current analysis.” Id. at 745. Finally, and perhaps most importantly, we think Denico-la’s test will not be too difficult to administer in practice. The work itself will continue to give “mute testimony” of its origins. In addition, the parties will be required to present evidence relating to the design process and the nature of the work, with the trier of fact making the determination whether the aesthetic design elements are significantly influenced by functional considerations. Turning now to the facts of this case, we note first that Brandir contends, and its chief owner David Levine testified, that the original design of the RIBBON Rack stemmed from wire sculptures that Levine had created, each formed from one continuous undulating piece of wire. These sculptures were, he said, created and displayed in his home as a means of personal expression, but apparently were never sold or displayed elsewhere. He also created a wire sculpture in the shape of a bicycle and states that he did not give any thought to the utilitarian application of any of his sculptures until he accidentally juxtaposed the bicycle sculpture with one of the self-standing wire sculptures. It was not until November 1978 that Levine seriously began pursuing the utilitarian application of his sculptures, when a friend, G. Duff Bailey, a bicycle buff and author of numerous articles about urban cycling, was at Levine’s home and informed him that the sculptures would make excellent bicycle racks, permitting bicycles to be parked under the overloops as well as on top of the underloops. Following this meeting, Levine met several times with Bailey and others, completing the designs for the RIBBON Rack by the use of a vacuum cleaner hose, and submitting his drawings to a fabricator complete with dimensions. The Brandir RIBBON Rack began being nationally advertised and promoted for sale in September 1979. In November 1982 Levine discovered that another company, Cascade Pacific Lumber Co., was selling a similar product. Thereafter, beginning in December 1982, a copyright notice was placed on all RIBBON Racks before shipment and on December 10, 1982, five copyright applications for registration were submitted to the Copyright Office. The Copyright Office refused registration by letter, stating that the RIBBON Rack did not contain any element that was “capable of independent existence as a copyrightable pictorial, graphic or sculptural work apart from the shape of the useful article.” An appeal to the Copyright Office was denied by letter dated March 23, 1983, refusing registration on the above ground and alternatively on the ground that the design lacked originality, consisting of “nothing more than a familiar public domain symbol.” In February 1984, after the denial of the second appeal of the examiner’s decision, Brandir sent letters to customers enclosing copyright notices to be placed on racks sold prior to December 1982. Between September 1979 and August 1982 Brandir spent some $38,500 for advertising and promoting the RIBBON Rack, including some 85,000 pieces of promotional literature to architects and landscape architects. Additionally, since October 1982 Brandir has spent some $66,000, including full-, half-, and quarter-page advertisements in architectural magazines such as Landscape Architecture, Progressive Architecture, and Architectural Record, indeed winning an advertising award from Progressive Architecture in January 1983. The RIBBON Rack has been featured in Popular Science, Art and Architecture, and Design 384 magazines, and it won an Industrial Designers Society of America design award in the spring of 1980. In the spring of 1984 the RIBBON Rack was selected from 200 designs to be included among 77 of the designs exhibited at the Katonah Gallery in an exhibition entitled “The Product of Design: An Exploration of the Industrial Design Process,” an exhibition that was written up in the New York ■ Times. Sales of the RIBBON Rack from September 1979 through January 1985 were in excess of $1,367,000. Prior to the time Cascade Pacific began offering for sale its bicycle rack in August 1982, Brandir’s sales were $436,000. The price of the RIBBON Rack ranges from $395 up to $2,025 for a stainless steel model and generally depends on the size of the rack, one of the most popular being the RB-7, selling for $485. Applying Professor Denicola’s test to the RIBBON Rack, we find that the rack is not copyrightable. It seems clear that the form of the rack is influenced in significant measure by utilitarian concerns and thus any aesthetic elements cannot be said to be conceptually separable from the utilitarian elements. This is true even though the sculptures which inspired the RIBBON Rack may well have been — the issue of originality aside — copyrightable. Brandir argues correctly that a copyrighted work of art does not lose its protected status merely because it subsequently is put to a functional use. The Supreme Court so held in Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954), and Congress specifically intended to accept and codify Mazer in section 101 of the Copyright Act of 1976. See H.R. Rep. No. 1476 at 54-55. The district court thus erred in ruling that, whatever the RIBBON Rack’s origins, Brandir’s commercialization of the rack disposed of the issue of its copyrightability. Had Brandir merely adopted one of the existing sculptures as a bicycle rack, neither the application to a utilitarian end nor commercialization of that use would have caused the object to forfeit its copyrighted status. Comparison of the RIBBON Rack with the earlier sculptures, however, reveals that while the rack may have been derived in part from one of more “works of art,” it is in its final form essentially a product of industrial design. In creating the RIBBON Rack, the designer has clearly adapted the original aesthetic elements to accommodate and further a utilitarian purpose. These altered design features of the RIBBON Rack, including the spaeesav-ing, open design achieved by widening the upper loops to permit parking under as well as over the rack’s curves, the straightened vertical elements that allow in- and above-ground installation of the rack, the ability to fit all types of bicycles and mopeds, and the heavy-gauged tubular construction of rustproof galvanized steel, are all features that combine to make for a safe, secure, and maintenance-free system of parking bicycles and mopeds. Its undulating shape is said in Progressive Architecture, January 1982, to permit double the storage of conventional bicycle racks. Moreover, the rack is manufactured from 2%-inch standard steam pipe that is bent into form, the six-inch radius of the bends evidently resulting from bending the pipe according to a standard formula that yields bends having a radius equal to three times the nominal internal diameter of the pipe. Brandir argues that its RIBBON Rack can and should be characterized as a sculptural work of art within the minimalist art movement. Minimalist sculpture’s most outstanding feature is said to be its clarity and simplicity, in that it often takes the form of geometric shapes, lines, and forms that are pure and free of ornamentation and void of association. As Brandir’s expert put it, “The meaning is to be found in, wjthin, around and outside the work of art, allowing the artistic sensation to be experienced as well as intellectualized.” People who use Foley Square in New York City see in the form of minimalist art the “Tilted Arc,” which is on the plaza at 26 Federal Plaza. Numerous museums have had exhibitions of such art, and the school of minimalist art has many admirers. It is unnecessary to determine whether to the art world the RIBBON Rack properly would be considered an example of minimalist sculpture. The result under the copyright statute is not changed. Using the test we have adopted, it is not enough that, to paraphrase Judge Newman, the rack may stimulate in the mind of the reasonable observer a concept separate from the bicycle rack concept. While the RIBBON Rack may be worthy of admiration for its aesthetic qualities alone, it remains nonetheless the product of industrial design. Form and function are inextricably intertwined in the rack, its ultimate design being as much the result of utilitarian pressures as aesthetic choices. Indeed, the visually pleasing proportions and sym-metricality of the rack represent design changes made in response to functional concerns. Judging from the awards the rack has received, it would seem in fact that Brandir has achieved with the RIBBON Rack the highest goal of modern industrial design, that is, the harmonious fusion of function and aesthetics. Thus there remains no artistic element of the RIBBON Rack that can be identified as separate and “capable of existing independently, of, the utilitarian aspects of the article.” Accordingly, we must affirm on the copyright claim. As to whether the configuration of Brandir’s bicycle rack can be protected under either section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), or New York State unfair competition law, we are reminded that the design of a product itself may function as its packaging or protectable trade dress. See LeSportsac, Inc. v. K mart Corp., 754 F.2d 71, 75 (2d Cir.1985). The district court dismissed Brandir’s claims, saying that its analysis of the copyright issue was sufficient to dispose of the Lanham Act and common law claims. The court stated “the design feature of the Ribbon Racks is clearly dictated by the function to be performed, namely, holding up bicycles. If the steam pipes were not bent into the design, but instead remained flat, the bicycles would not stand up, they would fall down.” But as Judge Newman noted in his dissent in Carol Barnhart, 773 F.2d at 420 n. 1, the principle of conceptual separability of functional design elements in copyright law is different from the somewhat similar principle of functionality as developed in trademark law. For trademark purposes, he pointed out, a design feature “has been said to be functional if it is ‘essential to the use or purpose of the article’ or ‘affects the cost or quality of the article.’ ” Id. (quoting Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 850 n. 10, 102 S.Ct. 2182, 2187 n. 10, 72 L.Ed.2d 606 (1982)); see LeSportsac, Inc. v. K mart Corp., 754 F.2d at 75-76 (trade dress of a product is eligible for protection if it has acquired a secondary meaning and is nonfunctional). Here, the district court limited its inquiry to determining whether portions of the RIBBON Rack performed the function of a bicycle rack. But the fact that a design feature performs a function does not make it essential to the performance of that function; it is instead the absence of alternative constructions performing the same function that renders the feature functional. Thus, the true test of functionality is not whether the feature in question performs a function, but whether the feature “is dictated by the functions to be performed,” Warner Bros. Inc. v. Gay Toys, Inc., 724 F.2d 327, 331 (2d Cir.1983) (quoted in LeSportsac, Inc. v. K mart Corp., 754 F.2d at 76), as evidenced by available alternative constructions. See Metro Kane Imports, Ltd. v. Rowoco, Inc., 618 F.Supp. 273, 275-76 (S.D.N.Y.1985), aff'd mem., 800 F.2d 1128 (2d Cir.1986) (finding high-tech design of orange juice squeezer not dictated by function to be performed as there was no evidence that design permitted juicer to be manufactured at lower price or with altered performance). There are numerous alternative bicycle rack constructions. The nature, price, and utility of these constructions are material issues of fact not suitable for determination by summary judgment. For example, while it is true that the materials used by Brandir are standard-size pipes, we have no way of knowing whether the particular size and weight of the pipes used is the best, the most economical, or the only available size and weight pipe in the marketplace. We would rather think the opposite might be the case. So, too, with the dimension of the bends being dictated by a standard formula corresponding to the pipe size; it could be that there are many standard radii and that the particular radius of Brandir’s RIBBON Rack actually required new tooling. This issue of functionality on remand should be viewed in terms of bicycle racks generally and not one-piece undulating bicycle racks specifically. See id. at 330-32; see also In re DC Comics, Inc., 689 F.2d 1042, 1045 (C.C.P.A.1982) (dolls generally and not Superman dolls are the class by which functionality is determined). We'reverse and remand as to the trademark and unfair competition claims. Judgment affirmed as to the copyright claim; reversed and remanded as to the trademark and unfair competition claims. . The statute also defines "useful article" as one "having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a ‘useful article.”’ 17 U.S.C. § 101. . Professor Denicola rejects the exclusion of all works created with some utilitarian application in view, for that would not only overturn Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954), on which much of the legislation is based, but also "a host of other eminently sensible decisions, in favor of an intractable factual inquiry of questionable relevance." 67 Minn.L. Rev. at 741. He adds that “[a]ny such categorical approach would also undermine the legislative determination to preserve an artist's ability to exploit utilitarian markets.” Id. (citing 17 U.S.C. § 113(a) (1976)). . We are reminded not only by Judge Gesell in the district court in Esquire, 414 F.Supp. 939, 941 (D.D.C.1976), but by Holmes in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52, 23 S.Ct. 298, 300-01, 47 L.Ed. 460 (1903), by Mazer v. Stein, 347 U.S. at 214, 74 S.Ct. at 468, and by numerous other opinions, that we judges should not let our own view of styles of art interfere with the decisionmaking process in this area. Denicola suggests that the shape of a Mickey Mouse telephone is copyrightable because its form is independent of function, and "[a] telephone shape owing more to Arp, Bran-cusi, or Moore than Disney may be equally divorced from utilitarian influence.” 67 Minn. L.Rev. at 746. This is true, of course, of the artist Christo’s "Running Fence,” approved (following Professor Nimmer) as an example of conceptual separability in Keiselstein-Cord, 632 F.2d at 993. . Because the district court viewed the rack as entirely functional, it therefore did not reach the next step of determining whether Brandir’s RIBBON Rack had acquired secondary meaning by the time Cascade started to manufacture its bicycle rack. . Indeed, in addition to the numerous bicycle racks on the market, one may observe trees, awning supports, parking meters, signs, fire plugs, and many other objects used as bicycle racks. 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:

songer_geniss

G

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". CITY STATE BANK IN WELLINGTON, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellee. No. 84-1927. United States Court of Appeals, Fifth Circuit. Dec. 19, 1985. Jones, Day, Reavis & Pogue, Thomas R. Jackson, Robert F. Middleton, Dallas, Tex., for plaintiff-appellant. Winstead, McGuire, Sechrest & Minick, Allen W. Kimbrough, Michael L. Parham, Clifford F. Altekruse, Thanksgiving Tower, Dallas, Tex., for defendant-appellee. Before GARZA, JOHNSON, and JERRE S. WILLIAMS, Circuit Judges. JOHNSON, Circuit Judge. Plaintiff-appellant City State Bank in Wellington, Texas (“CSB”), sued its former bonding company, defendant-appellee United States Fidelity & Guaranty Company (“USF & G”), to recover a claim made under CSB’s Bankers Blanket Bond for losses resulting from the dishonest activity of CSB’s former president, Chester Long. The district court granted judgment in favor of defendant USF & G, and City State Bank appeals. This Court affirms. I. BACKGROUND CSB is a small state-chartered bank located in Wellington, Texas. CSB is significantly smaller than the only other bank in Wellington, the Wellington State Bank. CSB was financially troubled during much of the period discussed in these proceedings. The vast majority of CSB’s outstanding stock (96.8 percent at the time relevant to this appeal) was held by a two-bank holding company, Security Bankshares, Inc. Security Bankshares, in turn, was owned by James L. Diamond, who owned forty percent of the stock, and Chester A. Long, who owned sixty percent of the stock. Pri- or to this acquisition, Long had been in the banking industry for eighteen years and had served as a bank examiner with the Federal Deposit Insurance Corporation and as president of Plaza National Bank and Home Savings and Loan Association in Bartlesville, Oklahoma. Diamond, a resident of Bartlesville, and Long became close friends and business associates after Long’s arrival in Bartlesville. On January 1, 1971, CSB obtained a contract of insurance entitled “Bankers Blanket Bond” from USF & G. The bond provided CSB with coverage up to $250,000 and insured CSB against “Loss through any dishonest or fraudulent act of any of the Employees____” The bond was renewed on January 1, 1980, for a three year period. In February 1978, the then president of CSB resigned in order to become executive vice president at the competing Wellington State Bank. Concerned that CSB might lose much of its business to its competitor, Long determined that he should take the position as CSB’s president. At approximately the same time, CSB’s Board of Directors elected Diamond as vice president. Diamond was re-elected vice president in 1979 and 1980 but performed no substantial services in that office for CSB. Diamond, however, served on the Board of Directors of CSB from the time of the acquisition of his interest in Security Bank-shares. In the spring of 1979, Jerry McClure approached Long, Diamond, and Don Eve concerning a possible investment for manufacturing a luxury club car or van. The name chosen for the enterprise was Laser Manufacturing, Inc. (“Laser”). Long and Diamond had previously been involved in a similar enterprise with McClure called the Sportwagon. After inspecting a prototype for the Laser club car, Diamond decided to invest. On May 4, 1979, Laser was incorporated in Texas with Diamond, Long, McClure, and Eve as directors. Three of the four directors (i.e., Diamond, Long, and Eve) invested a total of approximately $130,000.00 in Laser. Further, an investment corporation owned by Diamond, known as the Bartlesville Investment Corporation, invested $7,500.00 in Laser and loaned Laser $120,000.00. Thus, Laser began its operations with a fund of approximately $250,000.00. Laser quickly exhausted its initial funding. In June 1979 Laser borrowed an additional $100,000.00 from a new source, the National Bank of Commerce in Dallas. Diamond, Eve, Long, and McClure co-signed the note. In November 1979, Laser was again faced with a lack of funds. Moreover, no car had been produced for sale such that Laser was in a cashflow position. On November 20, Diamond and Eve arranged a line of credit for Laser with another source, the Union Bank & Trust (“UBT”) of Bartlesville. Long was authorized to draft on this line of credit as Laser required the funds up to an amount of $150,000.00. Upon being informed of Laser’s needs, Long would draw the money out of UBT and send it on to Laser’s account at National Bank of Commerce. On March 14, 1980, Laser executed a promissory note for a floorplan loan of $100,000.00 with yet another institution, the First Bank & Trust of Richardson. Diamond, along with the other Laser directors, signed the note. After the $150,000.00 line of credit at UBT had been exhausted on February 4, 1980, and during the negotiations for the floorplan loan, Long engaged in a series of actions which the district court termed as “draft kiting.” Although the $150,000.00 line of credit at UBT had been exhausted, Long continued to submit drafts against it. In all, Long sent approximately $120,000.00 worth of excess drafts to UBT for payment; each draft was returned unpaid. Long, however, had CSB provide a credit for each draft and transferred the credit to Laser’s account at National Bank of Commerce. UBT president Donaldson testified that he suspected a draft kiting scheme when Long submitted drafts identical to ones UBT had previously refused. Donaldson also testified that he believed that he had discussed the draft kiting with Diamond and that Diamond appeared concerned. Long's efforts to fund Laser through CSB continued into May of 1980. On May 6, Long, without Diamond’s knowledge or consent, signed Diamond’s name to a promissory note with CSB in the amount of $175,000.00. Long used $120,000.00 of the note’s proceeds to cover the overdraft of the line of credit with UBT. The remaining proceeds went to Laser’s account at National Bank of Commerce. The note was submitted to CSB’s Board of Directors on June 26, 1980, and approved by the directors attending the meeting. Although the minutes of the meeting indicated that Diamond was present, the district court found that Diamond did not attend the meeting. Throughout the summer, Diamond continued his involvement with Laser, including attending a car show in California with Long on May 28 and visiting the Laser facility in Richland Hills. By August 1980, however, Laser was near its end, and during the summer of 1980, Diamond determined to cease his involvement with Laser. On November 6, 1980, and on May 6, 1981, Long again, without Diamond’s knowledge or consent, signed Diamond’s name to a renewal of the $175,000.00 promissory note. On May 29, 1981, CSB sold a $90,000.00 participation interest in the note as renewed to Amarillo National Bank (“ANB”). When the note became overdue, ANB contacted Long, who assured ANB that the note would be paid. When Diamond was contacted about the note, Diamond denied any knowledge of it. Diamond was concerned because he had told the Texas State Banking Commissioner at the time he acquired Security Bankshares that he would not borrow from either of its member banks. After consulting with his attorneys, Diamond reported the note to the Texas State Banking Commissioner. The Banking Commissioner summoned Long and Diamond to Austin in late September 1981. Long was ordered to resign from CSB and did so at a meeting of CSB’s Board of Directors on September 27, 1981. Shortly thereafter, Long assigned his entire interest in Security Bankshares Inc. to Diamond. On April 16, 1982, ANB filed a civil action against CSB, Long, and Diamond in state court in order to recover its $90,-000.00 participation interest in the $175,-000.00 promissory note. The case was 'settled on December 19, 1983. As part of the settlement, Diamond and CSB posted an irrevocable letter of credit to ANB. At trial, Diamond explained that, while both he and CSB were obligated to pay the letter of credit, Diamond would pay it if CSB’s capital reserves were too low to permit CSB to contribute any money to pay the letter of credit. Noting this evidence, the district court in the instant case found that any recovery by CSB from USF & G would be used to reduce Diamond’s obligations under the letter of credit. In late 1981, Laser went out of business. Diamond’s investment company, Bartlesville Investment Corporation, foreclosed its security interest in Laser’s assets and sold them at public auction on January 19, 1983. On June 5, 1984, Long pleaded guilty to an indictment for forgery for signing Diamond’s name to the May 6, 1980, note to CSB. CSB initiated the instant suit to recover on the Banker’s Blanket Bond. Following a trial to the court on August 16-22, 1984, the district court granted judgment for defendant USF & G. The district court based its judgment on three independent grounds relevant to this appeal. First, the district court held that Long was not an “employee” covered under the terms of the bond. Second, the district court held that recovery for losses suffered as a consequence of the two renewals was barred because the bond was terminated in 1980 due to Diamond’s knowledge of Long’s dishonest acts in funnelling money to Laser through CSB. Third, the district court held that allowing any recovery on the bond was equitably barred because it would result in a double benefit to Diamond. CSB has the heavy burden of demonstrating that the district court erred in each of these three grounds. This Court’s examination, governed by Texas law, focuses on the latter two grounds. The Court reserves the question whether Long was an “employee” under the terms of USF & G’s bond. II. THE MERITS The district court found that Diamond, who was a principal stockholder, director and officer of CSB and a principal investor in Laser, knew that Long was funnelling money to Laser through CSB. Specifically, the district court found: Diamond was the mover and shaker behind Laser, sinking hundreds of thousands of his own dollars into an attempt to get it going. Diamond and Long used CSB as a conduit for funding Laser. In view of his close association with Long (“one of my best friends”), his substantial investment in Laser, and his continued involvement in Laser for nearly a year afterwards, Diamond’s testimony that he neither knew nor asked where the funds to sate Laser’s voracious financial appetite came from after May, 1980, is not credible. If Diamond did not know, it is only because he deliberately closed his eyes, an act sufficient to charge him with knowledge. Conclusions of Law Nos. 33, 34. The district court found Diamond’s knowledge relevant in two ways: (1) such knowledge terminated coverage under Section 11 of the bond; and (2) such knowledge was relevant in that principles of equity barred allowing recovery on the bond since any payment by USF & G on the bond would go to Diamond. CSB attacks both of these bases for the trial court’s judgment. A. Section 11 of the Bond; Diamond’s Knowledge of Long's Activity The district court held that recovery under the bond for losses suffered as a consequence of the two renewals of the forged promissory note was barred “because the bond was terminated as to Long before the first renewal due to Diamond’s knowledge of Long’s dishonest and fraudulent acts.” Conclusion of Law No. 38. The trial court’s conclusion was based on Section 11 of the bond which provides: This bond shall be deemed terminated or canceled as to any Employee — (a) as soon as the Insured shall learn of any dishonest or fraudulent act on the part of such Employee, without prejudice to the loss of any Property then in transit in the custody of such Employee____ CSB contends that the district court erred in applying Section 11 so as to defeat its claim on the fidelity bond. CSB provides several arguments to support its contention. The first is that the district court “applied an incorrect legal standard ... [in determining that] Diamond had knowledge of Mr. Long’s dishonest and fraudulent acts prior to the November 6, 1980 renewal of the forged note.” CSB Brief at 15. Particularly, CSB argues that the language of the bond requires an “actual knowledge” standard while the trial court applied only a “constructive knowledge” test. Courts have discussed whether an insured “learns” or “discovers” a fraudulent act in the context of bond provisions requiring the insured to give the insurer prompt notice after discovery of a fraudulent or dishonest act. These cases are helpful in determining whether the insured has learned of an employee’s dishonest or fraudulent act so as to terminate coverage as to that employee under bond provisions similar to Section 11. In determining when an insured is required to give notice, this Court has noted the “well-established rule ... that the Insured ... is not bound to give notice ‘until he [has] acquired knowledge of some specific fraudulent or dishonest act.’ ” FDIC v. Aetna Casualty & Surety Co., 426 F.2d 729, 739 (5th Cir.1970) (applying Texas law) (quoting American Surety Co. v. Pauly, 170 U.S. 133, 144, 18 S.Ct. 552, 556, 42 L.Ed. 977 (1898)). This Court has also emphasized, “Notice is not required when the obligee merely suspects or has reason to suspect the wrongdoing.” Id. Courts, however, have not been uniform in whether the knowledge which the insurer must show as a defense should be considered “actual” or “constructive.” Despite this difference in labeling the type of knowledge required, the cases indicate that the insured cannot be required to act on “mere suspicion” and that the insured’s subjective knowledge should at least be considered. See Utica Mutual Insurance Co. v. Fireman’s Fund Insurance Companies, 748 F.2d 118, 123 (2d Cir.1984). See also Central Progressive Bank v. Fireman’s Fund Insurance Co., 658 F.2d 377, 380 (5th Cir.1981) (applying Louisiana law to construe provision similar to Section 11). Indeed, a recent Texas court decision adopted a similar approach. In Fidelity & Casualty Co. of New York v. Central Bank of Houston, 672 S.W.2d 641 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.), the court held that the jury’s finding that the insured had discovered dishonesty by the employee should be upheld where the insured “had knowledge of facts from which [the insured] could have reasonably inferred that [the employee] DeLorenzo had acted dishonestly in connection with the Jackson loans.” Id. at 644. CSB argues that the district court applied an improper standard since the trial court stated that, “If Diamond did not know, it is only because he deliberately closed his eyes, an act sufficient to charge him with knowledge.” Conclusion of Law No. 34. CSB also points to the district court’s denial of a motion for new trial in which the district court, paraphrasing directly Central Bank of Houston, stated, “Texas law ... requires only that Diamond had knowledge of facts from which he could have reasonably inferred that Long had acted dishonestly.” Record Vol. Ill at 587. These statements, when read alone, might lead to the concern that the district court required Diamond to act on mere suspicion. However, when the opinion is read as a whole, it appears that the district court, consistent with Central Bank of Houston, noted the facts in evidence and drew conclusions regarding Diamond’s knowledge based on the evidence and the court’s observance of the witnesses. At trial, for instance, USF & G asserted that Glenna Hernandez, CSB’s cashier, knew of the $120,000.00 in draft kiting before the May 6, 1980, note was executed. The district court noted, “The drafts involved were so ‘unusual, remarkable and clearly adverse’ to CSB’s interests that knowledge of some fraud, or dishonesty could be imputed to Hernandez and, thus, to CSB____” However, the district court held that it would not draw the inference that Hernandez had such knowledge since the district court found “her testimony that she never suspected any wrongdoing to be credible.” Conclusion of Law No. 25. In contrast, the district court made a different finding with respect to Diamond. The trial court stated, “Crucial to the resolution of this case, however, is whether Diamond knew that Long was sending money to Laser from CSB over Diamond’s signature. The answer can only be yes.” Conclusion of Law No. 34. Further, the trial court explicitly rejected Diamond’s testimony that he did not know nor ask the source of Laser’s financial appetite. Thus, we conclude that the district court adopted a legal standard fully consistent with the jurisprudence in this area. CSB also contends that, even if the trial court applied the correct legal standard, Diamond had no knowledge of any fraudulent or dishonest acts of Long prior to September 1981. The trial court’s determination that Diamond had such knowledge is a question of fact subject to the clearly erroneous rule. See Fed.R.Civ.P. 52(a); Central State Progressive Bank v. Fireman’s Fund Insurance Co., 658 F.2d 377, 380-81 (5th Cir.1981). Diamond’s knowledge of Long’s fraudulent acts focuses on Long’s draft kiting on Laser’s line of credit with UBT. CSB concedes that Diamond knew that the drafts were submitted to UBT for payment by Long but points out that Long’s mere submission of drafts to UBT did not constitute fraudulent activity. Rather, CSB argues, Long’s activity was only dishonest because Long created an immediate credit for each draft and caused the funds to be transferred from CSB to Laser’s account at National Bank of Commerce. CSB concludes that Diamond could not have known of Long’s activity in posting such credits and therefore did not even have the opportunity to acquire knowledge of any dishonest activity by Long. As the district court pointed out, however, Diamond had the advantage of knowing not only that Long was submitting drafts but also that money was flowing into Laser since Diamond continued to receive financial reports regarding Laser. Further, UBT president Donaldson testified that he suspected a draft kiting operation and indicated that he so told Diamond. He testified that Diamond appeared concerned. Moreover, Diamond received copies of deposit slips dated from April 25, 1980, to May 6, 1980, which indicated money flowing into Laser’s account “from City State Bank, Wellington by order of J.L. Diamond.” Record Vol. VI at 500-01; Defendant’s Exhibit 98. While Diamond testified that he received these deposit slips sometime after May 1980, the slips were grouped together in Diamond’s files with Laser’s May 1980 budget. Id. at 503. The district court also noted Diamond’s close association with Long. From this evidence, it cannot be said that the district court clearly erred in rejecting Diamond’s self-serving testimony that he did not know the source of Laser’s “voracious financial appetite.” Conclusion of Law No. 34. CSB argues that, even if Diamond had knowledge of Long’s dishonest activity, such knowledge should not be imputed to CSB. Diamond was not only a principal stockholder of CSB’s holding company but was also a director and its vice president from 1978 through 1980. Under such circumstances, the district court did not err in imputing Diamond’s knowledge to that of CSB, which, as a corporation, can acquire such knowledge only through its agents. See International Bankers Life Insurance Co. v. Holloway, 368 S.W.2d 567, 580 (Tex.1963). In Holloway, former officers of the corporation were charged with wrongdoing. One issue in Holloway was when the corporation learned of this wrongdoing. The Texas Supreme Court stated: [Njotice to an officer or agent is notice to the corporation in the circumstance where the officer or agent in the line of his duty “ought, and could reasonably be expected, to act upon or communicate the knowledge to the corporation.” ... The office of a corporation director or officer is more than nominal, and those assuming the duties and responsibilities of such offices are not justified in neglecting every precaution or investigation; it is their minimal duty and responsibility to protect the corporation against acts adverse to the interest of the corporation, whether perpetrated by fellow directors or by strangers to the corporation. 368 S.W.2d at 580. Similarly, Diamond’s duty to CSB as officer and director makes his knowledge imputable to the bank. See also Continental Oil Co. v. Bonanza Corp., 706 F.2d 1365, 1376 (5th Cir.1983) (en banc) (whether knowledge of individuals should be imputed to corporation “must be discerned from the circumstances of each case”). Thus, CSB’s arguments fail to persuade that the district court erred in holding that Section 11 of the bond bars CSB from recovering for any losses resulting from the two renewals of the forged promissory note. B. Equitable Considerations The trial court also held that principles of equity barred CSB from recovering any losses on the bond with USF & G. This Court has recognized the application of such equitable principles. In FDIC v. Lott, 460 F.2d 82 (5th Cir.1972) (applying Texas law), for instance, the insurer argued that the bank was barred from recovering on a fidelity bond since the bank sought recovery for fraudulent acts of its president and majority stockholder. The insurer argued that, since the bank president was in sole control of the bank, the bank president should not be allowed to insure himself against his own fraud. 460 F.2d at 87. The Court agreed that “one in sole control of the bank should not be allowed to insure himself and profit from his own fraud.” Id. The Court, however, held that this principle did not apply in Lott because the district court had tailored its judgment specifically to exclude the bank president from participating in any recovery on the bond. Id. at 87 & n. 5. Significantly, the Court also noted: The jury’s verdict also forecloses [the insurer] Aetna’s assertion that it would be contrary to equitable principles to permit these directors to profit from their neglect of duties which brought about the losses to the bank. In their answers to special interrogatories the jury categorically found that none of the other directors knew of Long’s dishonest acts nor was their ignorance a proximate cause of the bank’s losses. Id. at 88. See also Fidelity & Casualty Co. v. Central Bank of Houston, 672 S.W.2d at 647. In the instant case, the district court noted several factors which led to its conclusion that recovery on the bond was equitably barred. Foremost was Diamond’s knowledge of Long’s dishonest activity. Conclusion of Law No. 34. Thus, unlike Lott, in which the factfinder found that other agents of the bank had no knowledge of the wrongdoing, the district court found that Diamond did indeed have such knowledge. Further, Diamond, a principal founder and investor in Laser — at least potentially — benefitted from the infusion of capital into Laser from the $120,000.00 in draft kiting engineered by Long. As the district court noted: While Diamond consistently described CSB as “Long’s deal,” he held nearly 40% of the stock beneficially. Diamond was the mover and shaker behind Laser, sinking hundreds of thousands of his own dollars into an attempt to get it going. Diamond and Long used CSB as a conduit for funding Laser. In the spring of 1980, Diamond told Long to “get [Laser] going or get me out.” Shortly thereafter, Long forged the May 6, 1980, note. While Diamond testified that he had decided before May, 1980, to pull out of Laser, i.e., to stop putting money in, he participated in operating Laser until the summer of 1980____ Diamond would have been cut in for a large slice of the pie if Laser had started turning a profit. Conclusion of Law No. 33. Further, no attempt was made to exclude Diamond as a principal stockholder from recovery, as was the ease in Lott. Rather, although some local persons in the Wellington area had invested in CSB since Long’s resignation, the purchase agreement specifically provides that “the previous shareholders [i.e., Diamond] would receive all the benefits from any payment of a bond claim.” Testimony of Richard Fourmention, Record Vol. V at 172. Moreover, the record also revealed that any payment on the bond would go toward reducing Diamond’s obligation on the letter of credit that Diamond and CSB obtained to settle the suit with Amarillo National Bank. Record Vol. VI at 450-51, 522. As the district court summarized, Diamond, who paid the attorney’s fees in the instant case, “is arguably the real party in interest here [although] CSB could realize some benefit from recovery by being relieved of its joint obligation with Diamond under the letter of credit. CSB, [however], is essentially wholly owned by Diamond.” Conclusion of Law No. 35. Thus, unlike the case in Lott where the judgment was specifically tailored to avoid violation of equitable principles, the district court here correctly decided that equitable principles barred Diamond from recovering through CSB on the fidelity bond. III. CONCLUSION Thus, we conclude that the district court did not err in holding that recovery on the fidelity bond was barred by Section 11 of the bond and by principles of equity. The judgment of the district court is AFFIRMED. . In addition to CSB, Security Bankshares held 94.3 percent of the stock of Security State Bank in Hedley, Texas. . Long continued to attempt to draft funds from Diamond and Eve. In October of 1980, Long drew two drafts on UBT accounts — $51,6441)9 on Diamond’s personal account and $43,141.24 on Eve’s personal account. UBT mistakenly paid the drafts, and the district court found that the money went to Laser. After the error was discovered, UBT refunded the money to Diamond’s and Eve's personal accounts. UBT president Donaldson, however, requested Diamond and Eve to sign guaranties for the money but orally assured them that UBT would not call on them for payment. Long signed a note in Security Bankshares Inc.’s name to replace Diamond’s and Eve’s guaranties. The district court noted Long’s activity in sending the drafts on Diamond’s and Eve’s personal accounts at UBT. The district court, however, found that this activity did not indicate any dishonesty on Long’s part since the drafts plainly indicated that Long was signing for Diamond and Eve. . The minutes noted, “[DJuring the meeting it was explained to the Board of Directors by C.A. Long that the $175,000 loan in favor of City State Bank in the name of J.L. Diamond was in fact not signed by J.L. Diamond and therefore not a valid note.” . The district court held that CSB gave prompt notice of the loss resulting from Long’s forging of the Diamond promissory note. CSB argues that this holding contradicts the court’s later holding that the bond was terminated as to Long because of Diamond’s knowledge of Long’s dishonest acts in the draft kiting scheme. We find no merit to this argument since the district court considered only Long’s knowledge of Long’s own acts in determining whether CSB had given prompt notice. The district court correctly concluded that Long’s knowledge could not be imputed to CSB since Long acted adversely to the interest of CSB in forging Diamond’s name on the promissory note. Further, although we note that the analysis of when a party "discovers’’ an employee’s dishonesty is helpful in interpreting provisions like Section 11, it cannot be said that the considerations underlying each are identical. One court, for instance, has recently noted that the purpose of notice provisions is to “permití ] the insurer to investigate the facts on which the claim is predicated and to adjust its books in order to maintain a proper reserve fund in light of the insured’s claim.’’ Utica Mutual Insurance Co. v. Fireman’s Fund Insurance Companies, 748 F.2d 118, 121 (2d Cir.1984). . Indeed, a leading treatise in insurance law notes the disparity in the approach: It is sometimes generally stated that the insured is required to give notice when he either knows or ought to know of the facts which may form the basis of a claim against the insurer. The requirement is also stated on the basis that the question is whether the insured acquired knowledge of facts from which he might reasonably conclude that the employee had been committing fraudulent and dishonest acts, and that to give rise to the duty to notify the insurer it is necessary that the insured have knowledge of the employee's default, whether express or implied, from actual or inferential facts. And again it is stated flatly that an employer is only required to notify the surety of facts actually coming to his knowledge____ 13A R. Anderson & M. Rhodes, Couch on Insurance 2d § 49:232 (1982) (citations omitted). . The district court was well justified in rejecting Diamond’s shaky testimony that he had received the records only later. For instance, Diamond testified on cross-examination: Q: You just don't know. You might have got them [the deposit slips] in May of 1980. A: I don’t think so. Record Vol. VI at 504. . Texas law requires a bank to elect three officers: a president, vice president, and cashier or secretary. Tex.Rev.Civ.Stat.Ann. arts. 342-409, 410 (Vernon Supp.1985). . CSB’s reliance on Luling Oil & Mfg. Co. v. Lane & Bodley Co., 49 Tex.Civ.App. 534, 109 S.W. 445 (1908), is unpersuasive in that the court there specifically held no such duty arose. . We note that the district court's holding regarding Section 11 of the bond reaches only losses resulting from the renewals of the forged promissory note. While a remand might be necessary if this Court affirmed only on this single ground in order to inquire whether CSB suffered loss prior to the renewals, no such remand is necessary in the instant case since our holding affirms the district court's independent ground that any recovery on the bond is equitably barred. 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:

sc_issuearea

C

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. HAMLING et al. v. UNITED STATES No. 73-507. Argued April 15, 1974 Decided June 24, 1974 Stanley Fleishman argued the cause for petitioners Hamling et al. With him on the briefs was Sam Rosen-wein. Mr. Rosenwein argued the cause for petitioners Kemp et al. With him on the briefs were Mr. Fleishman and Louis S. Katz. Allan Abbott Tuttle argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Jerome M. Feit, and Shirley Baccus-Lobel. Briefs of amici curiae urging reversal were filed by Melvin L. Wulf, Joel M. Gora, and Fred Okrand for the American Civil Liberties Union et al.; by Ira M. MUlstein for the Association of American Publishers, Inc,; and by William D. North for the American Library Assn. Mr. Justice Rbhnquist delivered the opinion of the Court. On March 5, 1971, a grand jury in the United States District Court for the Southern District of California indicted petitioners William L. Hamling, Earl Kemp, Shirley R. Wright, David L. Thomas, Reed Enterprises, Inc., and Library Service, Inc., on 21 counts of an indictment charging use of the mails to carry an obscene book, The Illustrated Presidential Report of the Commission on Obscenity and Pornography, and an obscene advertisement, which gave information as to where, how, and from whom and by what means the Illustrated Report might be obtained, and of conspiracy to commit the above offenses, in violation of 18 U. S. C. §§ 2, 371, and 1461. Prior to trial, petitioners moved to dismiss the indictment on the grounds that it failed to inform them of the charges, and that the grand jury had insufficient evidence before it to return an indictment and was improperly instructed on the law. Petitioners also challenged the petit jury panel and moved to strike the venire on the ground that there had been an unconstitutional exclusion of all persons under 25 years of age. The District Court denied all of these motions. Following a jury trial, petitioners were convicted on 12 counts of mailing and conspiring to mail the obscene advertisement. On appeal, the United States Court of Appeals for the Ninth Circuit affirmed. 481 F. 2d 307 (1973). The jury was unable to reach a verdict with regard to the counts of the indictment which charged the mailing of the allegedly obscene Illustrated Report. The advertisement found obscene is a single sheet brochure mailed to approximately 55,000 persons in various parts of the United States; one side of the brochure contains a collage of photographs from the Illus-strated Report; the other side gives certain information and an order blank from which the Illustrated Report could be ordered. The Court of Appeals accurately described the photographs in the brochure as follows: “The folder opens to a full page splash of pictures portraying heterosexual and homosexual intercourse, sodomy and a variety of deviate sexual acts. Specifically, a group picture of nine persons, one male engaged in masturbation, a female masturbating two males, two couples engaged in intercourse in reverse fashion while one female participant engages in fellatio of a male; a second group picture of six persons, two males masturbating, two fellatrices practicing the act, each bearing a clear depiction of ejaculated seminal fluid on their faces; two persons with the female engaged in the act of fellatio and the male in female masturbation by hand; two separate pictures of males engaged in cunnilinction; a film strip of six frames depicting lesbian love scenes including a cunnilinguist in action and female masturbation with another’s hand and a vibrator, and two frames, one depicting a woman mouthing the penis of a horse, and a second poising the same for entrance into her vagina.” 481 F. 2d, at 316-317. The reverse side of the brochure contains a facsimile of the Illustrated Report’s cover, and an order form for the Illustrated Report. It also contains the following language: “THANKS A LOT, MR. PRESIDENT. A monumental work of research and investigation has now become a giant of a book. All the facts, all the statistics, presented in the best possible format... and... completely illustrated in black and white and full color. Every facet of the most controversial public report ever issued is covered in detail. “The book is a MUST for the research shelves of every library, public or private, seriously concerned with full intellectual freedom and adult selection. “Millions of dollars in public funds were expended to determine the PRECISE TRUTH about eroticism in the United States today, yet every possible attempt to suppress this information was made from the very highest levels. “Even the President dismissed the facts, out of hand. The attempt to suppress this volume is an inexcusable insult directed at every adult in this country. Each individual MUST be allowed to make his own decision; the facts are inescapable. Many adults, MANY OF THEM, will do just that after reading this REPORT. In a truly free society, a book like this wouldn’t even be necessary.” The Court of Appeals indicated that the actual report of the Commission on Obscenity and Pornography is an official Government document printed by the United States Government Printing Office. The major difference between the Illustrated Report, charged to be obscene in the indictment, and the actual report is that the Illustrated Report contained illustrations, which the publishers of the Illustrated Report said were included “ ‘as examples of the type of subject matter discussed and the type of material shown to persons who were part of the research projects engaged in for the Commission as basis for their Report.’ ” 481 F. 2d, at 315. The facts adduced at trial showed that postal patrons in various parts of the country received the brochure advertising the Illustrated Report. The mailings these persons received consisted of an outer envelope, an inner return envelope addressed to Library Service, Inc., at a post office box in San Diego, California, and the brochure itself, which also identified Library Service, Inc., at the same address, as the party responsible for the mailing. The outer envelopes bore a postmark that indicated they were mailed from North Hollywood, California, on or about January 12, 1971, and that the postage was affixed to the envelopes by a Pitney-Bowes meter number. The mailing of these brochures was accomplished by petitioners through the use of other businesses. Approximately 55,000-58,000 of these brochures were placed in envelopes, and postage was affixed to them by one Richard and one Yenita Harte, who operate the Academy Addressing and Mailing Service. The brochures and the Pitney-Bowes meter number, with which they affixed the postage, were supplied to them by one Bernard Lieberman of Regent House, Inc., of North Hollywood, California, who, on January 11, 1971, had paid the United States Postal Service to set $3,300 worth of postage on the meter number. Regent House was billed $541.15 by the Hartes for their services. Regent House in turn charged its services and costs for the postage and the Hartes’ mailing service to Reed Enterprises, Inc., which paid the bill on January 19, 1971, with a check signed by petitioner Hamling. Those individuals responding to the brochure would be sent copies of the Illustrated Report, which would be mailed with postage affixed by a second Pitney-Bowes meter number which was installed at Library Service, Inc., at the direction of an employee of Pitney-Bowes. The rental agreement for this meter was signed for Library Service by petitioner David Thomas, whom that employee identified as the person with whom he had dealt on the matter. The evidence indicated that the individual petitioners were officers in the corporate petitioners, and also indicated that they were involved with selling the Illustrated Report, which entailed mailing out the advertising brochure. Petitioner Hamling, as president of Reed Enterprises, Inc., signed the check on the corporation’s behalf in payment to Regent House for the mailing of the advertisement. Petitioner Kemp was the editor of the Illustrated Report, and was vice president of Library Service, Inc., and Greenleaf Classics, Inc., which is the publisher of the Illustrated Report. He signed the application on behalf of Library Service, Inc., for the post office box in San Diego, which was the same post office box on the return envelope sent with the advertisement and on the advertisement itself. Petitioner Thomas signed the rental agreement for the postage meter which was used in affixing postage for sending copies of the Illustrated Report, and which Thomas directed to be installed at Library Service. Petitioner Wright was the secretary of Reed Enterprises, Inc., and Greenleaf Classics, Inc. Wright assisted the postal superintendent in obtaining Kemp’s signature on the application for the post office box in San Diego. Wright also received a memorandum from London Press, Inc., the printer of the Illustrated Report, addressed to her as representative of Reed Enterprises, Inc., confirming the shipment of 28,537 copies of the Illustrated Report. Various other corporate documents tended to show the individual petitioners’ involvement with the corporate petitioners. Both the Government and the petitioners introduced testimony from various expert witnesses concerning the obscenity vel non of both the Illustrated Report and the brochure. In affirming the convictions of these petitioners for the distribution of the obscene brochure, the Court of Appeals rejected various contentions made by the petitioners. The Court of Appeals also rejected petitioners’ petition for rehearing and suggestion for rehearing en banc. We granted certiorari, 414 U. S. 1143 (1974), and now affirm the judgment of the Court of Appeals. I These petitioners were convicted by a jury on December 23, 1971. App. 9. The Court of Appeals affirmed their convictions in an opinion filed on June 7, 1973. The Court of Appeals originally denied rehearing and suggestion for rehearing en banc on July 9, 1973. That order was withdrawn by the Court of Appeals to be reconsidered in fight of this Court’s decisions, announced June 21, 1973, in Miller v. California, 413 U. S. 15, and related cases, and was submitted to the en banc court, by order dated August 20, 1973. On August 22, 1973, the Court of Appeals entered an order denying the petition for rehearing and the suggestion for rehearing en banc. “ ‘[W]e see no possible reason to remand, especially as the Supreme Court has just addressed itself to the construction and adequacy of the federal statute involved. See United States v. 12 200-Ft. Reels of Super 8mm. Film, supra, 41 U. S. L. W. at 4963, n. 7.’ ” The principal question presented by this case is what rules of law shall govern obscenity convictions that occurred prior to the date on which this Court's decision in Miller v. California, supra, and its companion cases were handed down, but which had not at that point become final. Petitioners mount a series of challenges to their convictions based upon the so-called Memoirs test for the proscription of obscenity. (Memoirs v. Massachusetts, 383 U. S. 413 (1966).) They also attack the judgments as failing to comply with the standards enunciated in the Miller cases, and conclude by challenging other procedural and evidentiary rulings of the District Court. Questions as to the constitutionality of 18 IT. S. C. § 1461, the primary statute under which petitioners were convicted, were not strangers to this Court prior to the Miller decision. In Roth v. United States, 354 U. S. 476 (1957), the Court held that this statute did not offend the free speech, and free press guarantees of the First Amendment, and that it did not deny the due process guaranteed by the Fifth Amendment because it was “too vague to support conviction for crime.” Id., at 480. That holding was reaffirmed in United States v. Reidel, 402 U. S. 351 (1971). See also Manual Enterprises, Inc. v. Day, 370 U. S. 478 (1962); Ginzburg v. United States, 383 U. S. 463 (1966). Prior to Miller, therefore, this Court had held that 18 U. S. C. § 1461, “applied according to the proper standard for judging obscenity, do[es] not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.” Roth v. United States, supra, at 492. These petitioners were tried and convicted under the definition of obscenity originally announced by the Court in Roth v. United States, supra, and significantly refined by the plurality opinion in Memoirs v. Massachusetts, supra. The Memoirs plurality held that under the Roth definition “as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” Id., at 418. Petitioners make no contention that the instructions given by the District Court in this case were inconsistent with the test of the Memoirs plurality. They argue instead that the obscenity vel non of the brochure has not been established under the Memoirs test. The Court of Appeals ruled against petitioners on this score, concluding that the jury’s finding that the brochure was obscene under the Memoirs plurality test was correct. Petitioners argue at length that their expert witnesses established that the brochure did not appeal to a prurient interest in sex, that it was not patently offensive, and that it had social value. Examining the record below, we find that the jury could constitutionally find the brochure obscene under the Memoirs test. Expert testimony is not necessary to enable the jury to judge the obscenity of material which, as here, has been placed into evidence. See Paris Adult Theatre I v. Slaton, 413 U. S. 49, 56 (1973); Kaplan v. California, 413 U. S. 115, 120-121 (1973); Ginzburg v. United States, supra, at 465. In this case, both the Government and the petitioners introduced testimony through expert witnesses concerning the alleged obscenity of the brochure. The jury was not bound to accept the opinion of any expert in weighing the evidence of obscenity, and we conclude that its determination that the brochure was obscene was supported by the evidence and consistent with the Memoirs formulation of obscenity. Petitioners nevertheless contend that since the jury was unable to reach a verdict on the counts charging the obscenity vel non of the Illustrated Report itself, that report must be presumed to be nonobscene, and therefore protected by the First Amendment. From this premise they contend that since the brochure fairly advertised the Illustrated Report, the brochure must also be nonobscene. The Court of Appeals rejected this contention, noting that “[t]he premise is false. The jury made no finding on the charged obscenity of the Report.” 481 F. 2d, at 315. The jury in this case did not acquit the petitioners of the charges relating to the distribution of the allegedly obscene Illustrated Report. It instead was unable to reach a verdict on the counts charging the distribution of the Illustrated Report, and accordingly, the District Court declared a mistrial as to those counts. App. 9-10. It has, of course, long been the rule that consistency in verdicts or judgments of conviction is not required. United States v. Dotterweich, 320 U. S. 277, 279 (1943); Dunn v. United States, 284 U. S. 390, 393 (1932). “The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U. S., at 492 n. 30, 'it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States, 165 U. S. 486, 499-500.’ ” Miller v. California, 413 U. S., at 26 n. 9. The brochure in this case stands by itself, and must accordingly be judged. It is not, as petitioners suggest, inseparable from the Illustrated Report, and it cannot be seriously contended that an obscene advertisement could not be prepared for some type of nonobscene material. If consistency in jury verdicts as to the obscenity vel non of identical materials is not constitutionally required, Miller v. California, supra, the same is true a fortiori of verdicts as to separate materials, regardless of their similarities. Our Miller decisions dealing with the constitutional aspects of obscenity prosecutions were announced after the petitioners had been found guilty by a jury, and their judgment of conviction affirmed by a panel of the Court of Appeals. Our prior decisions establish a general rule that a change in the law occurring after a relevant event in a case will be given effect while the case is on direct review. United States v. Schooner Peggy, 1 Cranch 103 (1801); Linkletter v. Walker, 381 U. S. 618, 627 (1965); Bradley v. School Board of Richmond, 416 U. S. 696, 711 (1974). Since the judgment in this case has not become final, we examine the judgment against petitioners in the light of the principles laid down in the Miller cases. While the language of 18 U. S. C. § 1461 has remained the same throughout this litigation, the statute defines an offense in terms of “obscenity,” and this Court's decisions, at least since Roth v. United States, supra, indicate that there are constitutional limitations which must be borne in mind in defining that statutory term. Thus any constitutional principle enunciated in Miller which would serve to benefit petitioners must be applied in their case. Recognizing that the Memoirs plurality test had represented a sharp break with the test of obscenity as announced in Roth v. United States, supra, our decision in Miller v. California reformulated the test for the determination of obscenity vel non: “The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest... ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U. S., at 24. The Court of Appeals held on rehearing that the Miller cases generally prescribed a more relaxed standard of review under the Federal Constitution for obscenity convictions, and that therefore petitioners could derive no benefit from the principles enunciated in those cases. See n. 7, supra. Petitioners concede that this observation may be true in many particulars, but that in at least two it is not. They contend that the Miller treatment of the concept of “national standards” necessarily invalidates the District Court’s charge to the jury in their case relating to the standard by which the question of obscenity was to be judged, and they further contend that the general language of 18 U. S. C. § 1461 is, in the light of the holding in the Miller cases, unconstitutionally vague. A The trial court instructed the jury that it was to judge the obscenity vel non of the brochure by reference to “what is reasonably accepted according to the contemporary standards of the community as a whole.... Contemporary community standards means the standards generally held throughout this country concerning sex and matters pertaining to sex. This phrase means, as it has been aptly stated, the average conscience of the time, and the present critical point in the compromise between candor and shame, at which the community may have arrived here and now.” App. 241. Petitioners describe this as an instruction embodying the principle of “national standards” which, although it may have been proper under the law as it existed when they were tried, cannot be sustained under the law as laid down in Miller, where the Court stated: “Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable ‘national standards’ when attempting to determine whether certain materials are obscene as a matter of fact.” 413 U. S., at 31-32. Paradoxically, however, petitioners also contend that in order to avoid serious constitutional questions the standards in federal obscenity prosecutions must be national ones, relying on Manual Enterprises, Inc. v. Day, 370 U. S., at 488 (opinion of Harlan, J.), and United States v. Palladino, 490 F. 2d 499 (CA1 1974). Petitioners assert that our decisions in the two federal obscenity cases decided with Miller indicate that this Court has not definitively decided whether the Constitution requires the use of nationwide standards in federal obscenity prosecutions. We think that both of these contentions evidence a misunderstanding of our Miller holdings. Miller rejected the view that the First and Fourteenth Amendments require that the proscription of obscenity be based on uniform nationwide standards of what is obscene, describing such standards as “hypothetical and unaseertainable,” 413 U. S., at 31. But in so doing the Court did not require as a constitutional matter the substitution of some smaller geographical area into the same sort of formula; the test was stated in terms of the understanding of “the average person, applying contemporary community standards.” Id., at 24. When this approach is coupled with the reaffirmation in Paris Adult Theatre I v. Slaton, 413 U. S., at 56, of the rule that the prosecution need not as a matter of constitutional law produce “expert” witnesses to testify as to the obscenity of the materials, the import of the quoted language from Miller becomes clear. A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a “reasonable” person in other areas of the law. Stone v. New York, C. & St. L. R. Co., 344 U. S. 407, 409 (1953); Schulz v. Pennsylvania R. Co., 350 U. S. 523, 525-526 (1956). Our holding in Miller that California could constitutionally proscribe obscenity in terms of a “statewide” standard did not mean that any such precise geographic area is required as a matter of constitutional law. Our analysis in Miller of the difficulty in formulating uniform national standards of obscenity, and our emphasis on the ability of the juror to ascertain the sense of the “average person, applying contemporary community standards” without the benefit of expert evidence, clearly indicates that 18 U. S. C. § 1461 is not to be interpreted as requiring proof of the uniform national standards which were criticized in Miller. In United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973), a federal obscenity case decided with Miller, we said: “We have today arrived at standards for testing the constitutionality of state legislation regulating obscenity. See Miller v. California, ante, at 23-25. These standards are applicable to federal legislation.” Id., at 129-130. Included in the pages referred to in Miller is the standard of “the average person, applying contemporary community standards.” In view of our holding in 12 200-ft. Reels of Film, we hold that 18 U. S. C. § 1461 incorporates this test in defining obscenity. The result of the Miller cases, therefore, as a matter of constitutional law and federal statutory construction, is to permit a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion “the average person, applying contemporary community standards” would reach in a given case. Since this case was tried in the Southern District of California, and presumably jurors from throughout that judicial district were available to serve on the panel which tried petitioners, it would be the standards of that “community” upon which the jurors would draw. But this is not to say that a district court would not be at liberty to admit evidence of standards existing in some place outside of this particular district, if it felt such evidence would assist the jurors in the resolution of the issues which they were to decide. Our Brother Brennan suggests in dissent that in holding that a federal obscenity case may be tried on local community standards, we do violence both to congressional prerogative and to the Constitution. Both of these arguments are foreclosed by our decision last Term in United States v. 12 200-ft. Reels of Film, supra, that the Miller standards, including the “contemporary community standards” formulation, applied to federal legislation. The fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional because of the failure of application of uniform national standards of obscenity. Those same distributors may be subjected to such varying degrees of criminal liability in prosecutions by the States for violations of state obscenity statutes; we see no constitutional impediment to a similar rule for federal prosecutions. In Miller v. California, 413 U. S., at 32, we cited with approval Mr. Chief Justice Warren’s statement: “[WJhen the Court said in Roth that obscenity is to be defined by reference to 'community standards,’ it meant community standards — not a national standard, as is sometimes argued. I believe that there is no provable 'national standard,’ and perhaps there should be none. At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect locál courts to divine one. It is said that such a ‘community’ approach may well result in material being proscribed as obscene in one community but not in another, and, in all probability, that is true. But communities throughout the Nation are in fact diverse, and it must be remembered that, in cases such as this one, the Court is confronted with the task of reconciling conflicting rights of the diverse communities within our society and of individuals.” Jacobellis v. Ohio, 378 U. S. 184, 200-201 (1964) (dissenting opinion). Judging the instruction given by the District Court in this case by these principles, there is no doubt that its occasional references to the community standards of the “nation as a whole” delineated a wider geographical area than would be warranted by Miller, 12 200-ft. Reels of Film, and our construction of § 1461 herein, swpra, at 105. Whether petitioners were materially prejudiced by those references is a different question. Certainly the giving of such an instruction does not render their convictions void as a matter of constitutional law. This Court has emphasized on more than one occasion that a principal concern in requiring that a judgment be made on the basis of “contemporary community standards” is to assure that the material is judged neither on the basis of each juror’s personal opinion, nor by its effect on a particularly sensitive or insensitive person or group. Miller v. California, supra, at 33; Mishkin v. New York, 383 U. S. 502, 508-509 (1966); Roth v. United States, 354 U. S., at 489. The District Court’s instruction in this case, including its reference to the standards of the “nation as a whole,” undoubtedly accomplished this purpose. We have frequently held that jury instructions are to be judged as a whole, rather than by picking isolated phrases from them. Boyd v. United States, 271 U. S. 104, 107 (1926). In the unusual posture of this case, in which petitioners agree that the challenged instruction was proper at the time it was given by the District Court, but now seek to claim the benefit of a change in the law which casts doubt on the correctness of portions of it, we hold that reversal is required only where there is a probability that the excision of the references to the “nation as a whole” in the instruction dealing with community standards would have materially affected the deliberations of the jury. Cf. Namet v. United States, 373 U. S. 179, 190-191 (1963); Lopez v. United States, 373 U. S. 427, 436 (1963). Our examination of the record convinces us that such a probability does not exist in this case. Our Brother Brennan takes us to task for reaching this conclusion, insisting that the District Court's instructions and its exclusion of the testimony of a witness, Miss Carl-sen, who had assertedly conducted a survey of standards in the San Diego area require that petitioners be accorded a new trial. As we have noted, infra, at 124-125, the District Court has wide discretion in its determination to admit and exclude evidence, and this is particularly true in the case of expert testimony. Stillwell Mfg. Co. v. Phelps, 130 U. S. 520, 527 (1889); Barnes v. Smith, 305 F. 2d 226, 232 (CA10 1962); 2 J. Wigmore, Evidence § 561 (3d ed. 1940). But even assuming that the District Court may have erred in excluding the witness’ testimony in light of the Miller cases, we think arguments made by petitioners’ counsel urging the admission of the survey re-emphasize the confusing and often gossamer distinctions between “national” standards and other types of standards. Petitioners’ counsel, in urging the District Court to admit the survey, stated: “We have already had experts who have testified and expect to bring in others who have testified both for the prosecution and the defense that the material that they found was similar in all cities....” Tr. 3931. “This witness can testify about experiences she had in one particular city. Whether this is or not a typical city is for the jury to decide.” Id,., at 3932. “Now this supports the national survey. It is not something that stands alone. The findings here are consistent with the national survey and as part of the overall picture, taking into account, of course, that this is something that has taken place after the national survey, which was about two years ago, that Dr. Abelson performed.” Id., at 3934-3935. The District Court permitted Dr. Wilson, one of the four expert witnesses who testified on behalf of petitioners, to testify as to materials he found available in San Diego, as a result of having spent several days there. Id., at 3575. He was then asked by petitioners’ counsel whether this material was “similar to or different than” the material found in other cities where he had also visited adult bookstores. The witness responded that he thought “essentially the same kinds of material are found throughout the United States.” Id., at 3577. These statements, in colloquies between counsel and Dr. Wilson, only serve to confirm our conclusion that while there may have been an error in the District Court's references to the “community standards of the nation as a whole” in its instructions, and in its stated reasons for excluding the testimony of Miss Carlsen, these errors do not require reversal under the standard previously enunciated. B Petitioners next argue that prior to our decision in Miller, 18 U. S. C. § 1461 did not contain in its language, nor had it been construed to apply to, the specific types of sexual conduct referred to in Miller, and therefore the section was unconstitutionally vague as applied to them in the prosecution of these cases. Such an argument, however, not only neglects this Court's decisions prior to Miller rejecting vagueness challenges to the federal statute, but also fundamentally misconceives the thrust of our decision in the Miller cases. In Roth v. United States, 354 U. S., at 491, we upheld the constitutionality of 18 U. S. C. § 1461 against a contention that it did “not provide reasonably ascertainable standards of guilt and therefore violate [s] the constitutional requirements of due process.” In noting that the federal obscenity statute made punishable the mailing of material that is “obscene, lewd, lascivious, or filthy... [and of] other publication [s] of an indecent character,” the Court stated in Roth: “Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘... [T]he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices....’ United States v. Petrillo, 332 U. S. 1, 7-8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark ‘... boundaries sufficiently distinct for judges and juries fairly to administer the law.... That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense....’ Id., at 7.” 354 U. S., at 491-492 (footnote omitted). Other decisions dealing with the pre-Miller constitutionality or interpretation of 18 U. S. C. § 1461 in other contexts have not retreated from the language of Roth. See, e. g., United States v. Reidel, 402 U. S. 351 (1971); Ginzburg v. United States, 383 U. S. 463 (1966); Manual Enterprises, Inc. v. Day, 370 U. S. 478 (1962). And as made clear by the opinion of Mr. Justice Harlan in Manual Enterprises, the language of 18 TJ. S. C. § 1461 had been, prior to the date of our decision in Miller, authoritatively construed in a manner cohsistent with Miller: “The words of section 1461, 'obscene, lewd, lascivious, indecent, filthy or vile/ connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennett, 24 Fed. Cas. 1093 (No. 14571), put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, at 489, 'taken as a whole appeals to prurient interest.’ ” 370 U. S., at 482-484 (footnotes omitted) (emphasis in original). At no point does Miller or any of the other obscenity decisions decided last Term intimate that the constitutionality of -pre-Miller convictions under statutes such as 18 U. S. C. § 1461 was to be cast in doubt. Indeed, the contrary is readily apparent from the opinions in those cases. We made clear in Miller, 413 U. S., at 24 n. 6, that our decision was not intended to hold all state statutes inadequate, and we clearly recognized that existing statutes “as construed heretofore or hereafter, may well be adequate.” That recognition is emphasized in our opinion in United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973). That case had come to this Court on appeal from the District Court’s dismissal of the Government’s forfeiture action under 19 U. S. C. § 1305 (a), which statute the District Court had found unconstitutional. In vacating the District Court’s constitutional decision and remanding the case to the District Court for a determination of the obscenity vel non of the materials there involved, we stated: “We further note that, while we must leave to state courts the construction of state legislation, we do have a duty to authoritatively construe federal statutes where ‘a serious doubt of constitutionality is raised’ and‘ “a construction of the statute is fairly possible by which the question may be avoided.” ’ United States v. Thirty-seven Photographs, 402 U. S. 363, 369 (1971) (opinion of White, J.), quoting from Crowell v. Benson, 285 U. S. 22, 62 (1932). If and when such a ‘serious doubt’ is raised as to the vagueness of the words ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘filthy,’ ‘indecent,’ or ‘immoral’ as used to describe regulated material in 19 U. S. C. § 1305 (a) and 18 U. S. C. § 1462, see United States v. Orito, [413 U. S.,] at 140 n. 1, we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific ‘hard core’ sexual conduct given as examples in Miller v. California, [413 U. S.,] at 25. See United States v. Thirty-seven Photographs, supra, at 369-374 (opinion of White, J.). Of course, Congress could always define other specific ‘hard core’ conduct.” 413 U. S., at 130 n. 7. Miller undertook to set forth examples of the types of material which a statute might proscribe as portraying sexual conduct in a patently offensive way, 413 U. S., at 25-26, and went on to say that no one could be prosecuted for the “sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” Id., at 27. As noted above, we indicated in United States v. 12 200-ft. Reels of Film, supra, at 130 n. 7, that we were prepared to construe the generic terms in 18 U. S. C. § 1462 to be limited to the sort of “patently offensive representations or descriptions of that specific ‘hard core’ sexual conduct given as examples in Miller v. California.” We now so construe the companion provision in 18 U. S. C. § 1461, the substantive statute under which this prosecution was brought. As so construed, we do not believe that petitioners’ attack on the statute as unconstitutionally vague can be sustained. Miller, in describing the type of material which might be constitutionally proscribed, 413 U. S., at 25, was speaking in terms of substantive constitutional law of the First and Fourteenth Amendments. See Jenkins v. Georgia, post, at 160-161. While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is “patently offensive” within the meaning of the obscenity test set forth in the Miller cases. And while the Court in Miller did refer to “specific prerequisites” which “will provide fair notice to a dealer in such materials,” 413 U. S., at 27, the Court immediately thereafter quoted the language of the Court in Roth v. United States, 354 U. S., at 491-492, concluding with these words: “ ‘That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense... ” 413 U. S., at 28 n. 10. The Miller cases, important as they were in enunciating a constitutional test for obscenity to which a majority of the Court subscribed for the first time in a number of years, were intended neither as legislative drafting handbooks nor as manuals of jury instructions. Title 18U.S.C. § 1461 had been held invulnerable to a challenge on the ground of unconstitutional vagueness in Roth; the language of Roth was repeated in Miller, along with a description of the types of material which could constitutionally be proscribed and the adjuration that such statutory proscriptions be made explicit either by their own language or by judicial construction; and United States v. 12 200-ft. Reels of Film, supra, made clear our willingness to construe federal statutes dealing with obscenity to be limited to material such as that described in Miller. It is plain from the Court of Appeals’ description of the brochure involved here that it is a form of hard-core pornography well within the types of permissibly proscribed depictions described in Miller, and which we now hold § 1461 to cover. Whatever complaint the distributor of material which presented a more difficult question of obscenity vel non might have as to the lack of a previous limiting construction of 18 U. S. C. § 1461, these petitioners have none. See Dennis v. United States, 341 U. S. 494, 511-515 (1951) (opinion of Vinson, C. J.). Nor do we find merit in petitioners’ contention that cases such as Bouie v. City of Columbia, 378 U. S. 347 (1964), require reversal of their convictions. The Court in Bouie held that since the crime for which the petitioners there stood convicted was “not enumerated in the statute” at the time of their conduct, their conviction could not be sustained. Id., at 363. The Court noted that “a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language.” Id., at 352. But the enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U. S. C. § 1461, conduct which had not previously been thought criminal. That requirement instead added a “clarifying gloss” to the prior construction and therefore made the meaning of the federal statute involved here “more definite” in its application to federal obscenity prosecutions. Bouie v. City of Columbia, supra, at 353. Judged by both the judicial construction of § 1461 prior to Miller, and by the construction of that section which we adopt today in the light of Miller, petitioners' claims of vagueness and lack of fair notice as to the proscription of the material which they were distributing must fail. C Petitioners' final Miller-based contention is that our rejection of the third part of the Memoirs test and our revision of that test in Miller indicate that 18 U. S. C. § 1461 was at the time of their convictions unconstitutionally vague for the additional reason that it provided insufficient guidance to them as to the proper test of “social value.” But our opinion in Miller plainly indicates that we rejected the Memoirs “social value” formulation, not because it was so vague as to deprive criminal defendants of adequate notice, but instead because it represented a departure from the definition of obscenity in Roth, and because in calling on the prosecution to “prove a negative,” it imposed a “[prosecutorial] burden virtually impossible to discharge” and not constitutionally required. 413 U. S., at 22. Since Miller permits the imposition of a lesser burden on the prosecution in this phase of the proof of obscenity than did Memoirs, and since the jury convicted these petitioners on the basis of an instruction concedely based on the Memoirs test, petitioners derive no benefit from the revision of that test in Miller. II Petitioners attack the sufficiency of the indictment under which they were charged for two reasons: first, that it charged them only in the statutory language of 18 U. S. C. § 1461, which they contend was unconstitutionally vague as applied to them; and, second, that the indictment failed to give them adequate notice of the charges against them. As noted above, however, at the time of petitioners’ convictions, Roth v. United States had held that the language of § 1461 was not “too vague to support conviction for crime.” 354 U. S., at 480. See United States v. Reidel, 402 U. S., at 354. Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hagner v. United States, 285 U. S. 427 (1932); United States v. Debrow, 346 U. S. 374 (1953). It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as “those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” United States v. Carll, 105 U. S. 611, 612 (1882). “Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.” United States v. Hess, 124 U. S. 483, 487 (1888). Russell v. United States, 369 U. S. 749 (1962), relied upon by petitioners, does not require a finding that the indictment here is insufficient. In Russell, the indictment recited the proscription of 2 U. S. C. § 192, and charged that the defendants had refused to answer questions that “were pertinent to the question then under inquiry” by a committee of Congress. In holding that the indictment was insufficient because it did not state the subject which was under inquiry, this Court stated: “[T]he very core of criminality under 2 U. S. C. § 192 is pertinency to the subject under inquiry of the questions which the defendant refused to answer. What the subject actually was, therefore, is central to every prosecution under the statute. Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.” 369 U. S., at 764 (emphasisadded). The definition of obscenity, however, is not a question of fact, but one of law; the word “obscene,” as used in 18 U. S. C. § 1461, is not merely a generic or descriptive term, but a legal term of art. See Roth v. United States, 354 U. S., at 487-488; Manual Enterprises, Inc. v. Day, 370 U. S., at 482-487 (opinion of Harlan, J.); United States v. Thevis, 484 F. 2d 1149, 1152 (CA5 1973), cert. pending, No. 73-1075; United States v. Luros, 243 F. Supp. 160, 167 (ND Iowa), cert. denied, 382 U. S. 956 (1965). The legal definition of obscenity does not" change with each indictment; it is a term sufficiently definite in legal meaning to give a defendant notice of the charge against him. Roth v. United States, supra, at 491-492; Manual Enterprises, Inc. v. Day, supra, at 482-487 (opinion of Harlan, J.). Since the various component parts of the constitutional definition of obscenity need not be alleged in the indictment in order to establish its sufficiency, the indictment in this case was sufficient to adequately inform petitioners of the charges against them. Petitioners also contend that in order for them to be convicted under 18 U. S. C. § 1461 for the crime of mailing obscene materials, the Government must prove that they knew the materials mailed were obscene. That statute provides in pertinent part that “[wjhoever knowingly uses the mails for the mailing... of anything declared by this section... to be nonmailable.. is guilty of the proscribed offense. Consistent with the statute, the District Court instructed the jury, inter alia, that in order to prove specific intent on the part of these petitioners, the Government had to demonstrate that petitioners “knew the envelopes and packages containing the subject materials were mailed or placed... in Interstate Commerce, and... that they had knowledge of the character of the materials.” App. 236. The District Court further instructed that the “[petitioners’] belief as to the obscenity or non-obscenity of the material is irrelevant.” Ibid. Petitioners contend that this instruction was improper and that proof of scienter in obscenity prosecutions requires, “at the very least, proof both of knowledge of the contents of the material and awareness of the obscene character of the material.” Brief for Petitioner Kemp 31-32. In support of this contention, petitioners urge, as they must, that we overrule our prior decision in Rosen v. United States, 161 U. S. 29 (1896). We decline that invitation, and hold that the District Court in this case properly instructed the jury on the question of scienter. In Rosen v. United States, supra, this Court was faced with the question of whether, under a forerunner statute to the present 18 U. S. C. § 1461, see Rev. Stat. § 3893, 19 Stat. 90, c. 186, a charge of mailing obscene material must be supported by evidence that a defendant “knew or believed that such [material] could be properly or justly characterized as obscene....” 161 U. S., at 41. The Court rejected this contention, stating: “The statute is not to be so interpreted. The inquiry under the statute is whether the paper charged to have been obscene, lewd, and lascivious was in fact of that character, and if it was of that character and was deposited in the mail by one who knew or had notice at the time of its contents, the offence is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails. Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of the person who, with knowledge or notice of its contents, assumed the responsibility of putting it in the mails of the United States. The evils that Congress sought to remedy would continue and increase in volume if the belief of the accused as to what was obscene, lewd, and lascivious was recognized as the test for determining whether the statute has been violated.” Id., at 41^42. Our subsequent cases have not retreated from this general rule, as a matter of either statutory or constitutional interpretation, nor have they purported to hold that the prosecution must prove a defendant’s knowledge of the legal status of the materials he distributes. In Smith v. California, 361 U. S. 147 (1959), this Court was faced with a challenge to the constitutionality of a Los Angeles ordinance which had been construed by the state courts as making the proprietor of a bookstore absolutely liable criminally for the mere possession in his store of a book later judicially determined to be obscene, even though he had no knowledge of the contents of the book. The Court held that the ordinance could not constitutionally eliminate altogether a scienter requirement, and that, in order to be constitutionally applied to a book distributor, it must be shown that he had “knowledge of the contents of the book.” Id., at 153. The Court further noted that “[w]e need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock.” Id., at 154. Smith does not support petitioners’ claim in this case, since it dealt with an ordinance which totally dispensed with any proof of scienter on the part of the distributor of obscene material. Nor did the Court’s decision in Manual Enterprises, Inc. v. Day, supra, also relied upon by petitioners, suggest otherwise. There Mr. Justice Harlan’s opinion, recognizing that scienter was required for a criminal prosecution under 18 U. S. C. § 1461, rejected the Government’s contention that such a requirement was unnecessary in an administrative determination by the Post Office Department that certain materials were nonmailable under that section. That opinion concluded that the obscene advertising proscription of the federal statute was not applicable in such an administrative determination unless the publisher of the materials knew that at least some of his advertisers were offering to sell obscene material. Such proof was deemed lacking and therefore the publishers could not be administratively prohibited from mailing the publications. Significantly, a substantially similar claim to the instant one was rejected by this Court in Mishkin v. New York, 383 U. S. 502 (1966). In examining a New York statute, the Court there noted that the New York Court of Appeals had “authoritatively interpreted” the statutory provision to require the “vital element of scienter” and that it had defined the required mental element as follows: “ ‘A reading of the [New York] statute... as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth which is exorcised-’ ” Id., at 510 (emphasis in original), quoting from People v. Finkelstein, 9 N. Y. 2d 342, 344-345, 174 N. E. 2d 470, 471 (1961). The Court emphasized that this construction of the New York statute “foreclosed” the defendant’s challenge to the statute based on Smith v. California, supra, and stated: “The Constitution requires proof of scienter to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity. The New York definition of the scienter required by [the New York statute] amply serves those ends, and therefore fully meets the demands of the Constitution. Cf. Roth v. United States, 354 U. S., at 495-496 (Warren, C. J., concurring).” 383 U. S., at 511. The Mishkin holding was reaffirmed in Ginsberg v. New York, 390 U. S. 629 (1968). There the Court was again faced with the sufficiency of the scienter requirement of another New York statute, which proscribed the “knowing” distribution of obscene materials to minors. “Knowingly” was defined in the statute as “knowledge” of, or “reason to know” of, the character and content of the material. Citing Mishkin, and the New York Court of Appeals’ construction of the other similar statutory language, the Court rejected the challenge to the scienter provision. We think the “knowingly” language of 18 U. S. C. § 1461, and the instructions given by the District Court in this case satisfied the constitutional requirements of scienter. It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials. To require proof of a defendant’s knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law. Such a formulation of the scienter requirement is required neither by the language of 18 U. S. C. § 1461 nor by the Constitution. “Whenever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk.” United States v. Wurzbach, 280 U. S. 396, 399 (1930). Petitioners also make a broad attack on the sufficiency of the evidence. The general rule of application is that “[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 315 U. S. 60, 80 (1942). The primary responsibility for reviewing the sufficiency of the evidence to support a criminal conviction rests with the Court of Appeals, which in this case held that the Government had satisfied its burden. We agree. Based on the evidence before it, the jury was entitled to conclude that the individual petitioners, as corporate officials directly concerned with the activities of their organizations, were aware of the mail solicitation scheme, and of the contents of the brochure. The evidence is likewise sufficient to establish the existence of a conspiracy to mail the obscene brochure. The existence of an agreement may be shown by circumstances indicating that criminal defendants acted in concert to achieve a common goal. See, e. g., Blumenthal v. United States, 332 U. S. 539, 556-558 (1947). Ill We turn now to petitioners’ attack on certain eviden-tiary rulings of the District Court. Petitioners have very much the laboring oar in showing that such rulings constitute reversible error, since “in judicial trials, the whole tendency is to leave rulings as to the illuminating relevance of testimony largely to the discretion of the trial court that hears the evidence.” NLRB v. Donnelly Co., 330 U. S. 219, 236 (1947); Michelson v. United States, 335 U. S. 469, 480 (1948); Salem v. United States Lines Co., 370 U. S. 31, 35 (1962). Petitioners offered in evidence at trial three categories of allegedly comparable materials argued to be relevant to community standards: (1) materials which had received second-class mailing privileges; (2) materials which had previously been the subject of litigation and had been found to be “constitutionally protected”; and (3) materials openly available on the newsstands. The District Court, after examining the materials, refused to admit them into evidence on the grounds that “they tend to confuse the jury” and “would serve no probative value in comparison to the amount of confusion and deluge of material that could result therefrom.” App. 158. The Court of Appeals concluded that the District Court was correct in rejecting the proffered evidence, stating that any abuse of discretion in refusing to admit the materials themselves had been “cured by the District Court’s offer to entertain expert testimony with respect to the elements to be shown for the advice of the jury.” 481 F. 2d, at 320. Here the District Court permitted four expert witnesses called by petitioners! to testify extensively concerning the relevant community standards. The defendant in an obscenity prosecution, just as a defendant in any other prosecution, is entitled to an opportunity to adduce relevant, competent evidence bearing on the issues to be tried. But the availability of similar materials on the newsstands of the community does not automatically make them admissible as tending to prove the nonobscenity of the materials which the defendant is charged with circulating. As stated by the Court of Appeals, the mere fact that materials similar to the brochure at issue here “are for sale and purchased at book stores around the country does not make them witnesses of virtue.” Ibid. Or, as put by the Court of Appeals in United States v. Manarite, 448 F. 2d 583 (CA2 1971): “Mere availability of similar material by itself means nothing more than that other persons are engaged in similar activities.” Id., at 593. Nor do we think the District Court erred in refusing petitioners’ offer of a magazine which had received a second-class mailing privilege. While federal law, see former 39 U. S. C. §4354 (1964 ed.); 39 CFR Pt. 132 (1973), may lay down certain standards for the issuance of a second-class mailing permit, this Court has held that these standards give postal inspectors no power of censorship. Hannegan v. Esquire, Inc., 327 U. S. 146 (1946). The mere fact that a publication has acquired a second-class mailing privilege does not therefore create any presumption that it is not obscene. Finally, we do not think the District Court abused its discretion in refusing to admit certain allegedly comparable materials, a film and two magazines, which had been found to be nonobscene by this Court. See Pinkus v. Pitchess, 429 F. 2d 416 (CA9)), aff’d sub nom. California v. Pinkus, 400 U. S. 922 (1970); Burgin v. South Carolina, 404 U. S. 806 (1971), rev’g 255 S. C. 237, 178 S. E. 2d 325 (1970). A judicial determination that particular matters are not obscene does not necessarily make them relevant to the determination of the obscenity of other materials, much less mandate their admission into evidence. Much of the material offered by petitioners was not of demonstrated relevance to the issues in this case. Such of it as may have been clearly relevant was subject to the District Court’s observation that it would tend to create more confusion than enlightenment in the minds of the jury, and to the court’s expressed willingness to permit the same material to be treated in the testimony of expert witnesses. The District Court retains considerable latitude even with admittedly relevant evidence in rejecting that which is cumulative, and in requiring that which is to be brought to the jury’s attention to be done so in a manner least likely to confuse that body. We agree with the Court of Appeals that the District Court’s discretion was not abused. Petitioners’ second contention is that the District Court erred in instructing the jury as to the determination of the prurient appeal of the brochure. At the trial, the Government introduced, over petitioners’ objection, testimony from an expert witness that the material in the Illustrated Report appealed to the prurient interest of various deviant sexual groups. The testimony concerning the brochure was that it appealed to a prurient interest in general, and not specifically to some deviant group. Petitioners concede, however, that each of the pictures said to appeal to deviant groups did in fact appear in the brochure. The District Court accordingly instructed the jury that in deciding whether the predominant appeal of the Illustrated Report and the brochure was to a prurient interest in sex, it could consider whether some portions of those materials appealed to a prurient interest of a specifically defined deviant group as well as whether they appealed to the prurient interest of the average person. App. 239-241. The Court of Appeals found no error in the instruction, since it was “manifest that the District Court considered that some of the portrayals in the Brochure might be found to have a prurient appeal” to a deviant group. 481 F. 2d, at 321. Petitioners contend that the District Court’s instruction was improper because it allowed the jury to measure the brochure by its appeal to the prurient interest not only of the average person but also of a clearly defined deviant group. Our decision in Mishkin v. New York, 383 U. S. 502 (1966), clearly indicates that in measuring the prurient appeal of allegedly obscene materials, i. e., whether the “dominant theme of the material taken as a whole appeals to a prurient interest in sex,” consideration may be given to the prurient appeal of the material to clearly defined deviant sexual groups. Petitioners appear to argue that if some of the material appeals to the prurient interest of sexual deviants while other parts appeal to the prurient interest of the average person, a general finding that the material appeals to a prurient interest in sex is somehow precluded. But we stated in Mishkin v. New York: “Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. The reference to the ‘average’ or ‘normal’ person in Roth, 354 U. S., at 489-490, does not foreclose this holding.... We adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group; and since our holding requires that the recipient group be defined with more specificity than in terms of sexually immature persons, it also avoids the inadequacy of the most-susceptible-person facet of the [Regina v.] Hicklin [[1868] L. R. 3 Q. B. 360] test.” 383 U. S., at 508-509 (footnotes omitted). The District Court’s instruction was consistent with this statement in Mishkin. The jury was instructed that it must find that the materials as a whole appealed generally to a prurient interest in sex. In making that determination, the jury was properly instructed that it should measure the prurient appeal of the materials as to all groups. Such an instruction was also consistent with our recent decision in the Miller cases. We stated in Miller: “As the Court made clear in Mishkin v. New York, 383 U. S., at 508-509, the primary concern with requiring a jury to apply the standard of ‘the average person, applying contemporary community standards’ is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person — or indeed a totally insensitive one.” 413 U. S., at 33 (emphasis added). Finally, we similarly think petitioners’ challenge to the pandering instruction given by the District Court is without merit. The District Court instructed the j urors that they must apply the three-part test of the plurality opinion in Memoirs v. Massachusetts, 383 U. S., at 418, and then indicated that the jury could, in applying that test, if it found the case to be close, also consider whether the materials had been pandered, by looking to their “[m]anner of distribution, circumstances of production, sale,... advertising.... [and] editorial intent....” App. 245. This instruction was given with respect to both the Illustrated Report and the brochure which advertised it, both of which were at issue in the trial. Petitioners contend that the instruction was improper on the facts adduced below and that it caused them to be “convicted” of pandering. Pandering was not charged in the indictment of the petitioners, but it is not, of course, an element of the offense of mailing obscene matter under 18 U. S. C. § 1461. The District Court’s instruction was clearly consistent with our decision in Ginzburg v. United States, 383 U. S. 463 (1966), which held that evidence of paiidering could be relevant in the determination of the obscenity of the materials at issue, as long as the proper constitutional definition of obscenity is applied. Nor does the enactment by Congress of 39 U. S. C. § 3008, enabling the Postal Service to cease forwarding pandering advertisements at the request of an addressee, authorize, as contended by petitioners, the pandering of obscene advertisements. That statute simply gives a postal recipient the means to insulate himself from advertisements which offer for sale matter “which the addressee in his sole discretion believes to be erotically arousing or sexually provocative,” by instructing the Post Office to order the sender to refrain from mailing any further advertisements to him. See Rowan v. U. S. Post Office Dept., 397 U. S. 728 (1970). The statute does not purport to authorize the mailing of legally obscene pandering advertisements, which continues to be proscribed by 18 U. S. C. § 1461. See 39 U. S. C. §3011 (e). IV Petitioners’ final contentions are directed at alleged procedural irregularities said to have occurred during the course of the trial. They first contend that the District Court committed reversible error by denying their request to make additional objections to the court’s instructions to the jury out of the presence of the jury. Prior to closing arguments and instructions to the jury the parties had made a record with respect to the instructions which the Court indicated it would give. After argument and instructions, but before the jury had retired, petitioners’ counsel approached the bench and requested that the jury be excused in order that he might present further objections to the charge. The court declined to excuse the jury, saying: “You have made all the objections suitable that I can think of. I want to send this Jury out. If you want to make a statement, make a statement.” App. 257. Petitioners contend that the court’s refusal to excuse the jury violated the provisions of Fed. Rule Crim. Proc. 30, and requires reversal. Rule 30 provides: “At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall he given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.” (Emphasis added.) Nothing in Rule 30 transfers from the district court to counsel the function of deciding at what point in the trial, consistent with established practice, counsel shall be given the opportunity required by Rule 30 to make a record on the instructions given by the court. But when counsel at the close of the court’s instruction to the jury indicates that he wishes to make objections of a kind which could not previously have been brought to the court’s attention, he runs the risk of waiving a claim of error under the fourth sentence of the Rule unless the court indicates that it will permit such objections to be made after the jury retires. Since the court here asked counsel for comments, and did not indicate that it would permit objections which could not have been previously formulated to be made after the jury retired, we agree with the Court of Appeals that the District Court erred in refusing to permit such objections to be made out of the presence of the jury. We also agree with the Court of Appeals’ conclusion that such procedural error does not mandate reversal. The courts of appeals have taken varying approaches to the question of when a failure to comply with the provisions of Rule 30 constitutes reversible error. Some appear to have applied a general rule that such a violation is not reversible error unless the defendant demonstrates that he has been prejudiced. United States v. Hall, 200 F. 2d 957 (CA2 1953); United States v. Titus, 221 F. 2d 571 (CA2), cert. denied, 350 U. S. 832 (1955); United States v. Fernandez, 456 F. 2d 638 (CA2 1972); Hodges v. United States, 243 F. 2d 281 (CA5 1957); Sultan v. United States, 249 F. 2d 385 (CA5 1957). Others appear to have adopted a rule whereby a violation is not reversible error where it affirmatively appears that the defendant was not prejudiced. United States v. Schartner, 426 F. 2d 470 (CA3 1970); Lovely v. United States, 169 F. 2d 386 (CA4 1948). At least one Court of Appeals appears to take the position that the failure to comply with Rule 30 is automatic grounds for reversal, regardless of attenuating circumstances. Hall v. United States, 378 F. 2d 349 (CA10 1967). The Court of Appeals in this case felt that the rule announced by the Third Circuit in United States v. Schart-ner, supra, was the appropriate one for application where Rule 30 has not been complied with. The court in Schartner held that a District Court’s failure to comply with the “out of the presence of the jury” requirement of Rule 30, upon proper request by a party, constitutes reversible error “unless it be demonstrable on an examination of the whole record that the denial of the right did not prejudice” the defendant’s case. 426 F. 2d,, at 480. Applying that rule, the Court of Appeals here concluded that there was no prejudice to any of the petitioners as a result of the District Court’s failure to comply with Rule 30. The language in Rule 30 at issue here was 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_direct1

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Mehmet N. OZYAGCILAR, Appellant, v. Milton DAVIS and J.D. Waugh, and University of South Carolina, Appellees, v. Kenneth SWAISLAND, Rafel Industrial Group, Ltd., Bryan E.W. Gransden, Norminco Developments, Ltd., B.J.R. Research Company, and Great Basins Petroleum Company, Third-Party Defendants. No. 82-1472. United States Court of Appeals, Fourth Circuit. Argued Jan. 14, 1983. Decided March 1, 1983. Herbert Rosenberg, New York City (Miller, Singer, Michaelson & Raives, Barry Evans, Curtis, Morris & Safford, P.C., New York City, on brief) for appellant. Robert Neuner, New York City (John D. Murnane, Brumbaugh, Graves, Donohue & Raymond, New York City, Robert W. Dibble, Jr., Randall T. Bell, Robert E. Stepp, McNair, Glenn, Konduros, Corley, Single-tary, Porter & Dibble; C. Tolbert Goolsby, Jr., Deputy Atty. Gen., Columbia, S.C., on brief) for appellees. Before WINTER, Chief Judge, WIDENER, Circuit Judge, and FIELD, Senior Circuit Judge. HARRISON L. WINTER, Chief Judge: Mehmet Ozyagcilar, a student at the University of South Carolina, sued the University and two of its professors regarding patent rights to two new chemical processes which plaintiff claimed to have invented. The parties purportedly reached a settlement just before trial. An outline of their agreement was made part of the record and the case was dismissed with prejudice. Later, during the drafting of the formal settlement agreement, a dispute arose over the meaning of a clause in the outline agreement, and the district court, purporting to act as a “final arbiter,” issued an order interpreting the agreement. Concluding that the district court proceeded improperly, we reverse its order and remand for further proceedings consistent with this opinion. I. One of the two chemical processes at issue in the original suit involved the synthesis of ammonia and the other the synthesis of hydrocarbons and alcohols. Ozyagci-lar alleged in his complaint that the University and its professors had wrongfully appropriated his inventions and filed patent applications for them. Plaintiff also filed patent applications for both inventions concurrent with his filing suit. Just before trial, lawyers for the parties reached an agreement in settlement of the litigation. An outline of the agreement was drafted by defendants’ attorneys and signed by plaintiff and all of the attorneys for both sides. It was contemplated that the outline would be followed by the drafting and execution of more formal documents. In relevant part, the outline provided for Ownership in the University of all United States and foreign patents and patent applications except for Turkey.... Mr. Ozyagcilar to receive a nonexclusive transferrable royalty-free irrevocable license under the patents and patent applications. When the case was called for trial, the outline agreement was read into the record. The district court asked plaintiff’s counsel whether he accepted the terms of the agreement and had authority to do so, and counsel responded that he did. The following colloquy then took place: THE COURT: Do you further agree that on behalf of your client, if any dispute arises under this settlement as to its terms and the meaning of the words ... that that matter will be resolved by the court? PLAINTIFF’S COUNSEL: We understand that to be the case, yes sir. Plaintiff, himself, and counsel for all of the defendants also responded affirmatively when questioned whether they agreed that the court would resolve any disputes which might arise as to the interpretation of the agreement. However, the outline agreement contained no provision that the district court would be the interpreter of any of its terms; it was completely silent as to who was to resolve any disputes arising as to its meaning. A dispute as to the meaning of “a nonexclusive transferrable royalty-free irrevocable license” arose in the course of drafting the formal settlement agreement. Plaintiff contended that his understanding was that he would have the right to sublicense the process to numerous companies. Defendants contended that they had understood— and that plaintiff had understood — that plaintiff would only get one indivisible license that he could transfer to one company. The district court, after receiving affidavits and briefs from the parties, issued its “Order Interpreting Settlement Agreement.” The district court did not conduct an evidentiary hearing; it made no findings of fact; and it did not address the argument, raised by plaintiff, that there had never been a meeting of the minds between the parties as to the meaning of the phrase. Rather, the court, purporting to act as a “final arbitor [sic],” examined patent law principles and the effect on the parties of possible interpretations, and imposed a third interpretation. Under the district court’s interpretation and order, plaintiff would be able to transfer each of two licenses — one for ammonia and the other for hydrocarbons and alcohols — to one company at any given time. As construed by it, the district court ordered the agreement carried out. Ozyagcilar now appeals. II. It is well settled that a district court retains inherent jurisdiction and equitable power to enforce agreements entered into in settlement of litigation before that court. Millner v. Norfolk & Western Ry. Co., 643 F.2d 1005, 1009 (4 Cir.1981); Wood v. Virginia Hauling Co., 528 F.2d 423, 425 (4 Cir.1975); Kulka v. National Distillers Prods. Co., 483 F.2d 619, 621 (6 Cir.1973). However, it is clear that the district court only retains the power to enforce complete settlement agreements; it does not have the power to impose, in the role of a final arbiter, a settlement agreement where there was never a meeting of the parties’ minds. Wood, supra, 528 F.2d at 425. Where there has been no meeting of the minds sufficient to form a complete settlement agreement, any partial performance of the settlement agreement must be rescinded and the case restored to the docket for trial. Id. We think it clear that the district court proceeded erroneously in the present case. Although plaintiff alleged that there had never been a meeting of the minds, the district court did not conduct a plenary hearing and make findings as to this issue. The failure of the district court to address and resolve this issue leaves open the question as to whether there ever was a complete settlement agreement to interpret, let alone its proper interpretation. The court’s ruling therefore cannot stand. The action taken by the district court in the present case cannot be justified on the ground that the parties agreed to let the court “legislate” an interpretation as a “final arbiter” of the outline agreement. The proper role of the district court in enforcing settlement agreements was made clear in Wood. There, in remanding a similar case to the district judge, we described his role as “to find, if he can the terms of the complete settlement agreement, or to determine that there was none.” Id. (emphasis in original). Thus, it is improper for the district court, by its own motion or by agreement of the parties, to place itself in the role of a “final arbiter” of a settlement agreement. Instead, on remand, the district court should, after a plenary hearing, determine if there was a settlement agreement between the parties and, if so, its terms and conditions. REVERSED AND REMANDED. Of course the district court did receive affidavits, but this was an impermissible procedure. Whether there had been a meeting of the parties’ minds is clearly a question of fact, and it was error for the district court to attempt to resolve this question based solely on affidavits and briefs. Wood, supra, 528 F.2d at 425; Millner, supra, 643 F.2d at 1009; Kulka, supra, 483 F.2d at 621-22. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:

songer_district

C

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". Marilyn Marie MONTEILH et al., Plaintiffs-Appellants, v. ST. LANDRY PARISH SCHOOL BOARD et al., Defendants-Appellees, United States of America, Amicus Curiae. No. 71-2604. United States Court of Appeals, Fifth Circuit. Jan. 3, 1972. Jack Greenberg, New York City, Marion Overton White, Opelousas, La., Norman Chachkin, New York City, A. P. Tureaud, New Orleans, La., Margrett Ford, Shreveport, La., for plaintiffs-appellants. J. Y. Fontenot Dist. Atty., 27th Judicial Dist., Opelousas, La., Harry J. Kron, Jr., Thibodeaux, La., Edward Christenbury, U. S. Dept. of Justice, Civil Rights Div., Washington, D.C., Lawrence Sandoz, Jr., Opelousas, La., Donald E. Walter, U. S. Atty., Shreveport, La., for defendants-appellees. Before THORNBERRY, MORGAN and CLARK, Circuit Judges. BY THE COURT: The order appealed from, reflecting the informed judgment of the district court, is affirmed, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The district court correctly retained jurisdiction of this proceeding. and should continue to maintain that jurisdiction for a minimum period of three years. In no event should the district court dismiss this action without notice to the plaintiffs below and a hearing providing opportunity to plaintiffs to show that deliberate action by school authorities or some other agency of the State has affected the unitary status of this system so that further intervention of the district court is required. See Swann, supra, and Calhoun v. Cook, 451 F.2d 583 (5th Cir. 1971) and the cases cited in that opinion. I 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_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. UNITED STATES of America, Appellant, v. Mrs. Vesta M. PINSON and J. H. Pinson, Appellees. No. 20965. United States Court of Appeals Fifth Circuit. May 11, 1964. Charles L. Goodson, U. S. Atty., Slaton Clemmons, Asst. U. S. Atty., Atlanta, Ga., Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis, Edmund B. Clark, Attys., Dept. of Justice, Washington, D. C., for appellant. Herbert R. Edmondson, Gainesville, Ga., for appellees. Before MARIS, GEWIN and BELL, Circuit Judges. Of the Third Circuit, sitting by designation. MARIS, Circuit Judge. This is an appeal from an order entered by the District Court for the Northern District of Georgia in a condemnation suit brought by the Government for the taking of property in connection with the establishment of the Buford Dam and Reservoir Project in Georgia and for the ascertainment and award of compensation therefor. Two adjoining tracts of land bordering on the Chattahoochee River are involved in the appeal. One of these tracts, No. 1-933 containing 45.20 acres, was owned by J. H. Pinson and the other, No. 1-945 containing 80.80 acres, by Mrs. Vesta M. Pinson. In the case of each of these two tracts the declaration of taking filed by the Secretary of the Army described the estate taken for public use as “the fee simple title, subject to existing easements for public roads and highways, public utilities, railroads and pipe lines.” By certain prior deeds the Georgia Power Company became the grantee of flowage easements or flood rights over 20.66 acres of tract No. I-933 and 37.42 acres of tract No. 1-945. That company was named in the Government’s complaint as a possible claimant and it filed a claim for compensation in the proceedings. Subsequently the compensation payable for tract No. 1-933 was determined by a jury to be $15,-616.00 and the compensation for tract No. 1-945 was determined by stipulation to be $27,000.00. Of these awards all but $2,000.00 in the case of tract No. 1-933 and $3,500.00 in the case of tract No. 1-945 were disbursed to the owner claimants, the latter sums being held in the registry of the court to abide the determination of the claim of the Georgia Power Company. Thereafter the owner claimants, J. H. Pinson and Mrs. Vesta M. Pinson, moved the court to disburse the sum of $5,500.00 thus being held in the registry to them instead of to the Georgia Power Company, asserting (1) that the Power Company’s easements were excepted from the taking and had not been condemned, (2) that the Power Company’s easements were not compensable because the company had not shown that it had obtained a federal license to erect a dam on the Chattahoochee River, and (3) that the Power Company’s easements, even if com-pensable, were actually valueless. The motion was opposed by both the Georgia Power Company and the Government. Upon consideration of the motion the district court held that the flowage easements of the Georgia Power Company were excepted from the taking and had not been condemned. The court accordingly entered an order directing the disbursement of the funds on deposit in its registry to the former owners of the tracts in question, $2,000.00 to J. H. Pin-son and $3,500.00 to Mrs. Vesta M. Pin-son. The Government, being aggrieved by this determination by the district court that its taking had not included the Georgia Power Company’s flowage easements, thereupon took the appeal which is now before us. The sole question presented by this appeal is whether the clause in paragraph 3 of the declaration of taking— “subject to existing easements for public roads and highways, public utilities, railroads and pipe lines” — excepted from the taking the flowage easements or flood rights of the Georgia Power Company, as the district court held. Stated more precisely the question is whether the phrase “existing easements for * * * public utilities” includes the flowage easements of the Georgia Power Company. The question is one of federal law, but since we have not been referred to any federal case which has decided it, we must turn for its solution to applicable principles of general law. Admittedly the Georgia Power Company is a public utility company and its flowage easements were existing at the time of taking. Upon this reasoning the district 'court concluded that the flowage easements were included in the clause which excepted existing easements for public utilities from the taking. We do not think, however, that the solution of the question can be arrived at so easily. In construing the clause of the declaration of taking here in question the intention of the United States as author of the declaration, to be gathered from the language of the entire declaration and the circumstances surrounding it, must be considered. Looking first at the language of the clause itself we must remember that “public utilities” is a phrase of varied meanings. It is true that it commonly refers to corporations •or individuals engaged in the business of .supplying the public generally with commodities or services which are of public ■consequence and need and which the public has the right to demand. But the phrase is also often used in a more re.stricted sense to denote the physical facilities themselves which have been dedicated by their owners to the service of the public. We think that in this declaration of taking the phrase was used in this sense of physical facilities devoted to the public service rather than to describe corporations or individuals engaged in business as public utilities. The use of the preposition “for” in the phrase ■“existing easements for * * * public utilities” indicates a reference to easements needed for the construction and maintenance of facilities rather than easements belonging to public utility companies or held by them. The rule of ejusdem generis points to the same result. In the context of “easements for public roads and highways, public utilities, railroads and pipe lines” the public utilities referred to must be those physical facilities, such as power lines, water lines, sewers, etc., which are similar in nature to those specifically enumerated. The flooding of land under a granted right to do so is clearly not in this category. We do not regard New York Telephone Co. v. United States, 2 Cir.1943, 136 F.2d 87, which was relied upon by the district court, as authority to the contrary. For the easements which were held in that case to be excepted from the taking under a clause in the declaration of taking excepting “existing public utility easements” were all physical facilities devoted to the public service, namely, underground telephone ducts, cables, manholes and appurtenances. When we turn to the other provisions of the declaration of taking we find ample support for this reading of the phrase “public utilities.” In addition to tracts Nos. 1-933 and 1-945 various other tracts were involved in the taking. Among these was tract No. I-958-E-3, the subject of paragraph 4 of the declaration of taking which in pertinent part reads as follows: “4. The estate taken for said public uses with respect to Tract No. I-958-E-3 is a perpetual right, power, privilege and easement to occasionally overflow, flood and submerge the same, and to maintain mosquito control, as may be required in connection with the operation and maintenance of the Buford Dam and Reservoir Project * * * ; subject, however, to existing easements for public roads and highways, public utilities, railroads and pipe lines.” It is perfectly obvious that the existing easements for public utilities which the final clause of paragraph 4 of the declaration of taking saves from being taken cannot have been intended to include flowage easements or flood rights. For these are the precise interests in the tract which the Government itself was taking by that paragraph. It would, be patently absurd to hold that the Government, in taking by eminent domain a flowage easement over land, intended at the same time to preserve a prior flowage easement held by another over the same land. Certainly the Buford Dam and Reservoir Project could not have been constructed and operated on any such foundation of conflicting flowage rights as that. Since the clause excepting existing easements from the taking which is set out in paragraph 3 of the declaration of taking with respect to the two tracts involved in this appeal is in exactly the same language as the excepting clause of paragraph 4 which is applicable to tract No. I-958-E-3, both must have been intended to have the same meaning, so far as “existing easements for * * * public utilities * * * ” are concerned, and could not have been intended to include flowage easements or flood rights. We are further fortified in this conclusion by the fact that the entire taking was directed toward the acquisition of property needed for use in connection with the establishment of the Buford Dam and Reservoir Project, a project which necessarily involved the flooding of lands adjacent to the Chattahoochee River upon which the dam was to be built. Surely it would require very clear language to hold that under these circumstances flowage easements were intended to be excepted from the taking. The fact that the Government included the Georgia Power Company as a claimant in the complaint is itself persuasive that such was not the intention. We conclude that the flowage easements and flood rights of the Georgia Power Company in tracts Nos. I-933 and I-945 were taken by the Government in this proceeding. Whether these rights are compensable and, if so, whether they are valueless because of their relatively insignificant extent or because of the inactivity of the Georgia Power Company in acquiring other necessary rights and proceeding with its projected dam we do not decide. These are matters for the district court to determine upon remand. The judgment of the district court will be reversed and the cause remanded for further proceedings not inconsistent with this opinion. . Paragraph 3 of the declaration of taking states: “3. The estate taken for such public uses with respect to Tracts Nos.. 1-933; 1-945; 1-958; and 0-1520 is ‘the fee simple title, subject to existing easements for public roads and highways, public utilities, railroads and pipe lines.” . Bumpus v. United States, 10 Cir. 1963, 325 F.2d 264, 266. . Bumpus v. United States, 10 Cir. 1963, 325 F.2d 264, 266. . Pulitzer Pub. Co. v. Federal Communications Commission, D.C.Cir. 1937, 68 U.S. App.D.C. 124, 94 F.2d 249, 251; City of Oakland v. El Dorado Terminal Co., 1940, 41 Cal.App.2d 320, 106 P.2d 1000, 1002. Thus the courts have held the following to he public utilities: Airports, Jones v. Keck, 1946, 79 Ohio App. 549, 74 N.E.2d 644, 646; Bridges, City of Wilkes-Barre v. Pennsylvania Public Utility Commission, 1949, 164 Pa.Super. 210, 220, 63 A.2d 452, 457; Golf links, Capen v. City of Portland, 1924, 112 Or. 14, 228 P. 105, 106, 35 A.L.R. 589; Parking lots, City of Shawnee v. Williamson, 1959, Okl., 338 P.2d 355, 356-357; Sewers, Chastain v. Oklahoma City, 1953, 208 Okl. 604, 258 P.2d 635, 637; Switch tracks, Stockdale v. Rio Grande Western Ry. Co., 1904, 28 Utah 201, 77 P. 849, 851; Telephone lines, Arkansas State Highway Commission v. Southwestern Bell Telephone Co., 1944, 206 Ark. 1099, 178 S.W.2d 1002, 1005; and Toll roads and bridges, Miami Bridge Co. v. Miami Beach Ry. Co., 1943, 152 Fla. 458, 12 So. 2d 438, 445. 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_usc2

33

What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 33. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. JARKA CORPORATION et al. v. MONAHAN, Deputy Commissioner, et al. No. 2733. Circuit Court of Appeals, First Circuit. Dec. 29, 1932. La Rue Brown, of Boston, Mass. (Richard Field, and Brown, Field & McCarthy, all of Boston, Mass., on the brief), for appellants. George L. Dillaway, of Boston, Mass., for appellee Nellie Barnes. Before BINGHAM, WILSON, and MORTON, Circuit Judges. WILSON, Circuit Judge. This is an appeal from a decree of the District Court for the District of Massachusetts dismissing the appellants’ bill to enjoin the enforcement of a compensation order made under the Act of March 4, 1927, entitled the “Longshoremen’s and Harbor Workers’ Compensation Act” chapter 509, 44 Slat. 1424 (33 USCA §§ 901-950). The appellants are the employer and insurance carrier, respectively, while the appellees are the deputy commissioner appointed under the act and the surviving wife, in whoso favor, for the benefit of herself and her minor children, the compensation order was made for injuries resulting in the death of her husband. Jurisdiction to restrain the enforcement of an order of the deputy commissioner is conferred upon the District Courts by section 21 (b) of the act (33 USCA § 921(b). Arthur Barnes, an employee of the Jarka Corporation of Boston, died on December 7, 1929, as the result of injuries received on Do eember 5,192-9, due to defective equipment of a vessel, owned by a third party, on which he was working. His widow and administratrix exercised her right under section 33 (a) of the act (33 USCA § 933 (a), and in April, 1930, brought a libel against the vessel. Her action was settled in November, 1930, with the approval of the employer of the injured workman, by the payment to the administratrix of the sum of $5,500. Under section 33 (g), if a compromise with a third person responsible for the injury is made with the consent of the employer, and the amount received under such compromise is less than the compensation to which the workman would be entitled under the act, “the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the commission determines is payable on account of such injury or death over the amount recovered against such third person.” (It is clear, we think, that there was an error in the reference to a previous section in subdivision (g) of section 33. The reference obviously should have been to subdivision (f) and not subdivision (e). On application to the commission, the deputy commissioner made an award requiring the employer and insurance carrier to pay an additional sum of $2,250 in a lump sum as a death benefit to the surviving wife and her minor children. From this award the employer and insurance carrier appealed, and it was set aside by the District Court [48 F.(2d) 283], on the ground that there was no basis for making such an award in a lump sum, and no evidence that the deputy commissioner, in making the award, proceeded under section 14 (j), (33 USCA § 914 (j), which provides for an award of a lump sum under certain conditions to be found by the deputy commissioner. The deputy commissioner afterward made the award here involved of $2,000 payable in weekly payments of $9.45 to the widow, and $2.70 weekly for the use of each of the minor children, or a total of $14.85, payments to date from December 7, 1929; the date of the workman’s death. This in effect awards the maximum amount to which the widow and children were entitled under the act, viz. $7,500. No question is raised by the appellants as to the propriety of this award as to the amount or the manner of its payment. The sole issue here is, On what date shall the payments begin? The appellants contend that the amount recovered of a third person should be treated as compensation under the act, and first applied in installments until used up, and then the payments under the Commissioner’s award should begin. Under this interpretation the widow and children would receive no benefit in this case under the award of the deputy commissioner until 1936. But we find no basis in the act for such a construction. While section 14 (b), (33 USCA § 914 (b), provides that compensation paid by the employer shall be in semimonthly installments, unless otherwise determined by the Commission, the situation presented when a third person is responsible for the injury is not the same as when an employer pays under the act. The injured workman, or, in case of his death, his representative, if the option under section 33 (a), (33 USCA § 933 (a) is exereised, brings the action against the third person in his own right, as though no Compensation Act existed, and is entitled to receive whatever he or his representative may recover unconditioned by the act. But, when the amount recovered is less than the sum the workman, or, in case of death, his dependents, would be entitled to receive under the .act, the employer must make up the difference. The act may be defective in not expressly providing how this difference should be paid, whether in installments or in a lump sum; but section 33 (f) provides that it shall be paid as “compensation under this chapter,” and section 14 (b) provides how “compensation under this chapter” shall be paid. Seasons may be assigned why Congress, in case of recovery of a third person, should have made the installments of any additional sum which the employer is compelled to pay under section 33 (f) begin at a different date than when the employer is required under section 14 (b) to pay the entire sum; but Congress has failed to do so, and we see no good reason for holding that the District Court erred in affirming the award of the deputy commissioner directing the due date of the installments to be computed from the date of death in accordance with section 14 (b). That, owing to the lapse of time since the workmen’s death, the award will result in the dependents now receiving the entire amount in one payment, since all the installments are now due, is not a sufficient reason' for adopting a date for beginning the weekly payments other than the only one provided in the act. A fair construction of the act in ease of weekly payments would require the first installment to be due on the seventh day after death, or after the employee has knowledge of the injury. Certainly any possible detriment to a widow and minors in having the award all at one time, if there be any resulting detriment, or any possible advantage to the employer in having the payments of the installments projected a long time into the future, on the ground that her death or remarriage would lessen the amount the employer would have to pay, is not a sufficient reason for adopting any other time for the beginning of the payments of compensation than the one fixed in the act. That it may result in the dependents receiving the compensation in a single payment is fo.r the future consideration of Congress, if it is a defect in the act. Compensation Acts are for the benefit of the employee and his dependents, and are to be construed liberally in their favor. We think the construction contended for by the appellants would not be favorable to these dependents. The decree of the District Court dismissing the bill is affirmed, with costs to the appellee Nellie Barnes. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 33. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:

songer_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. Jouett Edgar ARNEY, Randall William Murphy, Plaintiffs-Appellants, and Leslie Keith Kimball, Rickey Ray Redford, Robert Demass, Richard Snell, Thomas H. Porter, Dennie House, Robert Francis Smith, Jr., Lyle C. Sanders, Donald E. Alexander, Anthony R. Palocioz, Joseph F. Edwards, Plaintiffs, v. Joan FINNEY, Raymond Roberts, Gary Stotts, Defendants-Appellees. Jouett Edgar ARNEY, Plaintiff-Appellant, and Leslie Keith Kimball, Rickey Ray Redford, Robert Demass, Richard Snell, Thomas H. Porter, Dennie House, Robert Francis Smith, Jr., Lyle C. Sanders, Donald E. Alexander, Anthony R. Palocioz, Joseph F. Edwards, Randall William Murphy, Plaintiffs, v. Joan FINNEY, Governor, Raymond Roberts, Gary Stotts, Defendants-Appellees. Rickey Ray REDFORD, Robert Demass, Richard Snell, Thomas H. Porter, Dennie House, Robert Francis Smith, Jr., Lyle C. Sanders, Donald E. Alexander, Anthony R. Palocioz, Joseph F. Edwards, Plaintiffs, and Jouett Edgar Arney, Plaintiff-Appellant, v. Joan FINNEY, Governor, Leslie Keith Kimball, Raymond Roberts, Defendants-Appellees. Nos. 91-3235, 91-3237 and 91-3295. United States Court of Appeals, Tenth Circuit. June 18, 1992. Jouett E. Arney and Randall Murphy, plaintiffs-appellants, pro se. Robert T. Stephan, Atty. Gen., State of Kan., and Timothy G. Madden, Sp. Asst. Atty. Gen., Kansas Dept, of Corrections, Topeka, Kan., for defendants-appellees. Before MOORE, TACHA, and BRORBY, Circuit Judges. TACHA, Circuit Judge. These interlocutory appeals arise out of a class action suit involving the conditions at correctional facilities under the jurisdiction of the Kansas Department of Corrections. In appeals number 91-3235 and number 91-3237, appellants Jouett Arney and Randall Murphy raise three arguments. First, they challenge the district court’s authority to reopen a final order under Fed.R.Civ.P. 54(b). Second, they argue that a federal district court has a duty to honor a “termination” of counsel motion that is filed by a majority of the plaintiff class. Third, appellants assert that the district court should have conducted a hearing to determine whether appointed counsel for the class should be terminated. Appellant Arney also appeals an order of the district court denying his motion to intervene. In appeal number 91-3295, Arney contends that the district court abused its discretion by denying a hearing on the application-petition for a contempt of court citation to enter against the Kansas Department of Corrections. Arney also asserts that the members of the class have a right to have their views presented individually or through class counsel. Because these are interlocutory appeals and because the district court certified only the issue of the denial of Arney’s motion to intervene, we exercise jurisdiction under 28 U.S.C. § 1291 with respect to the intervention issue only and affirm. The other issues on appeal are dismissed. BACKGROUND A review of the district court record reveals the following. Jouett Arney initiated this action in 1977 pursuant to 42 U.S.C. §§ 1983, 1985 & 1988. Arney sought declaratory and injunctive relief to remedy allegedly unconstitutional conditions of confinement at the Kansas State Penitentiary, Lansing, Kansas (KSP). Arney contended that KSP was overcrowded and that the conditions jeopardized the inmates’ health, safety and welfare. Similarly situated inmates filed six additional lawsuits, and these actions were consolidated with Arney’s action in May, 1978. Defendants denied that any of the conditions at KSP violated the inmates’ constitutional rights or applicable Kansas statutes. Defendants subsequently moved for summary judgment, and the district court denied their motion. The district court appointed counsel to represent the plaintiffs, and attorneys and legal interns from the Washburn University School of Law Legal Clinic and Legal Services for Prisoners, Inc. entered appearances. Settlement negotiations ensued, and the parties entered into a consent decree that was filed with the district court and approved in May 1980. The decree provided a comprehensive plan whereby defendants would “make an active” and “good faith” effort to procure funds so that the conditions of confinement at KSP would not only meet constitutional and state standards, but also meet the standards for aecreditation of the American Correctional Association. Pursuant to the consent decree, defendants agreed to renovate all cellhouses, make major improvements in the structures for sanitation and in health and fire safety, provide structured activities for inmates, secure adequate health care, achieve accreditation, and provide single cell occupancy or closely supervised multiple occupancy dormitories to the extent reasonably possible. The plaintiffs agreed to dismiss all claims for costs, damages and attorneys’ fees upon compliance with the terms of the decree. After the consent decree issued, plaintiffs filed a motion to find defendants in contempt of the decree and to reinstate damage claims. In support of their motion, plaintiffs claimed that defendants failed to comply with the conditions of the decree by the dates specified. The court denied plaintiffs’ motion on June 16, 1982 because the consent decree did not require the conditions plaintiffs were seeking to enforce. On May 28, 1986, plaintiffs notified the district court of their intention not to seek further enforcement of the decree pending an investigation by United States Department of Justice pursuant to the Civil Rights of Institutionalized Persons Act of 1980. Plaintiffs also gave the district court their view of defendants’ noncompliance and the deterioration of conditions at KSP. In response, the Department of Corrections stated that it would continue its “good faith attempt to comply with the specific terms of the consent decree” and intended to continue providing plaintiffs with periodic reports. On January 26, 1988, plaintiffs filed a motion to modify and enforce the consent decree. Plaintiffs claimed that defendants’ alleged failure to comply with the terms of the consent decree violated constitutional standards against cruel and unusual punishment. They also urged that modification of the decree was needed to address the alleged constitutional violations with enforceable standards. The district court heard evidence regarding the conditions of confinement at prison facilities in Lansing and Hutchinson, Kansas. The district court then entered an order on April 13, 1989 designed to eliminate conditions of confinement at these facilities that violated the Constitution. After entry of the April 13, 1989 order, the district court entered a number of other orders related to the operation of other facilities in the State of Kansas. On May 17, 1991, the district court entered an order significantly modifying its April 13, 1989 order over the protestations of some members of the plaintiff class. Arney v. Finney, 766 F.Supp. 934 (D.Kan.1991). In particular, certain members of the class claimed that the district court could not modify its April 13, 1989 order because that order was final and any modification of the order would violate res judi-cata principles. The district court disagreed and held that the doctrine of res judicata did not bar modification of the April 13, 1989 order. Id. at 937-38. In its order of May 17, 1991, the district court also granted appellant Arney's motion to withdraw as a class representative in the case and denied a number of other motions because they were not brought by counsel for the class Id. at 940-41. Both appellants Murphy and Arney-pur-reportedly on behalf of the plaintiff class-. moved to intervene in the action. The district court denied Arney's motion to intervene and held that only the denial of the motion to intervene was appropriate for immediate appeal as a collateral order. Porter v. Finney, 1991 WL 126724 (D.Kan. June 28, 1991). In an order entered on July 11, 1991, the district court added Murphy as a class representative. DISCUSSION On appeal, Arney contends that the district court erred by denying his motion to intervene as a class representative. Because Arney is representing himself, we construe his pleadings liberally. Haines v. Kerner, 404 U.S - 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972). We have jurisdiction to hear this appeal because an absolute denial of intervention is a collateral order and, therefore, is appealable immediately. See Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 377, 107 S.Ct. 1177, 1182, 94 L.Ed.2d 389 (1987) ("In Railroad Trainmen ... [the] order denying all intervention was by necessity subject to immediate review, because the applicant `[could] not appeal from any subsequent order or judgment in the proceeding.' ") (quoting and explaining the holding in Railroad Trainmen v. Brotherhood of Baltimore & Ohio R. Co., 331 U.S. 519, 524-25, 67 S.Ct. 1387, 1390, 91 L.Ed. 1646 (1947)); see also Gerstle v. Continental Airlines, Inc., 466 F.2d 1374, 1377-78 (10th Cir.1972) (addressing and affirming district court's denial of permissive intervention). This appeal does not involve a case of intervention of right under Fed.R.Civ.P. 24(a) because Arney's interests are adequately represented by the other class representatives, who also are challenging the conditions of the prison system. Instead, this appeal raises the question of whether Arney should be permitted to intervene under Rule 24(b). "[P]ermissive intervention is a matter within the sound discretion of the district court, and we will not disturb its order except upon a `showing of clear abuse.'" United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir.1990) (quoting Shump v. Balka, 574 F.2d 1341, 1345 (10th Cir.1978)), cert. denied, - U.S. , 111 S.Ct. 799, 112 L.Ed.2d 860 (1991). After reviewing the record of proceedings in this case, we cannot conclude that the district court abused its discretion in denying Arney's motion to intervene. Arney's intervention would only clutter the action unnecessarily-especially since Arney remains a member of the class and is similarly situated with other members of the class. Further, Arney’s intervention would not aid the class in its attempt to correct allegedly unconstitutional conditions. We now must address whether we have jurisdiction over appellants’ remaining claims. Under 28 U.S.C. § 1291, this court only has jurisdiction over final orders of the district court in all but a few exceptional cases. In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), the Supreme Court crafted a common law exception to the final judgment rule. “ ‘To come within the “small class” of decisions excepted from the final-judgment rule by Cohen, the order must [1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unre-viewable on appeal and from a final judgment.’ ” G.J.B. & Assoc., Inc. v. Singleton, 913 F.2d 824, 827-28 (10th Cir.1990) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978)). Thus, under the Cohen doctrine, “where the denial of immediate review does not render impossible any review whatsoever, i.e., where rights will not be irretrievably lost in the absence of an immediate appeal, collateral review is not available.” In re Magic Circle Energy Corp., 889 F.2d 950, 954 (10th Cir.1989) (citations omitted). We first address the appealability of the district court’s determination that class counsel should not be “terminated.” In Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), the Supreme Court addressed whether a motion to disqualify opposing counsel was appealable as a final order under § 1291. Iii Firestone, the defendant filed a motion to disqualify plaintiffs’ counsel due to an alleged conflict of interest. The district court denied the motion and the defendant appealed immediately. The Court held that an order denying a motion to disqualify was not an appealable final decision under § 1291 because it fails to meet the “collateral order” exception to the final judgment rule established in Cohen. Id. at 375-76, 101 S.Ct. at 674. The Court held that such an order fails to meet the third prong for the Cohen test; requiring that the interlocutory order be “effectively unreviewable on appeal from a final judgment." Id. at 376, 101 S.Ct. at 674. The Court explained that “[t]he propriety of the district court’s denial of a disqualification motion will often be difficult to assess until its impact on the underlying litigation may be evaluated, which is normally only after final judgment.” Id. at 377, 101 S.Ct. at 675. Applying this rationale, we conclude that the district court’s denial of appellants’ claim that class counsel should be removed due to a conflict of interest is not appealable as a final order. Turning to appellants’ remaining arguments, we also conclude that these issues are not appealable under § 1291. In addition to challenging the district court’s denial of intervention and decision not to terminate class counsel, appellants challenge the district court’s (1) decision to reopen a final order under Fed.R.Civ.P. 54(b), (2) denial of a hearing on the adequacy of class counsel, (3) denial of a hearing on the application for a contempt of court citation to be entered against the Kansas Department of Corrections, and (4) decision not to permit the class members to have their views presented individually or through class counsel. None of these claims involve a final order of the district court. Further, these issues do not satisfy the exception to the final order requirement as expressed in Cohen and Coopers & Lybrand. Denial of immediate review of these issues does not render them unre-viewable at a later stage. Moreover, denial of review at this stage will not cause appellants an irretrievable loss of their rights. Each of these issues can be addressed after the district court issues a final order in this ongoing class action. Thus, we do not have jurisdiction under § 1291 to hear these appeals. Accordingly, the district court's order denying intervention, appeal number 91-3235, is AFFIRMED. Appeal number 91-3237 and appeal number 91-3295 are DISMISSED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. . On appeal, Murphy also contends that he was improperly denied the right to intervene as a class representative. Because the district court later added Murphy as a class representative, the issue is moot. 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_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. Mickey GRECO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Continental Can Company, Inc. and United Papermakers and Paperworkers, AFL-CIO, Intervenors. No. 14422. United States Court of Appeals Third Circuit. Argued Dec. 2, 1963. Decided April 22, 1964. Caesar C. Guazzo, New York City, for petitioner. Paula Omansky (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, Attys., National Labor Relations Bd., on the brief), for respondent. Rothbard, Harris & Oxfeld, Newark, N. J., Samuel L. Rothbard, Abraham L. Friedman, Newark, N. J., on the brief, for intervenor-respondent, United Papermakers and Paperworkers, A.F.L.-CIO. Charles J. Biddle, Drinker, Biddle & Reath, Philadelphia, Pa., W. S. Ryza, James G. Davis, Pope, Ballard, Uriell, Kennedy, Shepard & Fowle, Chicago, Ill., on the brief, for intervenor, Continental Can Company, Inc. Before STALEY, GANEY and SMITH, Circuit Judges. STALEY, Circuit Judge. Petitioner Mickey Greco seeks review of an order of the National Labor Relations Board dismissing an unfair labor practice complaint based upon his charges that he and several other coworkers were wrongfully discharged from employment by the intervenor, Continental Can Company, Inc. The complaint alleged that both this employer and the certified representative of the employees, United Papermakers and Paperworkers, AFL-CIO, had engaged in discriminatory activity in violation of § 8(a) (1), (2) and (3), and § 8(b) (1) (A) and (2) of the National Labor Relations Act, 29 U.S.C.A. §§ 158(a) and (b). The trial examiner found that the charges of discrimination had been sustained by the evidence adduced at the hearing before him. A three member panel of the Board, see 29 U.S.C.A. § 153(b), adopted his findings of fact but, one member dissenting, concluded that the discharges were not unlawfully motivated. 136 N.L.R.B. 1135 (1962). Greco was employed at a recently opened plant of Continental Can in Carte-ret, New Jersey. David Roggenkemper was the manager of this plant. Following an election of the employees on April 20, 1960, the papermaker union became the certified bargaining representative of these employees, and Local 790 was chartered to represent them. George Pesca-tore was the vice president and regional director for the union in this area, and James Russo was elected president of the local. Negotiations between the company and the union for a new collective bargaining agreement commenced in June, 1960. Several meetings were held, but the major obstacle to an accord appeared to be a dispute over the basic hourly rate to be paid the employees; the union sought the rate paid at another of the company’s plants, $1.91 per hour, while the company offered $1.81 per hour at a meeting on July 13. On July 16 the union membership held a meeting to consider the company’s last offer and voted to strike the plant on July 25 unless the company increased its offer to $1.91 per hour. However, Pescatore directed Russo to call a special meeting on company premises for July 22 to consider an increase in the company’s proposal to $1.86 per hour. Russo and several members of the union vehemently protested the calling of this meeting in view of the previous strike vote of the membership. At this meeting Pescatore’s authority was challenged, a disturbance arose, Pescatore left the meeting, and, on his information, several union members were fired by Roggen-kemper. As we have previously indicated, the trial examiner concluded that the discharges were discriminatorily motivated, and his evidentiary findings were adopted in toto by the Board. Nevertheless, the Board concluded that the employees were discharged for fighting. The petitioner contends that this determination constitutes an unwarranted reversal of the trial examiner on a question of fact, while the Board asserts that it merely drew a different inference or conclusion from the evidence adduced at the hearing. We agree with the Board that its difference with the trial examiner concerned the ultimate conclusion to be inferred from the evidence. We further agree that this is within the province of the Board, provided that the inference it seeks to draw is such as “reasonably may be based upon the facts proven.” (Emphasis supplied.) Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 800, 65 S.Ct. 982, 986, 89 L.Ed. 1372 (1945). Accord: Radio Officers’ Union, etc. v. National Labor Relations Board, 347 U.S. 17, 48-52, 74 S.Ct. 323, 98 L.Ed. 455 (1954); International Union of Electrical, Radio and Machine Workers v. National Labor Relations Board, 273 F.2d 243, 247 (C.A.3, 1959). The conclusion of the Board thus must be a reasonable and logical deduction from the evidence. We turn then to an application of that standard to the findings of fact adopted by the Board as to the circumstances attending the discharges. These findings are based upon substantial evidence and, as printed in the Joint Appendix of the parties, comprise fifteen pages of the trial examiner’s Intermediate Report. Because they are of critical significance on the question of motivation for the discharges, we quote the following portion of them: “There is no doubt Pescatore was working closely with the Company before and throughout the operations of the Carteret plant. Thus, when Russo refused to call a meeting for July 22, for the purpose of taking a second strike vote on the Company’s last offer, Pescatore, having already made arrangements with Roggenkemper for use of the cafeteria, promptly ordered Russo hold [sic] a meeting that afternoon. Shortly before the meeting, Pes-catore spoke to Russo and after questioning his ability to control the membership, Pescatore declared he would show him how to handle ‘these bums.’ In this spirit, Pesea-tore went to the meeting and proceeded to demonstrate his ability to control the membership. Pescatore, as detailed above, in unmistakable language told the members they were going to vote and vote his way, to accept the last offer, under threat of his revoking the strike sanction, and with the additional warning that if they went on strike the Company would shut down the plant. It is undisputed that Mickey Greco and his group vigorously and loudly protested Pescatore’s manner of conducting the meeting and his insistence that they vote and vote to accept the last offer. Again, there is no doubt commotion and bedlam immediately followed Pescatore’s announcement that the men start voting. The disorder, it strikes me, began when Jakovenko, who resented Pescatore’s attitude and went berserk, rushed toward Pescatore in a threatening manner and had to be restrained by a number of men. I am also firmly convinced Pescatore’s actions precipitated the whole affair. Certainly, his derogatory remarks about the membership, his conduct at the meeting, and his forthwith suspension of the local and its officers in plain violation of the International constitution, convinces me he dealt with the membership in high-handed, arbitrary, and dictatorial fashion and made it abundantly clear he would tolerate no opposition from the membership. * * * “Within 10 or 15 minutes after the commotion began, seven of the employees were discharged by Rog-genkemper. The discriminatees asserted Roggenkemper gave no reason for their discharges other than he had been ordered to fire them. On the contrary, Roggenkemper claimed Pescatore reported Mickey Greco and his gang were fighting, so he fired the men for that reason. Pes-catore conceded none of the discrim-inatees, except Boguszewski and Ja-kovenko, engaged in any fighting and while he told Roggenkemper some ‘punks’ were screaming, he was not certain whether he stated Mickey Greco’s gang, as distinguished from Greco, participated in the fighting. The testimony of Russo, Clifford Williams, and Miller, which I credit, fully supports the testimony of the seven discrimina-tees as to the reason given by Rog-genkemper for their discharge. I, therefore, find that Pescatore requested the discharge of the seven men because of their opposition to him at the meeting and that Roggenkemper complied with request. I also find Rowe’s discharge later that day was for the same reason. There is, of course, no question but the men, while attending the union meeting, were engaged in protected concerted activities. “Moreover, and apart from the foregoing credibility findings, the evidence shows that the men were discharged because of their opposition to Pescatore’s demand that they accept the Company’s last offer, not for violation of any company rule or policy against fighting on company property, as urged by Roggen-kemper. First, the only evidence indicating the existence of such a rule or policy is Roggenkemper’s cavalier statement that it has always been the policy of the Company to immediately discharge an employee for fighting on company premises. Secondly, there is no evidence or even contention that such a rule or policy was ever posted at the plant or that the employees were ever informed of such a policy or rule. Certainly, the Company cannot justify its dismissal of employees for violation of a rule which was neither publicized nor made known to the employees. But assuming the Company had a valid no-fighting rule, still it would not constitute a defense in this case. Here the alleged fighting occurred in the company cafeteria in the course of a union meeting, not while the men were performing their normal work duties. Manifestly, the no-fighting rule would have been inapplicable and ineffective had the meeting been held outside company premises, and I cannot distinguish that situation from the present one. It does not follow that by permitting the Union to hold a meeting on its premises that employee-members were still subject to the Company’s normal plant rules, the same as if they were working. Surely, it would be ridiculous to say that a rule prohibiting loud or excessive talking by employees would apply while the men were attending a union meeting. Indeed, Roggenkemper recognized that the union meeting had no connection whatever with plant business for he specifically placed the cafeteria out-of-bounds to all supervisory and office personnel while the meeting was in progress. Accordingly, I find and conclude the employees were not subject to normal plant working rules while attending the union meeting. “Further, the manner in which Roggenkemper carried out the discharges negates the idea he fired the men for violation of the no-fighting rule. Admittedly, he summarily fired the men without any investigation as to whether a fight had occurred and whether the dischargees had even participated in any fighting. Again, there is no claim the employees caused any property damage and Roggenkemper made no inquiry along that line either before or after he discharged the employees. Instead, Roggenkemper quickly accepted Peseatore’s somewhat garbled complaint that the meeting was disorderly and hastily identified the dis-chargees through Pescatore and anyone who happened to be in the crowd. The means thus used to identify the men for discharge are certainly flimsy and unreliable and entitled to no weight, insofar as lending support to the charge that the dis-chargees actually engaged in fighting. I find it incredible and unbelievable that Roggenkemper, with 25 years’ experience with the Company, would discharge employees under the circumstances related by him. “Again, the postdischarge conduct of the Union and the Company fully supports the finding that the dis-chargees were discriminatorily dismissed. Thus, shortly after the discharges had been accomplished Russo and Miller met Pescatore and inquired when the discriminatees might return to work and he responded they would never come back as long as he was regional director. Pescatore denied having an [sic] conversation on this subject, but, for the reasons already stated, I accept the testimony of Russo and Miller and find Pescatore made the statement attributed to him. “As set forth above, the Union •committee met with Roggenkemper on July 27 in an effort to settle the work stoppage. It is undisputed Roggenkemper agreed that all the employees could return to work, except the dischargees. Russo, Genz, and Mesuk uniformly testified that Campbell asked why the men had been discharged and Roggenkemper replied it was for fighting on company property. Since no plant oificials were present, at the meeting, Campbell pressed Roggenkemper as to how he obtained the names of the men supposedly involved in the fight and Roggenkemper said he obtained the names from Pescatore. Russo and Genz quoted Roggenkemper as saying Pescatore had ordered him to fire these men. However, Mesuk could not remember if Roggenkemper made a statement to that effect. 1 T.f*5 *° rea®f Why °’ Gen"’ and Mesuk would manufacture such a story, so I accept and credit their es imony. “Considering all the evidence I have no difficulty in finding the dis-criminatees were unlawfully discharged as alleged in the complaint and the Company s contention that it terminated the employees for violation of a no-fighting rule is purely pretextuous. 136 N.L.R.B. 1150- In our view, these findings clearly preclude any inference that the employees were discharged for fighting. On the contrary, the mere recitation of them compels only one conclusion, that the discharges were discriminatorily motivated, Of course, the trial examiner acknowledged that a disturbance arose during the course of the union meeting. But his evidentiary findings, particularly those on credibility and the events attending the discharges, negate any inference that this disturbance was the reason for the company’s action. Accordingly, since the Board expressly adopted the evidentiary findings of the examiner, its conclusion cannot stand. We wigh to emphasize that we do not question the p0Wer of the Board to make an independent evaluation of the evidence; to make itg own findings based up_ on substantial evidence, and to draw a conclusion different from that of its trial examiner based upon that evaluation, Whether the record in the case at bar would support findings from which it could reasonably be inferred that the employees were discharged for fighting is a question we need not and do not now decide. We h()ld only that the findings of fact adopted by the Board simply do not support the conclusion which it seeks f° infer, Because of our disposition, we find it unnecessary to consider the legal signifiCance, if any> of the fact that the dis. charges resulted from activities occurring during the course of a union meet. jng. Further, we have examined the union’s contention that the petitioner unduly delayed seeking review of the order of tbe Board’ but find ü to be without TH6nt The cause will be remanded to the Board for further proceedings in eon-f ormity with this opinion. . Of course, since motivation is largely a question of intent, it is primarily an issue of fact. United States v. Minker, 312 F.2d 632, 634 (C.A.3, 1962), cert. denied, 372 U.S. 953, 83 S.Ct. 952, 9 L.Ed.2d 978 (1903); Schauffler, etc. v. United Association of Journeymen & Apprentices, 230 F.2d 572, 576 (C.A.3), cert. denied, 352 U.S. 825, 77 S.Ct. 34, 1 L.Ed.2d 48 (1956). 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_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. UNITED STATES of America, Appellee, v. UNDETERMINED QUANTITIES OF VARIOUS ARTICLES OF DRUG ... EQUIDANTIN NITROFURANTOIN SUSPENSION .... Appeal of PERFORMANCE PRODUCTS, INC. No. 81-1793. United States Court of Appeals, Eighth Circuit. Submitted Feb. 9, 1982. Decided April 15, 1982. John F. Lemker, Jr., Burditt & Calkins, Chicago, 111., Joseph F. Devereux, Jr., Gunn, Lane & Devereux, P.C., St. Louis, Mo., for Performance Products, Inc., claimant-appellant. William F. Baxter, Asst. Atty. Gen., John J. Powers, III, Frederic Freilicher, Attys., Dept, of Justice, Washington, D.C., for appellee. Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and OVERTON, District Judge. The Honorable William R. Overton, United States District Judge for the Eastern District of Arkansas, sitting by designation. McMILLIAN, Circuit Judge. Performance Products, Inc. (Performance) appeals from a final judgment entered in the District Court for the Eastern District of Missouri condemning as adulterated and seizing certain quantities of an animal drug called Equidantin and other materials used in its manufacture. For reversal Performance argues that Equidantin is not a “new animal drug” within the meaning of 21 U.S.C.’ § 321(w), and thus not subject to premarketing clearance by the Food and Drug Administration (FDA) under 21 U.S.C. § 360b(b), because (1) Equidantin is generally recognized as safe and effective and (2) Equidantin is a generic drug or copy of Dantafur, a drug that has been approved by the FDA. For the reasons discussed below, we affirm the judgment of the district court. Performance is the manufacturer of Equidantin. Equidantin has been on the market since 1970 and is intended for use in the treatment of equine tracheopharyngitis (“race track cough”) and equine urinary tract bacterial infections. The active ingredient in Equidantin is nitrofurantoin, which is also the active ingredient in Dantafur, an FDA-approved drug manufactured and marketed by Norwich-Eaton Pharmaceuticals. Equidantin and Dantafur contain the same amount of nitrofurantoin per dosage unit. However, the inactive ingredients in the two drugs are different. Dantafur contains alcohol among other inactive ingredients. According to the government’s evidence, Equidantin contains the following inactive ingredients: xantham gum (a suspending agent), magnesium aluminum silicate (a suspending agent), potassium sórbate (a preservative), propylene glycol, citric acid (a buffer), anethole (a flavoring agent), sodium saccharin (a flavoring agent), vanillin, and deionized water. Equidantin is a generic drug or copy (a “me-too” version) of Dantafur, the FDA-approved “brand name” or pioneer drug. A generic drug contains the same active ingredient or “incipient” as an FDA-approved pioneer drug but may contain different inactive ingredients or “excipients.” The manufacturing techniques used by each manufacturer may also differ. It is not disputed that differences in the manufacturing process and variations in the inactive ingredients may affect a drug’s “bioavailability.” Bioavailability is “the rate and extent to which the active drug ingredient or therapeutic moiety is absorbed from a drug product and becomes available at the site of drug action.” 21 C.F.R. § 320.1(a) (1981). If there is no significant difference between the rate and extent of absorption of two drugs administered at the same molar dose of therapeutic moiety under similar experimental conditions, the drugs are said to be bioequivalent. See 21 C.F.R. § 320.1(e) (1980). When two different drug products are to be used interchangeably in the treatment of illness, it can be critical that the drug products are bioequivalent — that is, that there be no significant difference in the products’ bioavailability. A drug that is less bioavailable than that for which it is substituted will deliver less of its active ingredient than expected; a drug that is more bioavailable than that which it replaces presents the danger of overdosage. United States v. Premo Pharmaceutical Laboratories, Inc., 511 F.Supp. 958, 962-63 (D.N.J.1981) (Premo II) (footnote omitted) (excellent discussion of factors which may affect bioavailability); see United States v. Generix Drug Corp., 654 F.2d 1114 (5th Cir. 1981) (Generix), cert. granted, - U.S. -, 102 S.Ct. 1610, 71 L.Ed.2d 847 (1982); Premo Pharmaceutical Laboratories, Inc. v. United States, 629 F.2d 795 (2d Cir. 1980) (Premo I); United States v. Articles of Drug (Lannett Co.), 585 F.2d 575 (3d Cir. 1978) (Lannett); see also Pharmadyne Laboratories, Inc. v. Kennedy, 466 F.Supp. 100, 103 (D.N.J.) (Pharmadyne), aff’d on other grounds, 596 F.2d 568 (3d Cir. 1979). The government’s basic position in the present case, and in the above cited cases, all of which involve generic drugs, is that because many factors, particularly the manufacturing process and choice of inactive ingredients, may affect a generic drug’s bioavailability and thus its bioequivalence to its pioneer drug, the generic drug is a “new drug” (or “new animal drug”) and thus subject to premarketing clearance by the FDA, even though the pioneer drug has already been approved by the FDA. Not surprisingly, the manufacturers of generic drugs oppose the FDA’s position. Basically the position of the manufacturers is that because the generic drug contains the same active ingredient as the FDA-approved pioneer drug, the generic drug is not a “new drug” (or “new animal drug”) and thus not subject to' FDA premarketing clearance. The manufacturers argue that bioavailability and bioequivalence are not relevant to the question of “new drug” (or “new animal drug”) status. Two circuit courts have addressed this issue; the Second Circuit has essentially agreed with the government’s position, see Premo I, 629 F.2d 795; the Fifth Circuit has essentially agreed with the manufacturers’ position, see Generix, 654 F.2d 1114. The present action began in July 1979 when the government filed a complaint in district court seeking condemnation and seizure of undetermined quantities of Equidantin and materials used in its manufacture. The government argued that Equidantin was an adulterated drug within the meaning of 21 U.S.C. § 351(a)(5) and as such subject to seizure under 21 U.S.C. § 334(a)(1). The government’s characterization of Equidantin as an adulterated drug depended upon Equidantin’s status as a “new animal drug” within the meaning of 21 U.S.C. § 321(w). Because a new animal drug cannot be marketed without an FDA-approved “new animal drug application” or an abbreviated new animal drug application, 21 U.S.C. § 360b(b), and it was not disputed that there was no FDA-approved new animal drug application on file for Equidantin, the government argued that Equidantin was “unsafe” under 21 U.S.C. § 360b(a)(A) and therefore “adulterated” under 21 U.S.C. § 351(a)(5). The district court issued the warrant and the United States Marshal seized approximately 86 quarts of Equidantin, approximately 410 gallons of in-process drug product, 3.4 kilograms of bulk nitrofurantoin powder, and labels and accompanying materials. Performance intervened in the condemnation action and filed a claim to the seized items. Performance did not dispute that FDA approval is the prerequisite to marketing a new animal drug, but argued that Equidantin is not a new animal drug within the meaning of 21 U.S.C. § 321(w) because it is generally recognized as safe and effective and because it is a generic or copy of Dantafur, the FDA-approved pioneer drug. Following a bench trial in which both sides presented expert testimony, the district court found that Equidantin was a new animal drug within the meaning of 21 U.S.C. § 321(w) because it was not generally recognized among qualified experts as safe and effective. United States v. Undetermmed Quantities of Various Articles of Drug (Equidantin Nitrofurantoin Suspension), No. 79-0913-C(C) (E.D.Mo. May 29, 1981) (slip op. at 5-6). The district court also found that FDA approval of Dantafur did not constitute general recognition among qualified experts that either Dantafur or Equidantin was safe and effective within the meaning of 21 U.S.C. § 321(w) and, further, that even if Dantafur was generally recognized among qualified experts as safe and effective, Equidantin would not be exempt from FDA premarketing clearance as a new animal drug because the two drugs’ inactive ingredients and manufacturing processes differed. Id. at 5. The district court then ordered the seized items destroyed, but later stayed that order pending appeal. The issue in this case is thus whether Equidantin is a “new animal drug” within the meaning of 21 U.S.C. § 321(w). The scope of FDA regulation depends upon the statutory definitions. A brief outline of the history of FDA regulation will provide a background and perspective to our discussion. See Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973); USV Pharmaceutical Corp. v. Weinberger, 412 U.S. 655, 93 S.Ct. 2498, 37 L.Ed.2d 244 (1973); see generally Note, Drug Efficacy and the 1962 Drug Amendments, 60 Geo.L.J. 185 (1971). It should also be noted that the analysis followed in the cases is the same for human and animal drugs. United States v. Naremco, Inc., 553 F.2d 1138, 1142 n.5 (8th Cir. 1977), citing United States v. Articles of Food and Drug (Coli-Trol 80 Medicated), 372 F.Supp. 915, 921 (N.D.Ga.1974), aff’d, 518 F.2d 743 (5th Cir. 1975). The Food and Drug Act of 1906, ch. 3915, 34 Stat. 768, was the first legislation of national scope directed at the regulation of drug products. The Act set standards of purity for drugs sold in the United States and required accurate labeling of the drugs’ contents. Id. §§ 1, 2, 7. The Act also made unlawful the marketing of adulterated or misbranded drugs and provided for removal of such drugs from the market through libel actions. Id. § 2. There were, however, no provisions regulating false claims of efficacy until the Food and Drug Act of 1906 was amended in 1912 to declare misbranded drugs that were not effective for use under the conditions for which they were recommended. The greatest defect in the Act, however, was its failure to provide any mechanism for premarketing agency clearance. It was impossible to prevent an unsafe or ineffective drug from reaching the market. In 1938 the “wonder drug” “Elixir of Sulfanilamide,” a solution based on diethylene gylcol and ... a presumed harmless, inert solvent ingredient, went on the market. Apparently, no tests for toxicity were performed prior to marketing; and almost one hundred people died before the drug could be withdrawn. This Sulfanilamide tragedy led to the Federal Food, Drug, and Cosmetic Act of 1938, 21 U.S.C. §§ 301-392 (1976 & Supp. I 1977) (amended 1962), with provisions for premarketing review of new drugs. This review, however, was directed solely to assuring drug-product safety. It was not until the Act was amended in 1962 that the definition of “new drug” was enlarged to include drugs not generally recognized as safe and effective. The 1962 amendments changed the data-reporting requirements of the “new drug” procedure to require submission of data showing efficacy and, in place of automatic approval of [new drug applications] not disapproved, the procedure under the 1938 Act, the 1962 amendments required positive agency approval to make [a new drug application] effective. Premo II, 511 F.Supp. at 962 (footnote omitted). The new effectiveness requirement of the 1962 legislation was made retroactive to all drugs which had been the subject of new drug applications under the 1938 statute. Thus, it applied to all drugs which previously had secured FDA premarketing approvals . . . The FDA, recognizing that a transitional period would be necessary to review all drug products affected by the 1962 amendments, granted a two-year grace period before revoking any [new drug applications] given under the 1938 Act. This period of time was to be used to assess the evidence of “effectiveness” of approved drug products. Two years proved to be insufficient time to permit the FDA to evaluate the status of all drugs potentially made “new drugs” by the 1962 amendments. Therefore, in order to expedite the task of evaluation, the FDA arranged with the National Academy of Sciences — National Research Council (“NAS-NRC”) to have them review all qualities of the potential “new drugs.” NAS-NRC undertook a study of some 4,000 drug formulations for the express purpose of assessing the efficiency of the product. This study, known as the Drug Efficacy Study, was submitted to the FDA for evaluation; the FDA retained authority to accept or reject the findings of NAS-NRC. As a result of the NAS-NRC findings, the FDA set forth in the Federal Register its conclusions and assessment (“Drug Efficacy Study Implementation” or “DESI” Notices) of whether a drug could be considered “effective” for use as required by the 1962 amendments to the [1938] Drug Act. Lannett, 585 F.2d at 577-78; see also Note, 60 Geo.L.J. at 207-14. As noted earlier, the regulatory scheme for human and animal drugs is basically the same. In 1968 the animal drug provisions were placed in a separate section of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 360b. Animal Drug Amendments of 1968, Pub.L. No. 90-399, 82 Stat. 343 (1968). The definition of “new animal drug” in 21 U.S.C. § 321(w) and the requirement of premarketing clearance by the FDA of new animal drugs under 21 U.S.C. § 360b(b) are essentially the same as the “new drug” definition in 21 U.S.C. § 321(p) and the premarketing clearance provision in 21 U.S.C. § 355(b), (d). Under § 505 of the Act, 21 U.S.C. § 355, no person may market a new drug unless he files with the FDA a new drug application (NDA) demonstrating that the drug is both safe and effective for which it is intended and obtains FDA approval. Normally the applicant furnishes controlled chemical tests and investigations showing that the product is safe and effective, 21 U.S.C. § 355(d). But where the drug product is claimed to be a copy [or generic version] of one already approved by the FDA on the basis of such submissions — sometimes called a “me-too” drug — the applicant may file with the FDA an “abbreviated new drug application” (ANDA), which relies upon the safety and effectiveness tests conducted with respect to the FDA-approved drug (sometimes called the “pioneer drug”). The FDA will only approve an ANDA, however, where the “me-too” drug product is shown to be the therapeutic equivalent of the pioneer and safe and effective in accordance with 21 U.S.C. § 355(d). Premo I, 629 F.2d at 798-99; see also Hoffmann-LaRoche, Inc. v. Weinberger, 425 F.Supp. 890 (D.D.C.1975). But cf. Generis, 654 F.2d at 1117 n.4 (criticizing Hoffmann-LaRoche). As with human drugs, manufacturers of generic animal drugs may rely upon the safety and effectiveness data developed for the pioneer drug and file abbreviated new animal drug applications supported by bioavailability studies. For reversal Performance argues that the government failed to establish that Equidantin is a new animal drug within the meaning of 21 U.S.C. § 321(w). Performance attacks the credibility of the government expert witnesses on the grounds that they lacked qualifications, had no personal clinical experience with nitrofurantoin suspensions, and did not know that Dantafur had been found “effective” by the NAS-NRC in the Drug Efficacy Study. Dantafur was reviewed by NAS-NRC in the Drug Efficacy Study and was found “probably effective” for the treatment of race track cough and equine urinary infections. 35 Fed.Reg. 12792 (1970). In 1977 a supplemental new animal drug application was approved by the FDA finding Dantafur “effective” for the treatment of race track cough and equine urinary infections. See 42 Fed.Reg. 19143 (1977), codified in 21 C.F.R. § 520.1560a (1981). There is no approved new animal drug application, abbreviated new animal drug application or exemption for investigational use on file for Equidantin. Title 21 U.S.C. § 321(w) defines “new animal drug” as any drug intended for use for animals other than man .. .— (1) the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of animal drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof; ... or (2) the composition of which is such that such drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions. . . . Unless an animal drug is generally recognized among qualified experts as safe and effective for its intended uses and has been used to a material extent or for a material time, the drug is a new animal drug and subject to FDA premarketing clearance. See Premo I, 629 F.2d at 801-02. Congress’ exclusion of “generally recognized” drug products from the definition of a “new drug” is a very narrow one, which is not intended to permit a pharmaceutical manufacturer to substitute its opinion regarding the safety or effectiveness of a drug for that of the FDA, the publicly recognized repository of expertise in such matters, or to require the court to develop its own body of scientific knowledge in substitution for that of the FDA. Id. at 802. Thus, while a district court certainly is empowered to adjudicate the “new drug” status of a given drug product, inquiry is limited to the question of “general recognition.” A district court is not empowered to evaluate the actual safety and effectiveness of a drug product. That determination is committed to the FDA due to its superior access to technical expertise. United States v. Articles of Drug (Hormonin), 498 F.Supp. 424, 431 (D.N.J.1980) (citations omitted); see also Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653-54, 93 S.Ct. 2488, 2494, 37 L.Ed.2d 235 (1973); AMP, Inc. v. Gardner, 389 F.2d 825, 831 (2d Cir.), cert. denied, 393 U.S. 825, 89 S.Ct. 86, 21 L.Ed.2d 95 (1968). Cf. United States v. Alcon Laboratories, 636 F.2d 876, 888 (1st Cir. 1980) (“Jurisdiction over the new drug issue is shared by the FDA . . . and the federal district courts. ... [Deference to an agency’s primary jurisdiction makes little sense in the context of an enforcement proceeding initiated by the agency.”), cert. denied, 451 U.S. 1017, 101 S.Ct. 3005, 69 L.Ed.2d 388 (1981); accord, Premo I, 629 F.2d at 801. . Thus, “the purpose of the normal inquiry [into whether a drug is generally recognized among qualified experts as safe and effective for its intended uses] is not to determine safety and effectiveness at all, but to ascertain the drug’s general reputation in the scientific community for such characteristics.” United States v. Articles of Food and Drug (Coli-Trol 80 Medicated), 372 F.Supp. at 920; see Premo I, 629 F.2d at 803-04 (cases cited therein). Either, a genuine dispute concerning the safety and effectiveness of a drug product or unawareness of the drug product among qualified experts precludes a finding of “general recognition” for purposes of 21 U.S.C. § 321(p) [for human drugs or § 321(w) for animal drugs]. Such an expert consensus as to “general recognition” must be founded upon “substantial evidence” as that term is defined in 21 U.S.C. § 355(d) [for human drugs and § 360b(d)(3) for animal drugs]. Thus, “general recognition” among experts must be based u]>on “ ‘adequate and well-controlled investigations,’ ” as well as publication in scientific literature. “Anecdotal evidence,” i.e., testimony of physicians unsupported by controlled investigation or scientific publication, does not constitute “substantial evidence.” The mere fact that a drug product has been marketed for an extended period does not preclude a finding of “new drug” status. United States v. Articles of Drug (Hormonin), 498 F.Supp. at 431-32 (footnote and citations omitted); see Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. at 629, 630, 632, 93 S.Ct. at 2483, 2484; Premo I, 629 F.2d at 803-04; United States v. Article of Drug (Furestrol), 294 F.Supp. 1307, 1311 (N.D.Ga.1968), aff’d, 415 F.2d 390 (5th Cir. 1969). The government’s expert witnesses, Dr. Gary Koritz and Dr. Nicholas Booth, were extremely well qualified; both are veterinarians and university professors, specialists in veterinary pharmacology, experienced in research and widely published. Both testified that nitrofurantoin in general and Equidantin in particular are not generally recognized among qualified experts as safe and effective to treat race track cough or equine urinary tract infections. Both were aware of the publication of the DESI Notice for Dantafur, but expressed reservations about the validity of the supporting scientific data, and disagreed with the evaluation of effectiveness in the DESI Notice on the merits. Both further testified that, as was admitted by Performance, no completed clinical studies on the safety- or efficacy of Equidantin have been published (apparently a bioavailability study is now in progress); that the limited published data available on the use of nitrofurantoin in horses did not involve Equidantin (the experts also questioned the scientific design of these studies); and that neither had any knowledge of Equidantin before preparing for the present case. Another government expert witness, Dr. Marvin Meyer, a professor of pharmacy and specialist in biopharmaceutics (the study of factors that affect the absorption, metabolism, distribution, and excretion of drugs), testified at some length about bioavailability. Dr. Meyers testified that bioavailability was important in evaluating the efficacy of nearly all drug products, including suspensions; that differences or changes in bioavailability may affect a drug’s therapeutic value; and that many factors can affect bioavailability, including variations in product formulation, particularly the suspension medium and the crystal size of the active ingredient. See Premo II, 511 F.Supp. at 962-65. Performance presented the testimony of two professors of pharmacy who testified that the inactive ingredients used in the manufacture of Equidantin are generally recognized as safe for use in pharmaceutical preparations. Another witness, a practicing veterinarian, testified that he prescribed Equidantin and had found it safe and effective. None of Performance’s witnesses, however, testified that either nitrofurantoin or Equidantin was generally recognized among qualified experts as safe and effective for its intended uses. The practicing veterinarian’s testimony was not supported by clinical studies or published data and was clearly anecdotal in character. After reviewing the testimony under the standards set forth above, we can find no error in the district court’s finding that Equidantin is not generally recognized among qualified experts as safe and effective for its intended uses and therefore, in the absence of general recognition, a new animal drug within the meaning of 21 U.S.C. § 321(w). Not only were the government expert witnesses unaware of Equidantin before preparing to testify in the present case, there was at best a sharp difference of opinion among the experts; there was certainly no general consensus of expert opinion in favor of Equidantin. Nor was there any published scientific literature or well-controlled clinical investigations of Equidantin. See United States v. Articles of Drug (Hormonin), 498 F.Supp. at 431-32. Performance next argues that Equidantin is not a new animal drug within the meaning of 21 U.S.C. § 321(w) because Equidantin is a generic version or copy of an FDA approved drug. Performance argues that because Dantafur has been approved by the FDA (in the DESI Notice) and because Dantafur and Equidantin contain the same active ingredient (nitrofurantoin) in the same concentration per dosage unit, Equidantin is not a new animal drug within the meaning of the statute. This argument is incorrect; FDA approval, that is, agency recognition of actual safety and effectiveness, must not be confused with general recognition in the scientific community of safety and effectiveness. As discussed earlier, only general recognition plus material use can exempt a drug from new drug status and FDA premarketing clearance. As noted by the Supreme Court in Weinberger v. Hynson, Westcott & Dunning, Inc., “the Act is designed so that drugs on the market ... will have mustered the requisite scientifically reliable evidence of effectiveness long before they are in a position to drop out of active regulation by ceasing to be a ‘new drug.’ ” 412 U.S. at 631, 93 S.Ct. at 2484; see also Premo I, 629 F.2d at 803-04. FDA approval is the threshold determination required before the manufacturer can market the drug; it does not exempt the drug from new drug status. Prior FDA approval of Dantafur means only that, if Performance should apply for FDA approval of Equidantin, Performance can rely on the safety and effectiveness data submitted for Dantafur because Dantafur and Equidantin contain the same active ingredient and need only add bioavailability studies to complete its application. Moreover, the government in the present case showed that nitrofurantoin was not generally recognized among qualified experts as safe and effective. Therefore, even assuming for purposes of argument that the statutory definition of new drug refers only to the active ingredient, Equidantin would not be exempt from new drug status because its active ingredient, nitrofurantoin, is not generally recognized among qualified experts as safe and effective and is therefore a “new drug.” Compare Generix, 654 F.2d at 1115-20 (the term “new drug” as used in 21 U.S.C. § 321(p) applies only to the active ingredients of a drug product), with Premo I, 629 F.2d at 801 (a drug product is a “new drug” unless generally recognized among qualified experts as safe and effective); Premo II, 511 F.Supp. at 968-73; and Pharmadyne, 466 F.Supp. at 103-04. Because the government in the present case showed that neither the pioneer drug (Dantafur) nor the active ingredient (nitrofurantoin) was generally recognized among qualified experts as safe and effective, we need not address whether the term “drug” as used in 21 U.S.C. § 321(p), (w) refers only to the active ingredient in a drug product; if it does, whether general recognition of the pioneer drug will remove any generic copy from new drug status; or if it does not, whether general recognition of the pioneer drug will remove an exact generic copy (identical active and inactive ingredients and manufacturing processes) from new drug status. Accordingly, the judgment of the district •éóurt is affirmed. . The Honorable James H. Meredith, United States Senior District Judge for the Eastern District of Missouri. . 21 U.S.C. § 351(a)(5) provides: “A drug . . . shall be deemed to be adulterated — . . . (5) if it is a new animal drug which is unsafe within the meaning of section 360b of this title .. . . ” . 21 U.S.C. § 334(a)(1) provides in part: Any article of ... drug ... that is adulterated ... when introduced into or while in interstate commerce or while held for sale (whether or not the first sale) after shipment in interstate commerce ... shall be liable to be proceeded against while in interstate commerce, or at any time thereafter, on libel of information and condemned in any district court of the United States . .. within the jurisdiction of which the article is found.... . 21 U.S.C. § 321(w) provides in part: The term “new animal drug” means any drug intended for use for animals other than man, (1) the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of animal drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof; ... or (2) the composition of which is such that such drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions.... . 21 U.S.C. § 360b(b) provides in part: “Any person may file with the Secretary an applies-. tion with respect to any intended use or uses of a new animal drug.” The section further describes the contents of a new animal drug application (reports of investigations, listing of components, statement of composition, description of methods and facilities and controls used in manufacture, processing and packing, samples of the new animal drug, samples of labeling, etc.). . 21 U.S.C. § 360b(a)(l)(A) provides: “A new animal drug shall, with respect to any particular use or intended use of such drug, be deemed unsafe for the purposes of section 351(a)(5) ... of this title unless — (A) there is in effect an approval of an application filed pursuant to subsection (b) of this section with respect to such use or intended use of such drug. ... ” 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:

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. CHAPMAN, SECRETARY OF THE INTERIOR, v. SHERIDAN-WYOMING COAL CO., INC. No. 60. Argued January 9, 1950. Decided February 6, 1950. Roger P. Marquis argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Assistant Attorney General Vanech, Wilma C. Martin and John C. Harrington. T. Peter Ansberry argued the cause for respondent. With him on the brief were Stephen J. McMahon, Jr. and Seth W. Richardson. Mr. Justice Jackson delivered the opinion of the Court. This action by a lessee of coal-mining rights in public lands seeks to prevent leasing of similar rights in other lands to a competitor. The case is before us only on pleadings. The original complaint was dismissed by the District Court on several grounds but the Court of Appeals affirmed only on the ground that the complaint showed no standing to sue, there being no allegation of special injury to any property right of plaintiff. Sheridan-Wyoming Coal Co. v. Krug, 83 U. S. App. D. C. 162, 168 F. 2d 557. It gave leave to apply to the District Court to amend in this respect. The District Court denied the privilege, however, holding that the proposed new matter added nothing material, and that amendment would be idle and needlessly prolong the litigation. This, we think, was equivalent in effect to sustaining a demurrer to the amended complaint and requires us to treat well-pleaded facts as true. On this basis, the Court of Appeals reversed and, in substance, held that the amended complaint does state a cause of action. 84 U. S. App. D. C. 288, 172 F. 2d 282. We granted certiorari. 338 U. S. 810. The hypothesis on which the legal issues are to be decided is this: At all relevant times the following regulation, promulgated by the Secretary of the Interior, has been in effect: “Showing required that an additional coal mine is needed. The General Land Office will make favorable recommendation that leasing units be segregated and that auctions be authorized only in cases where there has been furnished a satisfactory showing that an additional coal mine is needed and that there is an actual need for coal which cannot otherwise be reasonably met.” 43 CFR 1938, § 193.3. It originated in 1934, when the coal industry was demoralized by excess production capacity described in opinions of this Court. Appalachian Coals, Inc. v. United States, 288 U. S. 344, 361; Carter v. Carter Coal Co., 298 U. S. 238, opinion of Cardozo, J., 324, 330; Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381, 395. The policy which the Department embodied in this regulation, and to which it has since adhered, was stated in letters of the Secretary set forth in the margin. In September, 1943, the Sheridan-Wyoming Coal Company leased additional lands located in Wyoming for coal-mining purposes from the Government and, “in reliance upon the Regulation,” has expended large sums in development and built up a prosperous business in the rather low-grade coal mined and largely consumed in that region. In December, 1943, the Big Horn Company applied for a lease of nearby lands for production of competitive coal, and in 1945 applied for additional lands. Meanwhile Big Horn already had established mines on partially exhausted state-owned lands and desired the federal lands to prolong its business. The Sheridan-Wyoming Company, among others, protested on the basis of the regulation. The protest, after hearings, was overruled and, unless prevented, the Secretary will lease to Big Horn. The Secretary has made no finding that there is need for any additional supply of coal and, in fact, there is no such need. If he leases to Big Horn, the two companies will have capacity to produce in excess of the demand for that grade of coal in the limited market. The in vestment, of Sheridan-Wyoming will be substantially impaired and its volume of sales decreased and profitable markets lost. About these three ultimate facts — the regulation, the lease and the threatened lease to a competitor — the parties have argued several intricate and interesting questions as to the standing of the plaintiff to sue, whether the suit really is one against the United States without sovereign consent and whether the Secretary has abused his power in entertaining the application of Big Horn. These questions we do not need to discuss because of the view we take of more fundamental aspects of the case. We think the facts give rise to no cause of action, because the proposed lease does not breach any contract right or invade any property right of plaintiff and does not violate any law. Hence, the leasing is within the discretionary power of the Secretary and courts will not review its exercise. I. Contract Rights. The court below has sustained the complaint for the principal reason that a lease to Big Horn would breach the lease to plaintiff and that plaintiff has a property right to have the lands involved withheld from lease. It is only on this basis of its property rights, created by contract, that plaintiff has been held to have standing to sue; for, if it has such rights, the court below truly said, “The prevention of a breach of a restrictive provision in a contract is one of equity’s most usual functions.” Credited with “the status of one claiming a property right by contract, threatened with invasion,” the plaintiff has been termed by the Court of Appeals “possessor of a valuable right, created by contract in the presence of valid and binding restrictive regulations.” Of course, no express covenant of plaintiff’s lease restricts the Secretary from leasing other lands to other applicants. The restrictive covenant is sought to be supplied by implication. The lease, it is reasoned, was expressly made subject to the Mineral Lands Leasing Act, 41 Stat. 437, as amended, 30 U. S. C. §§ 181 et seq.; the lease constructively includes the statute; the regulation which was not referred to in the lease nevertheless had the force and sanction of statute; hence, the restrictive regulation was a covenant of the lease. It is said the threatened lease would violate the regulation. For the purpose of testing the contract-right theory, we shall assume that it does so. What is the contract property right assumed? It is a right to nondevelopment of coal reserves in an indeterminate but substantial part of the public domain for benefit of its own lease. It is not a right necessary to the fullest physical development and enjoyment of all the lands plaintiff acquired for itself, and is one not normally appurtenant to real estate. The assumed covenant is purely negative in character and its whole burden is upon other premises owned by the United States in which the plaintiff has no other interest. They are premises, moreover, in which it is doubtful whether plaintiff could lawfully acquire any other interest in view of the limited areas which the statute allows to one lessee. By the assumed covenant, alienation and utilization of public lands in the manner authorized by Congress is restricted. This is for an unstated and indeterminable period. And it is accomplished not by a covenant expressed in the lease itself, but by one read into it from the regulations. A competent grantor by appropriate covenants could, of course, convey the right claimed here, and equity would enforce it. But when a right “consists in restraining the owner from doing that with, and upon, his property which, but for the grant or covenant, he might lawfully have done,” it is an easement, sometimes called a negative easement, or an amenity. Trustees v. Lynch, 70 N. Y. 440, 447. “An equitable restriction,” which prevents development of property by building on it, has been said to be “an easement, or servitude in the nature of an easement,” a “right in the nature of an easement,” and an “interest iií a contractual stipulation which is made for their common benefit.” Such “equitable restrictions” are real estate, part and parcel of the land to which they are attached and pass by conveyance. Riverbank Improvement Co. v. Chadwick, 228 Mass. 242, 246, 117 N. E. 244, 245. A contractual restriction which limits the use one may make of his own lands in favor of another and his lands is “sometimes called a negative easement, which is the right in the owner of the dominant tenement to restrict the owner of the servient tenement in the exercise of general and natural rights of property.” It is an interest in lands which can pass only by deed and is in every legal sense an incumbrance. Uihlein v. Matthews, 172 N. Y. 154, 158, 64 N. E. 792, 793. But whatever we might determine to be the technical nature of the collateral property right claimed to result from Sheridan’s lease, to any extent that it added a property right to the plaintiff’s lands it created an incumbrance or subtraction from the aggregate of rights in the United States. Courts would not lightly imply against any land owner a covenant which would restrict alienation or enjoyment of his estate. There are even stronger reasons against implied covenants imposing easements, servitudes, amenities or restrictions upon the public lands. The Mineral Lands Leasing Acts confer broad powers on the Secretary as leasing agent for the Government. We find nothing that expressly prevents him from taking into consideration whether a public interest will be served or injured by opening a particular mine. But we find no grant of authority to create a private contract right that would override his continuing duty to be governed by the public interest in deciding to lease or withhold leases. The leasing Acts strictly limit the area which any one lessee may acquire, either directly or indirectly. 30 U. S. C. § 184. But if, in taking up a permitted allotment of public lands, one may acquire a right that other areas far more extensive must lie fallow and unused for the benefit of his lands, he is acquiring an interest in prohibited lands and an interest that may be worth many times that interest which the statute allows him. And it is acquired without additional purchase price, rental, or royalty. Moreover, it is not denied that the effect of sustaining plaintiff’s suit would be to create a monopoly. Of course, it is a little one, limited to low-grade coal and to an advantageous shipping zone. Big Horn, if it gets no lease, must eventually go out of business, leaving its customers to Sheridan. And the United States could not for some period — we do not know how long — admit any other competitor to the field, unless it can be shown that Sheridan’s supply is not equal to the market. It may, however, continue to acquire additional reserves as its own approach exhaustion. The whole claim of damage here is that competition from Big Horn will impair this snug little monopoly of the market to which plaintiff thinks it has acquired a property right. But the policy of the leasing statute looks the other way. Besides limiting the leasehold of any one lessee, it prevents mineral rights, on pain of forfeiture, from passing into the hands of any unlawful trust or becoming the subject of any contract or conspiracy in restraint of trade. 30 U. S. C. § 184. Its whole policy seems to contemplate the opening of the public domain to competitive exploitation. It nowhere authorizes anyone to grant or to obtain exclusive rights of access to these coal resources. What lessees can acquire from the Government is a supply of coal, not an exclusive market. We do not say that the Secretary may not withhold, or by regulation provide for withholding, lands from lease because the public interest would be injured, through impairing private business, from excess production capacity. But we find no authority to freeze this public interest into an irrevocable private property right. The allegations of the amended complaint therefore do not show a cause of action to enforce a restrictive covenant or property right against leasing other public lands as authorized by statute. II. Violation op Law or Regulation. Since the District Court was overruled by the Court of Appeals only because of the latter’s property rights theory and since the complaint without these allegations had earlier been held insufficient, it may be questioned whether other grounds to sustain the judgment below can be availed of. But even if the allegations fail to show a property right that equity will protect, they might be sufficient to show a special injury or interest, such as would enable plaintiff to raise the question of violation of law or regulation in the proposed leasing. To end a litigation already pending too long, we assume, without deciding, that plaintiff may raise this issue which we now consider. The only claim of law violation is that the Secretary is proposing to violate his own regulation, promulgated pursuant to the Act and hence having the force of law. That it binds him as well as others while it is in effect is not doubted. The regulation on literal reading does not purport to prohibit the Secretary from any leasing unless need for new mines be shown. It does direct the General Land Office (now the Bureau of Land Management) to find need for additional capacity before recommending new leasing. Its recommendation, however, is only advisory and can be overruled or disregarded. On its face, therefore, the regulation would seem to be directed primarily to a procedural matter within the Department of the Interior. However, it is claimed that the letters of Secretary Ickes at the time it was adopted and the uniform practice since, show it to have been a regulation fixing a controlling policy. We proceed on that assumption. In the case before us the Secretary neither repudiates the regulation nor stands upon any right to depart from it. He says that, properly construed, it does not apply to the proposed Big Horn lease. It only prevents a lease which will introduce a new competitor to the field and not, he says, a lease which would only enable an existing mine and an established business to continue. Sheridan argues that this reasoning sanctions an evasion of the regulation in that Big Horn opened its mine on partially depleted state lands knowing it must get federal lands also or quit. The implication is that state lands were used as a sort of portal in which to stand while prying a federal lease out from under the regulation. Plaintiff insists that the Secretary is required to act in the light of conditions when Big Horn first applied, and not as of now when it has built up a going business on the inadequate state leases, aided by war conditions. But the action is one in equity, and “equity will administer such relief as the exigencies of the case demand at the close of the trial.” Bloomquist v. Farson, 222 N. Y. 375, 380, 118 N. E. 855, 856; Lightfoot v. Davis, 198 N. Y. 261, 273, 91 N. E. 582, 586. The question on injunction is whether the action threatened will be a violation if it now takes place in light of conditions shown by the proposed amended complaint. That pleads findings of the Department which show what has happened since the Big Horn application was filed. Without recourse to federal lands, it has established a mine and a business in the face of Sheridan competition. If time has improved Big Horn’s position in this respect, it must be noted that the delay in acting on its application has been largely due to plaintiff’s protests and litigations. We think a court of equity cannot term unreasonable the view of the Secretary that Big Horn’s lease is not for “an additional coal mine,” need for which must be proved. It does not use federal reserves to add a new competitor to the market. It uses them to keep one there. We think the distinction is substantial and the Secretary’s interpretation of the regulation is permissible, even if not inevitable. The declining market following the war and the growing use of oil may present difficult problems of survival for government lessees and of fair dealing for the Secretary. But courts can intervene only where legal rights are invaded or the law violated. We think the District Court rightly concluded that the amended complaint fails to state a legal case for the relief asked. Accordingly, the judgment below is Reversed. Mr. Justice Douglas took no part in the consideration or decision of this case. “Exhibit ‘A’ “Excerpt from Letter of January 24, 1934, from the Secretary of the Interior to the Director of the Bureau of Geological Survey. “The question of the advisability of withholding new leases of coal lands of the United States has been presented to me. “It is clear from the language of section 2 of the leasing act of February 25, 1920 (41 Stat. 437), and from the interpretation given to Section 13 of that act, relating to oil and gas, by the Supreme Court in the case of United States v. Wilbur, 283 U. S. 414, that it is within the discretionary authority of the Secretary of the Interior whether he shall issue any coal leases and coal prospecting permits. In the present situation of the coal industry it is desirable that very few, if any, new coal leases or prospecting permits be issued. “Taking into consideration, however, that there may be some eases where new small coal mines for local needs are advisable and that there may also be cases where leases for shipping mines should not be denied, it is thought that no general order should be issued in effect suspending the operation of the leasing act as to new coal leases and prospecting permits. It is believed that substantially the same result can be reached by declining to offer coal lands for lease or to grant prospecting permits unless an actual need for coal which cannot otherwise be reasonably purchased or obtained is shown. . . . “Hereafter the offering of coal lands for lease by competitive bidding or the granting of prospecting permits should not be recommended unless you have reliable information that there is an actual need for coal which cannot otherwise be reasonably met.” “Exhibit ‘B’ “Excerpt prom Letter or January 24, 1934, prom the Secretary op the Interior to the Commissioner op the General Land Oppice. “In the present situation of the coal industry it is desirable that very few, if any, new coal leases or prospecting permits be issued. “Taking into consideration, however, that there may be some cases where new small coal mines for local needs are advisable and that there may also be cases where leases for shipping mines should not be denied, it is thought that no general order should be issued in effect suspending the leasing act as to new coal leases and prospecting permits. It is believed that substantially the same result can be reached by declining to offer coal lands for lease or to grant prospecting permits unless an actual need is shown for coal which cannot otherwise be reasonably purchased or obtained. . . . “It is advisable that you in the first instance require lease applicants to show fully the need for additional production of coal.” 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_genapel1

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. The UNIVERSITY OF MARYLAND AT BALTIMORE; Andrew R. Burgess, M.D.; Sea Quest Inc., for themselves and all others similarly situated; The School Board of Palm Beach County, Florida, for themselves and all others similarly situated v. PEAT, MARWICK, MAIN & COMPANY Constance B. Foster, Insurance Commissioner of the Commonwealth of Pennsylvania, as Rehabilitator of The Mutual Fire, Marine and Inland Insurance Company, Intervenor (in District Court), The University of Maryland at Baltimore; Andrew R. Burgess, M.D.; Sea Quest, Inc.; and The School Board of Palm Beach County, Florida; and Richard A. Brown, Esq.; and Spiegel & McDiarmid *, Appellants. No. 91-1889. United States Court of Appeals, Third Circuit. Argued May 4, 1992. Decided June 22, 1993. John W. Frazier, IV (argued), John E. Caruso, Richard G. Placey, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, Leonard P. Novello, Claudia L. Taft, Frances J. DiSarro, KPMG Peat Marwick, New York' City, for appellee. Susan H. Malone, Richard DiSalle, Roger Curran (argued), Rose, Schmidt, Hasley & DiSalle, Pittsburgh, PA, James S. Gkonos, Mut. Fire, Marine & Inland Ins. Co., Philadelphia, PA, for intervenor. Jeffrey R. Babbin, Richard A. Brown, Spencer L.. Kimball, Spiegel & McDiarmid, Washington, DC, Robert S. Kitchenoff, David H. Weinstein (argued), Harold E. Kohn, Kohn, Klein, Nast & Graf, Philadelphia, PA, for appellants. Before: BECKER, SCIRICA and NYGAARD, Circuit Judges. Pursuant to F.R.A.P. 12(a). This case was originally argued before the panel of Judges Becker, Nygaard and Higginbotham on May 4, 1992, and the panel was reconstituted to the panel of Judges Becker, Scirica and Nygaard \ since Judge Higginbotham retired after the alf,'; gued date. \ OPINION OF THE COURT NYGAARD, Circuit Judge. When Mutual Fire, Marine & Inland Insurance Company went into statutory rehabilitation, it triggered various insolvency proceedings and- suits in state and federal courts, and satellite litigation concerning the conduct of some attorneys in the proceedings. The Commonwealth Court of Pennsylvania dealt primarily with Mutual Fire’s insolvency. While that was progressing, four individually named plaintiffs filed a class action in federal district court against Peat, Marwick, Main & Company, alleging that Peat Marwick performed materially deficient audits of Mutual Fire. The plaintiffs pleaded various causes of action based on state law and a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. The attorneys who instituted this action, Richard Brown and his law firm Spiegel & McDiarmid (the plaintiffs’ attorneys), had participated in Mutual Fire’s rehabilitation proceedings. Since they were bound by various supervisory and confidentiality orders issued by the Commonweálth Court in the insolvency proceedings, and since they may have violated these orders by filing this action, the Insurance Commissioner of Pennsylvania, acting in her capacity as Mutual Fire’s statutory receiver, brought state contempt proceedings against them. After we revei'sed the district court’s decision to abstain under the Burford abstention doctrine, the district court denied the plaintiffs’ motion for Rule 11 sanctions and their attorneys’ motion for injunctive relief against the state contempt proceedings. It then granted Peat Marwick’s motion to dismiss the complaint for failure to state a claim. The plaintiffs and their attorneys appeal. We will reverse that portion of the district court’s order dismissing the state claims with prejudice and affirm the balance. I. In 1986, the Commonwealth Court ordered Mutual Fire into rehabilitation and appointed the Insurance Commissioner as statutory receiver. The rehabilitation order prohibited any actions against Mutual Fire or its property in any court in Pennsylvania. At the request of five corporate policyholders, two of whom were represented by Attor- ^' ney Brown, the Commonwealth Court estab- ,; lished a Committee of Policyholders and au- y thorized the Committee’s costs, including at-, 1 torney’s fees, to be charged to Mutual Fire’s;! estate. The court later issued a supervisory ¡ order declaring its exclusive jurisdiction “to , j hear and determine all disputes concerning claims and the collection of assets of Mutual ■' Fire.” It also issued a confidentiality order ’ requiring all information submitted by Peat .Marwick to “be used solely for purposes of the Mutual Fire rehabilitation and/or liqui- ' dation proceedings.” Attorney Brown was bound by this order. . Attorney Brown and the accounting firm of •; Price Waterhouse, whom he had hired as a consultant, investigated the claims against^ Peat Marwick. He and Price Waterhouse,' submitted bills in excess of $2 million to ■ Mutual Fire’s estate. The Commonwealth'' Court eventually dissolved the Committee, concluding that its costs to the Mutual Fire’s estate could no longer be justified. Grode v. Mutual Fire, Marine & Inland Ins. Co., 132 Pa.Cmwlth. 196, 572 A.2d 798, 810-11 (1990). In 1988, the Insurance Commissioner, Constance Foster, filed a Praecipe for Writ of Summons against Peat Marwick in connection with its audits of Mutual-Fire’s books. She selected the law firm of Rose, Schmidt, Hasley & DiSalle to prosecute the action. Rose Schmidt filed a complaint with the Commonwealth Court, alleging that Peat Marwick improperly reported Mutual Fire’s financial conditions for several years and estimating shareholders’ damages to be over $350 million. In 1989, without notice to the Commonwealth Court or the Commissioner, the plaintiffs’ attorneys filed this class action against Peat Marwick on behalf of the University of Maryland at Baltimore, Andrew Burgess, M.D., Sea Quest, Inc., and the School Board of Palm Beach County, who collectively sought to represent some 20,000 Mutual Fire policyholders. The plaintiffs alleged that Peat Marwick performed materially deficient, false and misleading financial audits of Mutual Fire and without reasonable basis certified Mutual Fire’s financial statements. Those statements represented that Mutual Fire was adequately financed when it was not. The Commissioner filed a similar suit in the Commonwealth Court against Peat Marwick on behalf of, among others, Mutual Fire and its policyholders for breach of contract, negligence, malpractice, and misrepresentation. The plaintiffs then amended their complaint to allege negligence per se, fraud, negligent misrepresentation, negligence, actions in concert, and a violation of RICO. The Commissioner simultaneously sought leave to intervene in the district court, and filed a petition in the Commonwealth Court for a rule upon plaintiffs’ attorneys to show cause why they should not be held in contempt for filing this federal suit, which she contended violated the supervisory and confidentiality orders of the Commonwealth Court. After the district court allowed the Commissioner to intervene, there was a flurry of motions for various forms of relief. The Commissioner moved to dismiss the action based on a purported conflict between the federal and state proceedings. Peat Mar-wick moved to dismiss the amended complaint on the basis of, among other things, $the statute of limitations and failure to state '’;,a' claim. The plaintiffs’ attorneys moved to enjoin the state contempt proceedings against them. The district court granted the Commissioner’s motion to dismiss based on the Bur-ford abstention doctrine and denied the plaintiffs’ attorneys’ motion for an injunction as moot. University of Maryland v. Peat, Marwick, Main & Co., 736 F.Supp. 643 (E.D.Pa.1990). It did not rule on Peat Mar-wick’s motion to dismiss. On appeal, we ruled that the Burford abstention doctrine did not apply. We vacated the district court’s abstention order and remanded the case. University of Maryland v. Peat, Marwick, Main & Co., 923 F.2d 265 (3d Cir.1991). On remand, Peat Marwick and the Commissioner, through Richard DiSalle of Rose Schmidt, again moved to dismiss, and the plaintiffs again moved to enjoin the state contempt proceedings. The plaintiffs also moved for Rule 11 sanctions against Attorney DiSalle on the basis that we had in the first appeal considered and rejected the merits of the Commissioner’s renewed motion to dismiss. The district court denied the Commissioner’s motion to dismiss. It also denied the plaintiffs’ motion for sanctions and the plaintiffs’ attorneys’ motion for an injunction, believing that the pleadings “bear a closer resemblance to a retaliatory strike against Brown’s assorted foes than a serious motion for relief.” It granted Peat Marwick’s motion to dismiss because it opined that the RICO and state law claims were time-barred. Alternatively, it reasoned that the negligence claim was too attenuated to make out the necessary causation and reliance and that the RICO claim failed to allege a pattern of racketeering activity. II. Whether the district court properly-dismissed the plaintiffs’ amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a RICO claim is subject to plenary review, and we apply the same standard as the district court. Sames v. Gable, 732 F.2d 49, 51 (3rd Cir.1984). We construe the complaint liberally and take all material allegations as admitted. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969). All reasonable inferences are drawn in favor of the plaintiffs. Sturm v. Clark, 835 F.2d 1009, 1011 (3rd Cir.1987). We will not affirm the dismissal unless the plaintiffs could prove no set of facts that would entitle them to relief. D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3rd Cir.1984). The essential facts pleaded are the following. Peat Marwick was Mutual Fire’s independent auditor, and it issued unqualified auditor’s opinions on Mutual Fire’s financial statements for the fiscal years ending December 31, 1979-84. The last opinion was issued before June 30, 1985. These opinions informed the public that Peat Marwick had a reasonable basis for concluding that Mutual Fire’s financial statements were accurate and that Mutual Fire was well-financed. In fact, the financial statements were false and misleading; liabilities were more and assets were less than reported. Peat Marwick ignored numerous signs of Mutual Fire’s precarious financial condition and had no reasonable basis to issue the unqualified opinions. The policyholders directly and indirectly, through their brokers and agents, chose Mutual Fire because they relied “substantially” on a “B + ” rating from A.M. Best Company, the leading insurance rating company. Best relied “primarily” on Mutual Fire’s financial statements, and Mutual Fire in turn depended heavily on a favorable rating from Best. On June 18, 1985, Best assigned Mutual Fire a “no rating.” In June 1986, Mutual Fire stopped paying claims, and in December of that year it was placed in rehabilitation. Based on these allegations, the plaintiffs try to make out a RICO violation. Section 1962(c) makes it unlawful for “any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” Although a plaintiff must successfully plead many elements to bring a civil RICO claim, for the pur-poses of this appeal we need only consider whether Peat Marwick “participated” in the affairs of Mutual Fire, the alleged RICO enterprise. We believe that Reves v. Ernst & Young, — U.S. -, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), is dispositive. Ernst & Young engaged in activities related to the valuation of a gasohol plant on the yearly audits and financial statements of a farming cooperative. Because the firm concluded for accounting-purposes that the co-op owned the gasohol plant from the beginning of construction rather than having purchased it later, the assets of the co-op were inflated. Although the solvency of the co-op depended on this conclusion, the firm did not tell the co-op’s board of directors of its conclusion or that without that conclusion the co-op was insolvent. The co-op as a result went bankrupt, and the trustees sued the accounting firm. The Court of Appeals for the Eighth Circuit summarized the accounting firm’s involvement with the co-op as “limited to the audits, meetings with the Board of Directors to explain the audits, and presentations at the annual meetings.” Arthur Young & Co. v. Reves, 937 F.2d 1310, 1324 (8th Cir.1991). The Supreme Court addressed the validity of the Eighth Circuit’s “operation or management” test of participation in the affairs of an enterprise. Although RICO liability does not inure simply to those with primary responsibility for the enterprise’s affairs, just as it is not limited to those with formal positions in or those in the upper echelon of an enterprise’s management, the Court concluded that “to conduct or participate” in the affairs of a RICO enterprise one must, in some capacity, direct the affairs of the enterprise. — U.S. at-, 113 S.Ct. at 1170. It endorsed the “operation or management” test as sufficiently expressing the element of direction in an easy-to-apply formula. Id. Under this test, not even action involving-some degree of decisionmaking constitutes participation in the affairs of an enterprise. The accounting firm in Reven made a critical, erroneous decision that affected on the solvency of the co-op and did not tell the board of directors about it, thus prompting the dissent to characterize the firm as “functioning as the Co-op’s de facto chief financial officer.” Id. at-, 113 S.Ct. at 1177 (Souter, J., dissenting). Yet, even this decision-making did not rise to the level of directing an enterprise. The plaintiffs first contend that the Revea test applies only in a summary judgment context because it dealt with “the quantum of proof necessary to find that an auditor actually participated in the conduct of its client’s affairs.” We disagree. The Revea Court nowhere suggested that the “operation or management” test is limited to the summary judgment context. In fact, the Court of Appeals for the Eighth Circuit first announced that legal standard in a motion to dismiss. See Bennett v. Berg, 710 F.2d 1361 (8th Cir.1983) (en banc). Other courts have applied various legal standards for participation and have dismissed complaints for failure to satisfy those standards. See, e.g., Blake v. Dierdorff, 856 F.2d 1365, 1371 (9th Cir.1988); Occupational Urgent Care Health Sys., Inc. v. Sutro & Co., Inc., 711 F.Supp. 1016, 1026-27 (E.D.Ca.1989); Plains/Anadarko-P Ltd. Partnership v. Coopers & Lybrand, 658 F.Supp. 238, 240 (S.D.N.Y.1987). We see no reason why we should not apply the Reves test on a motion to dismiss. The plaintiffs primarily contend that they have sufficiently alleged that Peat Mar-wick participated in the affairs of Mutual Fire. They aver the following to show the relationship between Peat Marwick and Mutual Fire: (1) Peat Marwick performed deficient audits and issued unqualified auditor’s opinions; (2) Peat Marwick personnel attended a number of meetings of Mutual Fire’s board of directors; and (3) Peat Marwick performed other accounting and consulting-services from time to time, including services related to the computerization of certain accounting functions, to the purchase of an interest in a building occupied by Mutual Fire, and to the valuation and sale of a Mutual Fire reinsurance subsidiary. The Reves Court made clear that merely performing financial services and attending board meetings do not show that Peat Mar-wick was participating in the affairs of the enterprise. The plaintiffs contend, however, that the additional services provided by Peat Marwick, such as computerization of accounting services and financial services in connection with the purchase of real estate and sale of a business, push its conduct over the threshold to participation in the affairs of an enterprise. We disagree. These services, like the audits, were merely financial services provided for Mutual Fire, just as lawyers or computer technicians may have provided valuable, indispensable services. Simply because one provides goods or services that ultimately benefit the enterprise does not mean that one becomes liable under RICO as a result. There must be a nexus between the person and the conduct in the affairs of an enterprise. The operation or management test goes to that nexus. In other words, the person must knowingly engage in “directing the enterprise’s affairs” through a pattern of racketeering activity. Reves, — U.S. at -, 113 S.Ct. at 1170 (emphasis added). The plaintiffs have nowhere averred that Peat Marwick had any part in operating or managing the affairs of Mutual Fire. Although they make much ado about how important and indispensable Peat Marwick’s services were to Mutual Fire, the same can be said of many who are connected with Mutual Fire. Similar to the allegation against the accounting firm in Reves, the plaintiffs’ amended complaint, when distilled to its essence, is nothing more than an allegation that Peat Marwick performed materially deficient financial services. It cannot be said that by merely performing what are generic financial and related services to an insurance company, even if they are later found to be deficient, an accounting firm has opened itself to liability under the federal racketeering statute. The district court did not err in dismissing the RICO count. It is clear that the plaintiffs never pleaded a substantial RICO claim, which was the only claim that conferred federal question jurisdiction. Thus, the district court erred when it dismissed the plaintiffs’ state law claims as time-barred. “Since there was no substantial federal claim to which the state claims could be appended, the primary justification for the exercise of pendent jurisdiction was absent.” fully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir.1976). III. We now consider whether it erred by denying the plaintiffs’ attorneys injunctive relief from the state contempt proceedings. When the plaintiffs’ attorneys filed this action in federal court, the Commissioner brought contempt proceeding in the Commonwealth Court against them on the theory that they, in their capacity as the attorneys for the Committee in the state insolvency proceedings, had violated confidentiality and supervisory orders of that court. The plaintiffs’ attorneys contend that the district court erred by refusing to enjoin the state contempt proceedings because the proceedings inhibit the plaintiffs from prosecuting their action in federal court. We review the district court’s denial of injunction for an abuse of discretion. Hohe v. Casey, 868 F.2d 69, 70 (3rd Cir.1989); Klitzman, Klitzman & Gallagher v. Knit, 744 F.2d 955, 958 (3rd Cir.1984). The Anti-Injunction Act prohibits federal courts from enjoining state court proceedings unless authorized by Congress or where necessary to protect its jurisdiction or effectuate its judgments. 28 U.S.C. § 2283. The plaintiffs’ attorneys rely primarily on Donovan v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964), to assert that an injunction is necessary to preserve the district court’s jurisdiction over this action. In Donovan, the plaintiffs were dissatisfied with the results of a suit brought in state court and filed another action in federal district court. After some procedural maneuvers which are irrelevant here, the state court granted a writ of prohibition to bar the plaintiffs from prosecuting their case in federal court. The Supreme Court articulated a general rule, with exceptions for in rem and quasi in rem proceedings, that state and federal courts should not interfere with each other’s proceedings. 377 U.S. at 412, 84 S.Ct. at 1582. It then held that when Congress grants a right to bring a claim in federal court, a state court cannot take that right away by restraining a federal in personam action. Id. Significantly, in Donovan, the plaintiffs were being barred from prosecuting their case in federal court. Here, however, the state contempt proceedings are not directed at the litigants, but only at their attorneys. The district court’s jurisdiction is not implicated here because nothing prevents the plaintiffs from prosecuting their case against Peat Marwick. The attorneys run for cover behind a shield meant only to protect their .clients’ access to federal courts and the district court’s authority to adjudicate this action. Also, the state contempt proceedings were brought against the attorneys not in their capacity as attorneys for the federal litigants, but in their capacity as the attorneys for the Committee of the Policyholders in the state rehabilitation proceedings. The attorneys were bound by the Commonwealth Court’s confidentiality and supervisory orders. Principles of federal-state comity require that we not interfere with legitimate state contempt and disciplinary proceedings. Otherwise, attorneys finding themselves in a predicament because they violated state court orders might avoid disciplinary action by filing a federal suit. The basic requirements for injunctive relief are a showing of the likelihood of success on the merits and a probability of irreparable harm if an injunction is not issued. Hoxworth v. Blinder Robinson & Co., 903 F.2d 186, 197 (3rd Cir.1990). The district court observed that this “motion in effect would have this court issue an order telling-judge Crumlish [of the , Commonwealth Court] that plaintiffs [attorneys] did not violate an order issued by him.” It wisely refused to do this. Federal courts are neither the proper forum for attorneys to air their grievances or objections to contempt proceedings brought against them in a state court, nor are we a safety net into which attorneys who find themselves in a predicament with a state court can simply jump. The district court properly denied injunctive relief. See Machesky v. Bizzell, 414 F.2d 283, 286 (5th Cir.1969) (district court did not abuse its discretion by denying injunctive relief against state criminal contempt proceedings). IV. We will reverse the district court’s order with respect to the dismissal of the state claims and remand with instructions to dismiss them without prejudice. We will affirm the balance of the district court’s order, including the order denying sanctions. . This is made manifest by the remedies sought: disgorgement of about $1.5 million in fees paid to the plaintiff attorneys from Mutual Fire's estate before the filing of this action, revocation of Attorney Brown’s pro hue vice admission to the Commonwcalth Court, discontinuation of payment of fees and expenses to the Committee, an order to return ah copies of papers and files produced, and any other relief and sanctions the Commonwealth Court finds appropriate. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_applfrom

E

What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). Rex Milton ROSE, Petitioner-Appellant, v. Charles E. MORRIS, Secretary, Department of Social & Health Services, State of Washington, Respondent-Appellee. No. 78-2613. United States Court of Appeals, Ninth Circuit. May 15, 1980. David F. Stobaugh, Bendich, Stobaugh & Strong, Seattle, Wash., for petitioner-appellant. Nate D. Mannakee, Olympia, Wash., for respondent-appellee. Before DUNIWAY and WALLACE, Circuit Judges, and JAMESON, District Judge. The Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation. DUNIWAY, Circuit Judge: Habeas Corpus. The district court denied the writ on the ground that Rose was not “in custody pursuant to the judgment of a State court” within the meaning of 28 ÍJ.S.C. § 2254(a). We reverse. I. The Facts. The relevant facts are these: In 1971, in the Superior Court of Washington for King County, Rose pled guilty to two separate charges of grand larceny. He was sentenced to three and five years of probation with certain conditions attached, under Washington’s deferred sentencing law, R.C.W. 9.95.210 and 220. In 1973, Rose was arrested for robbery and the use of narcotics, but no charges were brought against him for those allegations. Instead, on April 25, 1973, because of this arrest, a combined probation revocation and sentencing hearing was held concerning the two larceny convictions. Rose’s probation was revoked and he was sentenced in each case to the custody of the Department of Social and Health Services for a maximum of fifteen years, the sentences to run concurrently. Rose began serving these sentences and was paroled on June 25, 1975. On March 26, 1976, Rose was convicted, in Federal court, on a narcotics charge, and sentenced to a United States penitentiary. On April 12, 1976, the Washington state court revoked his parole because he had been convicted on the Federal charge. However, at the time of the proceedings below, Rose was still incarcerated in a United States penitentiary, serving his federal sentences imposed on March 26, 1976. Washington treats his state' sentences as being interrupted by his federal incarceration; they will begin to run again when he is released from the federal penitentiary and again imprisoned by the State. In his habeas corpus petition, Rose challenges the constitutionality of the April 25, 1973 probation revocation and sentencing proceeding. We express no opinion on the merits of this challenge. II. The Law. In Peyton v. Rowe, 1968, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426, the Court held that a prisoner may challenge a future sentence that he is not yet serving, 391 U.S. at 67, 88 S.Ct. at 1556. Since that holding, the Court has emphasized that “habeas corpus relief is not limited to immediate release from illegal custody, but that the writ is available as well to attack future confinement and obtain future releases.” Preiser v. Rodriguez, 1973, 411 U.S. 475, 487, 93 S.Ct. 1827, 1835, 36 L.Ed.2d 439. A state detainer warrant against a federal prisoner is sufficient “custody” to confer habeas corpus jurisdiction. See Braden v. 30th Judicial Circuit of Kentucky, 1973, 410 U.S. 484, 488-489, 93 S.Ct. 1123, 1126, 35 L.Ed.2d 443; Estelle v. Dorrough, 1975, 420 U.S. 534, 536, n.2, 95 S.Ct. 1173, 1175, n.2, 43 L.Ed.2d 377. The Court has also held that a person who has been paroled and remains under the control of a parole board may nevertheless challenge his state sentence in a federal habeas corpus proceeding provided that he has exhausted all state court remedies, as Rose has done here. Jones v. Cunningham, 1963, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285. See, also, Gagnon v. Scarpelli, 1973, 411 U.S. 778, 780, 93 S.Ct. 1756, 1758, 36 L.Ed.2d 583; Eskridge v. Rhay, 9 Cir., 1965, 345 F.2d 778, 779, n.1. The decision of the district court that Rose is insufficiently in custody to bring a habeas corpus petition is incorrect for two reasons. Under the holding in Jones v. Cunningham, supra, the facts that Rose was paroled in 1975 and that his parole was revoked in 1976, do not affect his ability to challenge the constitutionality of the 1973 proceedings leading to the imposition of his sentence. Both the parole and its revocation rest upon the 1973 sentence. Under the holdings of Braden and Estelle, supra, a detainer in the form of a communication from the Washington State Board of Prison Terms and Paroles requesting that it be notified before Rose was to be released from federal custody so that it could retake Rose and require him to begin serving the balance of his sentences (C.T.69), is sufficient “custody” to allow a habeas corpus action. To say that Rose’s present state “custody” is based on his federal narcotics conviction rather than his state offenses is clearly wrong. Reversed and remanded for further proceedings. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:

sc_caseorigin

033

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. MTM, INC., et al. v. BAXLEY, ATTORNEY GENERAL OF ALABAMA, et al. No. 73-1119. Argued December 10, 1974 Decided March 25, 1975 Robert Eugene Smith argued the cause for appellants. With him on the brief was Gilbert H. Deitch. Herbert Jenkins, Jr., argued the cause and filed a brief for appellees. Barbara Scott and James Bouras filed a brief for the Motion Picture Association of America, Inc., as amicus curiae urging reversal. Per Curiam. The State of Alabama brought suit against appellant MTM in state court under the Alabama nuisance law, Ala. Code, Tit. 7, §§ 1081-1108 (1958), seeking to enjoin the continued operation of a nuisance by MTM. It alleged that because of convictions for violations of local obscenity laws by the Pussycat Adult Theater, an enterprise owned by MTM in Birmingham, Ala., the theater constituted a nuisance under this statute. After a hearing on the complaint, the state court issued a temporary injunction under the nuisance law, closing the theater. After issuance of the temporary injunction and while action on the request for a permanent injunction was pending in state court, appellant filed this action in the United States District Court for the Northern District of Alabama under the Civil Rights Act of 1871, 42 U. S. C. § 1983. It asked the federal court to enjoin enforcement of the state-court temporary injunction and to declare the Alabama nuisance law unconstitutional. Appellant claimed that the challenged statutory provisions and the state-court temporary injunction infringed its First, Fifth, and Fourteenth Amendment rights. A three-judge federal court was convened pursuant to 28 U. S. C. § 2281 to consider appellant’s complaint. Without resolving the constitutional merits of the complaint, the three-judge court dismissed the complaint without prejudice. In view of the pendency of the state proceedings, the three-judge District Court applied the test enunciated in Younger v. Harris, 401 U. S. 37 (1971), and concluded that federal intervention as requested by appellant would be improper. Appellant has brought the case directly to this Court, asserting that jurisdiction exists under 28 U. S. C. § 1253, and arguing that the requirements of Younger v. Harris, supra, did not preclude relief on these facts. We noted probable jurisdiction over this appeal and set this case for argument in tandem with Huffman v. Pursue, Ltd., ante, p. 592. 415 U. S. 974 (1974). Unless jurisdiction over this direct appeal from the three-judge court decision below is conferred by 28 U. S. C. § 1253, we are without authority to entertain it. Section 1253 provides: ■ “Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” Appellant argues that its complaint presented a "suit. . . required ... to be heard” by a three-judge court and that the dismissal of its complaint seeking injunctive relief constituted “an order . . . denying ... an interlocutory or permanent injunction” within the meaning of § 1253. In Gonzalez v. Employees Credit Union, 419 U. S. 90 (1974), we recently discussed in some detail the question of what constitutes an order “denying” injunctive relief for purposes of § 1253. There we held that direct appeal to this Court under § 1253 did not lie from the order of a three-judge court dismissing a complaint because of an absence of standing where the three-judge court did not reach the merits of the constitutional claim presented. Although our decision rested at least partially on the ground that a three-judge court was not “required” where the ground for decision below was an absence of standing, 419 U. S., at 100, we also explored the question of whether an order of a three-judge court “denies” an injunction, for purposes of § 1253, where there is no adverse resolution of the constitutional claims presented. Although noting that certain decisions of this Court and a literal reading of § 1253 might be taken to support the notion that a denial of injunctive relief on any basis by a three-judge court is within the purview of § 1253, we concluded that stare decisis is entitled to less than its usual weight in this area, and that “the opaque terms and prolix syntax” of this statute were not capable of literal reading. 419 U. S., at 96-97. In focusing on the question of whether direct review by this Court under § 1253 is available in the absence of a three-judge court decision resting on resolution of the constitutional merits of a complaint, we stated: “Mercantile argues that § 1253 should be read to limit our direct review of three-judge-court orders denying injunctions to those that rest upon resolution of the constitutional merits of the case. There would be evident virtues to this rule. It would lend symmetry to the Court’s jurisdiction since, in reviewing orders granting injunctions, the Court is necessarily dealing with a resolution of the merits. While issues short of the merits — such as justiciability, subject-matter jurisdiction, equitable jurisdiction, and abstention — are often of more than trivial consequence, that alone does not argue for our reviewing them on direct appeal. Discretionary review in any case would remain available, informed by the mediating wisdom of a court of appeals. Furthermore, the courts of appeals might in many instances give more detailed consideration to these issues than this Court, which disposes of most mandatory appeals in summary fashion.” 419 U. S., at 99. The conflicting decisions of this Court on the question of whether § 1253 jurisdiction attaches where a three-judge federal court fails to reach the merits of a constitutional claim for injunctive relief do not provide a consistent answer to this question. Compare Lynch v. Household Finance Corp., 405 U. S. 538 (1972), with Mengelkoch v. Industrial Welfare Comm’n, 393 U. S. 83 (1968); Rosado v. Wyman, 395 U. S. 826 (1969); Mitchell v. Donovan, 398 U. S. 427 (1970). See Gonzalez v. Employees Credit Union, supra, at 95 n. 11; 9 J. Moore, Federal Practice ¶ 110.03 [3], pp. 76-79 (2d ed. 1973). It is certain that the congressional policy behind the three-judge court and direct-review apparatus-— the saving of state and federal statutes from improvident doom at the hands of a single judge — will not be impaired by a narrow construction of § 1253. A broad construction of the statute, on the other hand, would be at odds with the historic congressional policy of minimizing the mandatory docket of this Court in the interest of sound judicial administration. Phillips v. United States, 312 U. S. 246, 250-251 (1941); Gonzalez v. Employees Credit Union, supra, at 98. In light of these factors, we conclude that a direct appeal will lie to this Court under § 1253 from the order of a three-judge federal court denying interlocutory or permanent injunctive relief only where such order rests upon resolution of the merits of the constitutional claim presented below. In the instant case, the three-judge court below did not reach the merits of appellant’s constitutional attack on the Alabama statute and instead based its order on the impropriety of federal intervention under our decision in Younger v. Harris, 401 U. S. 37 (1971). In such circumstances, we are without jurisdiction to consider this appeal. The correctness of the application of Younger on these facts by the District Court is for the Court of Appeals to determine. Accordingly, we vacate the order before us and remand this case to the District Court so that a fresh order may be entered and a timely appeal prosecuted to the Court of Appeals. It is so ordered. Nuisance is defined in § 1091 of this Act as “any place . . . upon which lewdness, assignation or prostitution is conducted, permitted, continued, or exists, and the personal property and contents used in conducting or maintaining any such place for any such purpose.” The remainder of the law consists of detailed procedural provisions governing the maintenance of a nuisance action. In addition to MTM, Mobile Bookstore was a plaintiff below and is an appellant in the immediate action. There are no material differences in the facts surrounding Mobile’s participation in this action and those surrounding MTM’s participation. For simplicity, MTM and Mobile are hereinafter referred to collectively as appellant. Although expedited appeal of the temporary injunction was available in state courts under Ala. Code, Tit. 7, §§ 757, 1057 (1958), appellant initiated no state-court appeal prior to the three-judge court’s decision on the merits. At the request of appellant, hearing on the permanent injunction in state court was deferred pending outcome of the federal suit. The decision of the three-judge court is reported at 365 F. Supp. 1182. We, of course, express no view on the correctness of the lower court’s holding. The question of jurisdiction over this appeal under 28 U. S. C. § 1253 was not raised in the Jurisdictional Statement, the Motion to Dismiss, or in the initial briefs filed in this case. At oral argument in light of our intervening decision in Gonzalez v. Employees Credit Union, 419 U. S. 90 (1974), handed down after the filing of briefs in this case and on the day that this case was orally argued, it was suggested from the bench that supplemental briefs addressed to the issue of jurisdiction under 28 U. S. C. § 1253 in light of Gonzalez, supra, be submitted. Appellant has submitted a brief attempting to distinguish Gonzalez, supra, which we have considered in resolving this jurisdictional question. See Brown Shoe Co. v. United States, 370 U. S. 294, 305-306 (1962). While our normal practice under Rule 16 (6) of this Court has been to postpone notation of probable jurisdiction to the hearing on the merits where jurisdictional problems are presented, our intervening decision in Gonzalez, supra, squarely raised the jurisdictional question encountered here after we had noted probable jurisdiction in the case. There is no occasion for us to decide in this case the circumstances under which a single judge may dismiss the complaint without convening a three-judge court where the ground for such dismissal rests solely on the impropriety of federal intervention. See Steffel v. Thompson, 415 U. S. 452, 457 n. 7 (1974); Gonzalez v. Employees Credit Union, supra, at 100. See Stamler v. Willis, 393 U. S. 407 (1969); Mitchell v. Donovan, 398 U. S. 427, 431 (1970). Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:

sc_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. HONDA et al. v. CLARK, ATTORNEY GENERAL. No. 164. Argued February 14, 1967. Decided April 10, 1967. Joseph L. Rauh, Jr., argued the cause for petitioners. With him on the briefs were John Silard, A. L. Wirin, Fred Okrand and Benjamin V. Cohen. Richard A. Posner argued the cause for respondent. With him on the brief were Solicitor General '‘Marshall, Assistant Attorney General Sanders, David L. Rose and Richard S. Salzman. Thomas C. Lynch, Attorney General, Charles A. O’Brien, Chief Deputy Attorney General, and Charles W. Rumph, Deputy Attorney. General, filed a brief for the State of California, as amicus curiae, urging reversal. , Mr. Justice Harlan delivered the opinion of the Court. ' Petitioners are 4,100 United States citizens or residents of Japanese descent seeking to recover funds vested under the Trading with the Enemy Act, 40 Stat. 411, 50 U. S. C. App. § 1 et seq. The District Court dismissed their suit against the Attorney General as barred by limitations, and the Court of Appeals.affirmed by a divided vote. 123 U. S. App. D: C. 12, 356 F. 2d 351. We granted certiorari because of the importance and unusual character of the questions involved, affecting the proper application of this wartime statute. 385 U. S. 917. Both as the case was treated by the lower courts and as it was largely argued here, the limitations issue has been thought' to turn on whether the Government is estopped from asserting the 60-day time bar provided for actions of this kind by § 34 (f) of the Trading with the Enemy Act. We conclude, however, that “estoppel” is not the controlling issue, but that for reasons discussed in this opinion the period of limitations was tolled, requiring reversal of the judgment below. I. Upon the outbreak of hostilities with Japan, the United States, on December 7, 1941, acting under the Trading with the Enemy Act, seized the American assets of businesses owned by Japanesé nationals, among such property being the assets of the Yokohama Specie Bank, Ltd. . The assets of the bank were liquidated, and in 1943 were vested in the Alien Property Custodian; see Paramount Pictures, Inc. v. Sparling, 93 Cal. App. 2d 768, 770-771, 209 P. 2d 968, 969-970. Petitioners were among the approximately 7,500 depositors of the bank holding “yen certificates,” who submitted timely claims, many being filed as early as 1946, under -§ 34 of the Act seeking recovery of their deposits. Section 34 of the Act was enacted in 1946 as a legislative' response to this Court’s decision in Markham v. Cabell, 326 U. S. 404, which allowed nonenemy creditors of former owners of vested property to bring suit under a World War I statute, and recover directly' out of vested assets. The Alien Property Custodian feared that allowance of such suits might lead.to inequitable results, in that creditors who brought suit immediately might exhaust the assets at the expense of other, equally valid, claims. The Custodian urged, and the Congress agreed, that an approach on the lines of the.Bankruptcy Act was a fairer method of distributing such assets. See H. R. Rep. No. 2398, 79th Cong., 2d Sess., 10, 14 (1946); S. Rep, No. 1839, 79th Cong., 2d Sess., 4, 8 (1946). As in bankruptcy law, the new Act required the filing of a debt claim with the Custodian within a specified period, § 34(b). Approximately 7,500 yen certificate holders3 including petitioners, immediately complied with this provision and submitted photostatic copies of their respective certificates. In the course of processing the claims pursuant to § 34 (f) a question arose as to the redemption value of the certificates both for depositors of the Yokohama Specie Bank and for those of another bank, the Sumi-tomo Bank, holding similar certificates. An administrative determination was sought in a proceeding brought in the name of one of the Yokohama Bank depositors, Kunio Abe, Claim No. 55507. Abe, acting for all yen certificate holders, took the view that since these deposits had been made in American dollars, and the certificates were allegedly redeemable in dollars at any time upon demand at American branches of the bank, they should be treated as dollar debts at the amount of their value when seized in 1941, at a rate of about 4.3 yen to the dollar. The Attorney General, however, characterized the debts as yen debts, and following the rule of Deutsche Bank v. Humphrey, 272 U. S. 517, and Zimmermann v. Sutherland, 274 U. S. 253, held that the proper measure of recovery would be at the postwar conversion rate of 361.55 yen to the dollar, or less than 2% of the prewar rate. It is noteworthy that throughout this period the Yokohama Bank’s successor in Japan, the Bank of Tokyo, Ltd., was willing to redeem these certificates at the postwar rate. Petitioners, at any time, could therefore have received from the Japanese bank the amount the Government asserted would eventually be obtained from the vested assets. At the conclusion of the administrative process, in 1958-1959, the Chief of the Claims Section wrote to each of the depositors who had filed a claim, including petitioners, advising that “The Director of this Office decided on-November 13, 1957, In the Matter of Kunio Abe, et al., Claim No. 55507, Docket No. 55 D 72, which decision the Attorney General has declined to review, that yen certificates of deposit issued by the Yokohama Specie Bank, Ltd. ... are obligations payable in yen in Japan .. .,” and therefore that the postwar rate of 361.55 yen to the dollar would be used in redeeming certificates from the vested assets. Claimants were told to -submit their originál certificates within 45 days. However, the letter continued, “Payment of your claim . . . will not be made immediately.” The letter informed the claimant that a full schedule of claimants would be made, § 34 (f), and that after its issuance aggrieved certificate holders might file suit in the United States District' Court for the District of Columbia for judicial review. “Under the circumstances,” the letter continued, “you may wish to utilize the funds in Japan, rather than await settlement by this Office. If this is done, the Notice of Claim filed with this Office should be canceled by signing and mailing the enclosed Notice of Cancellation of Claim card.” Petitioners characterize this letter as “confusing” and “insulting.” We. think the opprobrium which is sought to be fastened on the letter is undeserved and consider it more accurate and fairer to say. that although its instructions were complex, the letter was written in a manner designed reasonably to apprise, a layman of the choices before him. However, on the particular facts of this case and given the empirical evidence available, it is quite understandable that of the 7,500 initial claimants, only 1,817 responded affirmatively by sending in their certificates, and less than 1,600 canceled their claims and sought immediate recovery in Japan. The remainder, a majority of all who had claims, petitioners in this case, did nothing. The reasons for their inaction are quite apparent, and, it can reasonably be argued, should have been so to the Government: the letter indicated that despite as long as 12 years of waiting after the original submission of their claims, supported by copies of their certificates, they could expect to receive less than 2% of their basic deposits measured in prewar dollar terms, and that even this amount would not be forthcoming immediately, but only after issuance of a schedule (an additional interval, it turned out, of three years) plus possible judicial review.- Claimants would clearly be better off getting repayment immediately from the Japanese bank itself. This recourse, suggested by the letter itself, was at the same time understandably advantageous to the Government as well: American citizens or residents would obtain relief, but from a foreign source, thus freeing more of the vested assets for distribution to remaining claimants. It is thus understandable that the Government did nothing to ascertain why a majority of the. 7,600 claimants had responded in no way to its letter. ■ In affidavits submitted to the District Court, and not contradicted on the motion to dismiss the complaint, various other reasons were asserted for the failure of these petitioners to respond. Petitioner Jiro Kai asserted: “I did receive a letter from the Office of Alien Property offering me about 30⅜ for my claim. I think I recall being asked to send in my original certificate by registered mail to receive this amount. For me to have done this would have cost more than I was being offered.[] I had heard from others that many more persons had claims similar to mine and I understood that they were all being processed together. I saw in the Japanese newspaper that a court suit was or would be filed seeking to obtain for the yen claimants the proper amount for their claims. I believed, therefore, I would be protected.” Other affidavits gave similar reasons. These are summarized best in an affidavit of Mr. Katsuma Mukaeda, president of the Japanese Chamber of Commerce of Southern, California: “Many of the Yokohama Specie Bank yen deposit certificate holders were old people who could not read English and could not understand the communications they received from the Office of Alien Property; many of them had to rely upon other persons who themselves were not able to understand the letters; most of the claimants had never talked to a lawyer about their cases and there was a general feeling in the community that all of the claims were -going to be treated alike, both the Sumitomo Bank claimants and the Yokohama Specie Bank claimants; there was knowledge in the community that a law suit had been filed in Washington and it was understood and believed that the outcome of that law suit would determine how much money the claimants received and that it- would apply to all claimants not just some; most of the claimants had had experience with or had heard about the Japanese Evacuation Claims program (50 U. S. C. Appx. 1981-1987)[] and many of them knew generally that under that program, deadlines had been extended and even that the law itself had been changed to include persons who originally were not eligible, to be eligible for repayment of some of their losses due-to the Japanese- evacuation program, and that persons who previously had been denied payment, later were paid; . . . since the original certificates of deposit were the claimants’ only direct evidence of their claim, many of the claimants were reluctant to part with this evidence, especially at a time when the Government was recognizing their claims at less than 2% of their face value, to say nothing of accumulated interest over the years; moreover, many of them, felt that to send in their certificates at that time would be taken as agreeing to accept this very small sum in full settlement and they did not want to do that; there were others whose claims were so small that to send in the originals at the figure the ■ Government was offering would net them no return or a very small amount; as individuals, even those claimants who did not have very small claims could not afford to hire an individual lawyer in Washington or to file their- own suit but had to rely on what was being done generally and many of them believed that in the end their Government would not try to keep their money but would return it.” The claims of these 4,100 claimants were dismissed when they did not respond within the 45-day administrative limit, pursuant to 8 CFR § 502:25 (g), 21 Fed. .Reg. 1582. Petitioners were notified that their claims were disallowed as abandoned, and told that further proceedings were governed by § 34 (f), the provision requiring a final schedule of claimants and providing for judicial review. In May 1961 a final schedule was prepared and sent to all claimants, including petitioners. Petitioners’ claims were not included in the schedule, but they were informed that “Pursuant to Section 34 (f) of the Trading with the Enemy Act, as amended, any claimant considering himself aggrieved by this Final Schedule may, within sixty (60) days from the date of the mailing of the Schedule, file in the United States District Court for the District of Columbia a complaint for review of this Schedule . . . .” Such á suit was brought to challenge the proper rate of exchange. It was brought by Mr. Kunio Abe, the same person who had challenged the administrative ruling and whose case was cited by the Government in its letters to petitioners as dispositive of their cases. Abe v. Kennedy, C. A. No. 2529-61, D. D. C., was held in abeyance in the District Court pending a determination of the identical issue raised in relation to yen certificates issued by the Sumitomo Bank. The District Court upheld the Attorney General’s determination, and the Court of Appeals affirmed, Aratani v. Kennedy, 115 U. S. App. D. C. 97, 317 F. 2d 161, 323 F. 2d 427., After this Court granted certiorari in Aratani, 375 U. S. 877, the Attorney General entered into a compromise settlement with the plaintiffs in Aratani and Abe, in the latter case approximately at the prewar rate without interest. Petitioners here were not included in the class represented by Abe, for his complaint was framed to represent only the class of those claimants listed in the schedule rather than all outstanding claimants. Petitioners therefore filed this suit upon final disposition of the Abe litigation, and long before the dismissal of certiorari in Aratani, asking for similar treatment. The Attorney General denied their claims because petitioners were not included in the class represented in the Abe suit, and because they had not filed their suit within 60 days after mailing, of the schedule as required by § 34 (f). II. Quite apart from any- question of governmental estop-pel respecting assertion of the statute of limitations, a contention that is sought to be predicated on the foregoing train of events and circumstances, we consider that the limitations period was in any event tolled during the pendency of the Abe litigation, and that petitioners’ right to bring their suit was not foreclosed. An analysis of the statutory scheme as devised by Congress persuades us,' in the context of this factual setting, that this is the result most consistent with the legislative purpose of this Act. The statutory system embodied in § 34 was intended to provide a method for the fair and equitable distribution of vested enemy assets to American residents. The basic model for the statute was the Federal Bankruptcy Act, a concept revealed in the legislative record by expressions of the Custodian and of those members of Congress principally responsible for the legislation. The 60-day limitation on suits was designed to further this end — to aid claimants by expediting a final distribution — and not primarily as a shield for the Government. The Bankruptcy Act, the pattern for this legislation, ■presents a compelling analogy, pointing the way to the decision which we make in this case. Section 57n, 11 U. S. C. § 93 (n), requires notification of claims within six months after the first date set for the first meeting of creditors. Those who fail to file timely claims do not, however, lose all their rights; rather after all duly allowed and properly filed claims have been paid in full, “claims not filed within the time hereinabove prescribed may nevertheless be filed within such time as the court may fix or for cause shown extend and, if duly proved, shall be allowed against any surplus remaining in such case.” It is true that this equitable principle of the Bankruptcy Act was specifically authorized by a 1938 amendment which was “designed to remedy the inequity of returning property to the bankrupt as long as there are creditors, however tardy, whose claims have not been satisfied even in part.” 3 Collier, Bankruptcy ¶ 57.33, at 398. But it is noteworthy that bankruptcy courts in the exercise of their general equity power had already reached this result long before the principle was enacted into law. As one nisi prius bankruptcy court stated in In re Lenox, 2 F. 2d 92, in 1924, “This [the statute of limitations] is a provision for the benefit of creditors, not for the benefit of the bankrupt. ... In the present case, the provisions of the Bankruptcy Act have been complied with, and those who complied with all its provisions have been paid in full. But the fact remains that the petitioner'who had reduced his claim to judgment, the existence and validity of which the bankrupt recognized in his schedules and does not now deny, has received nothing. A fund remains in the hands of the trustee.” Id., at 93. The equitable solution, the court held, was to allow the claim, even though untimely. In Williams v. Rice, 30 F. 2d 814, an estate, presumably without assets, was reopened when new assets were discovered. The question was again whether creditors who had not filed timely claims, should - be allowed to prove their claims. Noting that the time limitation- “is intended primarily to require creditors to prove their claims promptly, in order that the estate may be closed without undue delay/’ id,, at 815, the Court of Appeals for the Fifth Circuit held that in the absence of negligent failure to file, claimants in such a case could file after the time limitation. See also In re Pierson, 174 F. 160, where the court allowed the reopening of the estate and the filing of claims past the statutory period when new assets were discovered. But see In re Silk, 55 F. 2d 917, reaching the opposite result. Another, though less precise, analogy in the bankruptcy area can be drawn from Nassau Works v. Brightwood Co., 265 U. S. 269. The issue there was whether a creditor whose claim was not proved within the statutory period established for creditors in bankruptcy. could nevertheless participate in a composition in bankruptcy. Mr. Justice Brandéis, writing for a unanimous Court, analyzed the statute in terms of its purpose and the various interests involved. From the viewpoint of the other creditors, he found, “neither the amount which a creditor receives, nor the time when he receives it, can be affected by the amount of others’ claims, or by the time of proof, or by their failure to prove. . . . Nor can the time of proof of claims, as distinguished from their allowance, be of legitimate interest to the bankrupt. ... No reason is suggested why Congress should have wished to bar creditors from participation in the benefits of a composition merely because their claims were not proved within a year of the adjudication. Failure to prove within the year does not harm the bankrupt. Why should he gain thereby? And why should the creditor be penalized by a total loss of his claim?” 265 U. S., at 272-273. These factors can be applied to the present case with equal force. What purpose does the strict 60-day limitation serve, except as a method of expediting the distribution of vested assets to creditors? But no other creditors are here objecting, for none exist: they have all compromised their claims and yet a surplus remains in the account. The Government itself has.no real interest in this fund, for it neither comes out of the common weal nor will any surplus ihure to the Treasury. The Attorney General is a mere stakeholder, a custodian in the true sense of the word. The only persons who might eventually benefit from the surplus are those general beneficiaries of the War Claims Fund into which any surplus is deposited. But the 60-day rule can hardly be deemed a device for augmenting this general fund at the expense of recognized creditors, especially in the face of repeated and uncontested expressions of congressional intent to facilitate and expand the rights of American creditors having an interest in these assets. III. The foregoing considerations are especially persuasive here when the reason for petitioners’ delay in bringing suit is recalled. It was generally known in the Japanese community that a class suit, the Abe case, had been filed in the United States District Court for the District of Columbia. The complaint in that suit outlined the history of the controversy over the proper rate of exchange and it specifically noted that this question was “[t]he sole issue on this Complaint for review . .. .” An examination of the complaint, on file at the District Court but presumably not readily available to petitioners who lived on the West Coast, reveals that the plaintiffs included in the class action were defined as those listed on the final schedule rather than all those who filed valid claims. But from a practical standpoint, this definition, which legally excluded these petitioners, made no differentiation between the total group of certificate holders in any material respect.. The legal issue raised in the complaint dealt only with the exchange rate; the administrative record filed with the District Court was that of the Abe claim which did apply — at the administrative level — to petitioners; the named plaintiff was also Kunio Abe whose case was cited by the Government as dispositive of petitioners’ claims; no action was in any event taken on the complaint which was held in suspense pending, determination of the same legal issue in the Aratani casé and then dismissed upon settlement with the Abe suit claimants. Since petitionérs filed their claim immediately upon settlement of the Abe case, there can be no claim that the course of action they took in any way interfered with the speed or manner in which this litigation was conducted. . The only arguable difference it might have made had petitioners filed their action immediately upon publication of the schedule is that the Government’s willingness to settle the case might have been dampened because the larger number of plaintiffs would have made settlement more costly to the total fund. Upon examination, however, even this possibility should be discounted when it is recalled that these are not in any real sense government funds, but rather vested assets of an enemy debtor which will be distributed to another class of war victims if petitioners’ claims are barred. The Government has no interest in the fund except to enforce the primary congressional mandate that bona fide creditors recover their due. Since the amount in the fund adequately covers a full settlement with all these claimants at the Abe rate, exhausting the surplus should not have played a part in the Government’s decision to settle with the Abe claimants. For these reasons we think the statutory purpose is best served by invoking the equitable doctrine of tolling to preserve petitioners’ action in which they seek payment on the same basis as that accorded the claimants in Abe. IV. In light of these circumstances we find the Attorney General’s arguments unpersuasive. He argues primarily that the doctrine of estoppel does not apply in this case to prevent assertion of the statute of limitations. We do not reach the estoppel- issue, because we hold that the statutory scheme itself requires tolling the limitation period during the pendency of the Abe litigation. In this respect, the Government contends that because this suit is, at least formally, one against the sovereign, see Banco Mexicano v. Deutsche Bank, 263 U. S. 591, the statute of limitations may not be tolled without' express congressional consent. It is well settled, of course, that the Government is ordinarily immune from suit, and that it may define the conditions under which it will permit such actions. E. g., Kendall v. United States, 107 U. S. 123; United States v. Sherwood, 312 U. S. 584. It is also true that in many cases this Court has read procedural rules embodied in statutes waiving immunity strictly, with an eye to effectuating á restrictive legislative purpose when Congress relinquishes sovereign immunity. E. g., Kendall v. United States, supra; United States v. Sherwood, supra; Soriano v. United States, 352 U. S. 270; compare Crown Coat Front Co. v. United States, post, p. 503. This case is, however, wholly different from those cases on which the Government primarily relies, where the public treasury was directly affected. Here Congress established a method for returning seized enemy assets to United States creditors, assets that were never contemplated as finding their way permanently into the public fisc. As the House and Senate-Reports on this statute declare, “The Custodian has emphasized to the committee that he is anxious to satisfy the. proper claims of creditors and the committee concur in the view that there exists a strong moral obligation to satisfy them inasmuch as, but for the vesting of their debtors’ property, they would presumably have been able to pursue ordinary remedies against the debtors.” H. R. Rep. No. 2398, 79th Cong., 2d Sess., 10 (1946); S. Rep. No. 1839, 79th Cong., 2d Sees., 3-4 (1946). We consider it much more consistent with the overall congressional purpose to apply a traditional equitable tolling principle, aptly suited to the particular facts of this case and nowhere eschewed by Congress, to preserve petitioners’ cause of action. Burnett v. New York Central R. Co., 380 U. S. 424; cf. Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U. S. 356, 360. The judgment of the Court of Appeals upholding the dismissal of this action is therefore reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Clark took no part in the decision of this case. This suit was originally filed against Robert F. Kennedy, then Attorney General. Nicholas deB. Katzenbach was substituted as statutory defendant in the District Court, and Ramsey Clark, the present Attorney General, succeeded him as respondent here by operation of law. Sup. Ct. Rule 48 (3). The certificates expressed their value in terms of yen, and bore the following statement, in both Japanese and English: “This is to certify that the sum of yen -.has been submitted to our Head Office, Yokohama, to be placed in Fixed Deposit there in your name at — percent, per annum for — months, maturing -, subject to the conditions on the back hereof. ■ “Both principal and interest are payable, when due, at our aforesaid Head' Office, Yokohama, upon surrender of this Certificate, properly endorsed and/or sealed.” Section 9 (a.) of the Trading with the Enemy Act, 50 U. S. C. App. §9 (a). Section 34 (a) limits allowable debt claims only to “those of citizens of the United States or of the Philippine Islands; those of corporations organized under the laws of the United States or any State, Territory, or possession thereof, or the District of Columbia , or the Philippine Islands; those of other natural persons who are and have been since the beginning of the war residents of the United States and who have not during the war been interned or paroled pursuant to the Alien Enemy Act; and those acquired by the Custodian.” The Attorney General assumed the duties of the Custodian in 1946 by Executive Order No. 9788, 11 Fed. Reg. 11981. Counsel for petitioners have supplied us with the following information as to the range in amounts of the claims involved in this litigation: “Of the 1,120 Honda claimants who have . . . retained [our associated California counsel] ... to the present date, the highest is for 120,000 yen — about $30,000 at the Abe ratio [or about' $332 at the. Government’s original rate] — and the- lowest claim is for 50 yen, or about $12 [about 14⅜⅝ at the lower rate]. Among all 4,100 petitioners the largest debt claimant of which we are aware chose other counsel, and his claim was for 246,000 yen (about $60,000) [about $680 at the lower rate] .... “The average claim among the 1,120 retainer claimants in Honda is for about $2,000 [at the Abe rate], and the mean considerably lower; the average among all 4,100 petitioners is necessarily more modest still, because it includes the 2,980 claimants who have not even sought representation by counsel in this suit, presumably because of the very small amounts of their claims . . . .” This legislation, enacted in 1948,- authorizes the Attorney General to make awards in amounts not to exceed $100,000 “on any claim by a person of Japanese ancestry against the United Statés arising on or after December 7, 1941, . that is ... a reasonable and natural consequence of the evacuation or exclusion of such person by the appropriate military commander from a military area in Arizona, California, Oregon,, or Washington; or from the Territory of Alaska, or the Territory of Hawaii, under authority of Executive Order . . . 70 Stat. 513, 50 U. S. C. App. §1981. The regulation provides: “A claim shall be deemed abandoned when after request to do so the claimant has not furnished relevant information in support of his claim, or where by virtue of his failure to respond to inquiries regarding the claim it appears that he does not wish to pursue it further.” Neither in his motion to dismiss the complaint in the District Court, nor on review in the Court of Appeals and in this Court, has the Attorney General advanced the argument that failure to comply with this administrative regulation is by itself an independent reason for dismissing this suit. It suffices to say here that such an argument would be open to attack on lines similar to those we hold require tolling the statute of limitations. The claimants in Aratani recovered considerably less than those in Abe because the amounts of their claims exceeded the vested assets of the Sumitomo Bank. 228 F. Supp. 706, 708. The District Court approved the settlements in both Aratani and Abe on March 18,4964, 228 F. Supp. 706, and entered its final, order on May 18, 1964. The present suit was filed May 19, 1964. The writ of certiorari in Aratani was dismissed on March -9, 1965, 380 U. S. 938, upon stipulation of counsel that the case had been settled. 'At the committee hearings on this section, the following dialogue occurred between the Chairman, Congressman Celler of New York, and the Custodian, Mr. Markham: “Mr. Markham. . ’. . We propose that the law be changed so that the man could file his claim, but he would be paid on a ratable basis, if there is not enough money for everybody, and that we should have a marshaling of assets and a marshaling of debts, so that everybody would be treated alike and would not depend upon the time when they brought the' suit or the order in which the suits were brought. “Mr. Celler. But you want to be sure that you don’t get into a situation where one creditor can fritter away all the assets of an enterprise, and you want to apply them under the principle now applied in the Bankruptcy Act, give each creditor an equitable share in the assets? “Mr. Markham. That is the way I want it to be done. That is what I want to- do.” Hearings before Subcommittee No. 1 of the House Committee on the Judiciary on H. R. 5089, 79th Cong., 2d Sess., 17 (1946). See also, id., at 7, 11-13, 113-114. Congressman Celler used the same reference when he introduced the bill to the House: “The.bill before us provides that the Alien Property Custodian takes the property and sells it and divides the proceeds equitably among all creditors as pari passu, in bankruptcy.” 92 Cong. Rec. 10217 (1946). And see H. R. Rep. No. 2398, 79th Cong., 2d Sess., TO, 14 (1946); S. Rep. No. 1839, 79th Cong., 2d Sess., 4, 8 (1946). . r Under the War Claims Act of 1948, undistributed assets of enemy property are transferred to a War Claims Fund for distribution to United States citizens who suffered losses Caused by enemy military operations during World War II. 62 St-at. 1246-1247, as amended, 50 U. S. C. App. §§ 39, 2012. That Act also declares that no vested property be returned to the former German or Japanese owners as had been the case with some assets after World War I. § 39 (a). See H. R. Rep. No. 976, 80th Cong., 1st Sess., 2-3 (1947); ' II. R. Rep. No. 2439, 80th Cong., 2d Sess. (1948); S. Rep. No. 1742, 80th Cong., 2d Sess. (1948). See 'references cited in n. 11, supra. There is nothing in the legislative history of the 1946 Act indicating that Congress had the interests of those who were in effect “remainder beneficiaries” in mind when imposing the procedures of § 34. • It is further noteworthy that in 1953 the Congress refused to enact legislation, supported by the Government, that would have had the effect of wiping out entirely debt claims payable in foreign currency, the Yokohama Bank certificates being the largest group of such debts. See S. Rep. No. .616, 83d Cong., 1st Sess. (1953); 99 Cong. Rec. 7408-7409 (1953)> 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_respondentstate

17

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. BROWDER v. DIRECTOR, DEPARTMENT OF CORRECTIONS OF ILLINOIS No. 76-5325. Argued October 31, 1977 Decided January 10, 1978 Kenneth N. Flaxman argued the cause for petitioner. With him on the briefs were John M. Kalnins, Thomas R. Meites, and Frederick H. Weisberg. Raymond McKoski, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William J. Scott, Attorney General, and Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General. David Goldberger and Joel Gora filed a brief for the American Civil Liberties Union as amicus curiae urging reversal. Howard Eg'lit filed a brief for the Chicago Council of Lawyers as amicus curiae. Mr. Justice Powell delivered the opinion of the Court. This case requires us to decide whether the Court of Appeals lacked jurisdiction to review an order directing petitioner’s discharge from respondent’s custody because respondent’s appeal was untimely. In order to resolve this question, we must consider the applicability of Federal Rules of Civil Procedure 52 (b) and 59 in habeas corpus proceedings. Because we conclude that the Court of Appeals lacked jurisdiction, w© reverse. I On January 29, 1971, a teenage girl reported to Chicago police that she had been raped. She gave a physical description of her assailants to one officer and told another officer that one of her attackers was named “Browder,” was about 17 years old, and lived in the 4000 block of West Monroe. On the basis of this information and further investigation, the police focused on petitioner’s brother, Tyrone Browder, whose name was in the files of the Youth Division of the Chicago Police Department. A telephone conversation between a Youth Division officer and Mrs. Lucille Browder shifted the officers’ suspicions from Tyrone to petitioner, and Mrs. Browder agreed to keep both her sons at home until the police arrived to talk to them. Four officers interviewed petitioner and his brother, both of whom denied knowledge of the rape. The officers arrested the brothers along with two other teenage Negro males who were present at the Browder home. The four arrestees were taken to the police station, where another officer noticed that petitioner fit the description of the assailant in a rape that had taken place on January 30. In separate lineups, each complainant identified petitioner as her assailant. After being informed of his rights as required by Miranda v. Arizona, 384 U. S. 436 (1966), petitioner confessed to the second rape but denied having committed the rape on January 29. At his trial for the January 30 rape, petitioner moved unsuccessfully to suppress the lineup identification and the confession on grounds unrelated to the lawfulness of his arrest, which petitioner did not challenge. On direct appeal, however, petitioner argued that the identification and confession were the fruits of an unlawful arrest, effected without probable cause and without a warrant. The Illinois intermediate appellate court invoked its contemporaneous-objection rule and held that petitioner had waived this claim. Petitioner's efforts to obtain review of this claim on direct appeal to the Illinois Supreme Court and on state collateral attack fared no better. Petitioner met with success at last when he petitioned for a writ of habeas corpus in Federal District Court. On October 21, 1975, the District Court issued an opinion and order directing that petitioner be released from custody unless the State retried him within 60 days. The court did not hold an evidentiary hearing, but it found on the basis of the petition, the respondent's “motion to dismiss,” and the state-court record that the police lacked probable cause to arrest petitioner on the evening of January 31, 1971. Unable to conclude that the taint of the unlawful arrest had been dissipated when the identification and confession were obtained, the court held that both were inadmissible. On November 18, or 28 days after entry of the District Court’s order, respondent filed with the District Court a motion “to Further Stay the Execution of the Writ of Habeas Corpus and to Conduct an Evidentiary Hearing.” Respondent submitted that the state-court record was inadequate and that the District Court had “erred in granting the writ without first conducting an evidentiary hearing to determine if in fact petitioner was arrested without probable cause and if so, whether his confession was thereby tainted.” App. 118. Respondent cited Townsend v. Sain, 372 U. S. 293 (1963), and United States ex rel. McNair v. New Jersey, 492 F. 2d 1307 (CA3 1974), as authority for his asserted right to an evidentiary hearing, but did not identify the source of the court’s authority to consider the motion. The District Court nevertheless entertained the motion, granted a stay of execution on December 8, and on December 12 set a date for an evidentiary hearing on the issue of probable cause. The court noted that the inadequacy of the state-trial record had not been raised in respondent’s “motion to dismiss” but concluded “that the request for an evidentiary hearing should not be denied solely because it is untimely.” App. 120. Petitioner moved immediately to vacate the orders granting a stay and an evidentiary hearing on the ground that the court lacked jurisdiction to enter them. Petitioner explained that because the period of time prescribed by the Federal Rules of Civil Procedure for a motion for a new trial or to alter or amend a judgment had elapsed, the District Court “no longer ha[d] jurisdiction to alter or amend its final order of October 21, 1975, and the orders whose vacatur is sought are void orders.” Id., at 122. The evidentiary hearing was held nevertheless on January 7, 1976, and on January 26, 1976, the District Court ruled: “[T]he writ of habeas corpus was properly issued on October 21, 1975. The motion to reconsider is therefore DENIED.” Id., at 161. Respondent immediately filed a notice of appeal seeking review of the order of October 21 as well as the order of January 26. Petitioner maintained, consistently, that the Court of Appeals lacked jurisdiction to review the original order granting relief, since respondent's notice of appeal was not filed within 30 days of that order, and the time for appeal had not been tolled by respondent’s untimely post-judgment motion. See n. 5, supra. Even if the order of January 26 were construed as a denial of relief from judgment under Fed. Rule Civ. Proc. 60 (b), as to which the appeal would have been timely, petitioner argued that the Court of Appeals would have jurisdiction only to review that order for abuse of discretion. Respondent disclaimed reliance on Rule 60 (b), insisting instead that the order of October 21 was not a final order and that a timely appeal had been taken from the final order of January 26. The Court of Appeals did not address the question of its appellate jurisdiction except to observe, in a cryptic footnote, that it did not have to consider “whether there was an untimely appeal” on the issue whether petitioner’s confession was admissible under Brown v. Illinois, 422 U. S. 590 (1975). The court reversed the District Court without a published opinion, holding that the police had had probable cause to arrest petitioner. Judgt. order reported at 534 F. 2d 331 (CA7 1976). Rehearing was denied. We granted certiorari. 429 U. S. 1072 (1977). II Under Fed. Rule App. Proc. 4 (a) and 28 U. S. C. § 2107, a notice of appeal in a civil case must be filed within 30 days of entry of the judgment or order from which the appeal is taken. This 30-day time limit is “mandatory and jurisdictional.” United States v. Robinson, 361 U. S. 220, 229 (1960). See also Fallen v. United States, 378 U. S. 139 (1964); Coppedge v. United States, 369 U. S. 438, 442 (1962); United States v. Schaefer Brewing Co., 356 U. S. 227 (1958); Matton Steamboat Co. v. Murphy, 319 U. S. 412, 415 (1943); George v. Victor Talking Mach. Co., 293 U. S. 377, 379 (1934). The purpose of the rule is clear: It is “to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appellees that they are freed of the appellant’s demands. Any other construction of the statute would defeat its purpose.” Matton Steamboat, supra, at 415. The running of time for filing a notice of appeal may be tolled, according to the terms of Rule 4(a), by a timely motion filed in the district court pursuant to Rule 52 (b) or Rule 59. Respondent’s motion for a stay and an evidentiary hearing was filed 28 days after the District Court’s order directing that petitioner be discharged. It was untimely under the Civil Rules, see n. 5, supra, and therefore could not toll the running of time to appeal under Rule 4 (a). The Court of Appeals therefore lacked jurisdiction to review the order of October 21. But respondent answers that Rules 52 (b) and 59 do not apply because the order of October 21 was not final and, in any event, the Federal Rules of Civil Procedure did not apply in this habeas corpus proceeding. We consider each of these contentions. A An appeal in a habeas corpus proceeding lies from a “final order,” 28 U. S. C. § 2253. The District Court’s order of October 21 purported to be final, as it granted petitioner’s application for a writ of habeas corpus and directed that petitioner be discharged if the State did not retry him within 60 days. Respondent contends, however, that this order was not a final order “ ‘leaving nothing to be done but to enforce by execution what had been determined,’ Catlin v. United States, 324 U. S. 229, 236 (1945), because all required procedures under the Habeas Corpus Act had not been completed at the time the order was issued.” Brief for Respondent 42. Respondent cites 28 U. S. C. §§ 2243 and 2254 (d) and the Court’s decision in Townsend v. Sain, 372 U. S. 293 (1963), in support of his contention that the October 21 order “cannot be considered a final order under 28 U. S. C. [§] 2253 because it left unresolved the statutorily prescribed question of whether an evidentiary .hearing would be required . . . Brief for Respondent 43. Respondent’s position confuses error with nonfinality and fails to distinguish between the requirements of the habeas corpus statutes and the procedural means for correcting asserted error in fulfilling the statutory command. Here the District Court discharged its duty “summarily [to] hear and determine the facts/’ 28 U. S. C. § 2243, by granting the petition on the state-court record. See Walker v. Johnston, 312 U. S. 275, 284 (1941). Respondent’s failure to assert the need for an evidentiary hearing in his motion to dismiss did not necessarily deprive him of the right to assert the absence of a hearing as a reason for reconsideration or as error on appeal, but neither did the absence of an evidentiary hearing render the District Court order nonfinal. If respondent were correct in his theory of finality, any order later alleged to have been entered precipitately or after an incomplete hearing could be considered nonfinal for purposes of appeal. The confusion that would result from litigants’ divergent views of the completeness of proceedings would be wholly at odds with the imperative that jurisdictional requirements be explicit and unambiguous. B Since the order of October 21 was a final order, the time for appeal commenced to run on that date. Respondent’s notice of appeal therefore was untimely by 68 days, unless respondent’s motion of November 18 tolled the time for appeal under Rule 4 (a). The rationale behind the tolling principle of the Rule is the same as in traditional practice: “A timely petition for rehearing tolls the running of the '[appeal] period because it operates to suspend the finality of the . . . court’s judgment, pending the court’s further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties.” Department of Banking v. Pink, 317 U. S. 264, 266 (1942) (emphasis supplied). An untimely request for rehearing does not have the same effect. Respondent seeks to avoid the conclusion that his motion was untimely under the Civil Rules, and therefore did not toll the time for appeal under Appellate Rule 4 (a), by asserting that his motion was not based on Rule 52 (b) or Rule 59 because the Federal Rules of Civil Procedure were not applicable in this habeas proceeding. Respondent’s failure to rely on a particular rule in making his motion does not suffice to make the Federal Rules inapplicable. Respondent’s insistence that his motion was not based on any of the Federal Rules, but rather on the habeas corpus statutes and Townsend v. Sain, supra, parallels his theory of the nonfinality of the October 21 order and reflects his failure to recognize that the habeas corpus statutes do not prescribe postjudgment procedures. During the pendency of a habeas proceeding, the procedure indeed is set out in the habeas corpus statutes, and Fed. Rule Civ. Proc. 81 (a) (2) recognizes the supremacy of the statutory procedures over the Federal Rules. But those procedures say nothing about the proper method for obtaining the correction of asserted errors after judgment, whether on appeal or in the District Court. Respondent asserts that his motion of November 18 was timely because it was filed within the 30-day period allowed for appeal, as was the case in United States v. Dieter, 429 U. S. 6 (1976). In relying upon Dieter, respondent misconceives our holding in that case. There the Court followed United States v. Healy, 376 U. S. 75 (1964), and held that a timely motion for rehearing in a criminal case would toll the running of the time for appeal. In Dieter, as in Healy, no rule governed the timeliness of a motion for rehearing by the Government in a criminal case or the effect of such a motion on the time allowed for appeal. Instead, “ 'traditional and virtually unquestioned practice’ ” dictated that a timely petition for rehearing would render the original judgment nonfinal for purposes of appeal and therefore would toll the time for appeal, Dieter, supra, at 8, and n. 3 (quoting Healy, supra, at 79); and absent a rule specifying a different time limit, a petition for rehearing in a criminal case would be considered timely "when filed within the original period for review,” 376 U. S., at 78. In a civil case, however, the timeliness of a motion for rehearing or reconsideration is governed by Rule 52 (b) or Rule 59, each of which allows only 10 days; and Rule 4 (a) follows the “traditional and virtually unquestioned practice” in requiring that a motion be timely if it is to toll the time for appeal. Respondent has maintained throughout that the Federal Rules of Civil Procedure are wholly inapplicable on habeas. We think this is a mistaken assumption. It is well settled that habeas corpus is a'civil proceeding. Fisher v. Baker, 203 U. S. 174, 181 (1906); Ex parte Tom Tong, 108 U. S. 556 (1883); see Heflin v. United States, 358 U. S. 415, 418 n. 7 (1959). Perhaps in recognition of the differences between general civil litigation and habeas corpus proceedings, see Harris v. Nelson, 394 U. S. 286, 293-294, and n. 4 (1969), the Federal Rules of Civil Procedure apply in habeas proceedings only “to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions.” Fed. Rule Civ. Proc. 81 (a) (2); see Fed. Rule Civ. Proc. 1. In Harris the Court considered whether the discovery procedure authorized by Fed. Rule Civ. Proc. 33 is available in a habeas corpus proceeding. The Court concluded “that the intended scope of the Federal Rules of Civil Procedure and the history of habeas corpus procedure . . . make it clear that Rule 81 (a) (2) must be read to exclude the application of Rule 33 in habeas corpus proceedings.” 394 U. S., at 293. In Thompson v. INS, 375 U. S. 384 (1964), on the other hand, the Court assumed without discussion that Rules 52 (b) and 59 applied in a “proceeding for admission to citizenship” in which, as in a habeas corpus proceeding, the applicability of the Civil Rules is qualified by Rule 81 (a) (2). Although this Court has not had occasion to hold Rules 52 (b) and 59 applicable in habeas corpus proceedings, the Courts of Appeals uniformly have so held or assumed. E. g., Rothman v. United States, 508 F. 2d 648, 651 (CA3 1975); Hunter v. Thomas, 173 F. 2d 810 (CA10 1949) (motion for a new trial by the custodian). The combined application of the time limit in Rule 52 (b) or 59 and the tolling principle of Rule 4 (a) or its predecessor, Fed. Rule Civ. Proc. 73 (a), has resulted in dismissal of appeals from dispositions on habeas corpus petitions. E. g., Flint v. Howard, 464 F. 2d 1084, 1086 (CA1 1972). See also Fitzsimmons v. Yeager, 391 F. 2d 849 (CA3) (en banc), cert. denied, 393 U. S. 868 (1968); Munich v. United States, 330 F. 2d 774 (CA9 1964). We see no reason to hold to the contrary. No other statute of the United States is addressed to the timeliness of a motion to reconsider the grant or denial of habeas corpus relief, and the practice in habeas corpus proceedings before the advent of the Federal Rules of Civil Procedure conformed to the practice in other civil proceedings with respect to the correction or reopening of a judgment. At common law, a court had the power to alter or amend its own judgments during, but not after, the term of court in which the original judgment was rendered, United States v. Mayer, 235 U. S. 55, 67 (1914); Bronson v. Schulten, 104 U. S. 410, 415 (1882); Ex parte Lange, 18 Wall. 163, 167 (1874); Basset v. United States, 9 Wall. 38, 41 (1870); and this rule was applied in habeas corpus cases, see Aderhold v. Murphy, 103 F. 2d 492 (CA10 1939); Tiberg v. Warren, 192 F. 458, 463 (CA9 1911). The 1946 amendments to the Rules of Civil Procedure abolished terms of court and instead confined the power of a district court to alter or amend a final order to the time period stated in Rules 52 (b) and 59. See Advisory Committee Report, 5 F. R. D. 483, 486-487 (1946). “The Rules, in abolishing the term rule, did not substitute indefiniteness. On the contrary, precise times, independent of the term, were prescribed.” United States v. Smith, 331 U. S. 469, 473 n. 2 (1947) (referring to the time limit prescribed by the Federal Rules of Criminal Procedure for new trial motions). In addition to the settled conformity of habeas corpus and other civil proceedings with respect to time limits on post-judgment relief, the emphasis in the Federal Rules of Civil Procedure on “just” and “speedy” adjudication, see Fed. Rule Civ. Proc. 1, parallels the ideal of “a swift, flexible, and summary determination” of a habeas corpus petitioner’s claim. Preiser v. Rodriguez, 411 U. S. 475, 495 (1973). See also Fay v. Noia, 372 U. S. 391, 401-402 (1963); United States ex rel. Mattox v. Scott, 507 F. 2d 919, 923 (CA7 1974); Wallace v. Heinze, 351 F. 2d 39, 40 (CA9 1965), cert. denied, 384 U. S. 954 (1966). Rule 59 in particular is based on an “interest in speedy disposition and finality,” Silk v. Sandoval, 435 F. 2d 1266, 1268 (CA1), cert. denied, 402 U. S. 1012 (1971). Although some aspects of the Federal Rules of Civil Procedure may be inappropriate for habeas proceedings, see Harris v. Nelson, supra; Preiser, supra, at 495-496, the requirement of a prompt motion for reconsideration is well suited to the “special problems and character of such proceedings.” Harris v. Nelson, supra, at 296. Application of the strict time limits of Rules 52 (b) and 59 to motions for reconsideration of rulings on habeas corpus petitions, then, is thoroughly consistent with the spirit of the habeas corpus statutes. Because respondent failed to comply with these “mandatory and jurisdictional” time limits, the judgment of the Court of Appeals must be Reversed. In light of this disposition, it is unnecessary to reach any of the other questions presented. In addition to his jurisdictional point, petitioner contended that the Court of Appeals erred in finding the facts de novo on the issue of probable cause and in concluding that petitioner’s arrest was lawful. On the latter point, petitioner maintained that the arrest of four youths in the Browder home violated the Fourth and Fourteenth Amendments’ requirement of probable cause, Davis v. Mississippi, 394 U. S. 721 (1969), and, even assuming the existence of probable cause, that the Fourth and Fourteenth Amendments required the police to obtain an arrest warrant before entering the Browder home to make the arrests. The parties also have disputed whether litigation of petitioner’s Fourth Amendment claim on federal habeas corpus was barred either by Wainwright v. Sykes, 433 U. S. 72 (1977), or by Stone v. Powell, 428 U. S. 465 (1976). Finally, petitioner questioned the validity of the Seventh Circuit’s “unpublished opinion” rule. We leave these questions to another day. Respondent moved to dismiss the habeas corpus petition for “failure to state a claim upon which relief may be granted, pursuant to Rule 12 (b)(6) of the Federal Rules of Civil Procedure.” Respondent did not base his “motion to dismiss” solely on petitioner’s waiver of his claim of unlawful arrest; respondent also addressed the merits of the Fourth Amendment claim. The District Court held that petitioner’s failure to raise the issue at trial did not bar habeas corpus relief because it found, citing Fay v. Noia, 372 U. S. 391 (1963), that the failure was not the result of a deliberate tactical decision to forgo the claim. By untimeliness the District Court apparently meant respondent’s failure to request an evidentiary hearing prior to the court’s ruling on October 21. The court made no mention of the Federal Rules of Civil Procedure. The untimeliness of respondent’s motion under those Rules was first mentioned in petitioner’s motion to vacate the orders granting a stay and setting a date for an evidentiary hearing. A motion for a new trial may be made under Rule 59 (a). Rule 59 (b) provides that such a motion "shall be served not later than 10 days after the entry of the judgment.” Similarly, "[u]pon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly.” Rule 52 (b). Under Rule 59 (e), “[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.” Since respondent neglected to label his motion, it is impossible to tell whether the motion was based on Rule 59 (a), Rule 52 (b), or Rule 59 (e). Rule 6 (b) prohibits enlargement of the time period prescribed in all of these Rules. Because all three Rules contain the same 10-day time limit, it is unnecessary for purposes of this decision to determine whether respondent’s motion should be considered a motion for a new trial, a motion to amend or make additional findings, or a motion to alter or amend the judgment. We shall refer to the motion as one for rehearing or reconsideration, for such was the essence of the relief requested. See generally United States v. Dieter, 429 U. S. 6, 8-9 (1976). Petitioner acknowledged that under Rule 60 (b), which provides for relief from judgment under certain enumerated circumstances, “a court may modify a final order granting habeas relief after the ten day limit of Rules 52 and 59”; but petitioner argued that respondent’s motion was “insufficient” under Rule 60 (b). This asserted insufficiency was twofold: The motion was not made within a "reasonable time,” as required by the Rule; more significantly, it did not contain allegations that would qualify for relief under any of the Rule’s six categories. Respondent merely sought to convince the court that it had erred in granting relief without holding an evidentiary hearing; respondent’s purpose was to introduce additional, not newly discovered, evidence. Rule 60 (b), unlike Rules 52 (b) and 59, does not contain a 10-day time limit. A motion for relief from judgment under Rule 60 (b), however, does not toll the time for appeal from, or affect the finality of, the original judgment. See 7 J. Moore, Federal Practice ¶ 60.29, pp. 413-414 (1975). Thus, while the District Court lost jurisdiction 10 days after entry of the October 21 judgment to grant relief under Rule 52 (b) or 59, its power to grant relief from judgment under Rule 60 (b) still existed on Januarjr 26. A timely appeal may be taken under Fed. Rule App. Proc. 4 (a) from a ruling on a Rule 60 (b) motion. The Court of Appeals may review the ruling only for abuse of discretion, however, and an appeal from denial of Rule 60 (b) relief does not bring up the underlying judgment for review. See Daily Mirror, Inc. v. New York News, Inc., 533 F. 2d 53 (CA2), cert. denied, 429 U. S. 862 (1976); Brennan v. Midwestern United Life Ins. Co., 450 F. 2d 999 (CA7 1971), cert. denied, 405 U. S. 921 (1972); 7 J. Moore, Federal Practice ¶ 60.19, p. 231; ¶ 60.30 [3], pp. 430-431 (1975). Respondent has insisted throughout this litigation that his motion for an evidentiary hearing was not based on Rule 60 (b). This position derives in part from respondent’s consistently held view that until January 26, 1976, there was no final judgment from which relief could be sought or obtained, and in part from his view that the Federal Rules of Civil Procedure are not applicable in habeas corpus proceedings. It may be that respondent desired as well to avoid the force of petitioner’s arguments as to the limited scope of appellate review of a district court's disposition of a Rule 60 (b) motion. See n. 7, supra. In any event, since respondent has represented to the Court of Appeals and to this Court that his motion was not based on Rule 60 (b), and since the District Court did not construe it as such, we find it unnecessary to address the question whether the decision of the Court of Appeals could be sustained on the theory that despite the absence of any reference to Rule 60 (b) or any of its specified grounds, the action of the District Court was reversible as an improper denial of relief under that Rule. Rule 11 of the new Federal Rules Governing 28 U. S. C. § 2254 Cases provides: “The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.” The new Rules are applicable to cases commenced on or after February 1, 1977. They have no bearing on the instant case, which was commenced on January 8, 1975. It is undisputed that Fed. Rule App. Proc. 4 (a) is applicable to habeas corpus proceedings. See Developments in the Law' — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1192, and n. 262 (1970)). The Court stated in Walker v. Johnston that there could be situations where “on the facts admitted, it may appear that, as matter of law, the prisoner is entitled to the writ and to a discharge.” 312 U. S., at 284. Several Courts of Appeals have acknowledged the power of a federal district court to discharge a habeas corpus petitioner from state custody without conducting an evidentiary hearing, when the facts are undisputed and establish a denial of petitioner’s constitutional rights. E. g., Gladden v. Gidley, 337 F. 2d 575, 578 (CA9 1964) (dictum); United States ex rel. Meers v. Wilkins, 326 F. 2d 135, 140 (CA2 1964) (Marshall, J.); Dorsey v. Gill, 80 U. S. App. D. C. 9, 18, 148 F. 2d 857, 866, cert. denied, 325 U. S. 890 (1945). We express no view on whether or not the District Court erred in not conducting an evidentiary hearing before issuing its order directing petitioner’s conditional discharge. See, e. g., Gladden, supra; Hunter v. Thomas, 173 F. 2d 810 (CA10 1949). See, e. g., United States ex rel. McNair v. New Jersey, 492 F. 2d 1307 (CA3 1974); United States ex rel. Mitchell v. Follette, 358 F. 2d 922 (CA2 1966); Gladden, supra. The better procedure, of course, would be for the custodian “to indicate, in any submission asking dismissal as a matter of law, the proceedings to which it deems itself entitled if its request should be denied.” Mitchell, supra, at 929. See also McNair, supra, at 1309; Gladden, supra, at 578. Respondent’s contention that the "traditional and virtually unquestioned practice” in habeas corpus proceedings contemplates an eviden-tiary hearing in cases like this one misunderstands the import of Dieter and Healy. The Court’s resort to traditional practice in those cases was predicated explicitly on the absence of a relevant statute or rule governing the tolling of the time to appeal. It had nothing to do with the practice or procedure of the underlying criminal trial. Where, as here, a rule governs the procedure in question, the problem addressed in Dieter and Healy is absent. Respondent did assume, however, that Rule 12 (b)(6) is applicable; he denominated his original response to the habeas petition a “motion to dismiss” explicitly based on that Rule. See n. 2, supra. Respondent’s conception — which lies at the heart of his view that the lack of an evidentiary hearing rendered the order of October 21 nonfinal — seems to have been that a Rule 12 (b) (6) motion is an appropriate motion in a habeas corpus proceeding, and that upon denial of such a motion, the case should proceed through answer, discovery, and trial. This view is erroneous. See Preiser v. Rodriguez, 411 U. S. 475, 496 (1973). The custodian’s response to a habeas corpus petition is not like a motion to dismiss. The procedure for responding to the application for a writ of habeas corpus, unlike the procedure for seeking correction of a judgment, is set forth in the habeas corpus statutes and, under Rule 81(a)(2), takes precedence over the Federal Rules. Question: What state is associated with the respondent? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

songer_treat

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. LEICHT v. COMMISSIONER OF INTERNAL REVENUE. No. 12539. Circuit Court of Appeals, Eighth Circuit. July 19, 1943. Sherman W. Child, of Minneapolis, Minn., for petitioner. Warren F. Wattles, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to the Atty. Gen., on the brief), for respondent. Before THOMAS and JOHNSEN, Circuit Judges, and VOGEL, District Judge. JOHNSEN, Circuit Judge. Petitioner seeks a review of a decision of the Board of Tax Appeals (now the Tax Court of the United States), which redetermined deficiencies in his income taxes for the years 1934, 1935 and 1936. Three items of income, which were the basis of part of the deficiencies, will be considered together. They consist of a $1,068 salary-item for 1934, and a $1,200 salary-item and a $1,556 rent-item for 1936. Petitioner, as part of his activities, was president of the Joseph Leicht Press, a publisher of 'foreign-language newspapers, and was the owner of a building which he rented to the corporation. Under his agreement with the corporation, he was to receive a salary of $2,868 for his services as president during 1934. This amount was duly paid to him during the year. On December 31, 1934, he voluntarily agreed to re-adjust and to refund part of his salary for the year, which he did by crediting the corporation with the sum of $1,068 upon a note which it owed him for a previous loan. On December 31, 1936, he similarly voluntarily re-adjusted the agreed salary which had been paid to him during that year and gave the corporation a further credit of $1,200 upon its note. He, also, on the same date, voluntarily re-adjusted the building rent which he had collected for the year and agreed to credit $1,556 of this amount upon the note. In each instance, he had the bookkeeper make an entry of the readjustment on the corporation’s records, and, in making his income tax returns, he did not include these items as part of his gross income. The Commissioner took the position that, for tax purposes, the items represented income received by petitioner during the years involved and should have been in-eluded in his returns. The Board adopted a similar view and declared in its memorandum opinion: “The fact that petitioner after the receipt of these amounts permitted the corporation to change the nature of the payments from salary and rent to payments on its indebtedness to him does not relieve him of tax liability based upon the receipt of salary and rent. ° The action taken by petitioner on the last day of 1934 and 1936 was merely a gift or contribution to the corporation.” A review-petitioner has the burden of establishing that a deficiency tax assessment, as redetermined by the Board of Tax Appeals, is clearly erroneous or unwarranted, either in point of fact or in point of law. Helvering v. Fitch, 309 U.S. 149, 60 S.Ct. 427, 84 L.Ed. 665. That petitioner’s actions here might, under state law, have effected legal modifications of the salary and rent agreements — if they did — would not per se prevent the re-adjustments and refunds from being held to constitute mere gifts or contributions for purposes of the federal revenue laws. The legal significance of a transaction under state law is not necessarily determinative of its federal tax results. Helvering v. Stuart, 317 U.S. 154, 161, 63 S.Ct. 140, 144, 87 L.Ed. —; United States v. Pelzer, 312 U.S. 399, 402, 403, 61 S.Ct. 659, 661, 85 L. Ed. 913; Vesper Co., Inc. v. Commissioner, 8 Cir., 131 F.2d 200, 204. And, it is not given to a taxpayer to lift the federal tax-hand from income, which he has once received in absolute right, by an attempt thereafter to alter its legal status through modification of the agreement out of which it arose. Compare Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 74 L.Ed. 916; Lucas v. Earl, 281 U.S. Ill, 50 S.Ct. 241, 74 L.Ed. 731; Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75, 131 A.L.R. 655; Helvering v. Eubank, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81; Van Meter v. Commissioner, 8 Cir., 61 F.2d 817. Our decision in Stern-Slegman-Prins Co. v. Commissioner, 8 Cir., 79 F.2d 289, does not conflict with these principles, as petitioner contends. There, the officers of the corporation, without having been paid the amount of their salaries, agreed during the tax-year to allow part of the unpaid amounts to be charged back as donations to corporate surplus. The corporation then attempted to deduct the full amount of the originally agreed salaries as corporate expenses, but the Commissioner and the Board refused to permit it to do so, on the ground that the money never actually had been paid to the officers and that there was no longer an existing obligation to make the payments. We affirmed the Board’s appraisal of the tax situation as being reasonable on the facts. The holding in that case that the Board was warranted in refusing to allow the corporation to deduct, as “ordinary and necessary expenses paid or incurred during the taxable year”, such parts of the salaries as had never actually been paid to its officers, and as to which all payment obligation had been extinguished at the time the return was made, clearly does not require the holding here that salary, which has once been received by a corporate officer in absolute right, must be regarded as not constituting taxable income to him personally, where he has chosen, after its receipt, voluntarily to refund it to the corporation. Nor can petitioner contend that the amounts refunded out of the salary and rent received by him for the years here involved must be held not to constitute taxable income, as a matter of res judicata, because the Board had held in the preceding year, in an unreported decision — which the Commissioner did not seek to have reviewed — that payments credited by petitioner upon the corporation’s note during 1933, under salary and rent re-adjustments made in that year, did not constitute income that was taxable to him. Petitioner argues in his brief that the factual situation in that case was identical with that which is here involved. The Board, however, in its memorandum opinion, distinguishes the situations in the two cases as follows: “While the issues in the two proceedings, are similar, they are not identical. Here, unlike Tait v. Western Maryland Ry. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405, and similar cases where res judicata applies, the essential facts are not the same as they were in the preceding year. The present record indicates and we have found as a fact that the salary and rent was paid to petitioner during the taxable years as such and he, at the end of the year, made a gift of the amounts to the corporation. In the other proceeding we found as a fact, as testified to by petitioner, that they had been accepted by him in reduction of the corporation’s indebtedness to him, rather than as salary or rent. Each decision rests upon its own facts as established by the evidence.” There is nothing in the record, except this statement in the Board’s memorandum opinion, from which we can determine the identity or non-identity of the factual and legal situations in the two cases. In these circumstances, insofar as we may be called upon at all to consider petitioner’s contention, we shall accept the Board’s construction and statement that the factual situations are not the same, and that in the former case the payments, at the time they were made to petitioner, were received and accepted not as salary and rent, but for agreed application upon the corporation’s other indebtedness to him. Controlling factual identities, for purposes of res judicata, must be clearly shown and cannot rest upon mere assertion or speculation. Since we cannot, on the record before us, accept the factual situations in the two proceedings as being legally identical, there is no occasion for us to discuss the general question whether a determination of the tax significance of a factual transaction is res judicata in favor of the taxpayer on similar but wholly independent factual transactions for subsequent years — which has been the subject of discussion in Engineer’s Club of Philadelphia v. United States, Ct.Cl., 42 F.Supp. 182, 187, Gooch Milling & Elevator Co. v. Commissioner, 8 Cir., 133 F.2d 131, 137, Blaffer v. Commissioner, 5 Cir., 134 F.2d 389, 390, and Henricksen v. Seward, 9 Cir., 135 F.2d 986. Nor is there any need to comment here upon some earlier decisions of the Board in cases of other taxpayers, such as Fulton v. Commissioner, 1928, 11 B.T.A. 641, and Russel v. Commissioner, 1937, 35 B.T.A. 602, in which a contrary result to that in the immediate case appears to have been reached upon similar facts, for our task is simply to review the legal correctness of the Board’s present decision. These previous decisions may, of course, properly be considered — as we have done— in testing the soundness of the particular determination involved, but they are not, per se, “authority for a reversal”. Rogers v. Commissioner, 9 Cir., 103 F.2d 790, 793. We are not guardians of the doctrine of stare decisis in the Board’s domain. There remain for consideration two loss-deduction items claimed by petitioner for the year 1935, which the Commissioner and the Board refused to allow, and upon which a deficiency assessment was based for that year. These items consist of an investment loss of $7,400 in stock of the Antigo Timber Holding Company and a worthless-debt deduction of $5,659.19 for “assessments” or loans made to the corporation. The Board held that petitioner’s evidence was insufficient to show that the stock and the debt of the corporation first became worthless in 1935. Petitioner’s stock had "been purchased between 1906 and 1926. His “assessments” or loans were all made between 1910 and 1924. There is nothing in the record to indicate the activity or condition of the corporation between 1926 and 1935. Petitioner was secretary of the company and was the only witness who purported to give testimony as to its affairs. His testimony was indefinite and unsatisfactory. He stated that the corporation had had some timber holdings in the State of Wisconsin, and that it subsequently had sold all of its marketable holdings to another corporation for approximately $4,500 and had applied the proceeds upon its outstanding liabilities. He did not disclose the date of the sale of the assets or of the distribution of the proceeds, and his books which he offered in evidence likewise failed to show the date when he had received his share of these proceeds for application on his indebtedness. He declared in his testimony that, after this sale, “there was timber left, a lot of it cut over, and some of it was timber, but we couldn’t sell it”, so “we just dropped the whole thing, whatever timber was left we let go for taxes.” This was done in 1935, when the corporation was formally dissolved. Petitioner contends that on this evidence the Board was required to hold, as a matter of law, that his losses on the capital stock and the loans made to the corporation were deductibly sustained in 1935. As to the stock, the Board said: “Whether such a loss was or was not then sustained depends upon whether the stock became worthless in that year or in some prior year. * * * The record is silent as to the condition of the affairs of the corporation prior to 1935. We are unable to determine, therefore, whether its stock became worthless in 1935 or in some prior year. The burden of proving the year his stock became worthless was on the petitioner. Because of his failure to sustain this burden we must hold that the amount invested by him in stock of the corporation may not be deducted in computing his net income for 1935.” As to the loan indebtedness, the Board similarly held that, since the evidence did not show the condition of the corporation prior to 1935, the facts of which must have been known to petitioner as an officer of the corporation, he had failed to sustain the burden resting upon him, as against the Commissioner’s determination, of establishing that he was justified in concluding that the debt first became worthless during the taxable year. The Board observed in its memorandum opinion that, “while the statute (§ 23 (k), Revenue Act of 1934 [26 U.S.C.A. Int.Rev.Acts, page 673]) allows a taxpayer considerable latitude in connection with the ascertainment of worthlessness of a debt, a taxpayer in possession of all the material facts is not permitted to make a formal determination of worthlessness, charge off the debt, and claim a deduction on that account subsequent to the year in which the debt actually became worthless. * * * In other words, he cannot select the year in which ■to deduct a debt which to his knowledge has been worthless for some time.” On the indefinite and unsatisfactory record before us, we cannot say ■that the Board’s findings and conclusions as to the stock and debt deductions were •clearly erroneous or unwarranted, either in point of fact or in point of law. Cf. Burmet v. Houston, 283 U.S. 223, 51 S.Ct. 413, 75 L.Ed. 991; Reading Co. v. Commissioner, 3 Cir., 132 F.2d 306; Commissioner v. McCarthy, 7 Cir., 129 F.2d 84; Morton v. Commissioner, 7 Cir., 112 F.2d 320; Lambert v. Commissioner, 10 Cir., 108 F.2d 624. The Board of Tax Appeals cannot be required to hold that the dissolution of a -corporation necessarily constitutes the determinative event in identifying the worthlessness of its debts or stock, for tax purposes, where the evidence fails to show whether the corporation was then active, whether the dissolution was accompanied by any distribution, and when, and in what .amount, the corporation was last possessed of saleable or distributable assets. The determinative event in identifying the worthlessness of an investment or debt, relied upon by a taxpayer, is merely an aid • or incident to his general burden of proving that he was reasonably entitled to fix his loss as having been sustained during the taxable year. His right to make the • deduction necessarily depends upon all the facts of the situation and the legitimate .inferences therefrom and must be reasonably established on the basis of the whole evidence. Cf. Nicholson v. Commissioner, 8 Cir., 90 F.2d 978; Eagleton v. Commissioner, 8 Cir., 97 F.2d 62. The decision of the Board of Tax Appeals is affirmed. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:

songer_respond1_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 first 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. Wayne Eugene DUMOND, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee. No. 90-1034. United States Court of Appeals, Eighth Circuit. Submitted April 12, 1990. Decided Aug. 9, 1990. Rehearing and Rehearing En Banc Denied Oct. 5, 1990. John Wesley Hall, Jr., Little Rock, Ark., for appellant. Theodore Holder, Little Rock, Ark., for appellee. Before MAGILL, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge. BEAM, Circuit Judge. Wayne Eugene Dumond appeals a United States Magistrate’s dismissal of his habeas corpus petition, brought under 28 U.S.C. § 2254 (1988). In 1985, Dumond was convicted by an Arkansas jury of kidnapping and raping a seventeen-year-old high school girl, and sentenced to eonsecu-tive terms of life imprisonment and twenty years. The Arkansas Supreme Court affirmed Dumond’s conviction, Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (Ark.1986) (Dumond I), and denied his application for post-conviction relief. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (Ark.1988) (Dumond II). Dumond filed a petition in district court seeking habeas corpus relief, which relief the court denied. Du-mond filed his first appeal from the district court’s denial of his petition, and we reversed and remanded for a further hearing. We based this remand on newly discovered scientific evidence involving genetic testing. Dumond v. Lockhart, 885 F.2d 419 (8th Cir.1989). Following a hearing before the magistrate in which the victim testified about facts relevant to the results of the genetic testing, the magistrate held that Dumond “failed to present sufficient evidence to substantiate his newly discovered evidence claim” and dismissed Dumond’s petition. Dumond v. Lockhart, No. PB-C-88-631, slip op. at 4 (E.D.Ark. Dec. 15, 1989). We affirm. On September 11, 1984, Ashley Stevens was abducted from her home in Forrest City, Arkansas. A man entered Stevens’s home and forced her at gunpoint to follow him. The two drove in her automobile to a secluded area. The man forced Stevens to remove her jeans and underpants and he positioned them beneath her. Stevens testified that the rapist then forced her to engage in vaginal intercourse. The assailant used a prophylactic, but he did not ejaculate. The rapist withdrew from Stevens, pulled off the prophylactic, and forced her to perform oral sex. Stevens testified that the rapist ejaculated in her mouth but she spit it out on the ground. The assailant again forced Stevens to engage in vaginal intercourse but he purportedly did not ejaculate. Thus, Stevens testified that the rapist ejaculated only during oral sex. As indicated, Dumond was convicted of kidnapping and raping Stevens. After his appeal was denied by the Arkansas Supreme Court in Dumond I, Dumond obtained new counsel and submitted Stevens’s clothing to Dr. Moses Schanfield, an expert in genetic testing. Dr. Schanfield conducted an immunoglobulin allotype test on semen located on Stevens’s pant leg. Dr. Schanfield concluded that if the semen was “pure” and not mixed with vaginal fluids, there was a greater than ninety-nine percent probability that Du-mond was not the rapist because the semen lacked a genetic marker which Dumond possesses. Thus, if the rapist ejaculated only during oral sex, as Stevens testified, the semen on the pant leg was “pure” because saliva does not alter the immuno-globulin allotype test. If vaginal fluids were mixed with the semen, however, Dr. Schanfield reported that the results would be inconclusive. In Dumond II, the Arkansas Supreme Court denied Dumond’s petition for post-conviction relief under Ark.R.Crim.P. 37.1. Dumond asserted that because of the newly discovered evidence of this genetic test, due process dictated that he was entitled to a new trial. The court found that Du-mond’s claim regarding the newly discovered evidence was a direct, rather than a collateral attack on the judgment. Accordingly, Dumond’s claim was not within the purview of Rule 37.1. Dumond II, 743 S.W.2d at 782. In his writ of habeas corpus petition to the federal district court, Dumond presented his newly discovered evidence claim and attempted to compel Stevens’s testimony at the habeas hearing. As stated, Stevens had testified at trial that the rapist ejaculated only during oral sex. Accordingly, Dumond asserted that the semen was not mixed with vaginal fluids and, thus, was “pure” semen. Therefore, Dumond argued, he could not be the rapist because the semen lacked his genetic marker. The United States Magistrate quashed Du-mond’s subpoena and found that the record did not support Dumond’s assertion that the semen on Stevens’s pant leg was “pure” semen. Dr. Schanfield had tested Stevens’s jeans and underclothing and had found large amounts of semen, some of which was deposited vaginally. Thus, there was no strong evidence that the semen on the pant leg was “pure.” As indicated, pursuant to Dumond’s first appeal, we reversed and remanded for a further hearing based on purported inconsistencies in the evidence concerning the location and the number of ejaculations. We stated that relief could be granted to Dumond only if his newly discovered evidence “would probably produce an acquittal on retrial.” Dumond, 885 F.2d at 421 (quoting Mastrian v. McManus, 554 F.2d 813, 823 (8th Cir.) (citations omitted), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977)). Without offering Du-mond the opportunity to question Stevens concerning the specific details of the location and the number of ejaculations, we believed that we were incapable of determining whether the evidence probably would produce an acquittal. On December 13, 1989, Stevens testified at the hearing on remand. Stevens offered the same facts concerning the rapist’s actions as she had testified to at trial, and she stated that she did not know how semen got on her pant leg. See Hearing Transcript at 11. In addition, Stevens testified that she could not explain why the amount of semen on her clothing was equal to approximately three ejaculations when she could remember her assailant ejaculating only once. The magistrate found that Stevens’s testimony did not aid Dumond because her testimony actually tended to cast further doubt on the theory that the semen on the pant leg was “pure” semen. Stevens stated that after her assailant ejaculated during oral sex, she turned her head and spit out the ejaculate onto the grass by her head. This ejaculate was the only possible source of “pure” semen. Stevens also testified that her jeans were underneath her and not by her head. Thus, the magistrate stated that it was “highly unlikely that the oral ejaculate would have come in contact with the pants.” Dumond, No. PB-C-88-631, slip op. at 2. Accordingly, the magistrate concluded that without proof that the semen on the pant leg was “pure,” the genetic testing and Dr. Schanfield’s opinion concerning whether Dumond was the assailant were inconclusive. Further, the magistrate determined that Dumond was actually raising an insufficiency of the evidence claim because he argued that Stevens’s confusion on the location and number of ejaculations compelled a total rejection of the evidence identifying him as the rapist. The magistrate, however, determined that Stevens’s identification testimony was very strong and there was sufficient evidence on which the jury could base its guilty verdict. The magistrate dismissed Dumond’s petition. As we previously stated, the standard in this case is whether the newly discovered evidence “would probably produce an acquittal on retrial.” Dumond, 885 F.2d at 421. As earlier indicated, at the hearing on remand, Stevens responded to questions concerning her rapist’s ejaculations. Even with her testimony, Dumond, who had the burden of proof, was not able to establish that the semen was “pure.” After examining Stevens’s testimony at the hearing on remand and the strong evidence against Dumond which was presented at trial, we hold that the newly discovered evidence would not “probably produce an acquittal on retrial.” Id. Thus, we affirm the magistrate’s denial of Dumond’s petition for writ of habeas corpus. . The Honorable H. David Young, United States Magistrate, United States District Court for the Eastern District of Arkansas. . As this court in Dumond, 885 F.2d at 420 n. 1, explained: Immunoglobulins are antibody molecules which are found in the blood and other body fluids and which carry genetic markers known as allotypes. A genetic marker is simply an inherited trait. Thus, the immunoglo-bulins are tested to detect the presence of genetic markers. For instance, if an individual is known to have a certain genetic marker and the allotyping test reveals that the marker is missing in the fluid being tested, then the fluid could not have come from that individual. . The parties consented to the United States Magistrate’s jurisdiction under 28 U.S.C. § 636(c)(1) (1988). Question: This question concerns the first 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_appel1_8_3

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant. BROWN v. NORFOLK & W. RY. CO. Circuit Court of Appeals, Fourth Circuit. June 3, 1927. No. 2537. 1. Master and servant @=>137(4) — Railroad held not liable for death of employee, carrying commercial coal taken from car in railroad yard in violation of instructions. Where mason’s helper of railroad bridge repair crew, who was also “kitchen flunkey” on camp train, while camp train temporarily stopped in railroad yard on its way to take crew to repair a bridge, and while he was carrying commercial coal taken from ears in yard, which coal employees were forbidden to use, was killed by a passenger train naming 35 miles an hour, held, that railroad was not liable for negligence, in view of evidence that station signal was sounded by locomotive, and that as soon as engineer discovered decedent’s perilous position he applied his brakes and did everything in his power to avoid injuring him. 2. Appeal and error @=>714(2) — Appellate court cannot consider as part of record matters considered in other cases not before it. Appellate court cannot consider as part of record matters considered in other cases not before it. In Error to the District Court of the United States for the Western District of Virginia, at Roanoke; Henry Clay McDowell, Judge. Aetion by W. L. Brown, as administrator of the estate of W. E. Brown, deceased, against the Norfolk & Western Railway Company. Judgment for defendant (12 E. [2d] 319), and plaintiff brings error. Affirmed. William H. Werth, of Tazewell, Va., for plaintiff in error. S. K. Eunkhouser, of Roanoke, Va., and Joseph M. Sanders, of Bluefield, W. Va. (E. M. Rivinus, of Philadelphia, Pa., Eunkhouser & Apperson, of Roanoke, Va., and Sanders, Crockett, Fox & Sanders, of Bluefield, W. Va., on tho brief), for defendant in error. Before ROSE and PARKER, Circuit Judges, and MeCLINTIC, District Judge. PER CURIAM. Plaintiff’s intestate, W. E. Brown, was employed by defendant as a member of a mason’s crew, and at the time of his death was being transported, with other members of the crew, on a “camp train,” to repair a bridge used in interstate commerce. He had been assigned to the position of “kitchen flunkey” on tho camp train, and as such he had, in addition to his duties as mason’s helper, the duty of keeping the kitchen and dining ear supplied with water and coal. The train made a temporary stop at tho Plat Top railway yard to enable the shifting engine which was pulling it to do certain shifting in the yard. During this stop the crew had no duties to perform, but were directed to remain in the cars, as the train was liable to he moved towards its destination at any moment. While the train was standing in the Elat Top yards, decedent took a sack and crossed the main line railway tracks to a third track, upon which stood some cars loaded with commercial coal, which the employees of defendant had been forbidden to use. He climbed upon one of the ears, placed a bushel or more of coal in the bag, and throw it to the ground. He then climbed down from the car, picked up the bag of coal, and started acróss the track, when a bystander halloed to Mm that a train was approaching. Before he could get out of the way he was struck and killed by tho train, which was a regular passenger train running at the rate of 35 miles an hour. At the conclusion of the evidence the District Judge directed a verdict for the defendant, on the ground that the evidence did not disclose that the defendant was guilty of any negligence. Without adopting all of the reasomng of the Distriet Judge, we think that this conclusion was correct. The evidence conclusively establishes that the station signal was sounded by the whistle of the locomotive, and that, as soon as the engineer discovered decedent in a perilous position, he applied his brakes and did everything in his power to avoid injuring him. We do not think that there is any evidence that the train was running at an excessive rate of speed. Plaintiff introduced a rule of defendant providing that, when within yard limits, trains must run with great care and under the control of the engineman. But the uncontradicted evidence established that this rule had no application to passenger trains, and had never been applied to them. In this court plaintiff cited eases in which the company had relied upon the rule in question as applicable to passenger trains; but there was nothing of the sort in the record in this case, and we cannot consider as a part of the record what may or may not have been shown or done in a ease not before us. We have carefully examined the record, and we fail to find any substantial evidence which would justify the conclusion that, in the operation of the train which struck and killed decedent, defendant failed to give proper signals or was guilty of other negligence. t The judgment of the District Court is accordingly affirmed. Affirmed. The late Circuit Judge BOSE, who sat in the hearing of this case, concurred in the decision that the judgment of the District Court should be affirmed, but died before this opinion was prepared. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant? A. trustee in bankruptcy - institution B. trustee in bankruptcy - individual C. executor or administrator of estate - institution D. executor or administrator of estate - individual E. trustees of private and charitable trusts - institution F. trustee of private and charitable trust - individual G. conservators, guardians and court appointed trustees for minors, mentally incompetent H. other fiduciary or trustee I. specific subcategory not ascertained Answer:

songer_initiate

B

What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. UNITED STATES of America, Appellee, v. Jorge SERNA and Steven John Cinnante, Appellants. Nos. 1202, 1223, Docket 86-1003, 86-1008. United States Court of Appeals, Second Circuit. Argued May 2, 1986. Decided Aug. 25, 1986. Lawrence M. Malman, P.A., Coral Gables, Fla. (Stephen Golembe, Mishkin & Go-lembe, Miami, Fla., of counsel), for appellant Jorge Serna. Paul J. Cambria, Jr., Buffalo, N.Y. (Mary Good, Lipsitz, Green, Fahringer, Roll, Schuller & James, of counsel), for appellant Steven John Cinnante. Ephraim Savitt, Brooklyn, N.Y. (Reena Raggi, U.S. Atty., E.D. of New York, Al-lyne R. Ross, Asst. U.S. Atty., of counsel), for appellee. Before FEINBERG, Chief Judge, and LUMBARD, and OAKES, Circuit Judges. OAKES, Circuit Judge. Appellants Jorge Serna and Steven John Cinnante appeal their convictions following a jury trial in the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge, in connection with the importation into the United States from Colombia of 4,920 pounds of marijuana in March of 1984 and the distribution of cocaine. Count One of the indictment charged Serna and Cinnante with conspiring to import, possess, and distribute marijuana and to possess and distribute cocaine in violation of 21 U.S.C. § 846 (1982); Count Two charged Serna with directing the importation of the marijuana in violation of 21 U.S.C. §§ 952(a), 960(a)(1) (1982) and 18 U.S.C. § 2 (1982); Count Three charged both Serna and Cinnante with the crime of possession of marijuana with the intent to distribute it in violation of 21 U.S.C. § 841(a)(1) (1982) and 18 U.S.C. § 2. Each defendant was found guilty on all counts charged. Judge Platt sentenced Serna to concurrent twelve-year terms of imprisonment on Counts One and Two and a concurrent five-year term on Count Three, to be followed by concurrent lifetime special parole terms, as well as a cumulative fine of $65,000; Cinnante was sentenced to a twelve-year prison term on Count One and a concurrent ten-year prison term on Count Three, to be followed by a concurrent lifetime special parole term, and a cumulative fine of $80,000. Appellants challenge four evidentiary rulings of the trial court. Cinnante also claims that the evidence was insufficient to support his conviction and that the trial court should have granted his motion for a new trial on the basis of newly discovered evidence. We affirm. BACKGROUND On March 13, 1984, United States Customs inspectors at the Brooklyn seaport discovered sixty-eight bales of marijuana weighing about two and one-half tons secreted inside a false compartment of a shipping container loaded with furniture that arrived aboard a vessel from Colombia. According to the ship’s manifest, the furniture was destined for a Marco Castellón at a Corona, Queens, address. Customs and Drug Enforcement Administration (“DEA”) officials removed the marijuana from the container, except for a small quantity deliberately left inside the false compartment. The furniture was placed back into the container, which was left on the Brooklyn waterfront to be claimed in the normal course by a customs broker. On March 29, Atlantic & Pacific Transport, Inc. (“A & P”), a brokerage firm, effected customs clearance for the container and transported it by truck to its lot in Queens. A & P personnel advised DEA agents that someone would arrive on April 2, 1984, to transport the container. On the morning of April 2, Kenneth Neal Chupurdy drove a tractor to the A & P lot; shortly thereafter, Marco Castellón arrived at the A & P offices. After Castellón completed payment, Chupurdy hooked up the container to his tractor and, followed by surveillance agents, drove to a truck stop in South Kearney, New Jersey. Cas-tellón took a taxi from A & P to LaGuardia Airport and was arrested as he was about to board a flight to Florida. Agents stopped Chupurdy after he was observed driving away from the truck stop in his tractor without the container and then arrested him as a result of information Cas-tellón provided to the DEA following his arrest. Thereafter DEA agents, pursuant to a search warrant, obtained a black bag belonging to Chupurdy from a New Jersey motel where he had been registered at the time of his arrest. Inside the bag was a telephone address book with various names and numbers, including the name “Cian-nante [sic]” without any first name, telephone number, or address. Castellón agreed to cooperate immediately following his arrest. He did so and eventually testified at trial. Castellón advised the DEA agents that the marijuana importation scheme had been conceived and directed by Jorge Serna and by a man named “Steven,” whose last name Castel-lón did not know. Castellón described Steven as about thirty-five to forty years old, between five feet ten inches and six feet two inches tall, about 200 pounds, with dirtyish blond hair, a moustache, blue eyes, and “very nice teeth.” He stated that Ser-na had recruited him to act as consignee for the container for $50,000, and provided details of the importation scheme. During the previous few months Castel-lón had purchased some five kilograms of cocaine from Serna on a consignment basis for resale, for which he owed Serna about $20,000. On several occasions in late 1983 and early 1984, Castellón, when delivering sums of money to Serna for cocaine, observed Serna making notations in a black notebook or ledger comprised of entries for various customers. Customers were designated by a code name or first name, and a detailed balance sheet for each customer recorded deliveries of kilograms of cocaine, payments made and balances due; a separate section listed accounts in Miami and Bahamian banks. With respect to the marijuana container, Serna gave Castellón the bills of lading and other necessary documents and instructed him to travel to New York and hire a customs broker to handle the customs clearance. Castellón made three trips to New York in March 1984, retained the A & P brokerage firm, and paid for its services with money that Serna provided. A & P reported delays and during one of the trips Castellón telephoned Serna, who advised him that an “American gentleman by the name Steven” would call him at his hotel to ask about the delays. A few minutes later, Castellón received a telephone call from a man who identified himself as Steven and asked Castellón questions about the lack of progress in clearing the container. On March 29, 1984, Serna and Castellón met in a Miami restaurant to discuss the delays. Serna remarked to Castellón that his “American friends will not believe him any more.” He also confided that “this gentleman Steven ... has the customer for this marijuana” and remarked that they would now refer to Steven as “John.” Later the same day, A & P cleared the container and told Castellón he had to collect it from the lot as soon as possible. After learning of this news, Serna told Castellón to go to a House of Pancakes restaurant in Miami the following morning to meet Steven and Steven’s truckdriver. At the restaurant Serna introduced Cinnante to Castellón only as “Steven”; Chupurdy was identified simply as the truckdriver. Cinnante sat down next to Serna and across from Castellon and Chupurdy, about two to three feet from Castellón. Because of language difficulties Castellón, who spoke both English and Spanish, acted as interpreter. Castellón reported to “Steven” that A & P wanted the container moved from its lot “as soon as possible” because of a recent snowstorm. Discussing transportation, Cinnante told Serna that, before delivering the marijuana to the customer in Philadelphia, he planned to leave the container overnight in a rest area in New Jersey to “see if the feds are watching.” He explained that on a prior occasion the container was found to be “full of bugs,” i.e., electronic devices. Serna told Cinnante that it was “good” to have snow covering the container because “that way the marijuana will not smell.” Castellón, hesitant to use the word “marijuana” in a public place, incongruously used the word “pot” to convey this message in English. Cin-nante remarked to Serna that “you will not believe how fast you’re going to get your money.” Serna replied that “money is the last thing [I’m] worried about.” He stressed that he wanted Steven to be in Philadelphia when the deal was consummated to avoid dispute about the quantity and quality of the merchandise. At this stage in the House of Pancakes conversation, Serna and Cinnante began to speak about other transactions. Serna asked, “[H]ow about a little money[?]” and Cinnante replied that he could probably get $50,000 or $75,000. Serna and Cinnante also discussed Serna’s recent purchase of a DC-3 airplane, which was ready for a “test flight down there.” Serna told Cinnante that he “must not forget that next week they have [another] container coming into San Francisco.” The entire conversation lasted about thirty to thirty-five minutes. After the meeting, Castellón asked Serna whether he was sure that “Steven” and the truckdriver were not “policemen.” Serna assured Castellón that “Steven,” who resided in the Boca Raton area, was a longstanding business associate in cocaine trafficking who owed Serna $800,000 for cocaine already delivered and was asking for more cocaine. Castellón also cooperated after his arrest by telephoning Serna while DEA agents tape-recorded the conversation. In all, seven such telephone conversations in Spanish were recorded. Using a cover story provided by the DEA agents, Castellón told Serna that he was still in New York because he had missed his flight as a result of a weapons check by airport police. Castellón asked Serna whether he had spoken to “Steven.” Serna responded, “No, I’m waiting for him to call me,” and suggested that the airport stop “could be a coincidence.” The following day Serna informed Castel-lón that he learned from “John” that the “chauffeur was in jail” and added that it was “strange” for Castellón not to have been arrested. Serna also instructed Cas-tellón that if he was caught he should claim lack of knowledge about the marijuana and assert that a fictitious Pedro Gonzalez had hired him to act as consignee. Serna promised to provide a lawyer for Castellon’s defense, admonished him to be loyal and discreet, and warned him that “everything is going to get complicated” if he revealed that Serna was the marijuana’s owner. Later that day, Serna informed Castellón that “John” was accusing Castellón of cooperating with the authorities, whereas Serna had told “John” that he was “leery of ... his chauffeur,” who Serna suspected was involved in a scheme to “rip off” John. Serna added that he believed that the “chauffeur” had cooperated with the authorities because “that stuff [was] welded together very well.” In relating his conversations with “John,” Serna several times referred to John as Steven, at one point immediately correcting himself. On April 4, 1984, DEA agents, armed with an arrest warrant for Serna, accompanied Castellón to Miami. Castellón telephoned Serna’s beeper and in two recorded conversations advised Serna that he had returned to Miami and wished to meet with him to obtain more money. Serna demanded to know about Castellon’s “balance with me for twenty,” an apparent reference to the $20,000 Castellón owed for cocaine delivered. Although Serna told Castellón to call back to set up a meeting, Castellon’s subsequent calls to Serna’s beeper went unanswered. On April 6, Nubia Serna, Serna’s wife, left their residence in Key Biscayne and drove to the parking lot of a Burger King restaurant in Miami where she gave two men an attache case and a shopping bag. DEA agents who had her under surveillance stopped the men, who handed over the attache case, a black notebook, and the shopping bag, which contained men’s clothing. Looking in the black notebook, one of the agents recognized it as a narcotics ledger reflecting large-scale cocaine transactions. Upon opening the attache case, the agents discovered numerous items of identification with Serna’s name and photograph, a card containing the beeper number that Castellón had dialed to contact Serna for the agents, and a handwritten list containing names and telephone numbers identical to some of those found in the black ledger. The two men told the agents that all of these items “belonged to Mr. Serna.” An analysis of the ledger revealed that it recorded deliveries of more than 200 kilograms of cocaine between April 1983 and March 1984 to twenty-one major customers for which the customers had already paid approximately $5 million, with several million dollars still outstanding. Serna was finally located and arrested on June 26, 1984. In his possession were several identification documents, all in a false name. DEA Group Supervisor Raymond Tripic-chio decided that the defendant Steven John Cinnante, who resided in the Boca Raton area, was likely the “Steven” Castel-lón had met. The agent obtained a copy of Cinnante’s 1980 driver’s license bearing his photograph, which showed Cinnante to have dark hair and no moustache. He reproduced that photo and showed it in a photograph array of seven other clean-shaven men to Castellón. Castellón said that Cinnante’s photograph “look[s] very much like ... Steven,” but declined to make a positive identification because the man pictured had no moustache, had darker hair, and appeared to be younger than “Steven.” At Castellon’s suggestion, he drew a mous-tache on a copy of Cinnante’s photo, stating that it “looks like ... this Steven that I have met in the House of Pancakes,” but he could not be “totally sure” without seeing a “better picture.” Thereafter, Tripic-chio obtained a copy of Cinnante’s May 1984 driver’s license, which had a photo of him with light brown hair and a full mous-tache. The agent then prepared a photographic array comprised of ten photos, including Cinnante’s, of moustached men with some similar facial features. He also prepared a photo array that did not include Cinnante; it consisted of ten men without moustaches, one of whom was a subject of a DEA investigation and named Steven. Castellón recognized none of the photographs in the latter array. After looking for about ten minutes at the former photo array, he asked for the photo array from July, compared the two, and identified Cin-nante’s recent and earlier photos as “Steven.” Cinnante was arrested on September 25, 1984. On June 17, 1985, the date of jury selection, Castellón went to the courthouse cafeteria and joined the long line of people waiting to buy lunch. As the man ahead of him turned, Castellón was “shocked” to see that he was “Steven.” Castellón had believed “Steven” was in jail. Castellón testified that “he looked at me very angry,” and Castellón looked away from the “twin representation of Steven.” That individual, however, repeatedly turned around, looked angrily at him and then spoke with intermittent nervous laughter to the woman who accompanied him. The man in line ahead of Castellón was Cinnante. Neither defendant testified, the principal defense focusing on Castellon’s credibility, and especially on his admitted cocaine involvement and his cooperation agreement. DISCUSSION Although Cinnante does not challenge on appeal the denial of the motion to suppress Castellon’s photo identification, his appeal rests in large part on the assertion that the identification was unreliable. We therefore address first Castellon’s identification of Cinnante. We point out that we have examined the photo arrays and the various photographs in this case. These photo arrays are not overly suggestive and the trial court’s denial of the suppression motion was proper. Before he saw the photos, Castellon’s physical description of Cinnante was an accurate one — about six feet tall, light colored hair, thick mous-tache, blue eyes, bright teeth. Castellón was within two to three feet of Cinnante for at least half an hour at the House of Pancakes. Remarkably, he was able to select Cinnante’s 1980 photograph out of an array of eight clean-shaven people. The accuracy of Castellon’s recollection is underscored by the fact that after drawing a moustache on a photocopy of that photo, he said that it looked like “Steven” but would not make a positive identification because the photo depicted a younger man than the one he had met. When he saw an up-to-date photo of Cinnante in a non-suggestive array of ten, he identified it as “Steven,” although he first compared the two arrays containing Cinnante’s photo. There is no evidence that the cafeteria encounter was prearranged; not surprisingly Castellón was shocked to find himself standing behind the man against whom he was to testify. Moreover, it is a fact that Cin-nante’s first two names are Steven and John. While the taped conversations between Serna and Castellón were admitted only against Serna, they substantiate Cas-tellon’s testimony that the man he met at the House of Pancakes was known as “Steven” and “John.” Thus, the possibility that Castellón was framing Cinnante, as Cinnante suggests in connection with his motion for a new trial, is remote at best. Cinnante claims that his motion for a new trial based on newly discovered evidence was improperly denied. The newly discovered evidence relates to “Benji,” whom appellant’s counsel alleges to be Benjamin Lee Weinstein, a Boca Raton resident who has a moustache somewhat similar to Cinnante’s. The Government recovered a telephone message slip in Chupurdy’s New Jersey motel room noting that a “Benji” with the phone number 766-4177 had called him, apparently from San Francisco, on the morning of April 2, while Chupurdy was picking up the container. Chupurdy’s address book, also confiscated by the DEA, contains the name Ben B. and the same number, which indeed is the beeper number of Mr. Weinstein. All of these things are very interesting and there is a considerable resemblance between Weinstein and Cinnante, at least as the two men appear in their driver’s license photographs, and as Weinstein appears in a photograph taken at a party with cocktail glass in hand. Unlike Cinnante, however, Weinstein does not match Castel-lon’s original description of “Steven” as about six feet tall with dirtyish blond hair; Weinstein appears to have darker hair and is about five feet eight inches. Cinnante argues that if he had known of the message slip and had been able to locate “Benji” before trial he might well have created reasonable doubt in the mind of at least one juror. He claims that the Government’s failure to turn over the message slip violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). But Brady applies only to evidence favorable to the accused. Id. at 87, 83 S.Ct. at 1196-97. Prior to Cinnante’s new trial motion, the Government, which had been unable to discover Benji’s identity, simply had no basis to believe the slip had any relevance to this case. Moreover, in light of Castellon’s certain identification of Cinnante, the appellant has failed to show “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, — U.S.-, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985). Having failed to meet Bagley’s “reasonable probability” standard, Cinnante also fails to meet the higher standard for a new trial based on newly discovered evidence — that the new evidence “would probably lead to an acquittal.” United States v. Gilbert, 668 F.2d 94, 96 (2d Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2014, 72 L.Ed.2d 469 (1982); see also United States v. Alessi, 638 F.2d 466, 479 (2d Cir.1980). We also reject appellants’ claim that certain hearsay evidence was improperly excluded. Cinnante argues that he should have been permitted to offer into evidence Serna’s comment to a DEA agent that Cinnante was the “wrong man.” After a pretrial hearing Judge Platt found that this comment was inadmissible under Fed.R.Crim.P. 11(e)(6)(D) because it was made in the course of plea negotiations. Whether a party is engaged in plea discussions is a factual question that must be determined on a case-by-case basis. See United States v. Grant, 622 F.2d 308, 312 (8th Cir.1980). We have little difficulty in concluding that Serna had entered into plea discussions with the Government at the time he made the statement. Prior to trial, Serna and his retained counsel met with an Assistant United States Attorney and two DEA agents to discuss the possibility of Serna’s cooperation with the Government. General guidelines were discussed at this meeting, but Serna was not questioned on his role as a drug dealer. The AUSA indicated that statements made by Serna would not be used against him and Serna was informed that his cooperation would be made known to the sentencing judge, but that the cooperation had to be total. To determine Serna’s sincerity in cooperating, a DEA agent interviewed him in the presence of his counsel. No Government attorney was present. Serna was less than forthcoming, although he did admit his involvement in importing the container. When asked about Cinnante’s involvement, according to the agent, Serna shook his head and “may have said, you have the wrong person or indicated that no, no, you’re talking about the wrong man.” At this point the agent decided that Serna’s professed cooperation was a sham and terminated the interview, and no further plea discussions were held. In light of the initial meeting with the AUSA, this preliminary discussion must be considered as part of the overall plea bargaining process. A requirement that such negotiations be more formal would contravene Rule 11(e)(6) by discouraging plea bargaining. See United States v. Levy, 578 F.2d 896, 901 (2d Cir.1978); see also Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). Although the rule prohibits use of statements only “against the defendant who ... was a participant in the plea discussion,” and the statement was sought to be admitted only in favor of a codefendant, if Cinnante had been allowed to introduce the statement into evidence there is a strong likelihood that the jury would have considered it as evidence against Serna. A limiting instruction would have been ineffective to protect Serna from the devastating impact of the statement that was tantamount to a confession. Cf. Bruton v. United States, 391 U.S. 123, 129, 88 S.Ct. 1620, 1624, 20 L.Ed.2d 476 (1968). Of course, had Cinnante been tried separately from his codefendant, Rule 11 would not have prevented introduction of Serna’s statement. A somewhat more difficult question is raised by the absence of a Government attorney when the excluded statement was made, since Rule 11(e)(6)(D) requires that the statement be made “in the course of plea discussions with an attorney for the government” (emphasis added). The Notes of the Advisory Committee on Rules to the 1979 amendments indicate that the requirement of an attorney’s presence was added to prevent the exclusion of statements made to Government agents when there has been no participation of a Government attorney. See, e.g., United States v. Herman, 544 F.2d 791 (5th Cir.1977). We think the rule can be fairly read to require the participation of a Government attorney in the plea discussions, but not necessarily his physical presence when a particular statement is made to agents whom the attorney has authorized to engage in plea discussions. See Grant, 622 F.2d at 313. Because the agents were acting under the AUSA’s authority in determining whether Serna would in fact cooperate, Serna’s statement was properly excluded. We thus have no need to reach the Government’s alternative contention that the statement was inadmissible under Fed.R.Evid. 804(b)(3). Cinnante and Serna also argue that the trial judge erred in excluding hearsay evidence from the transcript of Chupurdy’s testimony at his trial. Chupurdy had testified that he did not attend any meeting at the House of Pancakes and that he did not know either Serna or “Steven.” The same Assistant United States Attorney prosecuted both Chupurdy and Serna and Cinnante, and Castellón testified in both trials about the House of Pancakes meeting. Appellants contend that Chupurdy’s testimony fits within the hearsay exception of Fed.R.Evid. 804(b)(1). However, the rule requires that the declarant be unavailable as a witness and the Government have had an opportunity and similar motive to cross-examine the witness at the previous trial. Cinnante’s counsel served Chupurdy with a trial subpoena, and Chupurdy indicated through his attorney that he would invoke the Fifth Amendment. Judge Platt apparently accepted the representation that Chupurdy was unavailable, although he held no hearing on this question. Because Castellon’s credibility was a key issue in Chupurdy’s case, the prosecutor arguably had a motive to cross-examine Chupurdy on his claim that he had not attended a House of Pancakes meeting. However, since cross-examination was unlikely to shake Chupurdy’s denial of such a meeting, the prosecutor, wisely, we think, chose to focus his cross-examination on the details of Chupurdy’s transportation of the container to show that his claim of ignorance of its contents was unbelievable, rather than to emphasize to the jury Chupurdy’s denial of any House of Pancakes meeting. Thus, exclusion of Chupurdy’s statements was not an abuse of the trial court’s discretion since the prosecutor had no real motive to explore Chupurdy’s earlier statements. Judge Platt, however, did not categorically exclude the statements under Rule 804(b)(1). Instead, he offered to admit them conditioned on informing the jury that Chupurdy’s “jury didn’t believe him and found him guilty and he’s doing five years in jail.” Defense counsel rejected this offer. Under Fed.R.Evid. 806 the credibility of such hearsay “may be attacked ... by any evidence which would be admissible for those purposes if [the] declarant had testified as a witness.” Since the conviction cast doubt on the credibility of Chupurdy’s statements, conditioning admission of that hearsay evidence on informing the jury of the conviction was not an abuse of discretion. See, e.g., United States v. Noble, 754 F.2d 1324, 1331 (7th Cir.), cert. denied, — U.S. -, 106 S.Ct. 63, 88 L.Ed.2d 51 (1985). Cinnante and Serna also claim that the trial court improperly excluded expert witness testimony proffered on Castellon’s identification of Cinnante. We have carefully examined the expert’s voir dire and find that the ruling was not clearly erroneous. See United States v. Brown, 776 F.2d 397, 400 (2d Cir.1985). A trial judge is accorded broad discretion in admitting or excluding expert testimony under Fed.R.Evid. 702 and in excluding testimony under Fed. R. Evid. 403 because of the danger of jury confusion or unfair prejudice. See id. at 400, 401 & n. 6 (citing United States v. Young, 745 F.2d 733, 765-66 (2d Cir.1984) (Newman, J., concurring), cert. denied, — U.S. -, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985)). The expert here was ignorant of the conditions under which Castellon identified Cinnante’s photograph and his proposed testimony basically consisted of general pronouncements about the lack of reliability of eyewitness identification, particularly cross-racial identification. He also acknowledged that many of his conclusions coincided with common sense. This court is fully aware of the dangers of testimony based purely on eyewitness identification, and we have often commented on those dangers. See, e.g., Kampshoff v. Smith, 698 F.2d 581, 585-86 (2d Cir.1983). Nevertheless, we do not think that this expert’s proffered testimony would have done anything other than to muddy the waters. Given that Castellon’s photo identification of Cinnante was properly admitted, Cinnante’s sufficiency argument is without merit. The evidence shows that Cinnante was a broker for the sale of the two and one-half ton marijuana shipment, hired the truckdriver, directed the transportation, and set up the contemplated sale of the shipment; he was also a major cocaine customer of Serna’s and owed the latter $800,000 for cocaine delivered. This evidence is more than sufficient to uphold his conviction on the possession and conspiracy charges, given the appellant’s very heavy burden on a sufficiency of the evidence claim. Finally, Serna claims that the trial court improperly admitted the drug ledger in evidence against him. Although Jairo Perez, who handed over the drug ledger and who was carrying the briefcase filled with Serna’s papers, did not testify at trial, Tripicchio testified that Perez told the agents that the ledger was Serna’s and Castellón testified that he recognized it as Serna’s because on several occasions he had seen it in Serna’s possession when delivering money to Serna for previous cocaine deliveries. Indeed, Castellón identified a section in the ledger referring to “Marco” as the account of his own cocaine purchases. Under Fed.R.Evid. 901(a) the Government “need only prove a rational basis from which the jury may conclude that the exhibit did, in fact, belong to the appellant[].” United States v. Natale, 526 F.2d 1160, 1173 (2d Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976). Here, the testimony of Tripicchio and Castellón made out a prima facie case connecting the exhibit to the defendant; the evidence was thus properly submitted to the jury for a determination on its authenticity. See United States v. Goichman, 547 F.2d 778, 784 (3d Cir.1976). We think the ledger was duly authenticated and properly admitted. Judgment affirmed. . Fed.R.Crim.P. 11(e)(6)(D) provides: Except as otherwise provided in this paragraph, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: (D) any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

sc_partywinning

A

What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. GIBSON v. UNITED STATES. NO. 23. Argued January 2, 3, 1946. Reargued October 23, 1946. Decided December 23, 1946. Hayden C. Covington argued the cause and filed briefs for petitioners. With him on a joint brief was Victor F. Schmidt. Irving S. Shapiro argued the cause for the United States. With him on the briefs were Solicitor General McGrath and Robert S. Erdahl. Walter J. Cummings, Jr. was also on the brief on the original argument. Mr. Justice Rutledge delivered the opinion of the Court. These cases carry forward another step the sequence in decision represented by Falbo, Billings, Estep and Smith. Each petitioner has been convicted for violating § 11 of the Selective Training and Service Act (54 Stat. 894, 50 U. S. C. App. § 311), Dodez for failing to report for work of national importance after being ordered to do so and Gibson for having unlawfully deserted the camp to which he had been assigned for such work. In each instance the conviction was sustained on appeal and certiorari was granted because of the importance of the questions presented for the administration of the Act. No. 23, 326 U. S. 708, restored to the docket for reargument before a full bench; No. 86, 328 U. S. 828. The principal issues relate to the time of completing the administrative selective process and the effect in each case of what was done in this respect upon the petitioner’s right to make defense in the criminal proceedings on various grounds going to the validity of the classification. In both cases tendered defenses of this character were excluded in the trial court and the exclusion was sustained on appeal. The effect was, in Gibson’s case, to rule that although he had completed the administrative process by reporting to the camp, pursuant to the requirement of the Falbo decision, nevertheless his remedy, if any, on account of the alleged misclassification was by habeas corpus, not by defense in the criminal cause. 149 F. 2d 751. In Dodez’ case it was held that by refusing to report for service at the camp he had failed to exhaust his administrative remedies and therefore under the Falbo doctrine he could not question his classification in the criminal suit. 154 F. 2d 637. I. Both petitioners are Jehovah’s Witnesses. Each has claimed consistently since the time of his registration that he is a minister of religion and therefore exempt from training and service under the Act. Each was denied this classification (IV-D), being classified instead as a conscientious objector (IV-E). Administrative appeals were exhausted. Pursuant to the classifications given and the applicable statutory provisions and regulations, Dodez and Gibson were assigned to work of national importance and ordered to report for such work at designated camps. Dodez refused to go to the camp. But Gibson, thinking the Falbo decision required him to report there in order to exhaust his administrative remedies, went to the camp, remained for five days, and then departed without leave. It is undisputed that he intended at no time to submit to the camp’s jurisdiction or authority and that he at all times made this intent clear. Everything he did was done solely to make sure that the administrative process had been finished and with a view to avoiding the barrier Falbo encountered in his trial when he sought to question his classification. Obviously the petitioners have sought to reach the same point, namely, the place at which the selective process is exhausted administratively, but have differed concerning its exact location. Dodez maintains that the point was reached, under the applicable regulations, when his preinduction physical examination had been given and he was found acceptable for service by the Selective Service System. This was on February 21, 1944, two months prior to the date (April 21, 1944) when he was ordered to report for work and refused to go. On the other hand, Gibson argues that until the preliminaries to actual service, including physical examination, were completed at the camp, he was not foreclosed by going through with them from exercising his choice not to submit to the camp’s jurisdiction, cf. Billings v. Truesdell, 321 U. S. 542, or, upon doing so, from asserting the invalidity of his classification in a criminal trial either for failing to report for service or for desertion from the camp. Cf. Estep v. United States, 327 U. S. 114; Smith v. United States, ibid. Clearly, on the facts and the issues, the question as to Dodez, like that in Falbo’s case, is whether he went far enough to exhaust the administrative process; while as to Gibson it is said that he went too far, that is, beyond the point of completing that process, and that this cut off the right of defense concededly available to him at that point. II. If these cases were controlled in all respects by the regulations effective when Falbo’s case was decided, Dodez would seem clearly to fall within the decision’s proscription. The Court there said: “Completion of the functions of the local boards and appellate agencies, important as are these functions, is not the end of the selective service process. The selectee may still be rejected at the induction center and the conscientious objector who is opposed to noncombatant duty may be rejected at the civilian public service camp. The connected series of steps into the national service which begins with registration with the local board does not end until the registrant is accepted by the army, navy, or civilian public service camp. Thus a board order to report is no more than a necessary intermediate step in a united and continuous process designed to raise an army speedily and efficiently.” 320 U. S. at 553. Since acceptability for service was not finally determined under the regulations then applicable until the registrant had reached camp, had there undergone or waived the specified physical examinations, and thereupon had been found acceptable, and since Falbo had not taken those steps, the Court held he was not entitled to question his classification and therefore sustained his conviction. However, intermediate the Falbo decision and issuance of the order to Dodez to report, the regulations governing the procedure relating to selection for service were changed and in a manner which Dodez says relieved him from the necessity of going to the camp in order to complete the administrative process. The Government now concedes, we think properly, that Dodez is right in this view. It is not necessary to review in detail the regulations which were governing in Falbo’s case, since they are not controlling in either of the present ones. Although it is now argued that the Court misconceived their effect, we need only to note that it was within the registrant’s power to secure a physical examination by the camp physician by indicating a change in his physical condition, it could not be known in advance in any case whether he would demand it, and until this was determined it could not be known finally and irrevocably whether he would be “accepted for work of national importance.” The decision therefore correctly ruled that “the conscientious objector who is opposed to noncombatant duty may be rejected at the civilian public service camp” and that the board’s order to report there for service was “no more than a necessary intermediate step” in the continuous selective process, which was not ended until the last possibility for rejection had been exhausted. Under those regulations there was no final and conclusive acceptance for service until after those procedures at the camp were completed. It was exactly in this respect, however, that the changes made in the regulations immediately after the Falbo decision and shortly prior to issuance of Dodez’ order to report, together with still others made later but prior to the order to Gibson, were effective. The changes were extensive and important. The altered regulations are lengthy. We therefore give a summary in the margin, noting the more important differences between those applicable to Dodez and those in effect as to Gibson. It is of some importance to note that the changes affecting both registrants were made in consequence of the enactment of § 5 of Public Law 197, 78th Congress, approved December 5, 1943. 57 Stat. 596, 599, 50 U. S. C. App. § 304a. This required preinduction physical examinations to be given before the registrant was ordered to report for induction and service. Previously he first had been ordered to report for induction, was then given his preinduction examination by the armed forces and, on being found acceptable, was inducted at once. The major changes in the regulations giving effect to § 5 were made on January 10, 1944, one week after the Falbo decision came down, some taking effect on that date, others on February 2d following. These applied to Dodez. Still others not applicable to him but operative as to Gibson took effect on June 7,1944. The changed regulations, following out the command of § 5 of Public Act 197, provided for a preinduction physical examination to be given before issuance of the order to report for induction, rather than afterward. Section 629.1 of Amendment No. 200 (9 F. R. 440-442), effective January 10, 1944. This was the basic amendment. It applied to all registrants subject to call for service, including those classified IV-E. Moreover, by Amendment No. 210 (9 F. R. 1416), effective February 2, 1944, § 653.11 of the regulations applicable to men so classified was changed to eliminate the previously effective paragraph (c) providing for physical examination by the camp physician on indication of changed condition and consequent possible rejection at the camp. Instead the amended regulation stated simply that (a), when the “assignee” had reported to the camp, the camp director should “complete the Order to Report for Work of National Importance (Form 50)”; and (b) place, as specified, on the assignee’s papers, “a statement that [the] registrant is accepted” for work at the designated camp, stating also the date and place of acceptance; (c) the local board, “upon receiving notice that a registrant has been accepted for work,” should not “change his classification but shall note the fact of his acceptance” on Form 100; and (d), if the assignee failed to report when required, the camp director was to notify the Director of Selective Service. (Emphasis added.) The effect of the statute and the amended regulation was to place the order to report for service nearer the end of the administrative process than it had been previously, so far as concerned the power of the registrant to take action which might result in his rejection. The elimination of the provision permitting medical examination at the camp, by Amendment No. 210, removed any chance the registrant formerly had to secure rejection by demanding examination there, and left to be performed at the camp only the formal entries of “completing the Order to Report” and noting the fact, time and place of “acceptance” upon the assignee’s papers, together with the duties of notifying the local board of acceptance or the Director of Selective Service of failure to report. Although the amended regulations thus speak of “completing the Order to Report” and of placing on his papers “a statement that a registrant is accepted,” we agree that these were only formal matters to be performed by camp officials, and left nothing to be done by them or by the applicant after reaching the camp which might result in his being rejected or released from the duty to remain and perform the further duties imposed on him. To construe the regulations otherwise would be to force the registrant not only to perform all requirements affording possibility of relief but also to go through with purely formal steps to be taken by camp officials offering no such possibility. Exacting this would stretch the requirement of exhausting the administrative process beyond any reason supporting it. Cf. Levers v. Anderson, 326 U. S. 219. And, as appears from Gibson’s experience, by going through with those formalities Dodez would have found himself confronted with the Government’s contention that he had gone too far. We hold therefore, in accordance with Dodez’ view and the Government’s concession, that he was not required to report to the camp, under the regulations effective when his order to report became operative, in order to complete the administrative process; and that he therefore was not foreclosed by the Falbo decision from making any defense open to him in his criminal trial under the statute or the Constitution aside from the effect of that decision. Estep v. United States, 327 U. S. 114; Smith v. United States, ibid.; cf. Billings v. Truesdell, 321 U. S. 542. This view requires reversal of the judgment in No. 86 and remanding the cause to the District Court for a further trial. Dodez insists however that we should go further and determine the case finally upon the merits. He urges that the evidence properly tendered and admissible upon the excluded defenses, as well as that adduced, would support no other verdict than one of acquittal and that therefore the trial court should have sustained his motion to dismiss the cause. Accordingly he asks for a judgment here directing that such relief be given. In the Estep and Smith cases, after holding that the petitioners had been wrongfully denied opportunity to defend by attacking the validity of their classifications, this Court reversed the convictions and remanded the causes for new trials, stating: “We express no opinion on the merits of the defenses which were tendered. Since the petitioners were denied the opportunity to show that their local boards exceeded their jurisdiction, a new trial must be had in each case.” 327 U. S. at 125. Dodez’situ-ation is identical, in this respect, with those of Estep and Smith. Accordingly we remand the cause, as was done in the Smith and Estep cases, for further proceedings in the trial court, without expressing opinion upon those further issues. III. The Government urges that the conclusion we have accepted for Dodez forces the contrary result in Gibson’s case No. 23. The argument, as we have pointed out, is not that Gibson fell short of exhausting the administrative process, for he clearly had done this. It is rather that he went beyond what was required for that purpose, thereby became subject to the camp’s jurisdiction, and in doing this irrevocably foreclosed himself from defending against the charge of desertion on the ground that his classification was invalid. The Government’s position is founded upon analogy to the cases which hold that one who has been inducted into the armed forces, although wrongfully, becomes subject to .military jurisdiction, is thereafter amenable to its processes, and can secure his release from service or military custody only by resort to habeas corpus. Applying the analogy, the Government insists that when Gibson went to the camp and there went through the preliminary formalities for becoming a member, he became “inducted” as a camp member, just as one becomes a member of the armed forces by undergoing the induction ceremony, cf. Billings v. Truesdell, supra, even though the induction is in violation of his rights. Thereafter, the argument continues, Gibson became subject to the camp’s “jurisdiction,” just as the wrongfully inducted soldier would become subject to military jurisdiction; and, like the latter, cannot raise the illegality of his induction as a defense to a charge of violating any duty imposed upon inducted members; but must seek his relief, if any, by the writ of habeas corpus. Since the Act and the regulations laid upon camp members a duty to remain and perform the further duties prescribed for them, Gibson’s departure without leave amounted to desertion; his defense of wrongful classification is no more open to him than a defense of illegal induction would be open to a wrongfully inducted soldier violating a military order; and his remedy, if any, is to apply for release from the camp through habeas corpus. The argument is supported by extensive reference to the regulations in force when Gibson was ordered to report, including the changes affecting Dodez and the others which became effective June 7, 1944, by Amendment No. 236 (9 F. R. 6207). The important changes this amendment made were two, namely: (1) to reintroduce into § 653.11 the provision applicable in Falbo’s case but eliminated as to Dodez by Amendment No. 210, effective February 2,1944, for medical examinations to be given at the camp to determine change in condition; and (2) to add to the preexisting requirement for the camp director’s noting the fact of acceptance on the registrant’s papers the explicit new provision that this should be done “irrespective of the determination which is made as a result of the examination.” The Government also emphasizes two other regulations. One is § 652.12, requiring the local board to provide transportation for registrants reporting to it for transportation to the camp. The other, § 652.13, providing that a Class IV-E registrant “after he has left the local board in accordance with § 652.12 for work of national importance under civilian direction is under the jurisdiction of the camp to which he is assigned.” (Emphasis added.) The short effect of § 653.11, as altered at the time of Gibson’s order to report, was to retain the requirements for formal entries of “acceptance” and giving notice, at the camp, which applied to Dodez; to reintroduce the provision for physical examination there; but at the same time to nullify the possibility this presented in Falbo’s case for giving relief, by providing that the camp director should note the fact of acceptance “irrespective of the determination which is made as the result of” this examination. Taking account of revised § 653.11 as precluding any possibility for securing administrative relief at the camp, the Government regards § 652.13 as marking the precise and crucial line for crossing from the board’s jurisdiction into that of the camp, namely, at the point where the registrant begins his journey to the camp. To take this step, it says, is equivalent to the oath in the induction ceremony prescribed for men entering the armed forces, cf. Billings v. Truesdell, supra; and produces the .same consequences for foreclosing the defense of illegal classification, regardless of intention to submit to the camp’s jurisdiction, indeed in spite of Gibson’s unwavering manifestation of intention not to submit. Much of the argument was devoted to whether, on the basis of the Government’s analogy, § 652.13 .could be taken to fix the end of the “interval of choice,” cf. Billings v. Truesdell, supra, in view of the constantly changing character of the regulations, the absence of any prescribed induction ceremony such as the Billings case involved, and the consequent difficulty confronting one seeking to comply with the Falbo decision in ascertaining the exact location of such a line. We do not find it necessary to consider the conflicting contentions in this respect, or therefore to scrutinize the regulations with a view to locating such a point. More fundamental considerations are controlling. We have said that the Government’s argument is founded entirely upon analogy, because no case has ruled that one who becomes subject to the “jurisdiction” of -a work camp under the Selective Service procedure thereby forfeits his right to defend against a charge of desertion or other breach of duty, on the ground that his classification was invalid. Nor has it been held that his only recourse for release from the camp is by way of habeas corpus. Furthermore, we think there are compelling reasons why the analogy does not hold true. In the first place, there are obvious and important differences between the two situations which it is sought to connect by the claimed resemblance. Not the least is that in the one instance the person concerned crosses the vast gulf between civil and military jurisdiction, with all the attendant consequences for change in status and rights, whereas in the other no such chasm is traversed. The alleged transfer of “jurisdiction” is only from one civilian agency to another, both branches of the Selective Service System, and there is none at all from the authority of the civilian courts as agencies for the enforcement of obligations imposed by the law. There is in fact no change in “jurisdiction” whatsoever, except in the sense that from the time he becomes a camp member the registrant’s duties are different and his orders come through different channels of the same agency. Unlike the man “actually inducted,” the person classified IV-E remains a civilian; his duties are not military in character; he is not subject to military discipline or authority; and for violation of duties or orders he cannot be tried by court martial or military tribunal. On the contrary, the Selective Service Act expressly provides the same civil penalties and mode of trial for violating duties arising when he enters the camp as for those arising before that time. There is therefore no such profound change in rights, duties and status as occurs when one crosses the line between civil and military jurisdiction by being “actually inducted” under the rule of Billings v. Truesdell, supra. It was this change and the consequences it entailed, together with the statute’s command that no one should be tried by military or naval court martial in any case arising under the Act until he had been actually inducted, which we there held to require placing the line precisely, not only for exhausting administrative remedies under the Falbo rule, but also for marking the point of actual induction at which the registrant’s right ends to choose between going forward into the service and incurring the civil liability for breach of that duty. The person classified as conscientious objector is never confronted with that choice. He is relieved by the Act from any duty to perform military service. He is not threatened with induction. He is in fact farther removed from military status or jurisdiction after he is finally assigned to civilian public service of national importance, and for this reason is rejected for military service, than-he was before that time. His choice is not between going into service and taking the civil penalty laid for violating that duty. It is between performing civilian service under civilian authority and incurring the civil penalty for refusing to do so. Moreover, in the case of one entering the armed forces, the loss of civil rights, including those of recourse to the civil courts other than by way of habeas corpus, results altogether by virtue of the change from civilian to military status. The reasons underlying those rulings do not apply in the case of one who does not undergo that change, remains at all times a civilian, subject only to civilian duties and to civil penalties for violating them. There is not the same necessity or compulsion in such a case for bringing about forfeiture of civilian rights, including remedies for questioning the validity of the order the registrant is charged with violating. That compulsion arises from the necessity for preventing interruption of military processes by intrusion of the civil courts beyond the essential minimum of keeping open the habeas corpus channel to show that the military authority has exceeded its jurisdiction in dealing with the individual. It is on this foundation that the forfeiture of other civil remedies is held to take place. But there is no such necessity, or therefore any such foundation for forfeiture, in the case of one classified as a conscientious objector and assigned for work of national importance. Serious as are the consequences of his refusal to perform that work, dealing with such breaches of duty by the civil courts does not involve, in the remotest sense, interruption or interference by civilian authority with military processes or jurisdiction. Entirely wanting therefore is any such foundation for forfeiture of civil rights as exists in the case of one inducted into the armed services. Without such a foundation the analogy dissolves and with it the asserted forfeiture. This becomes even more clear when it is recalled that one basis for the forfeiture, which the Government has maintained, is that habeas corpus is available for the person classified IV-E and wrongfully denied classification and exemption as a minister of religion. This remedy, it was asserted originally, is adequate and exclusive, and therefore should be held to foreclose resort to other forms of relief. But here again the asserted analogy fails. It has been clearly established that the remedy by way of habeas corpus is open to the wrongfully inducted member of the armed forces to secure his release. But at the argument it was conceded that neither the camp director nor other officials of the Selective Service System are authorized to use force to arrest or restrain one who refuses to remain in the camp. And this, it was also admitted, would make doubtful the availability of relief by way of habeas corpus. Indeed it might well be urged that the remedy is not available for one charged with violation of any duty, whether failure to report to the camp, to remain there, or to perform other obligations, since the only compulsion laid upon such a person by the Act or otherwise is the force of the legal command plus the provision for criminal penalty in case of disobedience. We need not decide this question, however, and we express no opinion upon it. For it is enough to destroy the analogy the Government seeks to draw that the remedy by habeas corpus is an uncertain one. Should it be found unavailable and at the same time we should rule that petitioner’s defense could not be made in the criminal proceeding, he would be left entirely without remedy, a result consistent neither with our decision in the cases of Estep and Smith, supra, nor with the statute. No more, we think, is it consistent with the Act or those rulings to foreclose the right of defense upon the basis of uncertainty whether the habeas corpus remedy might be had. Finally, Congress has provided expressly for enforcing the duty to report to the camp for work and duties arising thereafter through the criminal proceedings and penalties prescribed by § 11.. In its view these were adequate for the purpose. Nothing in the section or the statute, in the light of our prior decisions, can be taken to indicate that Congress intended persons charged with violating such duties to be deprived of their rights of defense on the ground of invalid classification, either absolutely should habeas corpus prove unavailable or contingently depending upon how the doubt concerning that remedy’s availability might be resolved. The Government concedes that Congress intended some remedy to be available. We know of no way by which this can be assured, in such a case as Gibson’s, otherwise than by permitting the defense to be raised in the criminal trial. The analogy failing, for both of the reasons we have stated, by which it is sought to confine the remedy to habeas corpus, we think the defense has been left open for presentation in this case and should have been allowed. Estep v. United States, 327 U. S. 114; Smith v. United States, ibid. Gibson, like Dodez, and for similar reasons, insists that we should dispose of the case upon the merits, by examining and sustaining his defense. The same course should be followed for Gibson in this respect as was directed for Dodez. We express no opinion concerning whether a different result might follow for one in Gibson’s position if he should remain at the camp for a substantially longer period and then depart without leave. The question raised concerning venue has been determined adversely to Gibson’s contention by our decision in United States v. Anderson, 328 U. S. 699. The judgments are reversed and the causes are remanded to the District Courts from which they came, for further proceedings consistent with this opinion. Reversed. Mr. Justice Murphy joins in the opinion of the Court for the reasons stated therein and for the additional reasons set forth in his dissenting opinion in Falbo v. United States, 320 U. S. 549, 555, and in his concurring opinion in Estep v. United States, 327 U. S. 114, 125. Falbo v. United States, 320 U. S. 549; Billings v. Truesdell, 321 U. S. 542; Estep v. United States, 327 U. S. 114; Smith v. United States, ibid. Section 11 provides, in part: “Any person charged as herein provided with the duty of carrying out any of the provisions of this Act, or the rules or regulations made or directions given thereunder, who shall knowingly fail or neglect to perform such duty, . . . shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment . . . Section 652.11 (a) of the regulations imposes the duty on persons classified IV-E to comply with the order to report for work of national importance; and by § 653.12 assignees are required to report to the camp to which they are assigned and to remain therein until released or transferred elsewhere by proper authority, except when on authorized missions or leave. 149 F. 2d 751 (C. C. A. 8); 154 F. 2d 637 (C. C. A. 6). Apparently in both cases the important changes in the applicable regulations made after the Falbo decision were not called to the attention of the trial courts or the Circuit Courts of Appeals. The exemption is provided by § 5 (d) of the Act, 54 Stat. 885, 888, as follows: “Regular or duly ordained ministers of religion, and students who are preparing for the ministry in theological or divinity schools recognized as such for more than one year prior to the date of enactment of this Act, shall be exempt from training and service (but not from registration) under this Act.” Pursuant to § 5 (g) of the Act, which provides that persons so classified shall be assigned to noncombatant service or, if conscientiously opposed to this, then to “work of national importance under civilian direction.” See text Part II infra at note 19; also note 13. At that time § 653.11 (c) of the Selective Service Regulations provided: “If the assignee indicates that his physical condition has changed since his final-type physical examination for registrants in Class IV-E, the camp physician shall examine him with reference thereto. If the assignee is not accepted for work of national importance, the Camp Director will indicate the reason therefor, and the assignee, pending instructions from the Director of Selective Service, will be retained in the camp or hospitalized where necessary.” Cf. note 10. This provision, effective by Amendment No. 40 on March 16, 1942 (7 F. R. 2093), was eliminated entirely by Amendment No. 210 (9 F. R. 1416), effective February 2,1944, a little more than two months prior to the date specified for Dodez to report for work, namely, April 21, 1944; but was restored in modified form on June 7, 1944, by Amendment No. 236 (9 F. R. 6207), nearly two months before Gibson was ordered to report on August 21 of that year. A confession of error on the part of the United States “does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.” Young v. United States, 315 U. S. 257, 258-259. The contention is that § 653.11 (e) of the regulations as it then stood, see note 8, provided for physical examination at the camp and possible rejection there only if the registrant on reporting indicated a change in his physical condition and that this was effective only as to persons sustaining such a change, not to others, of whom Falbo was one. The argument assumes that the registrant’s actual condition, not the possibility that a change might occur and be found in any case, was controlling not only to determine the outcoifae of the examination, but to foreclose the possibility that change might be “indicated” and, in that event, final determination of acceptability would be made after the examination. The regulation clearly contemplated that, upon receipt of such instructions from the Director of Selective Service, the registrant might be rejected or released. The decision was rendered January 3, 1944. The basic changes in the regulations were made January 10, 1944. See text infra at notes 13-17. After a registrant has been classified IV-E he is given a preinduction physical examination. Reg. §§ -629.1, 629.2. If found acceptable for service he is issued a certificate of fitness. Reg. § 629.32. Thereafter the local board notifies the Director of Selective Service that the registrant is available for assignment to work of national importance, Reg. § 652.1, and such an assignment is sent to the local board. Upon receipt thereof, the local board issues to the registrant an order to report for work of national importance, commanding him to report at a designated time and place, Reg. § 652.11. When the registrant reports, transportation to a camp for work of national importance is furnished, Reg. § 652.12. Thereafter he “is under the jurisdiction of the camp to which he is assigned.” The local board then can take no further steps with regard to such registrant without instructions from the Director of Selective Service, but should report any information to the Director of Selective Service which might affect the registrant’s status, Reg. § 652.13. Upon arrival at the camp the registrant (now called assignee in the regulations) is given a physical examination, although at the time the case of Dodez arose specific provision for such an examination was not made in the regulations. See note 8. It was merely provided that “the camp director shall, on the bottom of page 4 of the Original and First Copy of the Report of Physical Examination and Induction (Form 221), place a statement that a registrant is accepted for work of national importance at the civilian public service camp to which the registrant has been assigned.” Reg. § 653.11 (b). However, this regulation subsequently was amended in the form applicable to the case of Gibson. See note 28 infra. The statute, in so far as is now material, provided: “Any registrant within the categories herein defined when it appears that his induction will shortly occur shall, upon request, be ordered by his local board in accordance with schedules authorized by the Secretary of War, the Secretary of the Navy, and the Director of Selective Service, to any regularly established induction station for a preinduction physical examination, subject to reexaminations. “The commanding officer of such induction station where such physical examination is conducted under this provision shall issue to the registrant a certificate showing his physical fitness or lack thereof, and this examination shall be accepted by the local board, subject to periodic reexamination. Those registrants who are classified as I-A at the time of such physical examination and who are found physically qualified for military service as a result thereof, shall remain so classified and report for induction in regular order.” Compare the procedure outlined in Billings v. Truesdell, 321, U. S. 542. See notes 18, 19, infra, and text for the principal changes. These are noted specifically infra at note 28 and text. Pertinently the basic regulation provided: “Every registrant, before he is ordered to report for induction, shall be givema pre-induction physical examination under the provisions of this part unless (1) he signs a Request for Immediate Induction (Form 219) or (2) he is a delinquent. . . .” Because § 653.11 as changed by Amendment No. 210 is crucial in Dodez' case, the exact language is quoted: “(a) When the assignee has reported to camp, the camp director shall complete the Order to Report for Work of National Importance (Form 50). Four copies of the completed Order to Report for Work of National Importance (Form 50) shall be sent to the Director of Selective Service; one copy will be retained by the camp director. The Director of Selective Service will forward two copies of the Order to Report for Work of National Importance (Form 50) to the appropriate State Director of Selective Service, who will retain one copy for his files and mail the other copy to the local board for filing in the registrant’s Cover Sheet (Form 53). “(b) The camp director shall, on the bottom of page 4 of the Original and First Copy of the Report of Physical Examination and Induction (Form 221), •place a statement that a registrant is accepted for work of national importance at the civilian public service camp to which the registrant has been assigned. The statement shall specify the date and place of such acceptance and shall be signed by the camp director who shall retain the First Copy of the Report of Physical Examination and Induction (Form 221) and shall forward the Original to the Director of Selective Service. “(c) Upon receiving notice that a registrant has been accepted for work of national importance, the local board shall not change his classification but shall note the fact of his acceptance for such work in the Classification Record (Form 100). “(d) In the event an assignee does not report to the camp at the time prescribed in his Order to Report for Work of National Importance (Form 50) or pursuant to the instructions of the local board, the camp director will report such fact to the Director of Selective Service.” (Emphasis added.) The trial court permitted Dodez to introduce de novo evidence intended to show that as of the time of the trial he was a minister. But the court, over objection, declined to allow this evidence to go to the jury. The question was also raised by motion for a directed verdict, which was overruled. In each case the tendered defenses were substantially two, namely, (1) that a full and fair hearing had been denied in the selective service proceedings, particularly before the local board; and (2) that the undisputed evidence would sustain no other conclusion than that the registrant was* a minister of religion. In each case also evidence was tendered and excluded in the trial court to sustain the first of these defenses. Appropriate determination of that defense would require not only reception and consideration of evidence properly tendered upon the issue, but also in consequence thereof determination of issues of fact, including credibility and inferential conclusions, properly to be made in the trial court rather than by an appellate tribunal. Since issues of credibility also may be involved in determining whether the evidence would support no other conclusion than that the registrant was a minister, that question too is more appropriately determinable in the first instance in the trial court. Moreover, it is not certain that another trial will be had or that the identical issues will be presented if one is held. See, e. g., In re Morrissey, 137 U. S. 157; In re Miller, 114 F. 838; United States v. Reaves, 126 F. 127; In re Carver, 142 F. 623; In re Scott, 144 F. 79; Moore v. United States, 159 F. 701; Dillingham v. Booker, 163 F. 696; United States ex rel. Laikund v. Williford, 220 F. 291; Ex parte Romano, 251 F. 762; Ex parte Tinkoff, 254 F. 912; Ex parte Kerekes, 274 F. 870. But cf. Ver Mehren v. Sirmyer, 36 F. 2d 876; Ex parte Beck, 245 F. 967. Cf. Kurtz v. Moffitt, 115 U. S. 487. See In re Grimley, 137 U. S. 147; Stingle’s Case, Fed. Cas. No. 13,458; United States ex rel. Turner v. Wright, Fed. Cas. No. 16,778. See also cases cited in note 23. See note 2. See text at notes 18, 19. Under §653.11, as reintroduced, the physical examination at the camp was given to all “assignees,” regardless of whether they indicated a change in physical condition. Cf. note 8. Cf. note 19, § 653.11 (b). The alterations made in § 653.11 by Amendment No. 236 will appear from comparing the text of the section prior to the amendment, see note 19, with the following quoted portions, following the amendment: “(b) As soon as possible after the assignee has reported to camp, the camp physician shall give him a physical examination and shall determine whether there has been any change in the assignee’s physical or mental condition since his preinduction physical examination. If a camp physician is not available, the camp director, to the extent that he is capable of doing so, shall, by observing and questioning the assignee, make such determination. The camp physician or the camp director, as the case may be, shall, on the bottom of page 4 of the original and first copy of the Report of Physical Examination and Induction (Form 221), make a record of such determination. “(c) Irrespective of the determination which is made as a result of the examination of an assignee made under the provisions of paragraph (b) of this section, the camp director shall, on the bottom of page 4 of the original and first copy of the Report of Physical Examination and Induction (Form 221), place a statement that a registrant is accepted for work of national importance at the civilian public service camp to which the registrant has been assigned. The statement shall specify the date and place of such acceptance and shall be signed by the camp director who shall retain the first copy of the Report of Physical Examination and Induction (Form 221) and shall forward the original to the Director of Selective Service.” (Emphasis added.) The reintroduced provision of § 653.11 became subsection (b) of the amended section and the former subsection (b) became subsection (c) with the added initial provision, “Irrespective of the determination . . . ,” etc. The regulation, § 652.13, reads as follows: “A registrant in Class IV-E who has reported for work of national importance pursuant to this part shall be retained in Class IV-E by the local board. Such registrant after he has left the local board in accordance with § 652.1% for work of national importance under. civilian direction is under the jurisdiction of the camp to which he is assigned. The local board shall take no further steps with regard to such registrant without instructions from the Director of Selective Service, but should report any information to the Director of Selective Service which might affect the registrant’s status.” (Emphasis added.) 7 F. R. 112. Section 652.13 was adopted December 24, 1941, became effective February 1,1942, and therefore was in effect as to Falbo as well as to Estep, Smith, Dodez and Gibson. The Government does not urge that Gibson waived his rights by submitting to “induction,” in the sense of voluntarily surrendering them; it is rather that he acted at his peril in taking steps beyond those required to complete the administrative remedial process, even though he mistakenly thought them necessary for that purpose. The argument is essentially one of forfeiture rather than of waiver. The facts would sustain no implication of intention to submit to “induction” or to surrender any rights. It is Gibson’s position that had he not gone to the civilian public service camp and subjected himself to the physical examination given by the camp physician, see note 29, the courts might subsequently have held that in a prosecution under § 11 he was foreclosed by the Falbo doctrine from making the defense that his classification was illegal. He says further that the regulations applicable to Falbo and those applicable to him were so similar that no reasonable person reading them could have determined that under the latter it was not necessary to undergo the physical examination given at the camp in order to complete the administrative process. Indeed, he asserts that in some ways the later regulations were more compelling than those applicable to Falbo, since at the time Falbo was ordered to report the physical examination was required only for those who indicated a change in their physical condition, whereas when he was ordered to report all assignees were required to be given physical examinations. Cf. notes 8,26. See § 11, note 2 supra. Section 11 of the Selective Training and Service Act reads in part: “No person shall be tried by any military or naval court martial in any case arising under this Act unless such person has been actually inducted for the training and service prescribed under this Act or unless he is subject to trial by court martial under laws in force prior to the enactment of this Act.” It was held in the Billings case that in view of the legislative history Congress could not be presumed “to have restored by the second ‘unless’ clause in § 11 what it took away by the first ‘unless’ clause.” Section 11 rather indicated “a purpose to vest in the civil courts exclusive jurisdiction over all violations of the Act prior to actual induction.” 321 U. S. at 547. See notes 23,24, supra, and text. Ibid. Billings v. Truesdell, 321 U. S. 542; and see the authorities cited in note 24, supra. Cf. Wales v. Whitney, 114 U. S. 564; Stallings v. Splain, 253 U. S. 339; McNally v. Hill, 293 U. S. 131, 137-138; Weber v. Squier, 315 U. S. 810; Tornello v. Hudspeth, 318 U. S. 792; Zimmerman v. Walker, 319 U. S. 744; United States ex rel. Innes v. Crystal, 319 U. S. 755; United States ex rel. Lynn v. Downer, 322 U. S. 756; Baker v. Hunter, 323 U. S. 740. In this case, as in the Estep and Smith cases, the United States in a criminal prosecution is asking judicial enforcement of a draft board’s command or order. In the Estep case, though the Act provided that the order of the draft board should be “final,” limited judicial review was permitted. Section 11 of the Selective Training and Service Act does not distinguish between one order of a board and another. Provided that he has exhausted his administrative remedies, the registrant who has not been actually inducted into the armed forces may in defense to a criminal prosecution attack a board’s order as arbitrary and illegal. See note 30. Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:

sc_petitioner

029

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. December 6, 1954. No. 120. Reeves v. Alabama. Argued November 15-16, 1954. Decided December 6, 1954. Jack Greenberg argued the cause for petitioner. With him on the brief were Thurgood Marshall, Robert L. Carter and Louis H. Poliak. Robert Straub, Assistant Attorney-General of Alabama, and Robert B. Stewart argued the cause for respondent. With them on the brief was Si Garrett, Attorney General. Certiorari, 347 U. S. 1012, to the Supreme Court of Alabama. Per Curiam: Judgment reversed. See Canty v. Alabama, 309 U. S. 629, and Vernon v. Alabama, 313 U. S. 547. Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:

sc_decisiondirection

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. UNIFORMED SANITATION MEN ASSN., INC., et al. v. COMMISSIONER OF SANITATION OF THE CITY OF NEW YORK et al. No. 823. Argued May 1, 1968. Decided June 10, 1968. Leonard B. Boudin argued the cause for petitioners. With him on the briefs was Victor Rabinowitz. Norman Redlich argued the cause for respondents. With him on the brief were /. Lee Rankin and John J. Loflin. Mr. Justice Fortas delivered the opinion of the Court. The individual petitioners are 15 employees of the Department of Sanitation of New York City. Claiming they were wrongfully dismissed from employment in violation of their rights under the United States Constitution, they commenced this action for declaratory judgment and injunctive relief in the United States District Court for the Southern District of New York. That court dismissed the action and the Court of Appeals for the Second Circuit affirmed. 383 F. 2d 364 (1967). We granted certiorari. 390 U. S. 919 (1968). Sometime in 1966, the Commissioner of Investigation of New York City began an investigation of charges that employees of the Department of Sanitation were not charging private cartmen proper fees for use of certain city facilities and were diverting to themselves the proceeds of fees that they did charge. The Commissioner obtained an order from the Supreme Court in New York County authorizing him to tap a telephone leased by the Department of Sanitation for the transaction of official business at the city facilities in question. In November 1966 each of the petitioners was summoned before the Commissioner. Each was advised that, in accordance with § 1123 of the New York City Charter, if he refused to testify with respect to his official conduct or that of any other city employee on the grounds of self-incrimination, his employment and eligibility for other city employment would terminate. Twelve of the petitioners, asserting the constitutional privilege against self-incrimination, refused to testify. After a disciplinary hearing held pursuant to § 75 of the New York Civil Service Law, they were dismissed by the Commissioner of Sanitation on the explicit ground provided by § 1123 of the City Charter that they had refused to testify. Three of the petitioners answered the questions put to them, denying the charges made. They were thereafter suspended by the Commissioner of Sanitation on the basis of “information received from the Commissioner of Investigation concerning irregularities arising out of [their] employment in the Department of Sanitation.” Subsequently, they were summoned before a grand jury and asked to sign waivers of immunity. They refused. Administrative hearings were held pursuant to § 75 of the Civil Service Law, and they were dismissed from employment on the sole ground that they had violated § 1123 of the City Charter by refusing to sign waivers of immunity. We consider only the dismissal, rather than the suspension, of these petitioners. Relying upon the decision of the New York Court of Appeals in Gardner v. Broderick, 20 N. Y. 2d 227, 229 N. E. 2d 184 (1967) (reversed this day, ante, p. 273), the Court of Appeals for the Second Circuit held that the dismissal of petitioners did not offend the Federal Constitution. For the reasons which we elaborate in our opinion reversing the New York court’s decision in Gardner v. Broderick, supra, we hold that the Court of Appeals erred. Petitioners were not discharged merely for refusal to account for their conduct as employees of the city. They were dismissed for invoking and refusing to waive their constitutional right against self-incrimination. They were discharged for refusal to expose themselves to criminal prosecution based on testimony which they would give under compulsion, despite their constitutional privilege. Three were asked to sign waivers of immunity before the grand jury. Twelve were told that their answers to questions put to them by the Commissioner of Investigation could be used against them in subsequent proceedings, and were discharged for refusal to answer the questions on this basis. Garrity v. New Jersey, 385 U. S. 493 (1967), in which we held that testimony compelled by threat of dismissal from employment could not be used in a criminal prosecution of the witness, had not been decided when these 12 petitioners were put to their hazardous choice. In any event, we need not decide whether these petitioners would have effectively waived this constitutional protection if they had testified following the warning that their testimony could be used against them. They were entitled to remain silent because it was clear that New York was seeking, not merely an accounting of their use or abuse of their public trust, but testimony from their own lips which, despite the constitutional prohibition, could be used to prosecute them criminally. As we stated in Gardner v. Broderick, supra, if New York had demanded that petitioners answer questions specifically, directly, and narrowly relating to the performance of their official duties on pain of dismissal from public employment without requiring relinquishment of the benefits of the constitutional privilege, and if they had refused to do so, this case would be entirely different. In such a case, the employee’s right to immunity as a result of his compelled testimony would not be at stake. But here the precise and plain impact of the proceedings against petitioners as well as of § 1123 of the New York Charter was to present them with a choice between surrendering their constitutional rights or their jobs. Petitioners as public employees are entitled, like all other persons, to the benefit of the Constitution, including the privilege against self-incrimination. Gardner v. Broderick, supra; Garrity v. New Jersey, supra. Cf. Murphy v. Waterfront Commission, 378 U. S. 52, at 79 (1964). At the same time, petitioners, being public employees, subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights. Accordingly, the judgment is reversed. Reversed. Mr. Justice Black concurs in the result. Section 803, subd. 2, of the New York City Charter provides that the Commissioner “[i]s authorized and empowered to make any study or investigation which in his opinion may be in the best interests of the city, including but not limited to investigations of the affairs, functions, accounts, methods, personnel or efficiency of any agency.” This order was pursuant to § 813-a of the Code of Criminal Procedure of New York. See Berger v. New York, 388 U. S. 41 (1967). Section 1123 of the New York City Charter provides: “If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.” The Commissioner said: “Mr. [name of witness], this is a private hearing being conducted by the Department of Investigation of the City of New York, pursuant to Chapter 34, of the New York City Charter. The investigation in which you are about to testify relates particularly to the affairs, functions, accounts, methods, personnel and efficiency of the Department of Sanitation of the City of New York. I wish to advise you that you have all the rights and privileges guaranteed by the laws of the State of New York and the Constitutions of this State and of the United States, including the right to remain silent and the right not to be compelled to be a witness against yourself. I wish further to advise you that anything you say can be used against you in a court of law. You have the right to have an attorney present at this hearing, if you wish, and I understand that you are represented by counsel in the person of [name of attorney], is that correct?” (Emphasis added.) As we noted in Gardner v. Broderick, supra, at 278-279, the possible ineffectiveness of this waiver does not change the fact that the State attempted to force petitioners, upon penalty of loss of employment, to relinquish a right guaranteed them by the Constitution. In view of our disposition of the ease, we do not reach the issues raised by petitioners with respect to the wiretap. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspecifiable Answer:

sc_casesource

022

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. INSURANCE CORPORATION OF IRELAND, LTD., et al. v. COMPAGNIE DES BAUXITES DE GUINEE No. 81-440. Argued March 23, 1982 Decided June 1, 1982 White, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, Marshall, Blackmun, Rehnquist, Stevens, and O’Connor, JJ., joined. Powell, J., filed an opinion concurring in the judgment, post, p. 709. Edmund K. Trent argued the cause for petitioners. With him on the briefs was Thomas P. Lawton III. Cloyd R. Mellott argued the cause for respondent. With him on the brief were Dale Hershey, Robert W. Doty, Robert L. Byer, and Jordan S. Weltman. Justice White delivered the opinion of the Court. Rule 37(b), Federal Rules of Civil Procedure, provides that a district court may impose sanctions for failure to comply with discovery orders. Included among the available sanctions is: “An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.” Rule 37(b)(2)(A). The question presented by this case is whether this Rule is applicable to facts that form the basis for personal jurisdiction over a defendant. May a district court, as a sanction for failure to comply with a discovery order directed at establishing jurisdictional facts, proceed on the basis that personal jurisdiction over the recalcitrant party has been established? Petitioners urge that such an application of the Rule would violate due process: If a court does not have jurisdiction over a party, then it may not create that jurisdiction by judicial fiat. They contend also that until a court has jurisdiction over a party, that party need not comply with orders of the court; failure to comply, therefore, cannot provide the ground for a sanction. In our view, petitioners are attempting to create a logical conundrum out of a fairly straightforward matter. I Respondent Compagnie des Bauxites de Guiñee (CBG) is a Delaware corporation, 49% of which is owned by the Republic of Guinea and 51% is owned by Halco (Mining) Inc. CBG’s principal place of business is in the Republic of Guinea, where it operates bauxite mines and processing facilities. Halco, which operates in Pennsylvania, has contracted to perform certain administrative services for CBG. These include the procurement of insurance. In 1973, Halco instructed an insurance broker, Marsh & McLennan, to obtain $20 million worth of business interruption insurance to cover CBG’s operations in Guinea. The first half of this coverage was provided by the Insurance Company of North America (IÑA). The second half, or what is referred to as the “excess” insurance, was provided by a group of 21 foreign insurance companies,14 of which are petitioners in this action (the excess insurers). Marsh & McLennan requested Bland Payne to obtain the excess insurance in the London insurance market. Pursuant to normal business practice “[i]n late January and in February, 1974, Bland Payne presented to the excess insurer [petitioners] a placing slip in the amount of $10,000,000, in excess of the first $10,000,000. [Petitioners] initialed said placing slip, effective February 12, 1974, indicating the part of said $10,000,000 each was willing to insure.” Finding 27 of the District Court, 2 App. 347a. Once the offering was fully subscribed, Bland Payne issued a cover note indicating the amount of the coverage and specifying the percentage of the coverage that each excess insurer had agreed to insure. No separate policy was issued; the excess insurers adopted the INA policy “as far as applicable.” Sometime after February 12, CBG allegedly experienced mechanical problems in its Guinea operation, resulting in a business interruption loss in excess of $10 million. Contending that the loss was covered under its policies, CBG brought suit when the insurers refused to indemnify CBG for the loss. Whatever the mechanical problems experienced by CBG, they were perhaps minor compared to the legal difficulties encountered in the courts. In December 1975, CBG filed a two-count suit in the Western District of Pennsylvania, asserting jurisdiction based on diversity of citizenship. The first count was against INA; the second against the excess insurers. INA did not challenge personal or subject-matter jurisdiction of the District Court. The answer of the excess insurers, however, raised a number of defenses, including lack of in personam jurisdiction. Subsequently, this alleged lack of personal jurisdiction became the basis of a motion for summary judgment filed by the excess insurers. The issue in this case requires an account of respondent’s attempt to use discovery in order to demonstrate the court’s personal jurisdiction over the excess insurers. Respondent’s first discovery request — asking for “[cjopies of all business interruption insurance policies issued by Defendant during the period from January 1, 1972 to December 31, 1975” — was served on each defendant in August 1976. In January 1977, the excess insurers objected, on grounds of burdensomeness, to producing such policies. Several months later, respondent filed a motion to compel petitioners to produce the requested documents. In June 1978, the court orally overruled petitioners’ objections. This was followed by a second discovery request in which respondent narrowed the files it was seeking to policies which “were delivered in . . . Pennsylvania ... or covered a risk located in . . . Pennsylvania.” Petitioners now objected that these documents were not in their custody or control; rather, they were kept by the brokers in London. The court ordered petitioners to request the information from the brokers, limiting the request to policies covering the period from 1971 to date. That was in July 1978; petitioners were given 90 days to produce the information. On November 8, petitioners were given an additional 30 days to complete discovery. On November 24, petitioners filed an affidavit offering to make their records, allegedly some 4 million files, available at their offices in London for inspection by respondent. Respondent countered with a motion to compel production of the previously requested documents. On December 21, 1978, the court, noting that no conscientious effort had yet been made to produce the requested information and that no objection had been entered to the discovery order in July, gave petitioners 60 more days to produce the requested information. The District Judge also issued the following warning: “[I]f you don’t get it to him in 60 days, I am going to enter an order saying that because you failed to give the information as requested, that I am going to assume, under Rule of Civil Procedure 37(b), subsection 2(A), that there is jurisdiction.” 1 App. 115a. A few moments later he restated the warning as follows: “I will assume that jurisdiction is here with this court unless you produce statistics and other information in that regard that would indicate otherwise.” Id., at 116a. On April 19, 1979, the court, after concluding that the requested material had not been produced, imposed the threatened sanction, finding that “for the purpose of this litigation the Excess Insurers are subject to the in personam jurisdiction of this Court due to their business contacts with Pennsylvania.” Id., at 201a. Independently of the sanction, the District Court found two other grounds for holding that it had personal jurisdiction over petitioners. First, on the record established, it found that petitioners had sufficient business contacts with Pennsylvania to fall within the Pennsylvania long-arm statute. Second, in adopting the terms of the INA contract with CBG — a Pennsylvania insurance contract — the excess insurers implicitly agreed to submit to the jurisdiction of the court. Except with respect to three excess insurers, the Court of Appeals for the Third Circuit affirmed the jurisdictional holding, relying entirely upon the validity of the sanction. Compagnie des Bauxites de Guinea v. Insurance Co. of North America, 651 F. 2d 877 (1981). That court specifically found that the discovery orders of the District Court did not constitute an abuse of discretion and that imposition of the sanction fell within the limits of trial court discretion under Rule 37(b): “The purpose and scope of the ordered discovery were directly related to the issue of jurisdiction and the rule 37 sanction was tailored to establish as admitted those jurisdictional facts that, because of the insurers’ failure to comply with discovery orders, CBG was unable to adduce through discovery.” 651 F. 2d, at 885. Furthermore, it held that the sanction did not violate petitioners’ due process rights, because it was no broader than “reasonably necessary” under the circumstances. Because the decision below directly conflicts with the decision of the Court of Appeals for the Fifth Circuit in Familia de Boom v. Arosa Mercantil, S.A., 629 F. 2d 1134 (1980), we granted certiorari. 454 U. S. 963 (1981). H-< ■ 4 In McDonald, v. Mabee, 243 U. S. 90 (1917), another case involving an alleged lack of personal jurisdiction, Justice Holmes wrote for the Court, “great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact.” Id., at 91. Petitioners’ basic submission is that to apply Rule 37(b)(2) to jurisdictional facts is to allow fiction to get the better of fact and that it is impermissible to use a fiction to establish judicial power, where, as a matter of fact, it does not exist. In our view, this represents a fundamental misunderstanding of the nature of personal jurisdiction. The validity of an order of a federal court depends upon that court’s having jurisdiction over both the subject matter and the parties. Stoll v. Gottlieb, 305 U. S. 165, 171-172 (1938); Thompson v. Whitman, 18 Wall. 457, 465 (1874). The concepts of subject-matter and personal jurisdiction, however, serve different purposes, and these different purposes affect the legal character of the two requirements. Petitioners fail to recognize the distinction between the two concepts — speaking instead in general terms of “jurisdiction” — although their argument’s strength comes from conceiving of jurisdiction only as subject-matter jurisdiction. Federal courts are courts of limited jurisdiction. The character of the controversies over which federal judicial authority may extend are delineated in Art. III, § 2, cl. 1. Jurisdiction of the lower federal courts is further limited to those subjects encompassed within a statutory grant of jurisdiction. Again, this reflects the constitutional source of federal judicial power: Apart from this Court, that power only exists “in such inferior Courts as the Congress may from time to time ordain and establish.” Art. III, § 1. Subject-matter jurisdiction, then, is an Art. Ill as well as a statutory requirement; it functions as a restriction on federal power, and contributes to the characterization of the federal sovereign. Certain legal consequences directly follow from this. For example, no action of the parties can confer subject-matter jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant, California v. LaRue, 409 U. S. 109 (1972), principles of estoppel do not apply, American Fire & Casualty Co. v. Finn, 341 U. S. 6, 17-18 (1951), and a party does not waive the requirement by failing to challenge jurisdiction early in the proceedings. Similarly, a court, including an appellate court, will raise lack of subject-matter jurisdiction on its own motion. “[T]he rule, springing from the nature and limits of the judicial power of the United States is inflexible and without exception, which requires this court, of its own motion, to deny its jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record.” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884). None of this is true with respect to personal jurisdiction. The requirement that a court have personal jurisdiction flows not from Art. Ill, but from the Due Process Clause. The personal jurisdiction requirement recognizes and protects an individual liberty interest. It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty. Thus, the test for personal jurisdiction requires that “the maintenance of the suit. . . not offend ‘traditional notions of fair play and substantial justice.’” International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945), quoting Milliken v. Meyer, 311 U. S. 457, 463 (1940). Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived. In McDonald v. Mabee, supra, the Court indicated that regardless of the power of the State to serve process, an individual may submit to the jurisdiction of the court by appearance. A variety of legal arrangements have been taken to represent express or implied consent to the personal jurisdiction of the court. In National Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311, 316 (1964), we stated that “parties to a contract may agree in advance to submit to the jurisdiction of a given court,” and in Petrowski v. Hawkeye-Security Co., 350 U. S. 495 (1956), the Court upheld the personal jurisdiction of a District Court on the basis of a stipulation entered into by the defendant. In addition, lower federal courts have found such consent implicit in agreements to arbitrate. See Victory Transport Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F. 2d 354 (CA2 1964); 2 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 4.02[3], n. 22 (1982) and cases listed there. Furthermore, the Court has upheld state procedures which find constructive consent to the personal jurisdiction of the state court in the voluntary use of certain state procedures. See Adam v. Saenger, 303 U. S. 59, 67-68 (1938) (“There is nothing in the Fourteenth Amendment to prevent a state from adopting a procedure by which a judgment in personam may be rendered in a cross-action against a plaintiff in its courts .... It is the price which the state may exact as the condition of opening its courts to the plaintiff”); Chicago Life Ins. Co. v. Cherry, 244 U. S. 25, 29-30 (1917) (“[W]hat acts of the defendant shall be deemed a submission to [a court’s] power is a matter upon which States may differ”). Finally, unlike subject-matter jurisdiction, which even an appellate court may review sua sponte, under Rule 12(h), Federal Rules of Civil Procedure, “[a] defense of lack of jurisdiction over the person ... is waived” if not timely raised in the answer or a responsive pleading. In sum, the requirement of personal jurisdiction may be intentionally waived, or for various reasons a defendant may be estopped from raising the issue. These characteristics portray it for what it is — a legal right protecting the individual. The plaintiff’s demonstration of certain historical facts may make clear to the court that it has personal jurisdiction over the defendant as a matter of law — i. e., certain factual showings will have legal consequences — but this is not the only way in which the personal jurisdiction of the court may arise. The actions of the defendant may amount to a legal submission to the jurisdiction of the court, whether voluntary or not. The expression of legal rights is often subject to certain procedural rules: The failure to follow those rules may well result in a curtailment of the rights. Thus, the failure to enter a timely objection to personal jurisdiction constitutes, under Rule 12(h)(1), a waiver of the objection. A sanction under Rule 37(b)(2)(A) consisting of a finding of personal jurisdiction has precisely the same effect. As a general proposition, the Rule 37 sanction applied to a finding of personal jurisdiction creates no more of a due process problem than the Rule 12 waiver. Although “a court cannot conclude all persons interested by its mere assertion of its own power,” Chicago Life Ins. Co. v. Cherry, supra, at 29, not all rules that establish legal consequences to a party’s own behavior are “mere assertions” of power. Rule 37(b)(2)(A) itself embodies the standard established in Hammond Packing Co. v. Arkansas, 212 U. S. 322 (1909), for the due process limits on such rules. There the Court held that it did not violate due process for a state court to strike the answer and render a default judgment against a defendant who failed to comply with a pretrial discovery order. Such a rule was permissible as an expression of “the undoubted right of the lawmaking power to create a presumption of fact as to the bad faith and untruth of an answer begotten from the suppression or failure to produce the proof ordered .... [T]he preservation of due process was secured by the presumption that the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted defense.” Id., at 350-351. The situation in Hammond was specifically distinguished from that in Hovey v. Elliott, 167 U. S. 409 (1897), in which the Court held that it did violate due process for a court to take similar action as “punishment” for failure to obey an order to pay into the registry of the court a certain sum of money. Due process is violated only if the behavior of the defendant will not support the Hammond Packing presumption. A proper application of Rule 37(b)(2) will, as a matter of law, support such a presumption. See Societe Internationale v. Rogers, 357 U. S. 197, 209-213 (1958). If there is no abuse of discretion in the application of the Rule 37 sanction, as we find to be the case here (see Part III), then the sanction is nothing more than the invocation of a legal presumption, or what is the same thing, the finding of a constructive waiver. Petitioners argue that a sanction consisting of a finding of personal jurisdiction differs from all other instances in which a sanction is imposed, including the default judgment in Hammond Packing, because a party need not obey the orders of a court until it is established that the court has personal jurisdiction over that party. If there is no obligation to obey a judicial order, a sanction cannot be applied for the failure to comply. Until the court has established personal jurisdiction, moreover, any assertion of judicial power over the party violates due process. This argument again assumes that there is something unique about the requirement of personal jurisdiction, which prevents it from being established or waived like other rights. A defendant is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding. See Baldwin v. Traveling Men’s Assn., 283 U. S. 522, 525 (1931). By submitting to the jurisdiction of the court for the limited purpose of challenging jurisdiction, the defendant agrees to abide by that court’s determination on the issue of jurisdiction: That decision will be res judicata on that issue in any further proceedings. Id., at 524; American Surety Co. v. Baldwin, 287 U. S. 156, 166 (1932). As demonstrated above, the manner in which the court determines whether it has personal jurisdiction may include a variety of legal rules and presumptions, as well as straightforward factfinding. A particular rule may offend the due process standard of Hammond Packing, but the mere use of procedural rules does not in itself violate the defendant’s due process rights. I — I l-H HH Even if Rule 37(b)(2) may be applied to support a finding of personal jurisdiction, the question remains as to whether it was properly applied under the circumstances of this case. Because the District Court’s decision to invoke the sanction was accompanied by a detailed explanation of the reasons for that order and because that decision was upheld as a proper exercise of the District Court’s discretion by the Court of Appeals, this issue need not detain us for long. What was said in National Hockey League v. Metropolitan Hockey Club, Inc., 427 U. S. 639, 642 (1976), is fully applicable here: “The question, of course, is not whether this Court, or whether the Court of Appeals, would as an original matter have [applied the sanction]; it is whether the District Court abused its discretion in so doing” (citations omitted). For the reasons that follow, we hold that it did not. Rule 37(b)(2) contains two standards — one general and one specific — that limit a district court’s discretion. First, any sanction must be “just”; second, the sanction must be specifically related to the particular “claim” which was at issue in the order to provide discovery. While the latter requirement reflects the rule of Hammond Packing, supra, the former represents the general due process restrictions on the court’s discretion. In holding that the sanction in this case was “just,” we rely specifically on the following. First, the initial discovery request was made in July 1977. Despite repeated orders from the court to provide the requested material, on December 21, 1978, the District Court was able to state that the petitioners “haven’t even made any effort to get this information up to this point.” 1 App. 112a. The court then warned petitioners of a possible sanction. Confronted with continued delay and an obvious disregard of its orders, the trial court’s invoking of its powers under Rule 37 was clearly appropriate. Second, petitioners repeatedly agreed to comply with the discovery orders within specified time periods. In each instance, petitioners failed to comply with their agreements. Third, respondent’s allegation that the court had personal jurisdiction over petitioners was not a frivolous claim, and its attempt to use discovery to substantiate this claim was not, therefore, itself a misuse of judicial process. The substantiality of the jurisdictional allegation is demonstrated by the fact that the District Court found, as an alternative ground for its jurisdiction, that petitioners had sufficient contacts with Pennsylvania to fall within the State’s long-arm statute. Supra, at 699. Fourth, petitioners had ample warning that a continued failure to comply with the discovery orders would lead to the imposition of this sanction. Furthermore, the proposed sanction made it clear that, even if there was not compliance with the discovery order, this sanction would not be applied if petitioners were to “produce statistics and other information” that would indicate an absence of personal jurisdiction. 1 App. 116a. In effect, the District Court simply placed the burden of proof upon petitioners on the issue of personal jurisdiction. Petitioners failed to comply with the discovery order; they also failed to make any attempt to meet this burden of proof. This course of behavior, coupled with the ample warnings, demonstrates the “justice” of the trial court’s order. Neither can there be any doubt that this sanction satisfies the second requirement. CBG was seeking through discovery to respond to petitioners’ contention that the District Court did not have personal jurisdiction. Having put the issue in question, petitioners did not have the option of blocking the reasonable attempt of CBG to meet its burden of proof. It surely did not have this option once the court had overruled petitioners’ objections. Because of petitioners’ failure to comply with the discovery orders, CBG was unable to establish the full extent of the contacts between petitioners and Pennsylvania, the critical issue in proving personal jurisdiction. Petitioners’ failure to supply the requested information as to its contacts with Pennsylvania supports “the presumption that the refusal to produce evidence . . . was but an admission of the want of merit in the asserted defense.” Hammond Packing, 212 U. S., at 351. The sanction took as established the facts — contacts with Pennsylvania — that CBG was seeking to establish through discovery. That a particular legal consequence — personal jurisdiction of the court over the defendants — follows from this, does not in any way affect the appropriateness of the sanction. > HH Because the application of a legal presumption to the issue of personal jurisdiction does not in itself violate the Due Process Clause and because there was no abuse of the discretion granted a district court under Rule 37(b)(2), we affirm the judgment of the Court of Appeals. So ordered. The petition with which we deal in this case was filed as a cross-petition in response to the petition for certiorari filed in No. 81-290, Compagnie des Bauxites de Guinee v. Insurance Corp. of Ireland, Ltd. We granted the cross-petition, limiting the grant to the question of the validity of the Rule 37(b)(2) sanction. 454 U. S. 963 (1981). We shall refer to the cross-petitioners as “petitioners” and to the cross-respondent as “respondent.” The District Court described these excess insurers as follows: “Of the 21 Excess Insurers, five are English companies representing English domestic interests but insuring risks throughout the world, particularly in Pennsylvania. Seven are English companies which represent non English parents, or affiliates. The United States, Japan and Israel are the nationalities of two each of the Excess Insurer Defendants. Switzerland and the Republic of Ireland are the nationalities of one each of the Excess Insurer Defendants. The remaining Excess Insurer Defendant is a Belgium Company which represents the United States parent.” 1 App. 196a. Four of the excess insurers did not contest personal jurisdiction in the District Court. Id., at 105a. The Court of Appeals directed the dismissal of the complaint with respect to three others. Compagnie des Bauxites de Guinee v. Insurance Co. of North America, 651 F. 2d 877, 886 (1981). CBG challenges the latter action in its petition for certiorari in No. 81-290. One of the excess insurers, L’Union Atlantique S. A. d’Assurances, does business in Brussels, and was sent a separate placing slip. The motion for summary judgment was filed on May 20,1977. In it, 17 of the excess insurers alleged a lack of in personam jurisdiction and all 21 excess insurers sought dismissal on the ground oí forum non conveniens. The District Court denied the motion on April 19, 1979. On March 22,1979, the excess insurers instituted a suit against CBG in England, attackingthe validity of the insurance contract. Inits April 19 decision, the District Court found that “the commencement of the separate action in England [was] oppressive, unfair, and an act of bad faith under all of the circumstances.” 1 App. 203a. It, therefore, enjoined the continuation of that suit. This aspect of the District Court decision was reversed by the Court of Appeals. Respondent seeks certiorari review of that decision (see n. 1, supra,). It reversed as to three of the excess insurers on the grounds that they had complied with the discovery orders and that their contacts with Pennsylvania were not sufficient to justify exercise of the Pennsylvania long-arm statute. It also held that the District Court had abused its discretion in enjoining the action in England. Judge Gibbons dissented on the propriety of the sanction, arguing that the District Court had abused its discretion. He also expressed some doubt that a Rule 37 sanction could ever be used as the source of personal jurisdiction. 651 F. 2d, at 892, n. 4. In Familia de Boom, the Fifth Circuit held that a sanction under Rule 37(b)(2) is valid only if the court has personal jurisdiction over the party that has refused compliance with a court order. Personal jurisdiction must, it held, appear from the record independently of the sanction. The Courts of Appeals for the Fourth and Eighth Circuits, on the other hand, have agreed with the Third Circuit on the appropriateness of a sanction on the issue of personal jurisdiction. Lekkas v. Liberian M/V Caledonia, 443 F. 2d 10, 11 (CA4 1971); English v. 21st Phoenix Corp., 590 F. 2d 723 (CA8 1979). A party that has had an opportunity to litigate the question of subject-matter jurisdiction may not, however, reopen that question in a collateral attack upon an adverse judgment. It has long been the rule that principles of res judicata apply to jurisdictional determinations — both subject matter and personal. See Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 (1940); Stoll v. Gottlieb, 305 U. S. 165 (1938). It is true that we have stated that the requirement of personal jurisdiction, as applied to state courts, reflects an element of federalism and the character of state sovereignty vis-a-vis other States. For example, in World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 291-292 (1980), we stated: “[A] state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’ between the defendant and the forum State. The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” (Citation omitted.) Contrary to the suggestion of Justice Powell, post, at 713-714, our holding today does not alter the requirement that there be “minimum contacts” between the nonresident defendant and the forum State. Rather, our holding deals with how the facts needed to show those “minimum contacts” can be established when a defendant fails to comply with court-ordered discovery. The restriction on state sovereign power described in World-Wide Volkswagen Corp., however, must be seen as ultimately a function of the individual liberty interest preserved by the Due Process Clause. That Clause is the only source of the personal jurisdiction requirement and the Clause itself makes no mention of federalism concerns. Furthermore, if the federalism concept operated as an independent restriction on the sovereign power of the court, it would not be possible to waive the personal jurisdiction requirement: Individual actions cannot change the powers of sovereignty, although the individual can subject himself to powers from which he may otherwise be protected. The Advisory Committee Notes to the Rule specifically stated that “the provisions of the rule find support in [Hammond Packing Co. v. Arkansas, 212 U. S. 322 (1909)].” Final Report of Advisory Committee on Rules for Civil Procedure 25 (1937). See also Societe Internationale v. Rogers, 357 U. S. 197, 209 (1958). Counsel for petitioners agreed to this characterization of the sanction at oral argument. Tr. of Oral Arg. 47-48. 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_casesource

031

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. F. HOFFMANN-La ROCHE LTD et al. v. EMPAGRAN S. A. et al. No. 03-724. Argued April 26, 2004 — Decided June 14, 2004 Stephen M. Shapiro argued the cause for petitioners. With him on the briefs were Arthur F Golden, Tyrone C. Fahner, Andrew S. Marovitz, Jeffrey W Sarles, Lawrence Portnoy, Charles S. Duggan, John M. Majoras, Daniel H. Bromberg, Kenneth Prince, Lawrence Byrne, Bruce L. Montgomery, D. Stuart Meiklejohn, Michael L. Denger, Miguel A. Estrada, Laurence T. Sorkin, Roy L. Regozin, Donald I. Baker, Donald C. Klawiter, Peter E. Halle, James R. Weiss, Jim J. Shoemake, Thomas M. Mueller, Michael O. Ware, Aileen Meyer, Sutton Keany, Kenneth W. Starr, Moses Silverman, Aidan Synnott, Mark Riera, Kevin R. Sullivan, Peter M. Todaro, William J. Kolasky, and Edward DuMont. Assistant Attorney General Pate argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Kneedler, Deputy Assistant Attorney General Delrahim, Lisa S. Blatt, Robert B. Nicholson, Steven J. Mintz, William H. Taft IV, and John D. Graubert. Thomas C. Goldstein argued the cause for respondents. With him on the brief were Amy Howe, Michael H. Gottesman, Michael D. Hausfeld, Paul T. Gallagher, and Brian A-. Ratner Briefs of amici curiae urging reversal were filed for the Government of Canada by Homer E.-'Moyer, Jr., Michael T. Brady, and Alan I. Horowitz; for the Government of the Federal Republic of Germany et al. by David C. Frederick; for the Government of the United Kingdom of Great Britain and Northern Ireland et al. by Ernest Gellhorn and Ann Weymouth; for the Government of Japan by Douglas E. Rosenthal; for the Business Roundtable by Janet L. McDavid, Jonathan S. Franklin, and William H. Johnson; for the Chamber of Commerce of the United States et al. by Roy T. Englert, Jr., Donald J. Russell, Max Huffman, and Robin S. Conrad; for Bank Austria AG et al. by Carter G. Phillips, Virginia A. Seitz, John H. Shenefield, Jonathan M. Rich, Robert A. Horowitz, Richard A. Martin, Richard S. Goldstein, Jeffrey Barist, Charles Westland, and Richard L. Mattiaccio; and for the International Chamber of Commerce by A. Paul Victor and Steven Alan Reiss. Briefs of amici curiae urging affirmance were filed for the Committee to Support the Antitrust Laws et al. by Charles J. Cooper and David H. Thompson; for Public Citizen by Amanda Frost and Brian Wolfman; for Harry First et al. by Jonathan S. Massey, Lynn Lincoln Sarko, Mark A. Griffin, Edgar D. Gankendorff, and Henry S. Provosty; for Ralf Michaels et al. by Arthur R. Miller; and for Joseph E. Stiglitz et al. by Erik S. Jaffe and Mary Boies. Briefs of amici curiae were filed for Certain Professors of Economics by James vanR: Springer and James R. Martin; and for Darren Bush etal. by Peter J. Rubin. Justice Breyer delivered the opinion of the Court. The Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) excludes from the Sherman Act’s reach much anti-competitive conduct that causes only foreign injury. It does so by setting forth a general rule stating that the Sherman Act “shall not apply to conduct involving trade or commerce ... with foreign nations'.” 96 Stat. 1246,15 U. S. C. § 6a. It then creates exceptions to the general rule, applicable where (roughly speaking) that conduct significantly harms imports, domestic commerce, or American exporters. We here focus upon anticompetitive price-fixing activity that is in significant part foreign, that causes some domestic antitrust injury, and that independently causes separate foreign injury. We ask two questions about the price-fixing conduct and the foreign injury that it causes. First, does that conduct fall within the FTAIA’s general rule excluding the Sherman Act’s application? That is to say, does the price-fixing activity constitute “conduct involving trade or commerce . . . with foreign nations”? We conclude that it does. Second, we ask whether the conduct nonetheless falls within a domestic-injury exception to the general rule, an exception that applies (and makes the Sherman Act nonetheless applicable) where the conduct (1) has a “direct, substantial, and reasonably foreseeable effect” on domestic commerce, and (2) “such effect gives rise to a [Sherman Act] claim.” §§6a(1)(A), (2). We conclude that the exception does not apply where the plaintiff’s claim rests solely on the independent foreign harm. To clarify: The issue before us concerns (1) significant foreign anticompetitive conduct with (2) an adverse domestic effect and (3) an independent foreign effect giving rise to the claim. In more concrete terms, this case involves vitamin sellers around the world that agreed to fix prices, leading to higher vitamin prices in the United States and independently leading to higher vitamin prices in other countries such as Ecuador. We conclude that, in this scenario, a purchaser in the United States could bring a Sherman Act claim under the FTAIA based on domestic injury, but a purchaser in Ecuador could not bring a Sherman Act claim based on foreign harm. I The plaintiffs in this case originally filed a class-action suit on behalf of foreign and domestic purchasers of vitamins under, inter alia, §1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, and §§4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U. S. C. §§ 15, 26. Their complaint alleged that petitioners, foreign and domestic vitamin manufacturers and distributors, had engaged in a price-fixing conspiracy, raising the price of vitamin products to customers in the United States and to customers in foreign countries. As relevant here, petitioners moved to dismiss the suit as to the foreign purchasers (the respondents here), five foreign vitamin distributors located in Ukraine, Australia, Ecuador, and Panama, each of which bought vitamins from petitioners for delivery outside the United States. No. Civ. 001686TFH, 2001 WL 761360, *4 (D. D. C., June 7, 2001) (describing the relevant transactions as “wholly foreign”). Respondents have never asserted that they purchased any vitamins in the United States or in transactions in United States commerce, and the question presented assumes that the relevant “transactions occurred] entirely outside U. S. commerce,” Pet. for Cert. (i). The District Court dismissed their claims. 2001 WL 761360, at *4. It applied the FTAIA and found none of the exceptions applicable. Id., at *3-*4. Thereafter, the domestic purchasers transferred their claims to another pending suit and did not take part in the subsequent appeal. 315 F. 3d 338, 343 (CADC 2003). A divided panel of the Court of Appeals reversed. 315 F. 3d 338. The panel concluded that the FTAIA’s general exclusionary rule applied to the case, but that its domestic-injury exception also applied. It basically read the plaintiffs’ complaint to allege that the vitamin manufacturers’ price-fixing conspiracy (1) had “a direct, substantial, and reasonably foreseeable effect” on ordinary domestic trade or commerce, i. e., the conspiracy brought about higher domestic vitamin prices, and (2) “such effect” gave “rise to a [Sherman Act] claim,” i. e., an injured domestic customer could have brought a Sherman Act suit, 15 U. S. C. §§ 6a(1), (2). Those allegations, the court held, are sufficient to meet the exception’s requirements. 315 F. 3d, at 341. The court assumed that the foreign effect, i. e., higher prices in Ukraine, Panama, Australia, and Ecuador, was independent of the domestic effect, i. e., higher domestic prices. Ibid. But it concluded that, in light of the FTAIA’s text, legislative history, and the policy goal of deterring harmful price-fixing activity, this lack of connection does not matter. Ibid. The District of Columbia Circuit denied rehearing en bane by a 4-to-3 vote. App. to Pet. for Cert. 44a. We granted certiorari to resolve a split among the Courts of Appeals about the exception’s application. Compare Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F. 3d 420, 427 (CA5 2001) (exception does not apply where foreign injury independent of domestic harm), with Kruman v. Christie’s Int’l PLC, 284 F. 3d 384, 400 (CA2 2002) (exception does apply even where foreign injury independent); 315 F. 3d, at 341 (similar). II The FTAIA seeks to make clear to American exporters (and to firms doing business abroad) that the Sherman Act does not prevent them from entering into business arrangements (say, joint-selling arrangements), however anticompet-itive, as long as those arrangements adversely affect only foreign markets. See H. R. Rep. No. 97-686, pp. 1-3, 9-10 (1982) (hereinafter House Report). It does so by removing from the Sherman Act’s reach, (1) export activities and (2) other commercial activities taking place abroad, unless those activities adversely affect domestic commerce, imports to the United States, or exporting activities of one engaged in such activities within the United States. The FTAIA says: “Sections 1 to 7 of this title [the Sherman Act] shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless— “(1) such conduct has a direct, substantial, and reasonably foreseeable effect— “(A) on trade or commerce which is not trade or commerce with foreign nations [i. e., domestic trade or commerce], or on import trade or import commerce with foreign nations; or “(B) on export trade or export commerce with foreign nations, of a person engaged in such trade or commerce in the United States [i. e., on an American export competitor]; and “(2) such effect gives rise to a claim under the provisions of sections 1 to 7 of this title, other than this section. “If sections 1 to 7 of this title apply to such conduct only because of the operation of paragraph (1)(B), then sections 1 to 7 of this title shall apply to such conduct only for injury to export business in the United States.” 15U.S.C. §6a. This technical language initially lays down a general rule placing all (nonimport) activity involving foreign commerce outside the Sherman Act’s reach. It then brings such conduct back within the Sherman Act’s reach provided that the conduct both (1) sufficiently affects American commerce, i e., it has a “direct, substantial, and reasonably foreseeable effect” on American domestic, import, or (certain) export commerce, and (2) has an effect of a kind that antitrust law considers harmful, i. e., the “effect” must “giv[e] rise to a [Sherman Act] claim.” §§6a(1), (2). We ask here how this language applies to price-fixing activity that is in significant part foreign, that has the requisite domestic effect, and that also has independent foreign effects giving rise to the plaintiff’s claim. HI Respondents make a threshold argument. They say that the transactions here at issue fall outside the FTAIA because the FTAIA’s genéral exclusionary rule applies only to conduct involving exports. The rule says that the Sherman Act “shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations.” §6a (emphasis added). The word “with” means between the United States and foreign nations. And, they contend, commerce between the United States and foreign nations that is not import commerce must consist of export commerce — a kind of commerce irrelevant to the case at hand. The difficulty with respondents’ argument is that the FTAIA originated in a bill that initially referred only to “export trade or export commerce.” H. R. 5235, 97th Cong., 1st Sess., §1 (1981). But the House Judiciary Committee subsequently changed that language to “trade or commerce (other than import trade or import commerce).” 15 U. S. C. § 6a. And it did so deliberately to include commerce that did not involve American exports but which was wholly foreign. The House Report says in relevant part: “The Subcommittee’s ‘export’ commerce limitation appeared to make the amendments inapplicable to transactions that were neither import nor export, i. e., transactions within, between, or among other nations. . . . Such foreign transactions should, for the purposes of this legislation, be treated in the same manner as export transactions — that is, there should be no American antitrust jurisdiction absent a direct, substantial and reasonably foreseeable effect on domestic commerce or a domestic competitor. The Committee amendment therefore deletes references to ‘export’ trade, and substitutes phrases such as ‘other than import’ trade. It is thus clear that wholly foreign transactions as well as export transactions are covered, by the amendment, but that import transactions are not.” House Report, at 9-10 (emphases added). For those who find legislative history useful, the House Report’s account should end the matter. Others, by considering carefully the amendment itself and the lack of any other plausible purpose, may reach the same conclusion, namely, that the FTAIA’s general rule applies where the an-ticompetitive conduct at issue is foreign. IV We turn now to the basic question presented, that of the exception’s application. Because the underlying antitrust action is complex, potentially raising questions not directly at issue here, we reemphasize that we base our decision upon the following: The price-fixing conduct significantly and adversely affects both customers outside the United States and customers within the United States, but the adverse foreign effect is independent of any adverse domestic effect. In these circumstances, we find that the FTAIA exception does not apply (and thus the Sherman Act does not apply) for two main reasons. First, this Court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations. See, e. g., McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10, 20-22 (1963) (application of National Labor Relations Act to foreign-flag vessels); Romero v. International Terminal Operating Co., 358 U. S. 354, 382-383 (1959) (application of Jones Act in maritime case); Lauritzen v. Larsen, 345 U. S. 571, 578 (1953) (same). This rule of construction reflects principles of customary international law — law that (we must assume) Congress ordinarily seeks to follow. See Restatement (Third) of Foreign Relations Law of the United States §§403(1), 403(2) (1986) (hereinafter Restatement) (limiting the unreasonable exercise of prescriptive jurisdiction with respect to a person or activity having connections with another State); Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804) (“[A]n act of congress ought never to be construed to violate the law of nations if any other possible construction remains”); Hartford Fire Ins. Co. v. California, 509 U. S. 764, 817 (1993) (Scalia, J., dissenting) (identifying rule of construction as derived from the principle of “ ‘prescriptive comity’ ”). This rule of statutory construction cautions courts to assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws. It thereby helps the potentially conflicting laws of different nations work together in harmony — a harmony particularly needed in today’s highly interdependent commercial world. No one denies that America’s antitrust laws, when applied to foreign conduct, can interfere with a foreign nation’s ability independently to regulate its own commercial affairs. But our courts have long held that application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused. See United States v. Aluminum Co. of America, 148 F. 2d 416, 443-444 (CA2 1945) (L. Hand, J.); 1 P. Areeda & D. Turner, Antitrust Law ¶ 236 (1978). But why is it reasonable to apply those laws to foreign conduct insofar as that conduct causes independent foreign harm and that foreign harm alone gives rise to the plaintiff’s claim? Like the former case, application of those laws creates a serious risk of interference with a foreign nation’s ability independently to regulate its own commercial affairs. But, unlike the former case, the justification for that interference seems insubstantial. See Restatement §403(2) (determining reasonableness on basis of such factors as connections with regulating nation, harm to that nation’s interests, extent to which other nations regulate, and the potential for conflict). Why should American law supplant, for example, Canada’s or Great Britain’s or Japan’s own determination about how best to protect Canadian or British or Japanese customers from anticompetitive conduct engaged in significant part by Canadian or British or Japanese or other foreign companies? We recognize that principles of comity provide Congress greater leeway when it seeks to control through legislation the actions of American companies, see Restatement § 402; and some of the anticompetitive price-fixing conduct alleged here took place in America. But the higher foreign prices of which the foreign plaintiffs here complain are not the consequence of any domestic anticompetitive conduct that Congress sought to forbid, for Congress did not seek to forbid any such conduct insofar as it is here relevant, i. e., insofar as it is intertwined with foreign conduct that causes independent foreign harm. Rather Congress sought to release domestic (and foreign) anticompetitive conduct from Sherman Act constraints when that conduct causes foreign harm. Congress, of course, did make an exception where that conduct also causes domestic harm. See House Report, at 13 (concerns about American firms’ participation in international cartels addressed through “domestic injury” exception). But any independent domestic harm the foreign conduct causes here has, by definition, little or nothing to do with the matter. We thus repeat the basic question: Why is it reasonable to apply this law to conduct that is significantly foreign insofar as that conduct causes independent foreign harm and that foreign harm alone gives rise to the plaintiffs claim? We can find no good answer to the question. The Areeda and Hovenkamp treatise notes that under the Court of Appeals’ interpretation of the statute “a Malaysian customer could . . . maintain an action under United States law in a United States court against its own Malaysian supplier, another cartel member, simply by noting that unnamed third parties injured [in the United States] by the American [cartel member’s] conduct would also have a cause of action. Effectively, the United States courts would provide worldwide subject matter jurisdiction to any foreign suitor wishing to sue its own local supplier, but unhappy with its own sovereign’s provisions for private antitrust enforcement, provided that a different plaintiff had a cause of action against a different firm for injuries that were within U. S. [other-than-import] commerce. It does not seem excessively rigid to infer that Congress would not have intended that result.” P. Areeda & H. Hovenkamp, Antitrust Law ¶ 273, pp. 51-52 (Supp. 2003). We agree with the comment. We can find no convincing justification for the extension of the Sherman Act’s scope that it describes. Respondents reply that many nations have adopted antitrust laws similar to our own, to the point where the practical likelihood of interference with the relevant interests of other nations is minimal. Leaving price fixing to the side, however, this Court has found to the contrary. See, e. g., Hartford Fire, 509 U. S., at 797-799 (noting that the alleged conduct in the London reinsurance market, while illegal under United States antitrust laws, was assumed to be perfectly consistent with British law and policy); see also, e. g., 2 W. Fugate, Foreign Commerce and the Antitrust Laws §16.6 (5th ed. 1996) (noting differences between European Union and United States law on vertical restraints). Regardless, even where nations agree about primary conduct, say, price fixing, they disagree dramatically about appropriate remedies. The application, for example, of American private treble-damages remedies to anticompetitive conduct taking place abroad has generated considerable controversy. See, e. g., 2 ABA Section of Antitrust Law, Antitrust Law Developments 1208-1209 (5th ed. 2002). And several foreign nations have filed briefs here arguing that to apply our remedies would unjustifiably permit their citizens to bypass their own less generous remedial schemes, thereby upsetting a balance of competing considerations that their own domestic antitrust laws embody. E. g., Brief for Government of Federal Republic of Germany et al. as Amici Curiae 2 (setting forth German interest “in seeing that German companies are not subject to the extraterritorial reach of the United States’ antitrust laws by private foreign plaintiffs— whose injuries were sustained in transactions entirely outside United States commerce — seeking treble damages in private lawsuits against German companies”); Brief for Government of Canada as Amicus Curiae 14 (“treble damages remedy would supersede” Canada’s “national policy decision”); Brief for Government of Japan as Amicus Curiae 10 (finding “particularly troublesome” the potential “interference] with Japanese governmental regulation of the Japanese market”). These briefs add that a decision permitting independently injured foreign plaintiffs to pursue private treble-damages remedies would undermine foreign nations’ own antitrust enforcement policies by diminishing foreign firms’ incentive to cooperate with antitrust authorities in return for prosecuto-rial amnesty. Brief for Government of Federal Republic of Germany et al. as Amici Curiae 28-30; Brief for Government of Canada as Amicus Curiae 11-14. See also Brief for United States as Amicus Curiae 19-21 (arguing the same in respect to American antitrust enforcement). Respondents alternatively argue that comity does not demand an interpretation of the FTAIA that would exclude independent foreign injury cases across the board. Rather, courts can take (and sometimes have taken) account of comity considerations case by case, abstaining where comity considerations so dictate. Cf., e.g., Hartford Fire, supra, at 797, n. 24; United States v. Nippon Paper Industries Co., 109 F. 3d 1, 8 (CA1 1997); Mannington Mills, Inc. v. Congoleum Corp., 595 F. 2d 1287, 1294-1295 (CA3 1979). In our view, however, this approach is too complex to prove workable. The Sherman Act covers many different kinds of anticompetitive agreements. Courts would have to examine how foreign law, compared with American law, treats not only price fixing but also, say, information-sharing agreements, patent-licensing price conditions, territorial product resale limitations, and various forms of joint venture, in respect to both primary conduct and remedy. The legally and economically technical nature of that enterprise means lengthier proceedings, appeals, and more proceedings — to the point where procedural costs and delays could themselves threaten interference with a foreign nation’s ability to maintain the integrity of its own antitrust enforcement system. Even in this relatively simple price-fixing case, for example, competing briefs tell us (1) that potential treble-damages liability would help enforce widespread anti-price-fixing norms (through added deterrence) and (2) the opposite, namely, that such liability would hinder antitrust enforcement (by reducing incentives to enter amnesty programs). Compare, e. g., Brief for Certain Professors of Economics as Amici Curiae 2-4 with Brief for United States as Amicus Curiae 19-21. How could a court seriously interested in resolving so empirical a matter — a matter potentially related to impact on foreign interests — do so simply and expeditiously? We conclude that principles of prescriptive comity counsel against the Court of Appeals’ interpretation of the FTAIA. Where foreign anticompetitive conduct plays a significant role and where foreign injury is independent of domestic effects, Congress might have hoped that America’s antitrust laws, so fundamental a component of our own economic system, would commend themselves to other nations as well. But, if America’s antitrust policies could not win their own way in the international marketplace for such ideas, Congress, we must assume, would not have tried to impose them, in an act of legal imperialism, through legislative fiat. Second, the FTAIA’s language and history suggest that Congress designed the FTAIA to clarify, perhaps to limit, but not to expand in any significant way, the Sherman Act’s scope as applied to foreign commerce. See House Report, at 2-3. And we have found no significant indication that at the time Congress wrote this statute courts would have thought the Sherman Act applicable in these circumstances. The Solicitor General and petitioners tell us that they have found no case in which any court applied the Sherman Act to redress foreign injury in such circumstances. Tr. of Oral Arg. 21; Brief for United States as Amicus Curiae 13; Brief for Petitioners 13; see also Den Norske, 241 F. 3d, at 429 (“[W]e have found no case in which jurisdiction was found in a case like this — where a foreign plaintiff is injured in a foreign market with no injuries arising from the anticompeti-tive effect on a United States market”). And respondents themselves apparently conceded as much at a May 23, 2001, hearing before the District Court below. 2001 WL 761360, at *4. Nevertheless, respondents now have called to our attention six cases, three decided by this Court and three decided by lower courts. In the first three cases the defendants included both American companies and foreign companies jointly engaged in anticompetitive behavior having both foreign and domestic effects. See Timken Roller Bearing Co. v. United States, 341 U. S. 593, 595 (1951) (agreements among American, British, and French corporations to eliminate competition in the manufacture and sale of antifriction bearings in world, including United States, markets); United States v. National Lead Co., 332 U. S. 319, 325-328 (1947) (international cartels with American and foreign members, restraining international commerce, including United States commerce, in titanium pigments); United States v. American Tobacco Co., 221 U. S. 106, 171-172 (1911) (American tobacco corporations agreed in England with British company to divide world markets). In all three cases the plaintiff sought relief, including relief that might have helped to protect those injured abroad. In all three cases, however, the plaintiff was the Government of the United States. A Government plaintiff, unlike a private plaintiff, must seek to obtain the relief necessary to protect the public from further anticompetitive conduct and to redress anticompetitive harm. And a Government plaintiff has legal authority broad enough to allow it to carry out this mission. 15 U. S. C. § 25; see also, e. g., United States v. E. I. du Pont de Nemours & Co., 366 U. S. 316, 334 (1961) (“[I]t is well settled that once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor”). Private plaintiffs, by way of contrast, are far less likely to be able to secure broad relief. See California v. American Stores Co., 495 U. S. 271, 295 (1990) (“Our conclusion that a district court has the power to order divestiture in appropriate cases brought [by private plaintiffs] does not, of course, mean that such power should be exercised in every situation in which the Government would be entitled to such relief”); 2 P. Areeda, H. Hovenkamp, & R. Blair, Antitrust Law ¶¶ 303d-303e, pp. 40-45 (2d ed. 2000) (distinguishing between private and government suits in terms of availability, public interest motives, and remedial scope); Griffin, Extraterritoriality in U. S. and EU Antitrust Enforcement, 67 Antitrust L. J. 159, 194 (1999) (“[P]rivate plaintiffs often are unwilling to exercise the degree of self-restraint and consideration of foreign governmental sensibilities generally exercised by the U. S. Government”). This difference means that the Government’s ability, in these three cases, to obtain relief helpful to those injured abroad tells us little or nothing about whether this Court would have awarded similar relief at the request of private plaintiffs. Neither did the Court focus explicitly in its opinions on a claim that the remedies sought to cure only independently caused foreign harm. Thus the three cases tell us even less about whether this Court then thought that foreign private plaintiffs could have obtained foreign relief based solely upon such independently caused foreign injury. Respondents also refer to three lower court cases brought by private plaintiffs. In the first, Industria Siciliana Asfalti, Bitumi, S. p. A. v. Exxon Research & Engineering Co., No. 75 Civ. 5828-CSH, 1977 WL 1353 (SDNY, Jan. 18, 1977), a District Court permitted an Italian firm to proceed against an American, firm with a Sherman Act claim based upon a purely foreign injury, i. e., an injury suffered in Italy. The court made clear, however, that the foreign injury was “inex tricably bound up with . . . domestic restraints of trade,” and that the plaintiff “was injured ... by reason of an alleged restraint of our domestic trade,” id., at *11, *12 (emphasis added), i. e., the foreign injury was dependent upon, not independent of domestic harm. See Part VI, infra. In the second case, Dominicus Americana' Bohio v. Gulf & Western Industries, Inc., 473 F. Supp. 680 (SDNY 1979), a District Court permitted Dominican and American firms to proceed against a competing American firm and the Dominican Tourist Information Center with a Sherman Act claim based upon injury apparently suffered in the Dominican Republic. The court, in finding the Sherman Act applicable, weighed several different factors, including the participation of American firms in the unlawful conduct, the partly domestic nature of both conduct and harm (to American tourists, a kind of “export”), and the fact that the domestic harm depended in part upon the foreign injury. Id., at 688. The' court did not separately analyze the legal problem before it in terms of independently caused foreign injury. Its opinion simply does not discuss the matter. It consequently cannot be taken as significant support for application of the Sherman Act here. The third case, Hunt v. Mobil Oil Corp., 550 F. 2d 68, 72 (CA2 1977), involved a claim by Hunt, an independent oil producer with reserves in Libya, that other major oil producers in Libya and the Persian Gulf (the “seven majors”) had conspired in New York and elsewhere to make it more difficult for Hunt to reach agreement with the Libyan Government on production terms and thereby eliminate him as a competitor. The case can be seen as involving a primarily foreign conspiracy designed to bring about foreign injury in Libya. But, as in Dominicus, the court nowhere considered the problem of independently caused foreign harm. Rather, the case was about the “act of state” doctrine, and the sole discussion of Sherman Act applicability — one brief paragraph — refers to other matters. 550 F. 2d, at 72, and n. 2. We do not see how Congress could have taken this case as significant support for the proposition that the Sherman Act applies in present circumstances. The upshot is that no pre-1982 case provides significant authority for application of the Sherman Act in the circumstances we here assume. Indeed, a leading contemporaneous lower court case contains language suggesting the contrary. See Timberlane Lumber Co. v. Bank of America, N. T. & S. A., 549 F. 2d 597, 613 (CA9 1976) (insisting that the foreign conduct’s domestic effect be “sufficiently large to present a cognizable injury to the plaintiffs” (emphasis added)). Taken together, these two sets of considerations, the one derived from comity and the other reflecting history, convince us that Congress would not have intended the FTAIA’s exception to bring independently caused foreign injury within the Sherman Act’s reach. V Respondents point to several considerations that point the other way. For one thing, the FTAIA’s language speaks in terms of the Sherman Act’s applicability to certain kinds of conduct. The FTAIA says that the Sherman Act applies to foreign “conduct” with a certain kind of harmful domestic effect. Why isn’t that the end of the matter? How can the Sherman Act both apply to the conduct when one person sues but not apply to the same conduct when another person sues? The question of who can or cannot sue is a matter for other statutes (namely, the Clayton Act) to determine. Moreover, the exception says that it applies if the conduct’s domestic effect gives rise to “a claim,” not to “the plaintiff’s claim” or “the claim at issue.” 15 U. S. C. §6a(2) (emphases added). The alleged conduct here did have domestic effects, and those effects were harmful enough to give rise to “a” claim. Respondents concede that this claim is not their own claim; it is someone else’s claim. But, linguistically speaking, they say, that is beside the point. Nor did Congress place the relevant words “gives rise to a claim” in the FTAIA to suggest any geographical limitation; rather it did so for a here neutral reason, namely, in order to make clear that the domestic effect must be an adverse (as opposed to a beneficial) effect. See House Report, at 11 (citing National Bank of Canada v. Interbank Card Assn., 666 F. 2d 6, 8 (CA2 1981)). Despite their linguistic logic, these arguments are not convincing. Linguistically speaking; a statute can apply and not apply to the same conduct, depending upon other circumstances; and those other circumstances may include the nature of the lawsuit (or of the related underlying harm). It also makes linguistic sense to read the words “a claim” as if they refer to the “plaintiff’s claim” or “the claim at issue.” At most, respondents’ linguistic arguments might show that respondents’ reading is the more natural reading of the statutory language. But those arguments do not show that we must accept that reading. And that is the critical point. The considerations previously mentioned — those of comity and history — make clear that the respondents’ reading is not consistent with the FTAIA’s basic intent. If the statute’s language reasonably permits an interpretation consistent with that intent, we should adopt it. And, for the reasons stated, we believe that the statute’s language permits the reading that we give it. Finally, respondents point to policy considerations, namely, that application of the Sherman Act in present circumstances will (through increased deterrence) help protect Americans against foreign-caused anticompetitive injury. Petitioners and supporting enforcement-agency amici, however, have made important experience-backed arguments (based upon amnesty-seeking incentives) to the contrary. We cannot say whether, on balance, respondents’ side of this empirically based argument or the enforcement agencies’ side is correct. But we can say that the answer to the dispute is neither clear enough, nor of such likely empirical significance, that it could overcome the considerations we have previously discussed and change our conclusion. For these reasons, we conclude that petitioners’ reading of the statute’s language is correct. That reading furthers the statute’s basic purposes, it properly reflects considerations of comity, and it is consistent with Sherman Act history. VI We have assumed that the anticompetitive conduct here independently caused foreign injury; that is, the conduct’s domestic effects did not help to bring about that foreign injury. Respondents argue, in the alternative, that the foreign injury was not independent. Rather, they say, the anti-competitive conduct’s domestic effects were linked to that foreign harm. Respondents contend that, because vitamins are fungible and readily transportable, without an adverse domestic effect (i. e., higher prices in the United States), the sellers could not have maintained their international price-fixing arrangement and respondents would not have suffered their foreign injury. They add that this “but for” condition is sufficient to bring the price-fixing conduct within the scope of the FTAIA’s exception. The Court of Appeals, however, did not address this argument, 315 F. 3d, at 341, and, for that reason, neither shall we. Respondents remain free to ask the Court of Appeals to consider the claim. The Court of Appeals may determine whether respondents properly preserved the argument, and, if so, it may consider it and decide the related claim. For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice O’Connor took no part in the consideration or decision of this case. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:

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 PUBLIC SERVICE COMMISSION OF UTAH et al. v. WYCOFF COMPANY, INC. No. 44. Argued November 13, 1952. Decided December 22, 1952. Wood R. Worsley argued the cause for petitioners. With him on the brief were C. W. Ferguson and D. A. Skeen. Harold S. Shertz and Wayne C. Durham argued the cause and filed a brief for respondent. John P. Randolph filed a brief for the National Association of Railroad and Utilities Commissioners, as amicus curiae, urging reversal. Mr. Justice Jackson delivered the opinion of the Court. As this suit in equity was commenced in United States District Court it sought two kinds of specific relief: (1) a declaratory judgment that complainant’s carriage of motion picture film and newsreels between points in Utah constitutes interstate commerce; (2) that the Public Service Commission of Utah and its members be forever enjoined from interfering with such transportation over routes authorized by the Interstate Commerce Commission. The complaint alleged a course of importing, processing and transporting picture film and newsreels to support the contention that carriage between points in Utah was so integrated with their interstate movement that the whole constituted interstate commerce. It averred that the Commission and its members “threaten to and are attempting to stop and prevent plaintiff from transporting motion picture film and newsreels between points and places within the State of Utah, and they are thereby interfering with the conduct of interstate commerce by the plaintiff and imposing an undue burden upon interstate commerce,” and that unless the defendants are enjoined they will “block, harass and prevent plaintiff in the transportation of said motion picture film and newsreels in Utah.” The Commission and its members answered that respondent’s transportation between points in Utah was nothing more than intrastate commerce. They specifically denied attempting, threatening, or intending to interfere with or burden interstate commerce. The District Court, after trial, sustained the contention of the Commission and dismissed the complaint. The Court of Appeals considered only “whether the intrastate transportations are nonetheless integral parts of interstate transportations.” It held the evidence to warrant an affirmative answer, reversed the judgment of the District Court and ordered further proceedings in conformity with that view. We granted certiorari, requesting counsel to discuss whether a single judge could hear and determine the case in view of 28 U. S. C. § 2281. That section provides that an injunction restraining enforcement of a state statute or the order of an administrative body thereunder “shall not be granted” upon the ground of unconstitutionality unless the application is heard and determined by a district court of three judges as provided in 28 U. S. C. § 2284. The respondent, which was plaintiff, contends that a three-judge court was not required, because the suit does not question constitutionality of any Utah statute nor the validity of any order of the State Commission. It says also that no injunction has been granted or even urged “outside of the naked recitation in the prayer of the Complaint.” It offered no evidence whatever of any past, pending or threatened action by the Utah Commission touching its business in any respect. The pleadings made that a clear-cut issue, which seems to have been completely ignored thereafter. The only issues defined on pretrial hearing were whether as matter of fact and of law the within-state transportation constituted interstate commerce. The trial court, however, made a general finding that no such interference had been made or threatened, which was not reversed or mentioned by the Court of Appeals. For more reasons than one it is clear that this proceeding cannot result in an injunction on constitutional grounds. In addition to defects that will appear in our discussion of declaratory relief, it is wanting in equity because there is no proof of any threatened or probable act of the defendants which might cause the irreparable injury essential to equitable relief by injunction. The respondent appears to have abandoned the suit as one for injunction but seeks to support it as one for declaratory judgment, hoping thereby to avoid both the three-judge court requirement and the necessity for proof of threatened injury. Whether declaratory relief is appropriate under the circumstances of this case apparently was not considered by either of the courts below. But that inquiry is one which every grant of this remedy must survive. The Declaratory Judgment Act of 1934, now 28 U. S. C. § 2201, styled “creation of remedy,” provides that in a case of actual controversy a competent court may “declare the rights and other legal relations” of a party “whether or not further relief is or could be sought.” This is an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant. Previous to its enactment there were responsible expressions of doubt that constitutional limitations on federal judicial power would permit any federal declaratory judgment procedure. Cf. Liberty Warehouse Co. v. Grannis, 273 U. S. 70; Willing v. Chicago Auditorium Assn., 277 U. S. 274; Arizona v. California, 283 U. S. 423; Piedmont & N. R. Co. v. United States, 280 U. S. 469. Finally, as the practice extended in the states, we reviewed a declaratory judgment rendered by a state court and held that a controversy which would be justiciable in this Court if presented in a suit for injunction is not the less so because the relief was declaratory. Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249. Encouraged by this and guided by the experience of the thirty-four states that had enacted such laws, the Senate Judiciary Committee recommended an adaptation of the principle to federal practice. Its enabling clause was narrower than that of the Uniform Act adopted in 1921 by the Commissioners on Uniform State Laws, which gave comprehensive power to declare rights, status and other legal relations. The Federal Act omits status and limits the declaration to cases of actual controversy. This Act was adjudged constitutional only by interpreting it to confine the declaratory remedy within conventional “case or controversy” limits. In Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 325, the Court said, “The Act of June 14, 1934, providing for declaratory judgments, does not attempt to change the essential requisites for the exercise of judicial power” which still was to be tested by such established principles as that “the judicial power does not extend to the determination of abstract questions” and that “claims based merely upon 'assumed potential invasions’ of rights are not enough to warrant judicial intervention.” In Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, Mr. Chief Justice Hughes used the whole catalogue of familiar phrases to define and delimit the measure of this new remedy. If its metes and bounds are not clearly marked, it is because his available verbal markers are themselves elastic, inconstant and imprecise. It applies, he points out, only to “cases and controversies in the constitutional sense” of a nature “consonant with the exercise of the judicial function” and “appropriate for judicial determination.” Each must present a “justiciable controversy” as distinguished from “a difference or dispute of a hypothetical or abstract character .... The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. . . . It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as' distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” The relief is available only for a “concrete case admitting of an immediate and definitive determination of the legal rights of the parties.” Id., at 240, 241. Other sources have stated relevant limitations. The Senate Judiciary Committee report regarded the 1,200 American decisions theretofore rendered on the subject as establishing that “the issue must be real, the question practical and not academic, and the decision must finally settle and determine the controversy.” Indeed the Uniform Act, unlike the Federal Act, expressly declares the discretion of the court to refuse a decree that would not “terminate the uncertainty or controversy giving rise to the proceeding.” In recommending Rule 57 of the Federal Rules of Civil Procedure, in order to provide procedures for the declaratory decree, the Committee noted “A declaration may not be rendered if a special statutory proceeding has been provided for the adjudication of some special type of case . . . .” But when all of the axioms have been exhausted and all words of definition have been spent, the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power. While the courts should not be reluctant or niggardly in granting this relief in the cases for which it was designed, they must be alert to avoid imposition upon their jurisdiction through obtaining futile or premature interventions, especialy in the field of public law. A maximum of caution is necessary in the type of litigation that we have here, where a ruling is sought that would reach far beyond the particular case. Such differ-enees of opinion or conflicts of interest must be “ripe for determination” as controversies over legal rights. The disagreement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them. The complainant in this case does not request an adjudication that it has a right to do, or to have, anything in particular. It does not ask a judgment that the Commission is without power to enter any specific order or take any concrete regulatory step. It seeks simply to establish that, as presently conducted, respondent’s carriage of goods between points within as well as without Utah is all interstate commerce. One naturally asks, “So what?” To that ultimate question no answer is sought. A multitude of rights and immunities may be predicated upon the premise that a business consists of interstate commerce. What are the specific ones in controversy? The record is silent and counsel little more articulate. We may surmise that the purpose to be served by a declaratory judgment is ultimately the same as respondent’s explanation of the purposes of the injunction it originally asked, which is “to guard against the possibility that said Commission would attempt to prevent respondent from operating under its certificate from the Interstate Commerce Commission.” (Emphasis supplied.) In this connection, Wycoff Co. v. Public Service Commission, -Utah -, 227 P. 2d 323 (1951), is brought to our attention. From this it appears that respondent and its predecessors in interest long made it a practice to obtain from the Utah Commission certificates to authorize this carriage of film commodities between points in Utah. But the Supreme Court of Utah, in the cited case, sustained the Commission in denying such an application upon a finding that the field already was adequately served. We are also told that the Commission filed a petition in a Utah state court to enjoin respondent from operating between a few specified locations within the State, but that process was never served and nothing in the record tells us what has happened to this action. We may conjecture that respondent fears some form of administrative or judicial action to prohibit its service on routes wholly within the State without the Commission’s leave. What respondent asks is that it win any such case before it is commenced. Even if respondent is engaged solely in interstate commerce, we cannot say that there is nothing whatever that the State may require. Eichholz v. Commission, 306 U. S. 268, 273. A declaratory judgment may be the basis of further relief necessary or proper against the adverse party (28 U. S. C. § 2202). The carrier’s idea seems to be that it can now establish the major premise of an exemption, not as an incident of any present declaration of any specific right or immunity, but to hold in readiness for use should the Commission at any future time attempt to apply any part of a complicated regulatory statute to it. If there is any more definite or contemporaneous purpose to this case, neither this record nor the briefs make it clear to us. We think this for several reasons exceeds any permissible discretionary use of the Federal Declaratory Judgment Act. In the first place, this dispute has not matured to a point where we can see what, if any, concrete controversy will develop. It is much like asking a declaration that the State has no power to enact legislation that may be under consideration but has not yet shaped up into an enactment. If there is any risk of suffering penalty, liability or prosecution, which a declaration would avoid, it is not pointed out to us. If and when the State Commission takes some action that raises an issue of its power, some further declaration would be necessary to any complete relief. The proposed decree cannot end the controversy. Nor is it apparent that the present proceeding would serve a useful purpose if at some future date the State undertakes regulation of respondent. After a sifting of evidence and a finding of facts as they are today, there is no assurance that changes of significance may not take place before the State decides to move. Of course, the remedy is not to be withheld because it necessitates weighing conflicting evidence or deciding issues of fact as well as law. That is the province of courts. Aetna Life Insurance Co. v. Haworth, supra, at 242, and see Perkins v. Elg, 307 U. S. 325; Currin v. Wallace, 306 U. S. 1. But when the request is not for ultimate determination of rights but for preliminary findings and conclusions intended to fortify the litigant against future regulation, it would be a rare case in which the relief should be granted. Cf. Coffman v. Breeze Corporations, Inc., 323 U.S. 316. Even when there is no incipient federal-state conflict, the declaratory judgment procedure will not be used to pre-empt and prejudge issues that are committed for initial decision to an administrative body or special tribunal any more than it will be used as a substitute for statutory methods of review. It would not be tolerable, for example, that declaratory judgments establish that an enterprise is not in interstate commerce in order to forestall proceedings by the National Labor Relations Board, the Interstate Commerce Commission or many agencies that are authorized to try and decide such an issue in the first instance. Cf. Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41; Eccles v. Peoples Bank, 333 U. S. 426. See Colegrove v. Green, 328 U. S. 549. Responsibility for effective functioning of the administrative process cannot be thus transferred from the bodies in which Congress has placed it to the courts. But, as the declaratory proceeding is here invoked, it is even less appropriate because, in addition to foreclosing an administrative body, it is incompatible with a proper federal-state relationship. The carrier, being in some disagreement with the State Commission, rushed into federal court to get a declaration which either is intended in ways not disclosed to tie the Commission’s hands before it can act or it has no purpose at all. Declaratory proceedings in the federal courts against state officials must be decided with regard for the implications of our federal system. State administrative bodies have the initial right to reduce the general policies of state regulatory statutes into concrete orders and the primary right to take evidence and make findings of fact. It is the state courts which have the first and the last word as to the meaning of state statutes and whether a particular order is within the legislative terms of reference so as to make it the action of the State. We have disapproved anticipatory declarations as to state regulatory statutes, even where the case originated in and was entertained by courts of the State affected. Alabama State Federation of Labor v. McAdory, 325 U. S. 450. Anticipatory judgment by a federal court to frustrate action by a state agency is even less tolerable to our federalism. Is the declaration contemplated here to be res judicata, so that the Commission cannot hear evidence and decide any matter for itself? If so, the federal court has virtually lifted the case out of the State Commission before it could be heard. If not, the federal judgment serves no useful purpose as a final determination of rights. The procedures of review usually afford ample protection to a carrier whose federal rights are actually invaded, and there are remedies for threatened irreparable injuries. State courts are bound equally with the federal courts by the Federal Constitution and laws. Ultimate recourse may be had to this Court by certiorari if a state court has allegedly denied a federal right. In this case, as in many actions for declaratory judgment, the realistic position of the parties is reversed. The plaintiff is seeking to establish a defense against a cause of action which the declaratory defendant may assert in the Utah courts. Respondent here has sought to ward off possible action of the petitioners by seeking a declaratory judgment to the effect that he will have a good defense when and if that cause of action is asserted. Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law. Tennessee v. Union & Planters’ Bank, 152 U. S. 454; The Fair v. Kohler Die & Specialty Co., 228 U. S. 22; Taylor v. Anderson, 234 U. S. 74. Since this case should be dismissed in any event, it is not necessary to determine whether, on this record, the alleged controversy over an action that may be begun in state court would be maintainable under the head of federal-question jurisdiction. But we advert to doubts upon that subject to indicate the injury that would be necessary if the case clearly rested merely on threatened suit in state court, as, for all we can learn, it may. We conclude that this suit cannot be entertained as one for injunction and should not be continued as one for a declaratory judgment. The judgment below should be reversed and modified to direct that the action be dismissed. Reversed and so ordered. 195 F. 2d 252. 343 U. S. 975. See 28 U. S. C. § 2201. S. Rep. No. 1005, 73d Cong., 2d Sess., p. 6, May 10, 1934; Borchard, Declaratory Judgments (2d ed. 1941), 1043, 1048. Borchard, op. cit., 1042. See, Developments in the Law — Declaratory Judgments, 62 Harv. L. Rev. 787, 802. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable Answer:

sc_caseoriginstate

12

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. KPMG LLP v. COCCHI et al. No. 10-1521. Decided November 7, 2011 Per Curiam. Agreements to arbitrate that fall within the scope and coverage of the Federal Arbitration Act (Act), 9 U. S. C. § 1 et seq., must be enforced in state and federal courts. State courts, then, “have a prominent role to play as enforcers of agreements to arbitrate.” Vaden v. Discover Bank, 556 U. S. 49, 59 (2009). The Act has been interpreted to require that if a dispute presents multiple claims, some arbitrable and some not, the former must be sent to arbitration even if this will lead to piecemeal litigation. See Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 217 (1985). From this it follows that state and federal courts must examine with care the complaints seeking to invoke their jurisdiction in order to separate arbitrable from nonarbitrable claims. A court may not issue a blanket refusal to compel arbitration merely on the grounds that some of the claims could be resolved by the court without arbitration. See ibid. In this case the Fourth District Court of Appeal of the State of Florida upheld a trial court’s refusal to compel arbitration of respondents’ claims after determining that two of the four claims in a complaint were nonarbitrable. Though the matter is not altogether free from doubt, a fair reading of the opinion indicates a likelihood that the Court of Appeal failed to determine whether the other two claims in the complaint were arbitrable. For this reason, the judgment of the Court of Appeal is vacated, and the case is remanded for further proceedings. Respondents are 19 individuals and entities who bought limited partnership interests in one of three limited partnerships, all known as the Rye Funds. The Rye Funds were managed by Tremont Group Holding, Inc., and Tremont Partners, Inc., both of which were audited by KPMG. The Rye Funds were invested with financier Bernard Madoff and allegedly lost millions of dollars as a result of a scheme to defraud. Respondents sued the Rye Funds, the Tremont defendants, and Tremont’s auditing firm, KPMG. Only the claims against KPMG are at issue in this case. Against KPMG, respondents alleged four causes of action: negligent misrepresentation; violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat. §501.201 et seq. (2010); professional malpractice; and aiding and abetting a breach of fiduciary duty. Respondents’ basic theory was that KPMG failed to use proper auditing standards with respect to the financial statements of the partnerships. These improper audits, respondents contend, led to “substantial misrepresentations” about the health of the funds and resulted in respondents’ investment losses. 51 So. 3d 1165, 1168 (Fla. App. 2010). KPMG moved to compel arbitration based on the audit services agreement that existed between it and the Tremont defendants. That agreement provided that “[a]ny dispute or claim arising out of or relating to . . . the services provided [by KPMG]... (including any dispute or claim involving any person or entity for whose benefit the services in question are or were provided) shall be resolved” either by mediation or arbitration. App. to Pet. for Cert. 63a. The Florida Circuit Court of the Fifteenth Judicial Circuit Palm Beach County denied the motion. The Court of Appeal affirmed, noting that “[n]one of the -plaintiffs . . . expressly assented in any fashion to [the audit services agreement] or the arbitration provision.” 51 So. 3d, at 1168. Thus, the court found, the arbitration clause could only be enforced if respondents’ claims were derivative in that they arose from the services KPMG performed for the Tremont defendants pursuant to the audit services agreement. Applying' Delaware law, which both parties agreed was applicable, the Court of Appeal concluded that the negligent misrepresentation and the violation of FDUTPA claims were direct rather than derivative. A fair reading of the opinion reveals nothing to suggest that the court came to the same conclusion about the professional malpractice and breach of fiduciary duty claims. Indeed, the court said nothing about those claims at all. Finding “the arbitral agreement upon which KPMG relied would not apply to the direct claims made by the individual plaintiffs,” id., at 1167, the Court of Appeal affirmed the trial court’s denial of the motion to arbitrate. Respondents have since amended their complaint to add a fifth claim. Citing the Court of Appeal’s decision, the trial court again denied KPMG’s motion to compel arbitration. The Act reflects an “emphatic federal policy in favor of arbitral dispute resolution.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 631 (1985); Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24-25 (1983) (noting that “questions of arbitrability [must] ... be addressed with a healthy regard for the federal policy favoring arbitration”). This policy, as contained within the Act, “requires courts to enforce the bargain of the parties to arbitrate,” Dean Witter, supra, at 217, and “cannot possibly require the disregard of state law permitting arbitration by or against nonparties to the written arbitration agreement,” Arthur Andersen LLP v. Carlisle, 556 U. S. 624, 630, n. 5 (2009) (emphasis deleted). Both parties agree that whether the claims in the complaint are arbitrable turns on the question whether they must be deemed direct or derivative under Delaware law. That question of state law is not at issue here. What is at issue is the Court of Appeal’s apparent refusal to compel arbitration on any of the four claims based solely on a finding that two of them, the claim of negligent misrepresentation and the alleged violation of the FDUTPA, were nonarbitrable. In Dean Witter, the Court noted that the Act “provides that written agreements to arbitrate controversies arising out of an existing contract ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” 470 U. S., at 218 (quoting 9 U. S. C. §2). The Court found that by its terras, “the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” 470 U. S., at 218 (emphasis in original). Thus, when a complaint contains both arbitrable and nonarbitrable claims, the Act requires courts to “compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.” Id., at 217. To implement this holding, courts must examine a complaint with care to assess whether any individual claim must be arbitrated. The failure to do so is subject to immediate review. See Southland Corp. v. Keating, 465 U. S. 1, 6-7 (1984). The Court of Appeal listed all four claims, found that two were direct, and then refused to compel arbitration on the complaint as a whole because the arbitral agreement “would not apply to the direct claims.” 51 So. 3d, at 1167. By not addressing the other two claims in the complaint, the Court of Appeal failed to give effect to the plain meaning of the Act and to the holding of Dean Witter. The petition for cer-tiorari is granted. The judgment of the Court of Appeal is vacated, and the case is remanded. On remand, the Court of Appeal should examine the remaining two claims to determine whether either requires arbitration. It is so ordered. 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_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. HANOVER SHOE, INC., Appellee, v. UNITED SHOE MACHINERY CORPORATION, Appellant. No. 13198. United States Court of Appeals Third Circuit. Argued June 23, 1960. Decided June 30, 1960. Ralph M. Carson, New York City (Theodore Kiendl, New York City, Lewis H. Van Dusen, Jr., Philadelphia, Pa., Robert D. Salinger, Boston, Mass., Louis L. Stanton, Jr., William K. Muir,' Jr., New York City, on the brief), for appellant. Breck P. McAllister, New York City (Nogi, O’Malley & Harris, Scranton, Pa., Donovan, Leisure, Newton & Irvine, New York City, on the brief), James V. Hayes, New York City, Russell J. O’Malley, Scranton, Pa., Robert F. Morten, New York City, for appellee. Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges. PER CURIAM. In this suit brought under Section 4 of the Clayton Act, 15 U.S.C.A. § 15, for alleged injury resulting from claimed violation of Section 2 of the Sherman Act, 15 U.S.C.A. § 2, by defendant there was before the district court for trial as a separate issue the question of “Whether the excessive shoe machinery costs alleged by the plaintiff and denied by the defendant constituted an injury to plaintiff’s business or property.” The quoted from consented to order further provided that the determination of the separate issue would proceed on the assumption “that the violation of the law as alleged existed, and (2) that the excessive cost of machinery as alleged existed.” The sole defense to that assumed state of facts was that plaintiff passed along defendant’s excessive charges to its customers and therefore was not injured. The district court in a thoroughly convincing opinion rejected the proposition advanced by defendant as contrary to the language and purpose of the governing law. Appellant also asserts that the trebled damages called for by Section 4 would result in a windfall to plaintiff. Congress, in line with its effort to eliminate the sort of monopolistic practice here revealed imposed this rigorous penalty. The assumed situation before the district court is scarcely to be called sui generis but if by any chance it should be so categoried "then any modification of Section 4 to fit the particular circumstances would be for the Congress. ■The order of the district court will be affirmed on the opinion of that court, D.C. M.D.Pa.1960, 185 F.Supp. 826. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_treat

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. CONTINENTAL ASSURANCE COMPANY, Plaintiff, v. Rose PLATKE, Eleanor Koslow and Ronald Platke, Defendants. Rose PLATKE, Defendant-Appellant, v. Eleanor KOSLOW and Ronald Platke, Defendants-Appellees. No. 13290. United States Court of Appeals Seventh Circuit. Nov. 7, 1961. James A. Chatz, Erwin B. Neiman, Robert B. Chatz, Chicago, 111., for appellant. Richard A. Griffin, Theodore Spak, Chicago, 111., Borenstein & Griffin, Chicago, 111., of counsel, for appellees. Before CASTLE, KILEY and SWYGERT, Circuit Judges. CASTLE, Circuit Judge. The plaintiff, Continental Assurance Company by its bill of interpleader filed in the District Court alleged that it had issued a contract of life insurance insuring the life of Joseph Platke and requested determination of conflicting claims for the proceeds of the policy presented to plaintiff subsequent to the insured’s death. Rose Platke, defendant-appellant, the insured’s widow who was his second wife, claims the proceeds under the original designation of beneficiaries contained in the policy. Defendants-appellees, Eleanor Koslow, insured’s daughter, and Ronald Platke, his son, claim equal shares in the proceeds with the widow under an alleged change of the beneficiary provisions in their behalf. The case was heard on a motion for summary judgment, upon an agreed statement of facts, and the District Court entered judgment against defendant-appellant and in favor of defendants-appellees, Eleanor Koslow and Ronald Platke. Rose Platke appealed. Appellant states the contested issue as follows: Did the insured by his action or non-actions do all within his power so as to effectuate the change of beneficiary designation of the policy in question, even though the change of beneficiary was not endorsed on the contract of insurance as required by said contract, pursuant to its terms and provisions ? Pertinent facts may be summarized as follows: On May 7, 1956 plaintiff issued its policy on the life of the insured in the face amount of $10,000. The beneficial designation therein was: “Rose Platke, Wife, if living; otherwise to Ronald Platke, Son and Marshall Stein, Stepson, equally or to the survivor.” The right to change the beneficiary was expressly reserved to the insured. About a year before his death on November 6, 1959 the insured, suffering from cancer, returned to live in St. Louis, Missouri, where his daughter, Eleanor Koslow, resided. His wife, Rose Platke, continued to live in Chicago, Illinois. The insurance policy was in her possession. On July 15, 1959 the insured executed a “Change of Beneficiary” form provided by plaintiff together with an affidavit stating: “I further evidence my desire herewith that said change of beneficiary be effected by said Company without indorsement on the policy, which I do not have in my possession here in St. Louis, Missouri at the present time, it being my sincere desire to effectuate this change of beneficiary at the earliest possible time hereafter.” The change of beneficiary form executed by insured provided for the following beneficiary designation: “Rose Platke, Wife Eleanor Koslow, daughter Ronald Platke, son equally or to the survivors or survivor.” .and on its face expressly stated: “The undersigned requests that change in beneficiary be effected without indorsement on the policy.” The policy provided: “If the right to change the beneficiary has been reserved * * * the Owner may change the beneficiary, with or without reserving the right of further change, by written request to the company, accompanied by this policy for suitable endorsement. No such change of beneficiary shall take effect until endorsed hereon by the Company. After such endorsement, the change will relate back to and take effect as of the time the Owner signed the request, whether the Insured be living on the date of such endorsement or not, * -* * ” On July 20, 1959 plaintiff in a reply addressed to one Arthur Litz at St. Louis acknowledged receipt of the form and affidavit, called attention to the above policy provision and stated that “in order to fully validate this change, it must be endorsed on the policy”. The letter advised that plaintiff would keep the documents “for whatever legal value they may have” but could not be responsible for payment to the new beneficiaries, inasmuch as the policy was presently endorsed with another designation. The plaintiff received no reply to this letter or further communication on the subject prior to the death of the insured. The policy was never returned to plaintiff for endorsement. The District Court concluded that the change of beneficiaries is valid and the proceeds of the policy subject to distribution thereunder, and in our opinion such conclusion was not error. The insured did not have possession of the policy. At the time he executed the change of beneficiary form and affidavit he was suffering from cancer—in terminal stage—from which he died about three and one-half months later. He was at St. Louis and the policy was in appellant’s possession in Chicago. It is clear that the insured intended to effectuate the change and under the circumstances disclosed by the record it appears he did all that he could have been reasonably expected to do to accomplish his desire. There is nothing in the agreed statement of facts which is persuasive that the insured could have done more. The mere possibility that he might have is not in our opinion sufficient to overcome the effect of what he did. It was insured’s right to change beneficiaries — no right of appellant was involved. Illinois law governs in this case. Prudential Insurance Company of America v. Moore, 7 Cir., 145 F.2d 580, 583. And, on the basis of the exposition of that law in Sun Life Assurance Co. of Canada v. Williams, 284 Ill.App. 222, 1 N.E.2d 247 and Thompson v. Metropolitan Life Ins. Co., 318 Ill.App. 235, 47 N.E.2d 879 as recognized by this court in Prudential and in John Hancock Mut. Life Ins. Co. v. Douglass, 7 Cir., 156 F.2d 367 the policy endorsement provision is for the protection of the company. In Sun Life the court, quoting with approval from White v. White, Sup., 194 N.Y.S. 114, pointed out (284 Ill.App. at page 225, 1 N.E.2d at page 248): “The neglect to make this endorsement is not available in an action brought by a beneficiary to nullify the act of the insured in making a redesignation of a new beneficiary.” Moreover, the policy provision in the instant ease permits of the ministerial act of endorsement being performed after the death of the insured. The fact that insured died before such endorsement does not deprive the redesignation of beneficiaries of effect. Appellant is in no position to complain of the lack of endorsement when it is her possession of the policy which has prevented it. In our opinion this case falls within the Illinois rule again referred to in Donahey v. Sweigart, 336 Ill.App. 366, 371, 84 N.E.2d 170, 172 that: “* * * [WJhen an insured has done everything within his power to effectuate a change of beneficiary, equity will not require exact compliance with all stated conditions in order to consider that a change of beneficiary has been effected.” We have examined the Illinois cases relied upon by the appellant and find none of them controlling here. All contain factors which serve to distinguish them from the instant case and the application of the Illinois rule here applied. It would serve no useful purpose and unduly lengthen our opinion to analyze and discuss them. The judgment of the District Court is affirmed. Affirmed. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:

sc_petitioner

027

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. UNITED STATES v. MASSEI. No. 98. Argued January 9, 1958. Decided March 3, 1958. Roger Fisher argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Rice and Joseph F. Goetten. Richard Maguire argued the cause and filed a brief for respondent. Per Curiam. The Court of Appeals has based its remand in part on the absence of “proof of likely source,” which it regards as an “indispensable” element of the net worth method, citing Holland v. United States, 348 U. S. 121, in support of its conclusion. In Holland we held that proof of a likely source was “sufficient” to convict in a net worth case where the Government did not negative all the possible nontaxable sources of the alleged net worth increase. This was not intended to imply that proof of a likely source was necessary in every case. On the contrary, should all possible sources of nontaxable income be negatived, there would be no necessity for proof of a likely source. The above explanation must be taken into consideration in applying the Holland doctrine to this case. A new trial being permissible under the terms of the order of the Court of Appeals, we affirm its judgment. Mr. Justice Douglas would affirm the judgment below on the opinion of the Court of Appeals, 241 F. 2d 895, 900-901. 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_counsel2

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. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Daniel K. MAYERS et al., Appellants v. Peter S. RIDLEY et al. No. 71-1418. United States Court of Appeals, District of Columbia Circuit. Reconsidered March 1, 1972. Decided June 30, 1972. Mr. Michael J. Waggoner, Washington, D. C., with whom Messrs. Jack B. Owens and Ralph J. Temple, Washington, D. C., were on the brief, for appellants. Mr. Ted. D. Kuemmerling, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellees. On Reconsideration En Banc Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKIN-NON, ROBB and WILKEY, Circuit Judges, en banc. PER CURIAM: Appellants, a group of District of Columbia residents representing the class of homeowners whose property is burdened by racial covenants, instituted this suit to enjoin the Recorder of Deeds from accepting such covenants for filing in the future and to require the Recorder to affix a sticker on each existing liber volume stating that restrictive covenants found therein are null and void. They also asked for an injunction preventing the Recorder from providing copies of instruments on file unless a similar notice is attached to the copies. The District Court dismissed their complaint, 330 F.Supp. 447 (1971), and a three-judge panel of this court affirmed that judgment. On reconsideration en banc of the judgment of the District Court we now reverse. Reversed and remanded. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

sc_issuearea

H

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. UNITED STATES v. LINE MATERIAL CO. et al. No. 8. Argued April 29, 1947. Reargued November 12-13, 1947. Decided March 8, 1948. Assistant Attorney General Berge argued the cause on the original argument for the United States. With him on the brief were George T. Washington, then Acting Solicitor General, Charles H. Weston, Robert G. Seaks, Bartholomew A. Diggins and Leonard J. Emmerglick. Frederick Bernays Wiener argued the cause on the re-argument for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Sonnett and Robert G. Beaks. John Lord O’Brian and Albert R. Connelly argued the cause for appellees. With them on the briefs were Nester S. Foley, Gerhard A. Gesell, Louis Quarles, Maxwell H. Herriott, Clark J. A. Hazelwood, Charles F. Meroni, Needham A. Graham, Jr., W. F. Sonnekalb, Jr., Alexander C. Neave, Harry R. Puch, Jr., Wilder Lucas, Wilber Owen, John A. Dienner, Edward C. Grelle, George B. Turner and John J. O’Connell. Mr. Justice Reed delivered the opinion of the Court. The United States sought an injunction under §§ 1 and 4 of the Sherman Act in the District Court against continuance of violations of that Act by an allegedly unlawful combination or conspiracy between appellees, through contracts, to restrain interstate trade in certain patented electrical devices. The restraint alleged arose from a cross-license arrangement between the patent owners, Line Material' Company and Southern States Equipment Corporation, to fix the sale price of the devices, to which arrangement the other appellees, licensees to make and vend, adhered by supplemental contracts. The District Court, 64 F. Supp. 970, dismissed the complaint as to all defendants upon its conclusion that the rule of United States v. General Electric Co., 272 U. S. 476, was controlling. That case approved as lawful a pat-entee’s license to make and vend which required the licensee in its sales of the patented devices to conform to the licensor’s sale price schedule. Appeal was taken directly to this Court, 32 Stat. 823, and probable jurisdiction noted here on October 21, 1946. We have jurisdiction. I. The Facts. The challenged arrangements center around three product patents, which are useful in protecting an electric circuit from the dangers incident to a short circuit or other overload. Two of them are dropout fuse cutouts and the third is a housing suitable for use with any cutout. Dropout fuse cutouts may be used without any housing. The District Court found that 40.77% of all cutouts manufactured and sold by these defendants were produced under these patents. This was substantially all the dropout fuse cutouts made in the United States. There are competitive devices that perform the same functions manufactured by appellees and others under different patents than those here involved. The dominant patent, No. 2,150,102, in the field of dropout fuse cutouts with double jointed hinge construction was issued March 7, 1939, to the Southern States Equipment Corporation, assignee, on an application of George N. Lemmon. This patent reads upon a patent No. 2,176,227, reissued December 21, 1943, Re. 22,412, issued October 17, 1939 to Line Material Company, as-signee, on an application by Schultz and Steinmayer. The housing patent No. 1,781,876, reissued March 31, 1931, as Re. 18,020, and again February 5, 1935, as Re. 19,449, was issued November 18, 1930 to Line, assignee, on an application by W. D. Kyle. The Kyle patent covers a wet-process porcelain box with great dielectric strength, which may be economically constructed and has been commercially successful. We give no weight to the presence of the Kyle patent in the licenses. The applications for the Lemmon and Schultz patents were pending simultaneously. They were declared in interference and a contest resulted. The decision of the Patent Office awarding dominant claims to Southern and subservient claims to Line on the Lemmon and the Schultz applications made it impossible for any manufacturer to use both patents when later issued without some cross-licensing arrangement. Cf. Temco Electric Motor Co. v. Apco Mfg. Co., 275 U. S. 319, 328. Only when both patents could be lawfully used by a single maker could the public or the patentees obtain the full benefit of the efficiency and economy of the inventions. Negotiations were started by Line which eventuated in the challenged arrangements. The first definitive document was a bilateral, royalty-free, cross-license agreement of May 23, 1938, between Southern and Line after the Patent Office award but before the patents issued. This, so far as here pertinent, was a license to Southern by Line to make and vend the prospective Schultz patented apparatus with the exclusive right to grant licenses or sublicenses to others. Line also granted Southern the right to make and vend but not to sublicense the Kyle patent. Southern licensed Line to make and vend but not to sublicense the prospective Lemmon patent for defined equipment which included the Schultz apparatus. Sublicense royalties and expenses were to be divided between Line and Southern. Although a memorandum of agreement of January 12, 1938, between the parties had no such requirement, Line agreed to sell equipment covered by the Southern patent at prices not less than those fixed by Southern. Southern made the same agreement for equipment covered solely by the Line patent. No requirement for price limitation upon sales by other manufacturers under license was included. Six of the other manufacturers here involved were advised by Line by letter, dated June 13,1938, that Southern had authority to grant licenses under the Schultz prospective patent. On October 3, 1938, Kearney took from Southern a license to practice the Lemmon and Schultz patents. The license had a price, term and condition of sale clause, governed by Southern’s prices, which bound Kearney to maintain the prices on its sales of devices covered by the patents. On October 7, 1938, the five other manufacturers mentioned above were offered by Southern the same contract as the standard licensor’s agreement. The Kearney contract was discussed at Chicago in October, 1938, by all of the above manufacturers except Railway. Pacific also participated. It never was enforced. The first patent involved in this case did not issue until March, 1939. Those manufacturers who were making double jointed open and enclosed dropout cutouts wanted to and did explore cooperatively (F. F. 15) the validity of the patents. They failed to find a satisfactory basis for attack. They were faced with infringement suits. Other reasons developed for the refusal of the six manufacturers to accept the Kearney form contracts (F. F. 16 & 17) unnecessary to detail here. One reason was that the prospective sublicensees preferred Line to Southern as licensor because of the fact that Line, as owner and manufacturer, would license the Kyle patent. New arrangements were proposed for the licensees. After mutual discussion between the licensees and patentees, these new agreements were submitted. A finding to which no objection is made states: “On October 24, 1939, General Electric, Westinghouse, Kearney, Matthews, Schweitzer and Conrad, and Railway met with Line in Chicago and jointly discussed drafts of the proposed license agreements under the Lemmon, Schultz, and Kyle patents. Thereafter, identical sets of revised licenses were sent by Line to General Electric, Westinghouse, Matthews, Schweitzer and Conrad, and the attorneys for Railway and Kearney.” A form for a proposed licensing agreement that contained the essential elements of the price provision ultimately included in the licenses had been circulated among prospective licensees by Line by letters under date of October 6,1939. To meet the various objections of the future licensees, the agreement of May 23, 1938, between Southern and Line was revised as of January 12, 1940. Except for the substitution of Line for Southern as licensor of other manufacturers, it follows generally the form of the earlier agreement. There were royalty-free cross-licenses of the Schultz and Lemmon patents substantially as before. Line was given the exclusive right to grant sublicenses to others for Lemmon. Southern retained the privilege, royalty free, of making and vending the Kyle patent, also. Southern bound itself to maintain prices, so long as Line required other licensees to do so. Even if it be assumed that the proper interpretation of the Line-Southern agreement permitted Southern to manufacture under its own Lemmon patent without price control, the practical result is that Southern does have its price for its products fixed because the only commercially successful fabrication is under a combination of the Lemmon and Schultz patents. Findings of Fact 7 and 10. The price maintenance feature was reflected in all the licenses to make and vend granted by Line, under the Line-Southern contract, to the other appellees. There were variations in the price provisions that are not significant for the issues of this case. A fair example appears below. The execution of these sublicenses by the other appellees, except Johnson and Royal, followed within a year. Licenses were executed by the two on June 15, 1943, and March 24, 1944, respectively. After August 1, 1940, since a number of the appellees had executed the license contracts, two consultations of the licensees and the patentees were held to classify the products of the various licensees in comparison with the licensor’s devices. The trial judge found that prices were not’ discussed. These were fixed by Line without discussion with or advice from any other appellee. There can be no doubt, however, that each licensee knew of the proposed price provisions in the licenses of other licensees from the circulation of proposed form of license on October 6, 1939, subsequent consultations among the licensees and an escrow agreement, fulfilled July 11, 1940. That agreement was entered into after General Electric took its license and required for fulfillment the acceptance of identical licenses by Matthews, Kearney and Railway. The licenses that were the subject of the escrow contained the price provisions of General Electric’s license. This awareness by each signer of the price provisions in prior contracts is conceded by appellees’ brief. A price schedule became effective January 18, 1941. Thereafter, all the appellees tried to maintain prices. Where there was accidental variation, Line wrote the licensee calling attention to the failure. The licenses were the result of arm’s length bargaining in each instance. Price limitation was actively opposed in toto or restriction of its scope sought by several of the licensees, including General Electric, the largest producer of the patented appliances. A number tried energetically to find substitutes for the devices. All the licensees, however, were forced to accept the terms or cease manufacture. By accepting they secured release from claims for past infringement through a provision to that effect in the license. The patentees through the licenses sought system in their royalty collections and pecuniary reward for their patent monopoly. Undoubtedly one purpose of the arrangements was to make possible the use by each manufacturer of the Lemmon and Schultz patents. These patents in separate hands produced a deadlock. Lem-mon by his basic patent “blocked” Schultz’s improvement. Cross-licenses furnished appellees a solution. On consideration of the agreements and the circumstances surrounding their negotiation and execution, the District Court found that the arrangements, as a whole, were made in good faith, to make possible the manufacture by all appellees of the patented devices, to gain a legitimate return to the patentees on the inventions; and that, apart from the written agreements, there was no undertaking between the appellees or any of them to fix prices. Being convinced, as we indicated at the first of this opinion, that the General Electric case controlled and permitted such price arrangements as are disclosed in the contracts, the District Court dismissed the complaint. The Government attacks the rationale of the General Electric case and urges that it be overruled, limited and explained or differentiated. II. The General Electric Case. That case was decided in 1926 by a unanimous Court, Chief Justice Taft writing. It involved a bill in equity to enjoin further violations of the Sherman Act. While violations of the Act by agreements fixing the resale price of patented articles (incandescent light bulbs) sold to dealers also were alleged in the bill, so far as here material the pertinent alleged violation was an agreement between General Electric and Westinghouse Company through which Westinghouse was licensed to manufacture lamps under a number of General Electric’s patents, including a patent on the use of tungsten filament in the bulb, on condition that it should sell them at prices fixed by the licensor. On considering an objection to the fixing of prices on bulbs with a tungsten filament, the price agreement was upheld as a valid exercise of patent rights by the licensor. Speaking of the arrangement, this Court said: “If the patentee . . . licenses the selling of the articles [by a licensee to make], may he limit the selling by limiting the method of sale and the price? We think he may do so, provided the conditions of sale are normally and reasonably adapted to secure pecuniary reward for the pat-entee’s monopoly.” P. 490. This proviso must be read as directed at agreements between a patentee and a licensee to make and vend. The original context of the words just quoted makes clear that they carry no implication of approval of all a patentee’s contracts which tend to increase earnings on patents. The opinion recognizes the fixed rule that a sale of the patented article puts control of the purchaser’s resale price beyond the power of the patentee. P. 489. Compare United States v. Univis Lens Co., 316 U. S. 241. Nor can anything be found in the General Electric case which will serve as a basis to argue otherwise than that the precise terms of the grant define the limits of a patentee’s monopoly and the area in which the patentee is freed from competition of price, service, quality or otherwise. Compare Mercoid Corporation v. Mid-Continent Inv. Co., 320 U. S. 661, 665, 666; United States v. Masonite Corp., 316 U. S. 265, 277-78, 280; Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 510. General Electric is a case that has provoked criticism and approval. It had only bare recognition in Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 456. That case emphasized the rule against the extension of the patent monopoly, p. 456, to resale prices or to avoid competition among buyers. Pages 457-58. We found it unnecessary to reconsider the rule in United States v. Masonite Corp., 316 U. S. 265, 277, although the arrangement there was for sale of patented articles at fixed prices by dealers whom the patentee claimed were del credere agents. As we concluded the patent privilege was exhausted by a transfer of the articles to certain agents who were part of the sales organization of competitors, discussion of the price-fixing limitation was not required. In Katzinger Co. v. Chicago Mfg. Co., 329 U. S. 394, 398, where a suit was brought to recover royalties on a license with price limitations, this Court refused to examine the General Electric rule because of the claimed illegality of the Katz-inger patent. If the patent were invalid, the price-fixing agreement would be unlawful. We affirmed the action of the Circuit Court of Appeals in remanding the case to the District Court to determine the validity of the patent. The General Electric case was cited with approval in Carbice Corp. v. American Patents Development Corp., 283 U. S. 27, 31. Other courts have explained or distinguished the General Electric rule. As a reason for asking this Court to reexamine the rule of the General Electric case, the Government states that price maintenance under patents through various types of agreements is involved in certain pending cases. Furthermore, the point is made that there is such a “host of difficult and unsettled questions” arising from the General Electric holding that the simplest solution is to overrule the precedent on the power of a patentee to establish sale prices of a licensee to make and vend a patented article. Such a liquidation of the doctrine of a patentee’s power to determine a licensee’s sale price of a patented article would solve problems arising from its adoption. Since 1902, however, when Bement v. National Harrow Co., 186 U. S. 70, was decided, a patentee has been able to control his licensee’s sale price within the limits of the patent monopoly. Litigation that the rule has engendered proves that business arrangements have been repeatedly, even though hesitatingly, made in reliance upon the contractors’ interpretation of its meaning. Ap-pellees urge that Congress has taken no steps to modify the rule. Such legislative attitude is to be weighed with the counterbalancing fact that the rule of the General Electric case grew out of a judicial determination. The writer accepts the rule of the General Electric case as interpreted by the third subdivision of this opinion. As a majority of the Court does not agree with that position, the case cannot be reaffirmed on that basis. Neither is there a majority to overrule General Electric. In these circumstances, we must proceed to determine the issues on the assumption that General Electric continues as a precedent. Furthermore, we do not think it wise to undertake to explain, further than the facts of this case require, our views as to the applicability of patent price limitation in the various situations listed by the Government. On that assumption where a conspiracy to restrain trade or an effort to monopolize is not involved, a patentee may license another to make and vend the patented device with a provision that the licensee’s sale price shall be fixed by the patentee. The assumption is stated in this way so as to leave aside the many variables of the General Electric rule that may arise. For example, there may be an aggregation of patents to obtain dominance in a patent field, broad or narrow, or a patent may be used as a peg upon which to attach contracts with former or prospective competitors, touching business relations other than the making and vending of patented devices. Compare United States v. United States Gypsum Co., post, p. 364, decided today; United States v. Masonite Corp., 316 U. S. 265. It may be helpful to specify certain points that either are not contested or are not decided in this case. The agreements, if illegal, restrain interstate commerce contrary to the Sherman Act. No issue of monopoly is involved. (F. F. 31.) Cf. American Tobacco Co. v. United States, 328 U. S. 781, 788. That is to say, the complaint charges restraint of trade under § 1 and does not charge “monopoly” under § 2 of the Sherman Act, so that we need not deal with the problems of consolidation, merger, purchase of competitors or size of business as tending toward attaining monopoly. See United States v. United Shoe Machinery Co., 247 U. S. 32, 44-55; United States v. Aluminum Co. of America, 148 F. 2d 416, 427-31; United States v. American Tobacco Co., 221 U. S. 106, 181-83; United States v. United States Steel Corp., 251 U. S. 417, 451. We are not dealing with a charge of monopoly or restraint because of the aggregation of patents, by pooling or purchase, by an owner or owners, in a single industry or field. See United States v. United Shoe Machinery Co., 247 U. S. 32. Within the limits of the patentee’s rights under his patent, monopoly of the process or product by him is authorized by the patent statutes. It is stipulated by the United States that the validity of the patents is not in issue. With these points laid aside, we proceed to the issues presented by this record. III. The Determination of the Issue. Under the above-mentioned assumption as to General Electric, the ultimate question for our decision on this appeal may be stated, succinctly and abstractly, to be as to whether in the light of the prohibition of § 1 of the Sherman Act, note 1, supra, two or more patentees in the same patent field may legally combine their valid patent monopolies to secure mutual benefits for themselves through contractual agreements, between themselves and other licensees, for control of the sale price of the patented devices. The appellees urge that the findings of the District Court, quoted in note 13 supra, stand as barriers to a con-elusion here that § 1 of the Sherman Act has been violated by the licenses. Since there was material evidence to support the District Court’s finding of the evidentiary facts and the Court necessarily weighed the credibility of the witnesses and the probative value of their testimony to establish appellees’ contentions, appellees insist that the inferences or conclusions as to violations of the Sherman Act, drawn by the District Court, must be accepted by us. As to the evidentiary facts heretofore stated, there is no dispute. From them the District Court made findings of fact Nos. 32 to 36, inclusive, here-inbefore set out in note 13. Even though we accept, as we do, these findings on preliminary facts as correct, the last sentence in findings 32 and 34 crumbles their asserted bar to an examination by us as to whether the agreements are violative of the Sherman Act. Those sentences are to the effect that there was an agreement to fix prices between all parties in the language of the contracts as set out in notes 8 and 9 supra. If the patent rights do not empower the patentees to fix sale prices for others, the agreements do violate the Act. The previous summary in this opinion of the agreements which compose these arrangements demonstrates that the agreements were intended to and did fix prices on the patented devices. Compare Interstate Circuit v. United States, 306 U. S. 208, 226. While Line’s sublicenses to others than General Electric, note 9, gave to Line the power which it exercised to fix prices only for devices embodying its own Schultz patent, the sublicense agreements licensed the use of the dominant Lemmon patent. As the Schultz patent could not be practiced without the Lemmon, the result of the agreement between Southern and Line for Line’s sublicensing of the Lemmon patent was to combine in Line’s hands the authority to fix the prices of the commercially successful devices embodying both the Schultz and Lemmon patents. Thus, though the sublicenses in terms followed the pattern of General Electric in fixing prices only on Line’s own patents, the additional right given to Line by the license agreement of January 12, 1940, between Southern and Line, to be the exclusive licensor of the dominant Lemmon patent, made its price fixing of its own Schultz devices effective over devices embodying also the necessary Lemmon patent. See note 9. By the patentees’ agreement the dominant Lemmon and the subservient Schultz patents were combined to fix prices. In the absence of patent or other statutory authorization, a contract to fix or maintain prices in interstate commerce has long been recognized as illegal per se under the Sherman Act. This is true whether the fixed price is reasonable or unreasonable. It is also true whether it is a price agreement between producers for sale or between producer and distributor for resale. It is equally well settled that the possession of a valid patent or patents does not give the patentee any exemption from the provisions of the Sherman Act beyond the limits of the patent monopoly. By aggregating patents in one control, the holder of the patents cannot escape the prohibitions of the Sherman Act. See Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20; United States v. United States Cypsum Co., post, p. 364. During its term, a valid patent excludes all except its owner from the use of the protected process or product. United States v. United Shoe Machinery Co., 247 U. S. 32, 58; Special Equipment Co. v. Coe, 324 U. S. 370, 378. This monopoly may be enjoyed exclusively by the patentee or he may assign the patent “or any interest therein” to others. Rev. Stat. § 4898, as amended 55 Stat. 634. As we have pointed out, a patentee may license others to make and vend his invention and collect a royalty therefor. Thus we have a statutory monopoly by the patent and by the Sherman Act a prohibition, not only of monopoly or attempt to monopolize, but of every agreement in restraint of trade. Public policy has condemned monopolies for centuries. The Case of Monopolies, Darcy v. Allein, 11 Co. Rep. 84-b. See United States v. Aluminum Co. of America, 148 F. 2d 416, 428-49. See Employment Act of 1946, § 2, 60 Stat. 23. Our Constitution allows patents. Art. I, § 8, cl. 8. The progress of our economy has often been said to owe much to the stimulus to invention given by the rewards allowed by patent legislation. The Sherman Act was enacted to prevent restraints of commerce but has been interpreted as recognizing that patent grants were an exception. Bement v. National Harrow Co., supra, 92, 21 Cong. Rec. 2457. Public service organizations, governmental and private, aside, our economy is built largely upon competition in quality and prices. Associated Press v. United States, 326 U. S 1, 12-14. Validation by Congress of agreements to exclude competition is unusual. Monopoly is a protean threat to fair prices. It is a tantalizing objective to any business compelled to meet the efforts of competitors to supply the market. Perhaps no single fact manifests the power and will to monopolize more than price control of the article monopolized. There can be no clearer evidence of restraint of trade. Whatever may be the evil social effect of cutthroat competition on producers and consumers through the lowering of labor standards and the quality of the produce and the obliteration of the marginal to the benefit of the surviving and low-cost producers, the advantages of competition in opening rewards to management, in encouraging initiative, in giving labor in each industry an opportunity to choose employment conditions and consumers a selection of product and price, have been considered to overbalance the disadvantages. The strength of size alone, the disappearance of small business are ever-present dangers in competition. Despite possible advantages to a stable economy from efficient cartels with firm or fixed prices for products, it is crystal clear from the legislative history and accepted judicial interpretations of the Sherman Act that competition on prices is the rule of congressional purpose and that, where exceptions are made, Congress should make them. The monopoly granted by the patent laws is a statutory exception to this freedom for competition and consistently has been construed as limited to the patent grant. Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 452, 455; United States v. Univis Lens Co., 316 U. S. 241; Hartford-Empire Co. v. United States, 323 U. S. 386. It is not the monopoly of the patent that is invalid. It is the improper use of that monopoly. The development of patents by separate corporations or by cooperating units of an industry through an organized research group is a well known phenomenon. However far advanced over the lone inventor’s experimentation this method of seeking improvement in the practices of the arts and sciences may be, there can be no objection, on the score of illegality, either to the mere size of such a group or the thoroughness of its research. It may be true, as Carlyle said, that “Genius is an infinite capacity for taking pains.” Certainly the doctrine that control of prices, outside the limits of a patent monopoly, violates the Sherman Act is as well understood by Congress as by all other interested parties. We are thus called upon to make an adjustment between the lawful restraint on trade of the patent monopoly and the illegal restraint prohibited broadly by the Sherman Act. That adjustment has already reached the point, as the precedents now stand, that a patentee may validly license a competitor to make and vend with a price limitation under the General Electric case and that the grant of patent rights is the limit of freedom from competition under the cases first cited at note 22. With the postulates in mind that price limitations on patented devices beyond the limits of a patent monopoly violate the Sherman Act and that patent grants are to be construed strictly, the question of the legal effect of the price limitations in these agreements may be readily answered. Nothing in the patent statute specifically gives a right to fix the price at which a licensee may vend the patented article. 35 U. S. C. §§ 40, 47. While the General Electric case holds that a patentee may, under certain conditions, lawfully control the price the licensee of his several patents may charge for the patented device, no case of this Court has construed the patent and anti-monopoly statutes to permit separate owners of separate patents by cross-licenses or other arrangements to fix the prices to be charged by them and their licensees for their respective products. Where two or more patentees with competitive, non-infringing patents combine them and fix prices on all devices produced under any of the patents, competition is impeded to a greater degree than-where a single patentee fixes prices for his licensees. The struggle for profit is less acute. Even when, as here, the devices are not commercially competitive because the subservient patent cannot be practiced without consent of the dominant, the statement holds good. The stimulus to seek competitive inventions is reduced by the mutually advantageous price-fixing arrangement. Compare, as to acts by a single entity and those done in combination with others, Swift & Co. v. United States, 196 U. S. 375, 396; United States v. Reading Co., 226 U. S. 324, 357; Eastern States Lumber Dealers’ Assn. v. United States, 234 U. S. 600; Binderup v. Pathé Exchange, 263 U. S. 291. The merging of the benefits of price fixing under the patents restrains trade in violation of the Sherman Act in the same way as would the fixing of prices between producers of nonpatentable goods. If the objection is made that a price agreement between a patentee and a licensee equally restrains trade, the answer is not that there is no restraint in such an arrangement but, when the validity of the General Electric case is assumed, that reasonable restraint accords with the patent monopoly granted by the patent law. Where a patentee undertakes to exploit his patent by price fixing through agreements with anyone,' he must give consideration to the limitations of the Sherman Act on such action. The patent statutes give an exclusive right to the patentee to make, use and vend and to assign any interest in this monopoly to others. The General Electric case construes that as giving a right to a patentee to license another to make and vend at a fixed price. There is no suggestion in the patent statutes of authority to combine with other patent owners to fix prices on articles covered by the respective patents. As the Sherman Act prohibits agreements to fix prices, any arrangement between patentees runs afoul of that prohibition and is outside the patent monopoly. We turn now to the situation here presented of an agreement where one of the patentees is authorized to fix prices under the patents. The argument of respondents is that if a patentee may contract with his licensee to fix prices, it is logical to permit any number of patentees to combine their patents and authorize one patentee to fix prices for any number of licensees. In this present agreement Southern and Line have entered into an arrangement by which Line is authorized to and has fixed prices for devices produced under the Lemmon and Schultz patents. It seems to us, however, that such argument fails to take into account the cumulative effect of such multiple agreements in establishing an intention to restrain. The obvious purpose and effect of the agreement was to enable Line to fix prices for the patented devices. Even where the agreements to fix prices are limited to a small number of patentees, we are of the opinion that it crosses the barrier erected by the Sherman Act against restraint of trade though the restraint is by patentees and their licensees. As early as 1912, in Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, this Court unanimously condemned price limitation under pooled patent licenses. As the arrangement was coupled with an agreement for limitation on jobbers’ resale prices, the case may be said to be indecisive on patent license agreements for price control of a product without the jobber’s resale provision. No such distinction appears in the opinion. This Court has not departed from that condemnation of price fixing. Even in Standard Oil Co. v. United States, 283 U. S. 163, where an arrangement by which the patentees pooled their oil cracking patents and divided among themselves royalties from licensees fixed by the pooling contracts was upheld, the theory was reiterated that a price limitation for the product was unlawful per se. Pp. 170, 173, 175. Of course, if a purpose or plan to monopolize or restrain trade is found, the arrangement is unlawful. P. 174. The Government’s contention in that case that the limitation on royalties in itself violated the Sherman Act by fixing an element in the price was dismissed because the Court was of the view that controlled royalties were effective as price regulators only when the pat-entees dominated the industry. P. 174. This domination was thought by this Court not to have been proven. When a plan for the patentee to fix the sale prices of patented synthetic hardboard on sales made through formerly competing manufacturers and distributors, designated as del credere agents, came before this Court on allegations that the plan was in violation of the Sherman Act, we invalidated the scheme. We said that the pat-entee could not use its competitor’s sales organization as its own agents so as to control prices. The patent monopoly, under such circumstances, we said, was exhausted on disposition of the product to the distributor. We reasoned that such an arrangement was a restriction on our free economy, “a powerful inducement to abandon competition,” and that it derogated “from the general law [against price limitation] beyond the necessary requirements of the patent statute.” United States v. Masonite Corp., 316 U. S. 265, 281, 280. We think that this general rule against price limitation clearly applies in the circumstances of this case. Even if a patentee has a right in the absence of a purpose to restrain or monopolize trade, to fix prices on a licensee’s sale of the patented product in order to exploit properly his invention or inventions, when patentees join in an agreement as here to maintain prices on their several products, that agreement, however advantageous it may be to stimulate the broader use of patents, is unlawful per se under the Sherman Act. It is more than an exploitation of patents. There is the vice that patentees have combined to fix prices on patented products. It is not the cross-licensing to promote efficient production which is unlawful. There is nothing unlawful in the requirement that a licensee should pay a royalty to compensate the patentee for the invention and the use of the patent. The unlawful element is the use of the control that such cross-licensing gives to fix prices. The mere fact that a patentee uses his patent as whole or part consideration in a contract by which he and another or other patentees in the same patent field arrange for the practice of any patent involved in such a way that royalties or other earnings or benefits from the patent or patents are shared among the patentees, parties to the agreement, subjects that contract to the prohibitions of the Sherman Act whenever the selling price, for things produced under a patent involved, is fixed by the contract or a license authorized by the contract. Licensees under the contract who as here enter into license arrangements, with price-fixing provisions, with knowledge of the contract, are equally subject to the prohibitions. The decree of the District Court is reversed and the case is remanded for the entry of an appropriate decree in accordance with this opinion. Mr. Justice Jackson took no part in the consideration or decision of this case. 26 Stat. 209, as amended by 36 Stat. 1167: “Sec. 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. . . .” “Sec. 4. The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of this act; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney-General, to institute proceedings in equity to prevent and restrain such violations. . . .” The names of appellees and the abbreviations hereinafter used as well as the percentage of production of the dropout fuse devices manufactured under the patents are listed below: Appellee Abbreviated title Percent General Electric Co. General Electric. 29.2 Line Material Co... Line. 25.4 James It. Kearney Corp. Kearney . 18.9 Southern States Equipment Corp. Southern. 7.9 Westinghouse Electric Corp. Westinghouse. 5.3 Schweitzer & Conrad, Inc. Schweitzer & Conrad. 5.1 Railway & Industrial Engineering Co.. Railway. 3.8 W. N. Matthews Corp. Matthews. 2.0 Porcelain Products Co. Porcelain. 1.5 Royal Electric Mfg. Co. Royal.5 Pacific Electric Mfg. Co. Pacific.2 T. F. Johnson. Johnson.2 100.0 All are corporations of various states except T. F. Johnson, doing business as Johnson Manufacturing Company, Atlanta, Georgia. The case was argued April 29, 1947, and at our request reargued November 12-13, 1947. United States v. United States Gypsum, Co., decided today, post, p. 364, considers related phases of Sherman Act legislation. “. . . The Lemmon device consists essentially of an expulsion tube supported by a double jointed hinge at its lower end. As the tube moves into closed circuit position, the hinge is locked and a latch engages a terminal on top of the tube to hold the tube in place. The hinge is released by a relatively complicated and expensive solenoid mechanism when the current becomes excessive because of a short circuit or overload. Thereupon the circuit is broken in the tube and the tube drops downwardly, its upper end disengaging from the latch, which permits the tube to swing out and down. By reason of claims covering the double jointed hinge construction in cutouts, this patent dominates the manufacture of dropout fuse cutouts involved in this suit.” Findings of Fact, No. 6. “. . . The Schultz patent covers a dropout fuse cutout which is an improvement on the device disclosed in the Lemmon patent, and is dominated by the Lemmon patent. In the Schultz structure an expulsion tube is supported by a double jointed hinge which is held rigid by a fuse link. On overload, the fuse melts, breaking the circuit in the tube and the hinge is released automatically, which permits the tube to drop down and then swing outwardly. This Schultz dropout fuse is much simpler, and can be manufactured at considerably less than the cost of a comparable solenoid operated cutout, and has met widespread commercial demand and use.” Findings of Fact, No. 7. Schweitzer & Conrad, General Electric, Westinghouse, Railway, Kearney, Matthews. "The Southern Corporation grants to the Line Company a fully paid license to make, use and sell, with the exclusive right to grant sub-licenses to others to make, use and sell, expulsion tube electric circuit interrupting equipment in which the circuit interruption is caused by the thermally initiated rupturing of a current carrying element in an expulsion tube, coming under claims 3, 4 to 10, inclusive, 15 to 22 inclusive, 25, and 27 to 30 of the patent to G. N. Lemmon, No. 2,150,102, dated March 7, 1939, entitled “Circuit Breaker" and/or any division, continuation, substitute, renewal and/or reissue thereof.” “15. The licenses hereby granted or agreed to be granted are on the express condition that the prices, terms and conditions of sale of the Southern Corporation for electric fuse equipment made and sold under the licenses herein granted shall, so long as such electric fuse equipment continues to be covered by Letters Patent of the Line Company under which a license is granted by this agreement, be not more favorable to the customer than those established from time to time and followed by the Line Company in making its sales. “It is the purpose and intent of this agreement that there shall not be directly, or indirectly, any modification of the prices set by the Line Company as they exist from time to time, as for instance, by including in the transaction other material or parts, or labor, or services, at less than the regular prices at which the party making the same is at the time selling such other material or parts or furnishing such labor or services or by making allowances for freight or terms of payment other than those employed by the Line Company. “Prices, terms and/or conditions of sale may be changed by the Line Company from time to time through reasonable notice in writing to the Southern Corporation, but not less than ten (10) days’ written notice shall be given before the change shall go into effect. “It is agreed that if the Line Company shall grant a license to a third party under any of the patents of this agreement (but excepting from the provisions of this paragraph a license to be granted to General Electric Company of Schenectady, New York, under said Kyle reissue patent 19,449), without a provision for maintenance by said third party of prices, terms and conditions of sales as set forth in the first paragraph of this section, then Southern Corporation shall be relieved from its obligation under said section.” In the Line-General Electric license agreement of March 15, 1940, the first under the revised Line-Southern contract, the price maintenance provision was as follows: “9. The license hereby granted by the Licensor is subject to the express limitations that as to dropout fuse cutouts manufactured and sold by Licensee which are comparable in respect to general type and purpose, ampere and voltage rating, and rupturing capacity, to dropout fuse cutouts manufactured and sold by Licensor, Licensee’s prices, terms and conditions of sale of dropout fuse cutouts for use in the United States made under the license herein granted to Licensee under the aforesaid Letters Patent, Lemmon No. 2,150,102, and Schultz and Steinmayer No. 2,176,227, and as long as such dropout fuse cutouts continue to be covered by such Letters Patent, shall be no more favorable to a customer of the Licensee than those established from time to time and followed by the Licensor in its sales. The prices, terms and conditions of sale as at present established and in force are those set forth in Schedule A annexed hereto and forming a part hereof. This schedule of prices may be changed from time to time by the Licensor upon ten (10) days’ notice in writing to the Licensee. “10. The spirit and intent of this license agreement, contemplates that in no transaction shall there be any modification of Licensee’s prices, either directly or indirectly, as for instance by inclusion in the transaction of other material or parts or services or labor at less than the regular prevailing prices at which the party making the sale is at the time accustomed to sell such other material or parts or furnish such services or labor, as will serve in effect to reduce Licensee’s prices below those named in Schedule A as it exists from time to time.” This was repeated in the Line-General Electric revised agreement of November 17, 1941. A variable appears in the Westinghouse and other licenses. In its price provisions, the Lemmon patent is not mentioned but the Lemmon patent was included in its grant of license and the subsidiary Schultz patent could not be practiced without the right to use the dominant Lemmon. These two produced an aggregate of less than one percent of the devices. All appellees, except Royal, Pacific and Johnson, attended one or another of these conferences. We do not find it necessary to determine whether or not the selling prices also of the licensees were before the conference. The agreements adequately show an intention to fix prices. The licenses contained provisions for records of sale, inspection thereof and cancellation of the license for breach. Findings of Fact: “32. The price limitation provisions contained in the various license agreements here in evidence were insisted upon by the patent owner and were intended and reasonably adapted to protect its own business and secure pecuniary reward for the patentee’s monopoly. Each of the licenses granted to the licensee-defendants was taken and granted in good faith, the parties to the licenses believing a license under the patents to be necessary in order that the licensee could continue lawfully to manufacture and sell its dropout fuse cutouts. Apart from the written license agreements here in evidence, there was no agreement, express or implied, between the licensor and any licensee, or between any two or more licensees, with respect to the prices of licensed dropout fuse cutouts. “33. All of the devices for which minimum prices were established by Line were comparable to, and competitive with, devices which Line manufactured and sold regularly or which it was ready to manufacture and sell to its customers on special order. “34. The cross-license agreements between Line and Southern were limited to the commercially practicable device covered by the subservient Schultz patent, and did not create additional power for price control of the licensed cutouts over that which each had before entering into the agreements. The inflexible intention to insist upon price limitation existed independently in each of the patent owners prior to any discussions or arrangements between them. Such cross-license agreements were entered into in good faith, not for the purpose of fixing prices in the industry but to permit the manufacture and sale of the cheaper device covered by the subservient patent, to facilitate the negotiation of licenses, and to provide royalty income. There was no agreement, express or implied, between Line and Southern with respect to prices on cutouts other than the written cross-license agreements. “35. The license agreements here in evidence did not restrain trade but promoted it by making available several sources where the patented devices could be obtained, thus increasing competition in such devices, particularly with respect to design, quality and service. Competition among the defendants for business in these devices continued to be vigorous after the making of the license agreements. “36. There was no combination or conspiracy among the defendants, or any of them, to fix, maintain or control prices of dropout fuse cutouts or parts thereof, or to restrain trade or commerce therein.” For illustration and without implication as to this Court’s position on the issues, we call attention to the following: Barber-Colman Co. v. National Tool Co., 136 F. 2d 339. In a suit by the licensor against the licensee, injunctive relief to compel compliance with a price-fixing provision in the patent license was denied. The General Electric case was held not to permit the patentee to fix prices on unpatented hobs which were produced under a process patent by a patented machine. Cummer-Graham Co. v. Straight Side Basket Corp., 142 F. 2d 646. Licensee was denied relief in an action against licensor for failing to require other licensees to comply with price-fixing provisions; licensor of a patent on an attachment to a basket-making machine may not fix prices on baskets produced by the machine. United States v. Vehicular Parking, Ltd., 54 F. Supp. 828. Antitrust proceeding against patent holding company and manufacturing licensees in parking meter industry. The patent licenses fixed the prices at which parking meters could be sold and contained restrictive provisions on marketing practices. In ordering compulsory licensing at a reasonable royalty, the court distinguished the General Electric case principally on the ground that the patentee in this case did not itself manufacture the parking meters; other distinctions noted were the number and active concert of licensees, the weakness of the patents, the fixing of prices on unpatented articles, and the existence of marketing restrictions. For example, such price arrangements under the type of agreement indicated are in litigation as follows: United States v. Allegheny Ludlum Steel Corp., D. N. J. Civil 45-83, stainless steel company owning patents on a particular type of stainless steel allegedly issued licenses fixing prices on all types of stainless steel. United States v. American Optical Co., S. D. N. Y. Civil 10-391, optical patents owned by patent holding company which gave exclusive licenses; exclusive licensee sublicensed to other manufacturers who agreed to maintain prices and comply with marketing restrictions. United States v. Bausch & Lomb Optical Co., S. D. N. Y. Civil 10-394, patent holding company issued licenses to two licensees to manufacture bifocal lenses, the licenses fixing prices at which the bifocal lenses were to be sold and the selection of wholesalers and retailers for the lenses. United States v. Catalin Corporation of America, D. N. J. Civil 7743, manufacturer of phenolic resins licensed other manufacturers under its process patents, the licensees agreeing to sell at prices established by the licensor. United States v. General Cable Corp., S. D. N. Y. Civil 40-76, cross licenses among holders of patents on fluid filled cable, the licensees agreeing to adhere to uniform prices and to observe territorial marketing limitations. United States v. General Electric Co., D. N. J. Civil 1364, cross-licensing agreements between manufacturers of electrical bulbs providing for price and quantitative restrictions. United States v. General Electric Co., Fried. Krupp, S. D. N. Y. Cr. 110-412, cross-licensing of tungsten carbide patents with price and territorial restrictions. United States v. General Instrument Corp., D. N. J. Cr. 3960-C, Civil 8586, owners of variable condenser patents assigned patents to holding company and took back licenses with price-fixing provisions; explicit price-fixing provisions subsequently removed but allegedly continued by tacit agreement. United States v. Phillips Screw Co., N. D. Ill. Civil 47-C-147, holder of patents on cross recessed head screws granted exclusive license to leading screw manufacturer who sublicensed to other manufacturers; patent holder, exclusive licensee, and sublicensees agreed on price terms for all screws produced. The United States lists: Uncertainty as to the nature of the patent, process or product, which justifies price control; extent of patent domination over the device; may a patent pooling corporation control all licensees’ sale prices; extent of price control in an industry. U. S. Brief 65 et seq. In earlier cases involving the National Harrow Company the lower courts held that an industry-wide combination to fix prices was illegal. National Harrow Co. v. Hench, 83 F. 36; National Harrow Co. v. Quick, 67 F. 130, affirmed on other grounds, 74 F. 236. Compare Rubber Tire Wheel Co. v. Milwaukee Rubber Works Co., 154 F. 358, and Indiana Manufacturing Co. v. J. I. Case Threshing Machine Co., 154 F. 365, upholding industry-wide price fixing, with Blount Manufacturing Co. v. Yale & Towne Manufacturing Co., 166 F. 555, holding such price fixing illegal. Bills have been introduced which would outlaw price limitation in patent licenses: H. R. 22345, 62d Cong., 2d Sess. (1912); S. 2730, 77th Cong., 2d Sess. (1942); S. 2491, 77th Cong., 2d Sess. (1942), and Hearings thereon; H. R. 7713, 77th Cong., 2d Sess. (1942); H. R. 109, 78th Cong., 1st Sess. (1943); H. R. 1371, 78th Cong., 1st Sess. (1943); H. R. 3874, 78th Cong., 1st Sess. (1943); H. R. 97, 79th Cong., 1st Sess. (1945); H. R. 3462, 79th Cong., 1st Sess. (1945); S. 2482, 79th Cong., 2d Sess. (1946); S. 72, 80th Cong., 1st Sess. (1947). See Final Report of Temporary National Economic Committee, Sen. Doc. No. 35, 77th Cong., 1st Sess. (1941), p. 36; Report of the National Patent Planning Commission, H. R. Doc. No. 239, 78th Cong., 1st Sess. (1943), p. 9. Rules of Civil Procedure, Rule 52: Findings by the Court.- — “(a) Effect. In all actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court.” E. g., Miller-Tydings Act, 50 Stat. 693. Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373; Boston Store v. American Graphophone Co., 246 U. S. 8; United States v. United Shoe Machinery Co., 247 U. S. 32, 58; United States v. Trenton Potteries Co., 273 U. S. 392; United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 222-24; United States v. Univis Lens Co., 316 U. S. 241, 250; Sola Electric Co. v. Jefferson Electric Co., 317 U. S. 173; Katzinger Co. v. Chicago Mfg. Co., 329 U. S. 394. Appalachian Coals v. United States, 288 U. S. 344, cannot be cited to support a contrary view. In that case, this Court held that “The plan cannot be said either to contemplate or involve the fixing of market prices.” P. 373. See the Socony-Vacuum case, supra, 214 et seq. Perhaps arbitrary or monopoly prices were in mind in Appalachian. Pp. 358, 359, 365, 371. United States v. National Lead Co., 332 U. S. 319; Hartford-Empire Co. v. United States, 323 U. S. 386, 406; Standard Oil Co. v. United States, 283 U. S. at 169 and cases cited; Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 48-49. See Transparent-Wrap Machine Corp. v. Stokes & Smith Co., 329 U. S. 637, 641, 647, and cases cited. The Interstate Commerce Act authorizes carriers to pool revenues and authorizes mergers of carriers, provided that approval of the Interstate Commerce Commission is obtained. The antitrust laws are inapplicable to such agreements. 49 U. S. C. §5(1), (2) and (11). The words “patent pool” are not words of art. The expression is used in this opinion to convey the idea of a linking of the right to use patents issued to more than one patentee. 226 U. S. at 48: “The agreements clearly, therefore, transcended what was necessary to protect the use of the patent or the monopoly which the law conferred upon it. They passed to the purpose and accomplished a restraint of trade condemned by the Sherman law. It had, therefore, a purpose and accomplished a result not shown in the Bement Case. There was a contention in that ease that the contract of the National Harrow Company with Bement & Sons was part of a contract and combination with many other companies and constituted a violation of the Sherman law, but the fact was not established and the case was treated as one between the particular parties, the one granting and the other receiving a right to use a patented article with conditions suitable to protect such use and secure its benefits. And there is nothing in Henry v. A. B. Dick Co., 224 U. S. 1, which contravenes the views herein expressed.” Cf. United States v. General Electric Co., supra. 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_state

56

What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PERKINS MACHINE COMPANY, Respondent. No. 6182. United States Court of Appeals First Circuit. Jan. 23, 1964. Peter M. Giesey, Washington, D. C., Atty., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Solomon I. Hirsh, Washington, D. C., Atty., were on brief, for petitioner. John H. Goewey, Worcester, Mass., with whom James S. Gratton and Bowditch, Gowetz & Lane, Worcester, Mass., were on brief, for respondent. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. PER CURIAM. Respondent employer was found to have violated sections 8(a) (5) and (1) of the National Labor Relations Act by refusing to furnish the union with certain wage information and data (allegedly relevant to a grievance and/or arbitration proceeding) during the term of a collective bargaining contract which, unlike respondent’s previous agreement, had no express provision imposing such an obligation. Such an obligation, however, is normally implied as part of an employer’s general duties under the act, cf. Boston Herald-Traveler Corp. v. N. L. R. B., 1 Cir., 1955, 223 F.2d 58, and an employer cannot refuse unless there has been a “clear and unmistakable” waiver by the union. Timken Roller Bearing Co. v. N. L. R. B., 6 Cir., 1963, 325 F.2d 746; N. L. R. B. v. Item Co., 5 Cir., 220 F.2d 956, 958-59, cert. den. 350 U.S. 836, 76 S.Ct. 73, 100 L.Ed. 746; Tide Water Associated Oil Co., 1949, 85 N.L.R.B. 1096, 1098. In finding that the omission of the previous affirmative clause from the present agreement following negotiations during which respondent said it would not grant such rights was not such a waiver, the Board erroneously referred to statements (in our opinion ambiguous, at best) made by the union after the agreement had been entered into, and hence entirely immaterial. Nevertheless, we cannot say the Board’s decision was without substantial support. Where a provision would normally be implied in an agreement by operation of the act itself (but cf. Speidel Corp., 1958, 120 N.L.R.B. 733, when it is not), we think a waiver should be express, and that a mere inference, no matter how strong, should be insufficient. Cf. Timken Roller Bearing Co. v. N. L. R. B., supra. It is not necessary, to support the Board, for us to follow the case it now cites of N. L. R. B. v. Gulf Atlantic Warehouse Co., 5 Cir., 1961, 291 F.2d 475. We could not agree with the seeming suggestion in that opinion that the parol evidence rule required the waiver to be contained within the four corners of the written agreement. Cf. Rodriguez v. Secretary of the Treasury of Puerto Rico, 1 Cir., 1960, 276 F.2d 344, 349. Nor has this been the Board’s position. Speidel Corp., supra; Berkshire Corp., 1959, 123 N.L.R.B. 685. A decree will be entered enforcing the order of the Board. 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_respond1_1_4

J

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant. BALDWIN RUBBER CO. v. PAINE & WILLIAMS CO. No. 8124. Circuit Court of Appeals, Sixth Circuit. Nov. 15, 1939. George I. Haight, of Chicago, Ill. (Butzel, Eaman, Long, Gust & Bills and Whittemore, Hulbert & Belknap, all of Detroit, Mich., George I. Haight, of Chicago, Ill., and Rockwell T. Gust and Clarence B. Zewadski, both of Detroit, Mich., on the brief), for appellant. John F. Oberlin and Howard F. Burns, both of Cleveland, Ohio (Beaumont, Smith & Harris, of Detroit, Mich., and Jno. F. Oberlin, Howard F. Burns, and John Adams, all of Cleveland, Ohio, on the brief), for appellee. Before SIMONS, ALLEN, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. The appellant-licensee, the Baldwin Rubber Company, appeals from a judgment of $101,491.54, in favor of appelleelicensor, The Paine & Williams Company, for royalties alleged to be due on the manufacture of automobile rubber floor covering and methods of, and apparatus for, making such coverings. The issues are whether the product manufactured and sold by appellee was covered by the license and whether the license is void because of price fixing. On March 18, 1933, William S. Vrooman filed in the Patent Office an application, No. 661,453, for United States Letters Patent on alleged new and useful improvements in rubber floor coverings and methods of, and apparatus for, making same and on March 16, 1933, assigned, his entire right, title and interest therein and any letters patent granted pursuant thereto to the appellee. On June 10, 1933, appellee granted -to the appellant a non-exclusive license to use the Vrooman invention to the end of the term of any letters patent granted pursuant to his application or any division, renewal, re-issue or extension of it. The license was terminable in the event the application was finally rejected or at any time after one year on six months’ notice in writing to the licensor. It was granted on the express condition that the minimum sale price of automobile floor mats manufactured pursuant to it should be not less than those fixed from time to time by the licensor. Appellant, for many years, had been engaged in the manufacture of automobile rubber floor mats simultaneously molded and vulcanized from raw rubber. In 1932, several automobile manufacturers lowered the floors of their cars causing some of the mechanical parts to project above the floor level, which necessitated the use of contoured floor coverings and a different shaped matrix or mold for making them. Rubber floor coverings had been manufactured previously by placing raw rubber in a matrix to which heat and pressure were simultaneously applied so that the rubber vulcanized and became permanently shaped. Early in December 1932, appellant constructed experimental molds of heavy steel designed to produce a mat which would fit the protuberances in the floors of the new cars, which method proved satisfactory but which was costly in construction and expensive in operation. W. S. Vrooman, an employee of appellee, who was experienced in the manufacture of rubber floor mats, prior to 1933, conceived the idea of an apparatus for making inexpensive contoured mats. He first made a flat rubber mat of the desired outline with conventional molding dies which simultaneously molded and vulcanized it to a high degree of permanent set. After this was done the mat was removed from the mold and while at a temperature of about 140° Fahr., was placed on another apparatus containing a base support made of steel or other metal having an aperture in communication with an inlet tube threadedly secured to the base plate. Mounted on this plate and secured thereto by bars and bolts, was a diaphragm of high quality gum rubber with a low degree of permanent set. These bars engaged the marginal portions of the diaphragm and provided an airtight seal between it and the base plate. The apparatus also had a die block made of wood or other easily fashioned material, having a cavity or recess of a size substantially larger than that of the protuberance or hump which it was desired to form in the mat. The hot rubber mat was placed on the rubber diaphragm, and the die block was placed on the mat with the cavity over the portion in which the protuberance or hump was to be formed. A plate similar to the base plate was then put over the die block and clamp members of such size as to be easily slipped in position by hand were applied with the jaws loosely holding the upper and lower plates. While the mat was thus secured in position, air or steam under high pressure was introduced through the tube between the base plate and the diaphragm, which pressure raised the diaphragm and the mat so as to bring its flat portions into close contact with the corresponding portion of the block. The friction between the lower surface of the die block and the portion of the mat thus contacted effectively locked them together and prevented subsequent stretching or distortion. The diaphragm and the part of the mat beneath the cavity were stretched upwardly to form a protuberance or hump considerably larger than necessary. The diaphragm served as a support or backing for the mat during the formation of the protuberance and also caused air or steam pressure to be more uniformly distributed over the mat than if either were applied directly to the mat without using the diaphragm. . When the air or steam pressure was cut off, that part of the diaphragm outside of the, cavity resumed its original flat condition but that portion within it, on account of its high degree of permanent set, would not return to its original position but to an intermediate one, which was permanent and which resulted in a protuberance of the desired size and shape, which depended on the size and shape of the cavity in the die block. Vrooman pointed out in his application that his method could also be practiced with rubber mats in a normal unheated condition and that it provided for the use of existing mat molding equipment with the addition of a simple and inexpensive apparatus for forming a protuberance in the completed mat. He also pointed out that in the prior art protuberances had been formed in mats simultaneously with molding but this method required new molds made of steel or other heat-resisting material which was more expensive than using the wooden die block which he proposed. Vrooman made eighteen claims in his application and on July 13, 1933, the patent office required division between the method, apparatus and article because some other apparatus could be used to perform the process and because the hump could be made by the usual molding operation in suitably-shaped molds. All of the original claims stated in the application were rejected in the patent office and amended claims 19, 20 and 21 were allowed by the examiner September 12, 1935. Claim 21 is typical and is as follows: “The method of forming a protuberance in an article formed of vulcanized rubber having a high degree of permanent set which comprises confining between two plane surfaces all but a localized portion of said article from which 'the protuberance is to be formed, and applying pressure uniformly to said localized portion of the article, said pressure being in such direction and of such magnitude as to cause a bulging of such portion outwardly from the general plane of the article, and maintaining said pressure for a length of time sufficient to ‘produce a permanent set in said bulged-out portion.” Vrooman’s application was decided by the Patent Office to be an interference with the patent theretofore issued to Blair, et al., No. 2,032,832, which proceeding was still pending at the time of the trial. After appellant had experimented with heavy, rigid molds it tried a lighter one, in which it made a mat in two pieces, one piece flat with a hole in it, the other contoured, and attached the two together. Vrooman left the employment of appellee and entered the employment of appellant in September 1933 and in the Spring of 1934 appellant put into use an apparatus and method for making floor mats by arranging molds in a vertical series of eight, each duplicating the other. This appliance was designed for the simultaneous manufacture of a plurality of mats. It was a complex structure, the sectional molds and method of manufacture only being material to this case. Each mold or section in each deck was comprised of a rectangular frame reinforced at the corners by gusset plates, the upper and lower sides of the sections being closed by upper and lower rubber diaphragms, the edges of which were securely screwed to the frame. The purpose of the- diaphragms was to provide a vacuum into which fluid under pressure could be introduced which would expand them upwardly and downwardly. A thin metallic plate, secured to the frame of the deck by bolts, covered the upper diaphragm. A hard rubber mold form was disposed on the upper surface of this plate, secured thereto by screws, and on the edge of its upper surface a metal cut-off was placed in order to delineate the outer boundary of the mat. The operator, with his hands, pressed a previously lubricated, uncured rubber compound into the molds which were hot and electrically opened, the heat causing the compound to flow more freely. The presses were then electrically closed and locked and steam under pressure introduced to the rear of both mold members causing the lower diaphragm of each deck to be pressed against the mat on the deck below it and the upper diaphragm in the latter to be forced upwardly, which produced a balancing pressure, the lower diaphragm pressing the mat while the upper diaphragm prevented a downward movement. Because of the construction in series of the appellant’s apparatus, the upper crown plate and deck had only a lower diaphragm and the lower plate and deck only an upper one. If constructed singly, two diaphragms would be necessary in each. Appellant employed a flexible rubber diaphragm and used uncured rubber compound vulcanizing and contouring it simultaneously into a mat. The inventor of a new and useful improvement has no exclusive right to it until he obtains a patent. This right is created by the patent, but the discoverer is vested by law with an inchoate right to its exclusive use which he may perfect and make absolute by proceeding in the manner which the law requires and after an inventor files his application pursuant to the statute he may transfer all of this right by assignment or a part of it by license. Gayler v. Wilder, 10 How. 477, 51 U.S. 477, 492, 13 L.Ed. 504. In the case here Vrooman assigned to appellee in its inchoate state, his alleged discovery in its entirety. Brush Electric Company v. California Electric Light Company, 9 Cir., 52 F. 945, and it appears from the language of the license here in question that it was intended by the parties to operate upon whatever title appellee had acquired from Vrooman, which he then had a lawful right to obtain in the form of a patent, as well as the imperfect and inchoate interest he actually possessed. The construction of .a license in writing depends upon the same general rules as the construction of other written contracts. 1 Walker, 6th Ed. 354. The rule is applicable to the license in question that it must be interpreted reasonably to give effect to the plain intention of the parties as adduced from the whole agreement, its nature, their situation and the objects they had in view in making it. Burdell v. Denig, 92 U.S. 716, 722, 23 L.Ed. 764. Terms may be implied in a contract, not because they are reasonable, but because they are necessarily involved in the contractual relationship so that the parties must have intended but failed to specifically include them because of their obviousness. Where, from the nature of a contract and the circumstances under which made, it is apparent the parties must have proceeded on the basis that certain conditions existed, without which its performance would be unnecessary, the existence of such conditions will be regarded as implied terms of the obligation. Sacramento Navigation Company v. Salz, 273 U.S. 326, 329, 47 S.Ct. 368, 71 L.Ed. 663; Wheeling & L. E. R. Co. v. Carpenter, 6 Cir., 218 F. 273. Considering the language of the license here in question in the light of all the circumstances and purposes surrounding its execution, it is manifest that the licensor intended to convey and the licensee intended to accept either a process or apparatus or both for the manufacture of contoured automobile mats of which appellee’s assignor was the discoverer. There was excluded from [he minds of the parties in making the contract all earlier known conceptions of the process or apparatus and all improvements readily apparent to those skilled in the art. In view of the patents offered in evidence such as Hellweg, No. 1,577,526; Ellis, No. 263,744; Egerton, No. 1,475,-623; and Lanhoffer, Nos. 1,209,308 and 1,260,002, and the proceedings in the patent office as shown by the file wrapper, the process and apparatus described in Vrooman’s application are neither basic nor pioneer, but constitute only an application for a patent on a combination of elements in prior use. The claims are not entitled to a broad and liberal construction, but on the contrary, the range of equivalents allowed to the combination must be so narrow as to include nothing which is not substantially identical with the means used by the applicant patentee. The Court will include within the license only such process or apparatus as is the substantial equivalent of the process or apparatus described in the claims of the application and will exclude the use of other known means, although equivalent in function. Burr v. Duryee, 1 Wall. 531, 68 U.S. 531, 573, 17 L.Ed. 650; Metal Cutting Tool Service v. National Tool Company, 6 Cir., 103 F.2d 581; Goodrich v. Ford Motor Company, 6 Cir., 97 F.2d 427; Winget Kickernick Co. v. Sil-O-Ette Underwear Corporation, 2 Cir., 89 F.2d 635. The amended article claims appear to cover every shaped rubber automobile mat in which there is a protuberance, to accommodate the mat to structural irregularities of the automobile floor without regard to the method by which, or the apparatus through which, the mat is shaped. Passing the precise question as to whether the licensee is bound by claims which had no existence and were not in the application when the license agreement was executed, it would seem to us that since the licensee is not estopped from considering the scope of patent claims in the light of prior art, and when so considered claims may be so narrowly construed as to fail to cover the licensee’s articles, practices or machine, it must follow that when claims are so broad as to comprehend all prior art the licensee who contracted for the use of an invention, and not for art in which the licensor had no monopoly, is not bound and that this does no violence to the rule of estoppel which forecloses challenge by the licensee to the validity of a patent. If this were not so, a licensor, in a license granted upon an application, might include in amended claims every article manufactured and every practice or machine employed by the licensee, whether germane to the invention or not. Westinghouse Electric & Manufacturing Co. v. Formica Insulation Company, 266 U.S. 342, 351, 45 S.Ct. 117, 69 L.Ed. 316; Noonan v. Chester Park Athletic Club Co., 6 Cir., 99 F. 90. There are essential differences between the apparatus and the process of manufacture used by the appellant and those described by appellee’s assignor in his application. Vrooman proposed to vulcanize and shape in the conventional type of mold a flat mat and then to place it in a high quality rubber diaphragm press, with a die block over it in order to stretch it in the form of the desired protuberance or hump by breaking down the resiliency of the rubber at that point. Appellant used an uncured rubber compound placed in molds with diaphragms as in Vrooman’s but without die blocks, and without using a separate apparatus for molding or vulcanizing, the vulcanizing and contouring being simultaneous and without breaking down the resiliency of the rubber. Its process and apparatus contemplated a continuous operation from the shaping and vulcanizing of the raw material to the completion of the finished mat. It used a series of molds to shape and vulcanize simultaneously and its apparatus was capable of making eight mats with one operation. The essential actuating elements of Vrooman’s original discovery have been omitted from appellant’s process and a wholly different apparatus, machine or instrumentality substituted. In view of the prior art when explored for the purpose of ascertaining the breadth of the claims m the application of the licensor’s assignor, we are of the opinion that appellant-licensee was using neither an apparatus nor process which was identical with or equivalent to the process or apparatus covered by the license herein. Since we have concluded that the mats manufactured and sold by appellant are not within the license, we find it unnecessary to consider appellant’s other assignments of error. We find no substantial evidence in the record to support the judgment of the lower court. It therefore follows that its judgment is reversed and the cause remanded for proceedings in accordance with this opinion. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant? A. auto industry B. chemical industry C. drug industry D. food industry E. oil & gas industry F. clothing & textile industry G. electronic industry H. alcohol and tobacco industry I. other J. unclear Answer:

songer_habeas

B

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. Otis THOMPSON, Jr., Appellant, v. STATE OF MISSOURI, John Ashcroft, Attorney General, Donald W. Wyrick, Warden, Missouri State Penitentiary, Appellees. No. 82-2157. United States Court of Appeals, Eighth Circuit. Submitted April 11, 1983. Decided Jan. 10, 1984. American Civil Liberties Union/Eastern Missouri, Inc., Bertram Cooper, St. Louis, Mo., for appellant. John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, Mo., for respondent. Before LAY, Chief Judge, and McMILLI-AN and JOHN R. GIBSON, Circuit Judges. McMILLIAN, Circuit Judge. Otis Thompson, Jr., appeals from a final judgment entered in the District Court for the Eastern District of Missouri denying his petition for writ of habeas corpus. For reversal petitioner argues that (1) the prosecutor intentionally concealed information favorable to his defense in violation of due process of law, (2) he was subjected to multiple punishments for the same offense in violation of the double jeopardy clause, and (3) the state trial court’s determination that he was a “dangerous offender” was not supported by the record. For the reasons discussed below, we affirm the judgment of the district court. The underlying facts are fully set forth in State v. Thompson, 610 S.W.2d 629, 630-31 (Mo.), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 122 (1981). According to the prosecutor’s theory of the case, petitioner was one of three armed men who robbed a cleaning shop in St. Louis in January 1979. One robber entered the shop, approached the attendant and announced the robbery. A second robber then entered and directed the customers in the shop to lie on the floor. Two customers saw the second robber pull a mask over his face as he entered the shop and they identified petitioner as the second robber at the trial. The second robber removed money from the cash register. At this point the first robber fired two shots into the floor near the shop attendant’s head. John Cox, the brother of the shop’s owner, lived upstairs above the shop, heard the shots and came down the stairs to investigate. Cox was fatally shot by the third robber, who had apparently been waiting outside the shop. Someone then came to the door of the shop and shouted, “Hey, Otis, man, let’s go.” The two robbers ran out of the shop, taking money from the cash register and from the attendant and a shotgun from the shop. Later police technicians found a fingerprint near the cash register which was identified as petitioner’s. Petitioner was arrested two days after the robbery. He was charged with first degree murder (felony murder), armed robbery and armed criminal action. Following a jury trial, petitioner was found not guilty of murder and guilty of armed robbery and armed criminal action. The jury recommended sentences of fifteen years imprisonment for the armed robbery and three years for the armed criminal action. The state trial court found petitioner was a “dangerous offender” pursuant to Mo.Ann.Stat. § 558.016.3 (Vernon 1979) (as amended and renumbered, Mo.Ann.Stat. § 558.016.4 (Vernon Supp.1983)) and sentenced him to life imprisonment for the armed robbery and ten years for the armed criminal action. On appeal the Missouri Supreme Court vacated the conviction for armed criminal action and affirmed the conviction for armed robbery. 610 S.W.2d at 638; but cf. Missouri v. Hunter, -U.S. -, 103 S.Ct. 673, 677-79, 74 L.Ed.2d 535 (1983) (prosecution and conviction of criminal defendant in single trial on both a charge of “armed criminal action” and a charge of first degree robbery, where armed robbery is the underlying felony, does not violate double jeopardy clause). Petitioner then filed this petition for writ of habeas corpus, alleging that the prosecution intentionally concealed information favorable to the defense, that the prosecution improperly subjected him to multiple punishments for the same offense, and the state trial court improperly sentenced him pursuant to the state “dangerous offender” statute. The district court referred the petition to a magistrate pursuant to 28 U.S.C. .§ 636(b). The magistrate’s report and recommendation rejected each ground for relief and was adopted by the district court. Thompson v. Missouri, No. 82-0362C(4) (E.D.Mo. Sept. 14, 1982) (order). This appeal followed. I. Disclosure of Exculpatory Evidence Petitioner’s first and most serious argument is that personnel from the prosecutor’s office intentionally concealed evidence which would have been favorable to petitioner’s defense, despite specific pretrial requests for exculpatory information. In particular petitioner argues that, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the state deliberately concealed from the defense information about the investigation and arrest of a man named Billy Cole and Cole’s possession of a shotgun. Before trial defense counsel had filed a discovery motion, seeking “[a]ny material or information within the possession or control of the State, which tends to negate the guilt of Defendant,” “[a]ll items or information which would reasonably be expected to weaken or affect any evidence or testimony to be used against Defendant,” “[a]ll items or information which in any manner could be expected to aid Defendant in ascertaining the truth as to any matter affecting this cause,” “statements of all persons who have been interviewed by an agent of the State in connection with the subject matter of this case and whom the State does not presently intend to call at trial,” and “names and addresses of all persons who may have some knowledge of the facts of the present case.” The state answered these requests in the negative. Several weeks before trial, defense counsel asked one of the prosecutor's investigators whether there was any information indicating that the shotgun stolen from the cleaning shop had been used in other crimes and whether there were other suspects in the case. The investigator answered these questions in the negative. After the trial defense counsel learned that a man named Billy Cole claimed that he had been an eyewitness to the cleaning shop robbery. Defense counsel filed a motion for new trial for prosecutorial misconduct based upon the concealment of the Cole investigation. Cole testified at the hearing on the motion for new trial. The Missouri Supreme Court summarized the circumstances surrounding the investigation of Cole and the shotgun as follows: On February 6, 1979, Billy Cole was arrested by St. Louis police on suspicion that he was the man who had been committing street robberies, using a sawed-off shotgun. At the time of his arrest, Cole had a sawed-off shotgun under his coat. He was identified by one of the robbery victims [presumably reference to one of the street robbery victims]. The arresting officer questioned Cole about where he had obtained the gun. Cole told him that he had found it in a vacant service station lot ..., across the street from [the cleaning shop]. Sergeant Murphy of the St. Louis Police Department, assigned as an investigator for the [prosecuting attorney’s] office, was told by Sheryl McGrew, a stepdaughter of the deceased John Cox, that she had heard from some girl friends that Cole might have had the shotgun taken from the [cleaning shop]. Murphy examined the weapon taken from Cole and determined that it was a High Standard whereas the police report on the [cleaning shop robbery] case described the gun taken from the [cleaning shop] as a Winchester. Murphy called William Cox, the [cleaning shop] proprietor, and was told by him that he had seen the gun taken from Cole and could not say that it was the one taken from the [cleaning shop]. Cox testified that he had examined the weapon but could not identify it. Officer Brogan [, another police officer who had worked on the cleaning shop robbery,] testified that he interrogated Cole shortly after his arrest and that Cole denied that he had told the arresting officer that he found the gun [in the vacant lot across the street from the cleaning shop]. He also testified that later, after he had talked to Officer Murphy, he saw Cole on the street and asked him if he would talk to Murphy about any connection between the gun and the [cleaning shop robbery] case. According to Brogan, Cole became angry and said: “You’re not going to pin this . .. case on me. You’ve got Otis Thompson. You’ve got the right guy.” Cole’s testimony was that he was across the street from the [cleaning shop] at the time of the robbery, that he saw a man come out of a doorway and he saw another man standing near the doorway pull a gun and fire five shots at the first man. Cole identified the person who fired the shots as a man known to him. That man then called inside [the cleaning shop] and ran across the street. Two men came out of the [cleaning shop] and ran across the street. One was carrying a shotgun which he dropped. Cole could not identify these two men. He did say that appellant, whom he knew, was not one of them. The next day Cole returned to the area and found the shotgun and took it. He later cut it off and it was taken from him by the police when he was arrested on February 6. 610 S.W.2d at 631-32. Standards for evaluating prosecutorial responses to defense requests for pretrial disclosure of exculpatory evidence were discussed in Scurr v. Niccum, 620 F.2d 186, 189 (8th Cir.1980) (citations omitted): In Brady v. Maryland, the Supreme Court announced the rule that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” ... [Later in United States v. Agurs,] the Court clarified the Brady rule by enumerating “three quite different situations” in which the rule “arguably applies,” each involving “the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.” In the first type of situation ... the inquiry is focused primarily on the type of evidence suppressed, to wit: “the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury.” The two remaining situations each covers a wide range of potentially exculpatory evidence, whereby the prosecution’s duty to disclose the same is measured in either instance by the “materiality” of the evidence to the question of the defendant’s guilt or innocence. Whether the evidence is sufficiently material to require its disclosure in a particular case is determined by initially considering whether the defense made a “specific” or merely a “general” request for its disclosure prior to trial. If a specific request was made, evidence is deemed material, and a reversal warranted, if disclosure of the evidence “might have affected the outcome of the trial.” If only a general request was made, evidence is considered material only if it “creates a reasonable doubt that did not otherwise exist [when] evaluated in the context of the entire record.” Here, petitioner does not contend that perjured testimony is at issue. Petitioner does argue that the pretrial request for disclosure was specific and that personnel from the prosecutor’s office intentionally concealed the Cole investigation. [A] request for disclosure of particular information cannot be labeled as either “specific” or “general” in a vacuum. Rather, the question must be asked whether, under all the circumstances presented by the case, the request was such as to give the prosecution reasonable notice of what the defense desired. In other words, “specificity” is a function of several factors, including the literal language of the defense request itself, the apparent exculpatory character of the evidence sought, and the reasonableness of the explanation, if any, for which the evidence was not exposed or was not considered to be material by the prosecution. Id. at 190. In the present case the written request for disclosure was general. However, several weeks before trial, defense counsel specifically asked an investigator from the prosecutor’s office whether the shotgun stolen from the cleaning shop (and which had not yet been recovered) had been used in other crimes and whether there were other suspects in the case. We believe that this later discussion sufficiently clarified and narrowed the general request for disclosure to give the prosecution reasonable notice of what the defense wanted. We cannot say, however, that when evaluated in the context of the entire record, the nondisclosure of the information about Cole and the shotgun might have affected the outcome of the trial. First, the police investigation indicated that the shotgun that had been seized from Cole was not the shotgun that had been stolen from the cleaning shop. Thus, there was no physical evidence connecting Cole to the cleaning shop robbery. Second, Cole’s status as a possible suspect in the cleaning shop robbery did not exculpate petitioner because the robbery had been committed by at least three men. Third, neither Cole’s status as a possible suspect nor the shotgun detracted from the two victims’ identification of petitioner or the fact that petitioner’s fingerprint was found beside the cash register. See State v. Thompson, 610 S.W.2d at 633. We also note that the state trial court, when ruling on petitioner’s motion for new trial on the basis of newly discovered evidence, considered Cole’s exculpatory statement and specifically rejected the credibility of Cole’s testimony. Id. Finally, we note that Cole’s earlier statement to police was not favorable to the defense and in fact incriminated petitioner in the cleaning shop robbery. II. Double Jeopardy Petitioner next argues that his prosecution for armed robbery and felony murder violated the double jeopardy clause’s prohibition against multiple punishments for the same offense. Petitioner argues that because armed robbery is a lesser included offense of felony murder (where the underlying felony is armed robbery), both offenses should not have been submitted to the jury. Petitioner has misunderstood the double jeopardy clause. Felony murder and armed robbery are two different offenses, even though armed robbery is the underlying felony and a lesser included offense of the murder. See State v. Morgan, 612 S.W.2d 1, 1 (Mo.1981) (banc) (per curiam) (stealing over $50 and second degree murder); State v. Olds, 603 S.W.2d 501, 509-10 (Mo.1980) (banc) (kidnapping and first degree murder). The double jeopardy clause does not prohibit the prosecution from charging and trying a criminal defendant for both the greater offense and the lesser included offense in a single trial. See Harris v. Oklahoma, 433 U.S. 682, 682-83, 97 S.Ct. 2912, 2912-13, 53 L.Ed.2d 1054 (1977) (per curiam); see also State ex rel. Westfall v. Ruddy, 621 S.W.2d 42, 45 (Mo.1981) (banc) (second degree robbery and armed criminal action). Petitioner also argues that the jury could not have constitutionally found him guilty of armed robbery while at the same time finding him not guilty of felony murder. Consistency in jury verdicts is not required. E.g., United States v. Ford, 603 F.2d 1043, 1047 (2d Cir.1979). III. Status as a “Dangerous Offender” Petitioner next argues that the state trial court improperly sentenced him to an enhanced term of imprisonment as a “dangerous offender” pursuant to Mo.Ann.Stat. § 558.016.3 because there was insufficient evidence as a matter of law to support the state trial court’s finding that he was a “dangerous offender.” Petitioner does not dispute a prior conviction of robbery but argues that there was no evidence in the record that he “knowingly ... endangered or threatened the life of another person or knowingly ... attempted or threatened to inflict serious physical injury on another person” during the commission of the cleaning shop robbery. Petitioner argues that at most the record shows that an accomplice fired two shots into the floor near the head of the attendant during the robbery and that the acts of an accomplice cannot constitutionally be imputed to petitioner for purposes of “dangerous offender” status. We must disagree. The state court of appeals rejected this argument in State v. Johnson, 605 S.W.2d 151, 154-55 (Mo.Ct.App.1980). Accordingly, the judgment of the district court is affirmed. . The Honorable William L. Hungate, United States District Judge for the Eastern District of Missouri. . Mo.Ann.Stat. § 558.016.3 (Vernon 1979) (amended and renumbered, Mo.Ann.Stat. § 558.016.4 (Vernon Supp.1983)) provides: 3. A “dangerous offender” is one who: (1) Is being sentenced for a felony during the commission of which he [or she] knowingly murdered or endangered or threatened the life of another person or knowingly inflicted or attempted or threatened to inflict serious physical injury on another person; and (2) Has been previously convicted of a class A or B felony or of a dangerous felony. . The Honorable David D. Noce, United States Magistrate for the Eastern District of Missouri. . On appeal petitioner raises for the first time another ground for relief. Petitioner argues that the state trial court improperly sentenced him under the Missouri “dangerous offender” statute because at the time of his sentencing (October 1979) the dangerous offender statute did not apply to Class A felonies and armed robbery is a Class A felony. Compare Mo.Ann.Stat. § 558.016.4 (Vernon 1979), with id. § 558.016.6 (Vernon Supp.1983); see State v. Kirk, 636 S.W.2d 952, 956 (Mo.1982). The state argues that the state trial court incorrectly cited § 558.016.4 in sentencing and that the state trial court was authorized to sentence persons convicted of Class A felonies as dangerous offenders under Mo.Ann.Stat. § 557.036.3(2) (Vernon 1979). This claim was apparently not raised in the state courts and was not raised in the district court. We will not consider it on appeal. E.g., Holiday v. Wyrick, 663 F.2d 789, 790 (8th Cir.1981). Because this claim was not presented to the district court, the petition did not involve exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). . Cole did not make the statement that petitioner was not one of the men that he saw rob the cleaning shop until the hearing on the motion for new trial. Therefore, the state cannot be said to have suppressed Cole’s exculpatory statement. However, petitioner argues that the prosecution’s failure to disclose the Cole investigation prevented the defense from discovering that Cole was a witness to the robbery. See State v. Thompson, 610 S.W.2d 629, 633 (Mo.), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 122 (1981). . Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. ... [BJecause the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure. United States v. Agurs, 427 U.S. 97, 106, 108, 96 S.Ct. 2392, 2398, 2399, 49 L.Ed.2d 342 (1976). . We do not address petitioner’s contention that personnel from the prosecutor’s office intentionally concealed this information. “[Tjhe suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 [83 S.Ct. 1194, 1196, 10 L.Ed.2d 215] (1963). “[T]he constitutional obligation is [not] measured by the moral culpability, or the willfulness, of the prosecutor.... If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.” United States v. Agurs, 427 U.S. at 110, 96 S.Ct. at 2400 (footnote omitted). . The record showed that Cole was a friend of petitioner’s, that they had been in jail together before petitioner’s trial and that they had discussed petitioner’s case. State v. Thompson, 610 S.W.2d at 634. . Double jeopardy would bar prosecution of petitioner for the felony murder in another trial because petitioner was acquitted of felony murder. See Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978). The facts of the present case are not similar to those in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam), in which the Court held that the double jeopardy clause barred prosecution for the lesser crime of armed robbery following the defendant’s conviction of the greater crime of felony murder where the underlying felony was armed robbery. . Under Missouri law the jury could not have convicted petitioner of both the underlying felony and felony murder. See State v. Morgan, 612 S.W.2d 1, 1 (Mo.1981) (banc) (per curiam) (stealing over $50 and second degree murder); State v. Olds, 603 S.W.2d 501, 509-10 (Mo.1981) (banc) (kidnapping and first degree murder); see also Mo.Ann.Stat. § 556.041, .046 (Vernon 1979). However, conviction and punishment for both the underlying felony and felony murder would not violate the prohibition against multiple punishments for the same offense in the double jeopardy clause of the fifth amendment. The Supreme Court recently stated that [w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. ... [S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. Missouri v. Hunter, - U.S.-, 103 S.Ct. 673, 678, 679, 74 L.Ed.2d 535 (1983) (case involved Missouri first degree robbery and armed criminal action statutes). See Whalen v. United States, 445 U.S. 684, 692-95, 100 S.Ct. 1432, 1438-39, 63 L.Ed.2d 715 (1980) (separate statutory offenses of rape and felony murder). 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_opinstat

B

What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. George W. WALSH, Defendant, Appellant, v. UNITED STATES of America, Appellee. No. 6780. United States Court of Appeals First Circuit. Jan. 25, 1967. S. Roy Remar, Boston, Mass., by appointment of the Court, for appellant. John Wall, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. PER CURIAM. Defendant, under sentence for bank robbery, charges errors committed by the district court before and during trial. The alleged pre-trial errors were denials for defendant’s motions to inspect grand jury records, for a bill of particulars, and for copies of statements made by defendant to the police. Rulings on these motions were made prior to the July 1, 1966 amendments to rules 7 and 16 of the Federal Rules of Criminal Procedure, which were intended to liberalize discovery procedures in criminal cases. Even as amended these rules give no automatic right to a defendant. However appealing we might find the arguments for the defendant’s right to discovery in the abstract, it is plain that the district court was within its discretion in denying the motions here, especially under the rules in effect at the time of trial. As to the request for grand jury records, defendant merely asked an opportunity to examine the records without specifying any reason or “particularized need”. Pittsburgh Plate Glass Co. v. United States, 1959, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323. Although Dennis v. United States, 1966, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973, granted relief in that case, it did so on the ground that such a showing was made. The motion for a bill of particulars sought evidence concerning the robbery, descriptions of participants and weapon, and statements. But the two-count indictment adequately described the crimes alleged, sufficiently to avoid any claim of surprise or double jeopardy. As to the motion for production of statements of defendant, it appears that there were no formal statements, only two conversations between defendant and an F.B.I. agent, which the agent had summarized in a report. This report was given defendant’s counsel at trial. The assignment of errors allegedly committed during trial included refusal to order an informer’s identity revealed, comments made by the trial judge in connection with rulings, and intervening to assist a witness to identify defendant. As to the first, several photographs of defendant, used for identification purposes, had been obtained by the F.B.I. from a “reliable informer”. In 1963 defendant had placed them in an album in the home of his wife, where they apparently remained until he and his wife separated in 1965. Lacking any indication that defendant had any standing to object to any illegal search and seizure and that obtaining the photographs was tainted with any illegality, the court acted properly in refusing to compel identification of the informer. Cf. Roviaro v. United States, 1957, 353 U.S. 53, 60-61, 64, 77 S.Ct. 623, 1 L.Ed.2d 639. The final error charged was that the district judge aided in the identification of defendant by directing the attention of a witness to defendant. The witness, nervous and wearing bifocal' glasses, spent several long minutes looking first at the jurors and then at the judge in his effort to identify the man who held him at gunpoint from a distance of two to two and one half feet. Finally the judge said, “Do you recognize the man at the bar sitting down there? Yes or no, now.” The witness answered “Yes”, then walked to a position close to defendant and said, “Yes, that’s him.”' The witness testified to his having earlier identified photographs of defendant and to his having identified defendant among eight or ten men, without prompting and in the absence of any officer, in a courtroom on another occasion. The hesitancy of the witness’s identification of defendant at trial was obviously apparent to the jury and was used by defense counsel in argument. Two other witnesses, each of whom was sequestered from the courtroom until she testified, made positive and unhesitating identification. This intervention by the trial judge was no more prejudicial, if as much so, than that in Panzich v. United States, 9 Cir., 1933, 65 F.2d 550, where, in the presence of prosecution witnesses, the court required defendants to step forward. We cannot say that the judge abused the wide latitude of discretion he must have in supervising the conduct of the trial. A reading of the entire record clearly reveals his continual efforts to be fair. Affirmed. . We pass the allegation that the judge made deprecating comments concerning defense counsel’s examination of a witness. The record reveals that the remark complained of was one of several directed to the prosecutor, intended to discourage time-wasting objections on unimportant points. . The record does not reveal the lapse of time, or where the witness looked, but this was agreed to by both counsel in their oral argument. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:

songer_district

H

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, Carpenters District Council of Denver and Vicinity, and United Brotherhood of Carpenters & Joiners of America, AFL-CIO, Colorado State Council of Carpenters its Affiliated District Councils and Affiliated Local Unions, and Leslie Prickett, Adolph Lavalle and James McFarland, Appellants, v. HENSEL PHELPS CONSTRUCTION COMPANY, a Colorado corporation, Appellee. No. 8634. United States Court of Appeals Tenth Circuit. Feb. 6, 1967. Rehearing Denied June 7, 1967. Wayne D. Williams, Denver, Colo. (Howard E. Erickson, Denver, Colo., on the brief), for appellants. Bennett S. Aisenberg, Denver, Colo. (Charles E. Grover, Denver, Colo., on the brief), for appellee. Before BREITENSTEIN and SETH, Circuit Judges, and KERR, District Judge. SETH, Circuit Judge. The appellee, Hensel Phelps Construction Company, brought this action under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185, for damages for breach of collective bargaining agreements. The defendant-appellants are labor organizations and individuals representing a single union which was a party to the agreements. The action was tried to the court, and judgment was rendered against the appellant-union in the amount of $8,000.00. The union took this appeal. The disagreement arose between the parties over the question whether certain work done by appellee’s carpenter employees on an elevated ramp for automobiles to reach the entrance to the Denver airport was to be paid at the rate for building work or highway work. The issue raised the question as to which of two collective bargaining agreements would be applicable to this type of work, both agreements being between the same parties. The amount of the judgment appealed from represents the difference between the two wage scales. The trial court concluded that the union had breached its highway collective bargaining agreement with appellee Phelps by causing a work stoppage without first complying with the disputes procedure of such agreement. The facts, about which there is no dispute, may be summarized as follows: Appellee Phelps had been awarded a contract by the City and County of Denver, Colorado, to construct an air terminal building and an elevated drive at Stapleton Airfield in Denver. Phelps was a member of the Associated Building Contractors of Colorado, Inc., hereinafter “ABC.” ABC, representing its members, had negotiated a master collective bargaining contract with the appellant union, which contract is captioned “Building Construction Agreement Carpenters,” and to which we will refer as the “building contract.” Article I, section 4, of the building contract describes in detail the carpenter work within the coverage of the contract. However, Article I, section 2(d), of the building contract states that work covered by the “Housing Agreement and The Heavy and Highway Agreement” shall not be considered similar to work within the coverage of the building contract for purposes of automatically granting a lower wage scale to any employer under the building contract when another employer has secured a lower wage scale than that provided by the contract. Section 2(d) of the building contract further states that a Heavy and Highway Agreement “shall be available to any member of the Employer [any member of ABC], who desires to engage in such work, for signature with the Union.” The Heavy and Highway Agreement, which we will refer to as the “highway contract,” is the second of two collective bargaining contracts involved in this appeal. The building contract describes work within its jurisdiction in terms of the particular job the employee might perform, e. g., “making and setting of concrete forms,” “fitting and hanging of all doors,” “making and installing of all acoustic properties.” The highway contract describes work within its jurisdiction by the nature of the construction project, e. g., “all work performed in the construction of streets and highways, airports, utilities, levee work,” etc. The important fact giving rise to the dispute and leading to this appeal is that the wage scale for carpenters provided in the highway contract is less than the wage scale provided in the building contract. Although there is no dispute that a substantial part of the entire construction project was within the jurisdiction of the building contract (the terminal buildings), classification of the elevated drive leading to the building entrance as highway work or building work immediately became a source of disagreement between the parties. There is conflicting evidence relating to the understanding of the parties as work commenced; however, for the first four or five weekly pay periods Phelps paid employees working on the elevated drive the lower wage scale provided in the highway contract. After a number of informal discussions, the dispute between Phelps and the union representatives concerning the classification of the elevated drive and applicable wage scales reached a critical point in the week of July 24, 1964. On July 23 Phelps mailed to the union a Heavy and Highway Agreement for union signature, as provided in section 2(d) of the building contract. The union received the agreement on July 24, but did not sign it. On July 24 a formal meeting was convened between the union representatives and representatives of ABC, the contractors’ association, pursuant to Article VIII, section 1, of the building contract, which provides: “The said committees are charged with the responsibility of reaching a settlement by mediation, conciliation or arbitration as the circumstances require; the decision so reached shall be put in writing and shall be binding on all parties to the controversy.” The foregoing excerpt is the extent of the procedure for resolving disputes under the building contract. A vote taken at the meeting resulted in a deadlock. The union considered the building wage scale applicable to the elevated drive, and the contractors considered the highway wage scale applicable. After the meeting was adjourned on July 24, the union advised Phelps that unless Phelps agreed to pay building wages on the elevated drive, the union would inform its members that they were receiving substandard wages. It was understood that such advice would result in a v/alkout or work stoppage. Phelps would not agree to pay building wages, but did offer to place the amount represented by the difference between highway and building wages in escrow pending a final determination of the issue. The union declined this offer, and advised its members that Phelps was paying substandard wages, and the carpenters walked out. Work was resumed in two days, after Phelps agreed to pay building wages, but reserved all rights under the building contract pending a final determination of the issue. Phelps thereafter brought this suit against the union for breach of contract, seeking recovery of the difference between highway and building wages paid, and other damages. The trial court found that the building contract meeting of July 24, which resulted in a deadlock, had exhausted the dispute procedure set forth in such contract. The trial court found that the ramp construction was highway work, and that the highway contract was operative. It also found that the dispute procedure set forth in the highway contract was different from that established in the building contract, and that the union had not complied with its contract dispute procedure before causing a work stoppage. From the foregoing findings, the trial court concluded that the parties were bound by the provisions of both the building and highway contracts, and that the dispute concerned the application of the highway contract to the elevated drive. Thus the union was required to comply with the dispute procedure of both the highway contract and the building contract. The court concluded that the union had failed to comply with the dispute procedure of the highway contract; that the highway contract was breached by the work stoppage, and Phelps was entitled to recover damages in the amount of the building wage scale paid for highway work. This appeal is under the provisions of § 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185, and federal substantive law applies. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580; John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898. Although we have been referred to no case concerned with issues quite like those presented in the case at bar, the Supreme Court has established a broad policy for judicial interpretation of collective bargaining contracts. The Court has stated: “[W]e think special heed should be given to the context in which collective bargaining agreements are negotiated and the purpose which they are intended to serve.” United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed. 2d 1403. “The collective agreement covers the whole employment relationship. It calls into being a new common law * * United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409. The Court has also held that in the context of collective bargaining contracts, preoccupation with the doctrines of ordinary contract law may thwart realization of congressional policy. Cf. United Steelworkers of America v. American Manufacturing Co., supra. These policies are of course difficult to apply to a particular factual'situation such as we have before us. We can examine however the purpose for which the agreements were intended to serve, the fact that they are intended to cover as great a portion of the parties’ relationships as possible, and that all the doctrines of contract law may not be applicable. This dispute originated during the course of work under a particular agreement, the building contract, and all negotiations and procedures were initially taken pursuant to it. The employees’ pay was initially made at a different scale, but with no indication that a different agreement would be invoked in its entirety. The dispute was treated by the parties as one over an applicable pay scale under a single contract, and the court should treat it in the same way. There was no disagreement as to the hourly rate if the nature of the work was decided. Thus again it was treated by all concerned as a dispute over which of two wage scales should apply. We hold that the judgment of the trial court must be affirmed, but we cannot agree with the trial court’s conclusion of law that the parties were bound to comply with the dispute procedures of both the building contract and the highway contract. As indicated above, the disagreement between the parties centered about one issue. Was the elevated drive building work, or was it highway work ? The contents of the contracts in question cannot be considered separately from the unusual nature of the dispute in the case at bar. Unlike the facts of most cases to which we have been referred, the dispute here is fundamental, for it questions which of two contracts should apply to the elevated drive. Until the underlying question of fact was determined, that is, classification of the elevated drive as building or highway work, the parties could not know which wage scale to use. Although the trial court concluded that the dispute concerned application of the highway contract to the elevated drive, the dispute was concerned equally with application of the building contract to the elevated drive. Review of the record satisfies us that the parties regarded the dispute as one arising under the building contract. It appears that work on the airport project was commenced under the building contract, though the parties never agreed on the classification of the elevated drive. A substantial part of the airport project was within the jurisdiction of the building contract, and the building contract, in Article I, section 2(d), provides that a highway contract, for signature with the union, shall be available to any contractor desiring to engage in highway work. The meeting of July 24 was convened pursuant to the dispute procedure established in the building contract, and Phelps sought to invoke the highway contract in the manner provided in the building contract. When Phelps sought to put into effect the highway contract under section 2(d) of the building contract, the dispute had long before focused on the classification of the elevated drive. It could not invoke the highway contract for building work, and thus the “jurisdictional” question still remained as before. Phelps’ action in executing the highway contract was no more than a further assertion of its position in the dispute. Neither “party” to the highway contract could be the sole judge of whether the project was within the jurisdiction of the highway contract. Such an interpretation would be inconsistent with the efforts of the union and the contractors to establish comprehensive definitions of building work and highway work in the contracts. In the case at bar, the union did not agree that the elevated drive was highway work. The basic issue was unchanged by the action of Phelps. The dispute was thus in fact still proceeding under the building contract. The union could not under such circumstances breach the highway contract by causing a work stoppage. The highway contract thus never came into existence, and the union cannot be required to exhaust its dispute procedure. Cf. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347; United Mine Workers of America, Dist. 22 v. Roncco, 314 F.2d 186 (10th Cir.). The dispute procedure established in the building contract is rudimentary. Beyond the requirement of a meeting between the parties, the dispute provisions in the building contract provide for no further procedure for a binding resolution of the dispute, short of a strike, a lockout, or a law suit. While the dispute procedure does charge the parties to reach a settlement by “mediation, conciliation or arbitration as the circumstances require,” no machinery is provided by which any of the foregoing alternatives might be implemented to achieve the “binding decision” envisioned by the dispute procedure. The parties do not assert that any procedure, beyond the meeting, was required by the language of the contract, and it appears that the language of the contract is inadequate to compel the parties to resort to additional extrajudicial procedures. Cf. United Steelworkers of America (AFL-CIO), etc. v. New Park Mining Co., 273 F.2d 352 (10th Cir.). A failure to agree that disputes shall be resolved by binding arbitration permits the parties to resort to other remedies such as work stoppages, lockouts, or the courts. Compliance with the dispute procedure of the building contract was effected by the meeting of July 24, which resulted in a deadlock. The contract does not contain a “no strike” clause, and, as we have seen, it does not provide for binding and compulsory arbitration. Thus after the contractual dispute procedure proved ineffective to resolve the dispute, the parties were free to pursue their other remedies. The device selected by the union was a work stoppage. Phelps later has sought its remedy in the United States District Court. With different facts the forums selected could be reversed, Phelps imposing a lockout and the union bringing suit. The union argues that the merits of the dispute concerning classification of the elevated drive were “matters which the parties left to mutual confidence and to their joint committees to work out, if possible, when problems should arise”; and therefore, the trial court erred by finding that the elevated drive was “highway construction within the meaning and intent” of the highway contract. We cannot accept this analysis of the trial court’s limited role in adjudicating disputes arising under a collective bargaining contract. Federal policy, as revealed by § 301 of the Labor Management Relations Act, undoubtedly favors arbitration as the method for resolving disputes arising under collective bargaining contracts. United Steelworkers of America v. Warrior & Gulf Navigation Co., supra; Local 174 Teamsters, Chauffeurs, etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593. In the case at bar however the contract does not provide for binding arbitration, and resort to the court was proper. The contracts in question reveal a joint effort of the union and the contractors to define and classify construction projects as building or highway work for purposes of determining the appropriate wage scale. Classification of a particular construction project is not beyond the scope of the contracts in question, nor is such classification beyond the contractual intent of the parties. The dispute here concerned interpretation and construction of the contracts, and the trial court properly adjudicated the dispute on its merits. When the dispute is one arising within the provisions of the contract, it is the function of the courts, under § 301, to adjudicate the dispute, absent provisions in the contract for binding arbitration. See Line Drivers Local No. 961, etc. v. W. J. Digby, Inc., 341 F.2d 1016 (10th Cir.); United Steelworkers of America (AFL-CIO), etc. v. New Park Mining Co., 273 F.2d 352 (10th Cir.); cf. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462; Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246; Brown v. Sterling Aluminum Products Corp., 365 F.2d 651 (8th Cir.). See also Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. Although the record reveals conflicting evidence relating to classification of the elevated drive, we are satisfied that there was substantial evidence to support the trial court’s finding that the elevated drive was highway construction. Rule 52, Fed.R.Civ.Proc.; J. A. Tobin Construction Co. v. United States, 343 F.2d 422 (10th Cir.); State Farm Mutual Automobile Ins. Co. v. Lehman, 334 F.2d 437 (10th Cir.). The union caused Phelps to pay building wages for highway construction which was a breach of the building contract, and the union is liable to Phelps for damages. The record discloses that Phelps claimed $9,327.00 in actual damages. The trial court awarded judgment for $8,000.00, finding that Phelps had paid to carpenters working on the elevated drive “not less than $8,000.00 in excess of that which the plaintiff [Phelps] would have been obligated to pay” if the highway contract had been applicable. We are satisfied that there was substantial evidence upon which the trial court could find that a sum not less than $8,-000.00 would compensate Phelps for excessive wages paid, and we cannot say that such finding is clearly erroneous. The judgment is affirmed. . The letter awarding the contract to Phelps and the plans and specifications of the project refer to “Schedule Two Elevated Drive” and “Schedule Three Terminal Building.” . The hiyhioay contract defines building construction as “building structures, including modifications thereto or additions or repairs thereto, intended for use as shelter, protection, comfort or convenience * * * No structures such as * * * bridges * * *, forming a part of a highway, which are required under the provisions of a highway construction contract, shall be regarded as constituting building work.” . It also appears that Phelps made retroactive payments for the first four or five weekly pay periods for which the highway scale had been paid. . The highway contract sets forth its dispute procedure in some detail, but representatives for the union and the contractors, for purposes of a meeting to resolve a dispute, are different than those designated by the building contract. Article VII of the highway contract provides: “If the Joint Committee is unable or unwilling to render a decision because of deadlock vote or otherwise, thereafter the Employer and the Union shall be free to pursue whatever other legal rights and remedies they may have.” The highway contract expressly prohibits work stoppage by either side until the joint committee has, or has not, reached a decision, but neither party is bound to abide the decision of the joint committee. 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_genapel1

H

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. ZIELINSKI v. UNITED STATES. No. 210. Circuit Court of Appeals, Second Circuit. March 6, 1939. Magavern & Magavern, of Buffalo, N. Y. (Edmund Clynes, of Rochester, N. Y., of counsel), for appellant. George L. Grobe, U. S. Atty., of Buffalo, N. Y. (Robert M. Hitchcock, Asst. U. S. Atty., of Dunkirk, N. Y., of counsel), for the United States. Before AUGUSTUS N. HAND and CHASE, Circuit Judges, and PATTERSON, District Judge. PER CURIAM. The above action was brought in the District Court for the Western District of New York on February 25, 1932, to recover upon a policy of war risk insurance taken out by Thaddeus Zielinski, the plaintiff’s deceased husband. The United States filed no answer. The action was begun by William A. Fox as the plaintiff’s attorney. Fox was disbarred by the Appellate Division of the Supreme Court of New York on September 27, 1933. In re William A. Fox, 240 App.Div. 804, 266 N.Y.S. 967. Rule 1(5) of the Western District provides that: “Any member of the bar who has been disbarred from the bar of the state in which he was admitted to practice shall have his name stricken from the roll of attorneys of this court.” If this rule had been complied with, the name of Fox would have been stricken from the rolls and in any event he was not after September 20, 1933, the lawful attorney or counsel for the plaintiff in the present action. On November 10, 1936, the case was placed on the dismissal calendar by the Clerk of the District Court, no action having been had therein within a year, and was dismissed in open court by an order signed by the Clerk “for lack of prosecution, without prejudice to renew”, pursuant to local Rule 8, which is as follows: “In any case which might have been brought to trial but in which no action, has been taken by the parties for one year, it should be the duty of the Clerk to mail notice thereof to counsel of record or to the parties thereto, if their post office addresses are known, thirty days before the opening of the March and November Terms of Court in each year. If such notice has been given and no sufficient cause be shown at the opening of such Term of Court, an order of dismissal should be entered as of course.” On October 5th, 1936, Mr. Hitchcock, an Assistant United States Attorney for the Western District of New York, having ascertained that Fox had been disbarred, wrote the plaintiff that Fox had ceased practicing law and said that he understood that Willard J. Magavern then represented her. He asked her to communicate with the District Attorney’s office at her earliest convenience so that arrangements might be made to discontinue or proceed with the action. She, however, states that she never received the letter. In June and July, 1936, Mr. Hitchcock telephoned Mr. Magavern at his office three times and left word for him to telephone Hitchcock in reference to the case, but without answer. The Clerk mailed notice of the call of the case pursuant to Rule 8 but only to the disbarred attorney Fox and to the United States Attorney, and the action was dismissed without notice to the plaintiff herself. The case was improperly placed on the call calendar by the clerk and was irregularly dismissed not only because there was no notice either to the plaintiff or to any attorney authorized to represent her as Rule 8 required but because 'Section 240 of the New York Civil Practice Act provides that if an attorney is suspended “no further proceedings shall be taken in the action against the party for whom he appeared until thirty days after notice to appoint another attorney has been given to' that party either personally or in such manner as the court directs”. Not until February, 1938, did Magavern appear for the plaintiff and move to continue the action in place of the disbarred lawyer. This application as well as a subsequent one made on further affidavits was denied. It is argued on behalf of the defendant that the motion was properly denied because (1) the term had long expired when the motion by the plaintiff was made, (2) if the term had not expired the plaintiff had delayed action so long that the court exercised proper discretion in denying relief. The first point is not well taken for it was due to the mistake of the Clerk that the case was ever placed on the dismissal calendar when the plaintiff’s attorney had been disbarred and when, according to the provision of Section 240 of the New York Civil Practice Act, “no further proceeding shall be taken in the action * * * until thirty days after notice to appoint another attorney has been given * * * ” and when no notice of the motion to dismiss had been given to the plaintiff or to her attorney (for she had none) required by local Rule 8 of the District Court. United States v. Mayer, 235 U.S. 55, 67, 35 S. Ct. 16, 59 L.Ed. 129; United States v. Sterling, 2 Cir., 70 F.2d 708. In spite of the jurisdiction of the District Court to correct the error caused by the mistake of the Clerk we think that the plaintiff was properly denied the right to continue the action. The action was begun seven years ago and was dismissed more than two years ago. Not until about sixteen months thereafter was a motion made to restore the case to the calendar and to allow the plaintiff to proceed. Neither the plaintiff nor her present attorney has shown when he first began to represent her and why the motions were' not more promptly made, nor did either offer any proof showing why the cause of action is meritorious. Memories fail and witnesses disappear. We see no reason to revive a cause of action that must be of approximately twenty years’ standing under such circumstances. Order affirmed. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_counsel2

E

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party UNITED STATES of America, Plaintiff-Appellee, v. William GOODSTEIN, Defendant-Appellant. No. 88-1377. United States Court of Appeals, Seventh Circuit. Argued March 30, 1989. Decided Sept. 11, 1989. As Amended on Denial of Rehearing and Rehearing En Banc Nov. 14, 1989. Joan B. Safford, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., David J. Stetler, Joan Bainbridges, James R. Ferguson, Victoria J. Peters, Asst. U.S. Attys., Crim. Receiving, Appellate Div., Chicago, for plaintiff-appellee. Julie L. Friedman, Chicago, for defendant-appellant. Before CUDAHY and EASTERBROOK, Circuit Judges, and HENLEY, Senior Circuit Judge. The Honorable J. Smith Henley, Senior Circuit Judge for the Eighth Circuit, is sitting by designation. CUDAHY, Circuit Judge. Defendant William Goodstein appeals his conviction for bankruptcy fraud in violation of 18 U.S.C. section 152; conversion of profit sharing funds in violation of 18 U.S.C. section 664; mail and wire fraud in violation of 18 U.S.C. sections 1341, 1343; and interstate transportation of fraudulently obtained securities in violation of 18 U.S.C. section 2314. We affirm his conviction on all counts. I. In 1977, defendant Goodstein had been a practicing lawyer for over forty years with considerable experience in bankruptcy law, when he arranged to acquire a business with his long-time cohort, Stanley Karp. Goodstein and Karp agreed to purchase the Paine Company (“Paine”), an Illinois manufacturer of hardware used in the construction industry, from Dan Polos. Goodstein incorporated a holding company, Travcor, Inc., as a vehicle to acquire Paine. The original purchase agreement required Trav-cor to pay $260,000 for the Paine stock, $240,000 for a covenant not to compete and $5,000 per month to lease the real estate where Paine was located. Goodstein and Karp borrowed substantial funds to meet these financial requirements and to invest working capital in the new enterprise. By 1981, Goodstein had personally invested $200,000 in Paine. Tr. at 205. Due to a significant decline in the home building industry, the new venture did not prove lucrative. When Travcor fell into default on payments to Polos, Goodstein negotiated refinancing for Paine through Foothill Capital Corporation (“Foothill”). In an effort to rescue Paine (and himself) from imminent financial collapse, Good-stein structured a deal with an acquaintance, Carl Hagle, in which Hagle agreed to manage Paine. According to Good-stein’s arrangement with Hagle, if the latter succeeded in generating profits and if he assumed Paine’s $200,000 debt to Good-stein, Hagle would be entitled to exercise an option to acquire a controlling interest in Paine. By 1982, Paine was facing immense financial pressures from Polos, who had filed suit for back rent and payments under the purchase agreement, and from Foothill, to which Paine owed over $300,-000. Ultimately, on May 5, 1982, Paine filed a voluntary petition under Chapter 11, listing its ten largest unsecured creditors including Polos, and its principal secured creditor, Foothill. Meanwhile, Paine continued to hold Goodstein’s $200,000 investment, a portion of which Goodstein had borrowed from third parties. In July and September of 1982, with approval of the bankruptcy court, Paine conducted sales of its assets and applied the proceeds to the outstanding Foothill debt. By 1983, Hagle had not resuscitated Paine to a financially satisfactory condition as contemplated. Consequently, he resigned without purchasing the controlling stock or assuming Paine’s debt to Good-stein pursuant to their agreement. While Paine was in reorganization as debtor-in-possession, Goodstein and Karp embarked on another endeavor to recapture their investments: they met with Robert Caldwell to negotiate a merger of Paine and Caldwell’s company, Mid-Northern Industries (“Mid-Northern”). The merger proposal provided that Paine would consolidate its operations with Mid-Northern’s at the Mid-Northern facility and that Travcor (Goodstein’s ownership vehicle) would transfer ownership and control of Paine to Mid-Northern and, hence, ultimately to Caldwell. In exchange for all the outstanding stock in Paine, Mid-Northern would issue 20 percent of Mid-Northern’s stock to Karp, while Paine’s outstanding shareholder loans from Karp and Goodstein would be “recast” by Mid-Northern in the form of Mid-Northern corporate notes issued to Karp and Goodstein. See Tr. at 1377-79; Government App. A. According to Karp, Paine was to move its physical property to the Mid-Northern premises “[a]s soon as permission had been secured from the bankruptcy court and from Foothill which was the principal ... creditor.” Tr. at 135. The parties agreed that Goodstein was responsible for notifying the bankruptcy court. Id. In late August 1983, Foothill discovered that Paine had transferred its accounts receivable collections to an unauthorized account and had transferred some equipment to Mid-Northern’s location without notice to Foothill or to the bankruptcy court, thereby allegedly jeopardizing Foothill’s security interest in certain collateral. On August 30, 1983, Foothill filed a motion with the bankruptcy court objecting to Paine’s transfers. Before the motion was heard, Foothill engaged in negotiations with Goodstein and drafted a tentative letter agreement consenting to Paine’s relocation on the condition that Paine first sell its telephone system product line and apply the proceeds to the Foothill debt. The proposal stated that “Paine may take preparatory steps in pursuance [of the agreement], with Foothill’s consent, prior to closing of the sale of the ‘telephone lines.’ ” Appellant’s Supp.App. at 3, 18. In addition, the proposal required approval of the bankruptcy court to effectuate the terms of the agreement. Id. at 4-16, 19. On or about September 25, 1983, without having reached a final agreement with Foothill, without having consummated the sale of the telephone system, without having notified any creditors and without having obtained permission of the bankruptcy court, Goodstein, Karp and Caldwell proceeded to move additional Paine equipment and all the Paine inventory to the Mid-Northern premises. Thereafter, both a relocation agreement and a purchase agreement for the telephone system were backdated to September 14, 1983. On September 27, 1983, Foothill filed a complaint in the bankruptcy court objecting to the relocation on the ground that Foothill had consented to the move only upon the condition that Paine sell its telephone system, which it had failed to do. See id. at 21-24. Thereafter, Paine and Foothill again entered negotiations and ultimately, on October 4, 1983, submitted to the bankruptcy court an agreed order purporting to prospectively approve the relocation, although, in fact, the move had already occurred. The court approved the submitted order the same day. Id. at 33-35. In the spring of 1984, the unrelenting Goodstein/Karp/Caldwell confederacy made a final desperate effort to salvage Paine. Caldwell acquired DuPage Boiler Works (“DuPage”), a well-established, “cash-rich” manufacturer of steel water tanks. DuPage maintained a non-contributory profit sharing plan (the “Plan”) for its employees, providing for lump sum payments of benefits. Goodstein assumed the position of director and corporate secretary of DuPage. In October 1984, Goodstein, expressing exasperation at the protracted litigation, reassured Foothill that Paine’s outstanding debt to Foothill (approximately $471,000) would be liquidated by December 2, 1984. Tr. at 364-68; Government Ex. Terras 30. Thereafter, Caldwell appointed himself as the trustee of the DuPage Plan, which previously had been administered by the Union Mutual Life Insurance Company (“Union Mutual”). Pursuant to an agreement negotiated by Goodstein, Union Mutual wired $350,000 from the DuPage profit sharing account to the Harris Bank of Na-perville. These funds were deposited into an account entitled “DuPage Boiler Works Profit Sharing Account,” with respect to which Caldwell was the signatory. Meanwhile, Goodstein and Foothill had agreed to restructure the Paine debt. Paine was to make three payments in December 1984 for a total of $155,000, then $20,000 a month until the debt was retired. Tr. at 369-70; Government Ex. Terras 31. These payments were made according to schedule with funds from the DuPage profit sharing account in Naperville. Checks were also issued from this account directly to Goodstein, who used the funds to discharge some of his personal debts. Tr. at 1431, 1460, 1463; Government App. K. As the government established at trial, such use of the DuPage Plan funds violated the terms of the Plan as well as ERISA. On December 20, 1984, Caldwell amended the DuPage Plan by deleting the beneficiaries’ option to receive a lump sum payment. Tr. at 1323; Government App. D. The government presented evidence at trial that this amendment also was contrary to the terms of the Plan and to ERISA. Beginning in early 1985, several beneficiaries of the DuPage Plan demanded payment of their benefits. Goodstein informed them that the law did not permit lump sum payments and that, in lieu of such payments, they would receive five equal installments. Throughout the bankruptcy proceedings, Goodstein continued to provide spurious excuses to disgruntled Plan beneficiaries and to reassure them that payments would be forthcoming. Paine continued to default on its payments to Foothill even after several restructured financing agreements. In the summer of 1985, Goodstein called Union Mutual requesting another $175,000 from the DuPage profit sharing funds still on deposit there. He sent a letter enclosing an authorization signed by Caldwell to expedite the withdrawal and requested that the proceeds be addressed to him personally by express mail. Tr. at 846-47; Government Ex. UNM 26, 27. Union Mutual sent the check to Goodstein and it was deposited in the Naperville DuPage profit sharing account. See Government App. D. On August 22, 1985, Goodstein received a $39,-000 check signed by Caldwell drawn on the DuPage profit sharing account, which he deposited in the “William Goodstein Special Account” at Amalgamated Bank. Tr. at 1502. Goodstein applied a portion of this money toward the Foothill liability and a portion to his own personal debts. See Government Brief at 24. Meanwhile, in July 1985, the bankruptcy case had been converted to a Chapter 7 liquidation and the debtor, Paine, lost all its corporate rights in the property. But the shell game continued, and in September, again without notice to the bankruptcy court or to Foothill, Paine and Mid-Northern covertly moved their operations to Northbrook, Illinois and their inventory to Glenview, Illinois. The trustee and Foothill eventually obtained a temporary restraining order to segregate the assets and to prevent their disposal. In December 1985, pursuant to Good-stein’s request, Union Mutual sent him the final payment from the profit sharing plan in the amount of $181,232, which was deposited in a new DuPage pension plan account at First Illinois Bank of Evanston. Subsequently, $100,000 was wired to “William Goodstein’s Special Account,” which Goodstein then withdrew and remitted to Foothill. This check, along with a $60,000 check drawn on an escrow account of an estate for which Goodstein served as trustee, were given to Foothill in full satisfaction of Paine’s obligations to Foothill. During the year and a half in which the DuPage profit sharing funds were being withdrawn from Union Mutual, Goodstein himself received a total of $182,500 from the Plan funds. After deducting the payments Goodstein made in turn to Foothill, Goodstein retained $56,239 and reduced his personal indebtedness on loans related to his investment in Paine by $54,220. Government’s Brief at 31. Goodstein was eventually charged in a multi-count indictment with bankruptcy fraud, conversion of profit sharing funds, mail and wire fraud and interstate transportation of fraudulently obtained securities. A jury found him guilty on all counts. He was sentenced to three years’ imprisonment and five years’ probation. Goodstein appeals his conviction, challenging the sufficiency of the evidence on all counts. II. The standard of review applicable to challenges to the sufficiency of the evidence is clear. We will reverse a conviction on grounds of insufficiency of evidence only if, viewing the evidence in the light most favorable to the prosecution, we conclude that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A. Bankruptcy Fraud The criminal bankruptcy fraud statute, 18 U.S.C. section 152, makes it a crime for an agent or officer of a corporation knowingly and fraudulently to transfer or conceal the property of the corporation with intent to defeat the provisions of the bankruptcy laws. See United States v. Turner, 725 F.2d 1154,1156 (8th Cir.1984). Counts 1 and 2 of the indictment charge Goodstein with separate violations of section 152. Count 1 alleges that “in and around” September 1983, Goodstein, as an agent of Paine, “knowingly and fraudulently caused to be transferred certain property of Paine, namely an interest in Paine,” to Caldwell (acting on behalf of Mid-Northern) with intent to defeat the bankruptcy laws. See Superseding Indictment ¶ 4 at 2. Count 2 similarly charges that in and around September 1983, Goodstein, with intent to defeat the bankruptcy laws, “knowingly and fraudulently transferred certain property, namely inventory and equipment of Paine, which the defendant[] caused to be transferred from Paine ... to the premises of Mid-Northern_” See id. ¶ 3 at 3. Goodstein’s principal argument on appeal with respect to both counts is that the government failed to establish beyond a reasonable doubt that Goodstein possessed the requisite fraudulent intent to transfer property in circumvention of the bankruptcy laws. Goodstein contends that the government failed to prove fraudulent intent because the transfers of property complied adequately with the Bankruptcy Code’s notice requirements. First, Good-stein argues that the government failed to prove fraudulent intent with respect to the transfer of “an interest in Paine” alleged in Count 1 because under the law Goodstein was free to transfer his own stock in Paine without notice or bankruptcy court approval. In his challenge to Count 2, Goodstein submits that the transfer of equipment and inventory to Mid-Northern’s premises was not fraudulent because Foothill knew of the move in advance and it was retroactively approved by the bankruptcy court. In addition, Goodstein insists that the bankruptcy laws only required notice of this transfer to Foothill, Paine’s sole secured creditor, since all the remaining creditors were unsecured and stood to recover nothing in bankruptcy. Finally, he asserts that, in any event, notice to creditors was unnecessary since both transfers occurred in the ordinary course of business and thus were exempt from the Bankruptcy Code’s notice requirements. We shall discuss these arguments in turn. The Bankruptcy Code forbids a debtor to use or sell property of the bankrupt estate other than in the ordinary course of business except “after notice and a hear-ing_” 11 U.S.C. § 363(b)(1). Before approving such a transaction, notice must be provided to “all creditors” at least 20 days in advance, except in certain limited circumstances (inapplicable here) where the bankruptcy court has found such notice unnecessary. See Fed.R.Bankr.P. 2002(a). With respect to Count 1, Goodstein argues in his reply brief, as he did at oral argument, that the transfer of Goodstein’s “interest in Paine” to Mid-Northern (and, hence, ultimately to Caldwell) cannot be deemed fraudulent under section 152. See Appellant’s Reply Brief at 4. According to Goodstein, he was free to transfer his ownership interest in Paine (in the form of stock) to a third-party without complying with the Bankruptcy Code’s notice and court approval requirements. For support, Goodstein relies on testimony presented at trial that a shareholder of a bankrupt corporation can transfer his stock without impediment. In effect, Goodstein seems to argue that the government failed to prove a transfer of property belonging to Paine (and to the bankrupt estate), an essential element of bankruptcy fraud under section 152, although he cloaks his argument in different terms (primarily, in terms of lack of fraudulent intent). In this respect, Count 1 presents an apparently difficult problem because the transfer of the stock of a corporation in bankruptcy is not necessarily equivalent to the transfer of property of the corporation as required by the statutory language. However, Count 1 encompasses more than a routine sale of a few shares of stock. As the government established at trial, Count 1 entails a transfer of control of Paine and, in effect, a merger of Paine with Mid-Northern (with ultimate control passing to Caldwell). In essence, the stock transfer resulted in a transfer of property of the corporation because Paine was merged into Mid-Northern; presumably, Paine would cease to exist as a business entity and the ownership of Mid-Northern would be substituted for that of Paine. In any event, by reason of the change in control, the ultimate “interest” in the property of Paine would be transferred to Caldwell. A “transfer” is defined under the Bankruptcy Code to include “the sale and every other and different mode, direct or indirect, of disposing of or parting with property or with an interest therein_” See 11 U.S.C. § 101(50) (emphasis supplied). See also 2 E. Devitt & C. Black-man, Federal Jury Practice & Instructions § 49.04 at 333 (3d ed. 1977) (defining “fraudulent transfer” for purposes of bankruptcy fraud under section 152). Thus, we think that the transfer of an “interest in Paine” established here could constitute a prohibited transfer under section 152 if done with fraudulent intent. Moreover, such a transfer of ownership and control in Paine has as great, or greater, potential for prejudice to creditors as a transfer of Paine’s physical property to another corporation or individual and, in our view, may be found to be fraudulent if done without notice to creditors or bankruptcy court approval as required under section 363(b) of the Bankruptcy Code. In In re First International Services Corp., 25 B.R. 66 (Bankr.D.Conn.1982), the bankruptcy court concluded: [T]he transfer of control of the debtor corporations is an event so inextricably related to the property of the debtors’ estates that Code Section 363(b) must be read to include the requirement of notice and a hearing prior to the transfer.... The requirements of section 363(b) protect the creditors’ interest in the assets of the estate. Thus it may be inferred from that Code section and others that creditors have an interest in those who control the assets of the estate.... [Creditors’] rights may well be lost, if the transfer of control of a debtor may occur without notice and an opportunity for a hearing. Id. at 70 (citations omitted). Cf. United States v. Weichert, 89 B.R. 346, 348 & n. 7, 350 (Bankr.S.D.N.Y.) (companies were fraudulently merged and newly created “shell companies” fraudulently acquired the inventory and assets of the bankrupt corporation without approval by the bankruptcy court in violation of the criminal bankruptcy fraud statute), aff'd mem., 862 F.2d 305 (2d Cir.1988), and United States v. Weichert, 783 F.2d 23, 25 (2d Cir.) (jury could infer fraudulent intent from defendant’s diversion of substantial assets of bankrupt corporation to a newly formed company, with which the bankrupt corporation had effectively merged), cert. denied, 479 U.S. 831, 107 S.Ct. 117, 93 L.Ed.2d 64 (1986). The government established at trial that the transfer of an “interest in Paine” referred to the transfer of control pursuant to the merger agreement. Further, the district court carefully instructed the jury that, in order to convict under section 152, the government must establish that the property transferred belonged to the bankrupt estate. The court also instructed the jury that a transfer of property of the bankrupt estate under the Bankruptcy Code includes a transfer of an “interest” in that property. Defense counsel did not object to these instructions or proffer alternative instructions containing additional elucidation. Cf. United States v. Weinstein, 834 F.2d 1454, 1461 (9th Cir.1987). In light of the evidence presented by the government at trial describing the transfer of control in Paine through a merger with Mid-Northern, together with the above-noted instructions to the jury, we think that the transfer of an “interest in Paine” charged in Count 1 contravened the bankruptcy notice requirements and could indeed be deemed a fraudulent transfer of property of the bankrupt estate under section 152. With respect to Count 2, which charges a transfer of Paine’s equipment and inventory to the Mid-Northern premises, Goodstein insists that Foothill knew in advance of the transfer and that, therefore, formal notice under the bankruptcy rules was not required. He cites numerous cases in support of an “actual” or “constructive” notice theory. See In re DCA Development Corp., 489 F.2d 43 (1st Cir.1973); Cameron v. Roemelmeyer, 389 F.2d 599 (5th Cir.1968); Hersh v. United States, 68 F.2d 799 (9th Cir.1934); In re Glinz, 66 B.R. 88, 91 (Bankr.D.N.D.1986); In re Toth, 61 B.R. 160, 164, 166 (Bankr.N.D.Ill.1986); In re Torres, 15 B.R. 794, 797 (Bankr.E.D.N.Y.1981). In these cases, the courts determined that the bankruptcy notice requirements were adequately complied with if a creditor, who had not received formal written notice, had actual knowledge of the transaction and an opportunity to raise objections. See id. Goodstein argues that a letter dated September 6, 1983, from Foothill indicates that Foothill in fact knew of the planned relocation. The letter (which appears in various unsigned, revised forms) purports to confirm an agreement between Paine and Foothill in which Foothill agreed to the relocation of Paine’s business to the Mid-Northern premises. But this agreement provided, inter alia, that Paine first sell its telephone system and remit the proceeds to Foothill. The agreement was also subject to court approval. See Appellant’s Supp. App. at 1-20. The import of this unsigned letter is questionable. The September 6 draft agreement permitted Paine to transfer its property, subject to court approval, only if Paine first sold its telephone system and applied the proceeds to the Foothill debt. However, in derogation of this agreement, Paine proceeded to transfer its property without complying with the pre-condition of sale of the telephone system, without notifying Foothill and without obtaining prior approval from the bankruptcy court. When Foothill learned that the move had occurred prematurely, it filed a motion with the bankruptcy court on September 27, 1983, objecting to the relocation. Before the bankruptcy court had the opportunity to rule on this motion, the parties entered negotiations and, on October 4, 1983, submitted an agreed order to the court purporting to grant Paine approval to transfer equipment, inventory and lines of business to the Mid-Northern premises. Nowhere does the stipulated order mention that, in fact, the relocation had already been consummated. See Appellant’s Supp.App. at 33-35. Indeed, there is no indication that the bankruptcy court was ever apprised of the fact that the move had already occurred, or that the court intended to retroactively ratify the transfer of property that Paine had made without notice to creditors. We need not decide whether (for purposes of criminal bankruptcy fraud) the bankruptcy court possessed the authority to ratify such a transfer of property nunc pro tunc for it appears that the agreed order had some of the earmarks of a fraud, de-eeiving the court into granting Paine permission to do what it had in fact already done without the required notice or court approval. The fact that Foothill learned of the relocation after the fact, and submitted an agreed order seeking retroactive court approval, does not necessarily cure the illegality of the transfer. Cf. In re Adeeb, 787 F.2d 1339, 1345 (9th Cir.1986) (subsequent disclosure does not undo an illegal transfer). At all events, even if Goodstein had provided Foothill with notice (constructive or otherwise) of the transfer of equipment and inventory charged in Count 2, such notice would not have excused Paine from its obligation to notify its other unsecured creditors. Goodstein asserts that notice to Foothill, Paine’s only secured creditor, was sufficient because the other creditors were unsecured and would receive nothing in the bankruptcy. However, Goodstein cites no persuasive authority for the proposition that the bankruptcy notice requirements can be dispensed with simply by notifying secured creditors if the prospects of other creditors are sufficiently unpromising. Bankruptcy Rule 2002(a)(2) by its express terms requires notice to “all creditors.” See In re Robert L. Hallamore Corp., 40 B.R. 181, 182 (Bankr.D.Mass.1984); In re WHET, Inc., 12 B.R. 743, 746 (Bankr.D.Mass.1981); In the Matter of Cameo Tile Distribs., Inc., 17 B.R. 28 (Bankr.M.D.Fla.1981); cf. In re Adeeb, 787 F.2d at 1343 (In order to bar discharge, title 11 U.S.C. section 14(c) requires only that the debtor transfer property with intent to hinder, delay, or defraud “a creditor” not “all creditors.”); Kolesinski v. Mashey, 127 F.2d 528 (2d Cir.1942). Nowhere do the Bankruptcy Code or Rules suggest that the notice requirements do not apply to unsecured creditors. Indeed, carving out such an exception to the broad notice rules would be inimical to the Bankruptcy Code’s purpose of ensuring equitable treatment of all creditors. See In re Adeeb, 787 F.2d at 1345 (citations omitted). In describing the contours of the criminal bankruptcy fraud statute, the court in In re May, 12 B.R. 618 (N.D.Fla.1980) stated: Section 152 of Title 18 is a congressional attempt to cover all of the possible methods by which a debtor or any other person may attempt to defeat the intent and effect of the bankruptcy law through any type of effort to keep assets from being equitably distributed among creditors. Stegeman v. United States, 425 F.2d 984, 986 (9th Cir.1970); 2A Collier § 29.04[2]. Id. at 625. In furthering the aims of the bankruptcy statutes, we must rigorously enforce the rights of creditors, both secured and unsecured. Hence, despite Goodstein’s protestations that he acted lawfully and with benign motivations, we think that the evidence was sufficient for a jury to conclude that the transfer of property without notice to any of Paine’s unsecured creditors and without the required approval of the bankruptcy court was accomplished fraudulently in violation of section 152. Finally, Goodstein claims that the consolidation and relocation of Paine’s business was in the ordinary course of business and, therefore, exempt from the notice requirements of section 363(b). We dis-It is not a routine or ordinary event to transfer control of one manufacturing company to another, effectively merging the two companies, or to relocate substantial portions of a company’s equipment and inventory to the premises of another. See In re First International Services Corp., 25 B.R. at 70; In re Fountain Bay Mining Co., 46 B.R. 122, 124 (Bankr.W.D.Va.1985); In re Johns-Manville Corp., 60 B.R. 612 (Bankr.S.D.N.Y.), rev’d on other grounds, 801 F.2d 60 (2d Cir.1986). In sum, we believe that a jury could have concluded that the transfers of property alleged in Counts 1 and 2 were fraudulent and committed with intent to defeat the bankruptcy laws as required to support a conviction under section 152. Fraudulent intent may be proved by circumstantial evidence. In re Mays, 12 B.R. at 626. Persons whose intention is to shield their assets from creditor attack while continuing to derive the equitable benefit of those assets rarely announce their purpose. Instead, if their intention is to be known, it must be gleaned from inferences drawn from a course of conduct. In re Saphire, 139 F.2d 34, 35 (2d Cir.1943); In re Freudmann, 362 F.Supp. 429 (S.D.N.Y.1973), aff'd, 495 F.2d 816 (2d Cir.1974). In re May, 12 B.R. at 627. The evident pattern of Goodstein’s self-dealing endowed his actions with an aura of fraud. Goodstein advanced $200,000 to Paine for stock and as operating capital, and sought vigorously to recapture these funds. Acutely aware of Paine’s ailing financial condition, Goodstein employed Ha-gle to manage Paine and offered him an option to buy out Goodstein’s investment. Goodstein then opposed Hagle’s recommendation to convert Paine’s Chapter 11 proceedings into a Chapter 7 liquidation since such a conversion would prevent Goodstein from recouping his investment. Once in bankruptcy, with disregard for the interests of creditors, he instructed his partner, Karp, to pursue the possibility of selling Paine. The merger agreement between Paine and Mid-Northern recast Paine’s obligation to Goodstein, making him a creditor of Mid-Northern rather than of the bankrupt Paine and thus affording Good-stein another chance to recover his investment. In addition, Goodstein’s extensive legal background and integral role in Paine’s bankruptcy affairs indicate that the failure to notify the bankruptcy court and creditors of the transfers was not inadvertent. Goodstein was a knowledgeable businessman and lawyer. (He apparently needed a refresher course in Legal Ethics, not Bankruptcy 101.) He participated in two sales of assets, prior to the proposed merger with Mid-Northern, which took place with proper notice to creditors and with bankruptcy court approval. Moreover, the draft agreements that Goodstein negotiated with Mid-Northern and Foothill contained clauses recognizing the parties’ obligations to procure bankruptcy court approval of their actions. Viewing the evidence in the light most favorable to the government, we think a jury could reasonably conclude that Goodstein possessed the requisite fraudulent intent to defeat the bankruptcy laws. See United States v. McClellan, 868 F.2d 210, 216 (7th Cir.1989). B. Conversion Goodstein also contends that the evidence was insufficient to convict him of converting profit sharing funds in violation of 18 U.S.C. section 664. This is a much easier question than those related to the bankruptcy fraud counts. Goodstein does not deny that the DuPage profit sharing funds were used unlawfully. See Appellant’s Reply Brief at 10. Instead, Good-stein submits that, while the evidence at trial indeed demonstrated that Goodstein misapplied profit sharing funds, the evidence did not establish conversion because Goodstein never had lawful possession of, or access to, the Plan funds. Thus, he argues that there was a fatal variance between the proof offered at trial, demonstrating misapplication of funds, and the indictment, which alleged conversion. Goodstein cites numerous case authorities stating that, in order to be convicted of embezzlement, the defendant must have been in lawful possession of or had lawful access to the property at the time of its appropriation. See United States v. Marquardt, 786 F.2d 771, 780 (7th Cir.1986); United States v. Whitlock, 663 F.2d 1094, 1098 (D.C.Cir.1980); United States v. Mack, 525 F.Supp. 382 (N.D.Texas 1981). But Goodstein was not charged with the crime of embezzlement; rather, the indictment charges that both Goodstein and Caldwell “did unlawfully and wilfully convert and cause to be converted to their own use [funds] drawn on the DuPage Boiler Works Profit Sharing Account, ... which were moneys, ... of the DuPage [Plan], ...” See Superceding Indictment at 19-21, 36. Goodstein cites no relevant authority to support his contention that lawful possession and access is an essential element of conversion under section 664. Contrary to Goodstein’s assertion, the fact that he was not a signatory on the DuPage profit sharing accounts, a status that would have afforded him lawful possession of the funds, is not dispositive. Judge Kocoras thoroughly instructed the jury that the government was required to prove that Goodstein converted or caused to be converted, to his own use or the use of another, moneys belonging to the Plan, and that the defendant acted willfully and unlawfully. See Tr. at 1807-08. The judge also instructed that “the term convert as used in section 664 means the use of profit sharing funds in an unauthorized manner or to an unauthorized extent” and that it is unlawful for any fiduciary of an employee benefit plan to discharge his duties other than in the sole interest of the participants for the exclusive purpose of providing benefits. See id. Further, the judge instructed the jury that a person is a fiduciary with respect to a benefit plan to the extent that he has discretionary authority or responsibility in the administration of such a plan or exercises any control regarding the management or disposition of its assets. Tr. at 1809. See 29 U.S.C. § 1002(21)(A)(i) and (iii); Mutual Life Insur. Co. of New York v. Yampol, 840 F.2d 421, 425 (7th Cir.1988). Goodstein did not object to these instructions nor does he challenge them on appeal. Moreover, we think the instructions correctly state the law relating to criminal conversion of profit sharing funds under section 664. See United States v. Snyder, 668 F.2d 686, 690-91 (2d Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3494, 73 L.Ed.2d 1373 (1982); United States v. Santiago, 528 F.2d 1130 (2d Cir.), cert. denied, 425 U.S. 972, 96 S.Ct. 2169, 48 L.Ed.2d 795 (1970); cf. United States v. Ford, 632 F.2d 1354 (9th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1399, 67 L.Ed.2d 369 (1981); United States v. Andreen, 628 F.2d 1236 (9th Cir.1980); United States v. Felice, 481 F.Supp. 79 (N.D. Ohio 1978). The government adduced evidence at trial indicating that Goodstein played an active role in administering the DuPage Plan. While serving in the capacity of director and corporate secretary of DuPage, Good-stein negotiated and arranged several withdrawals of Plan funds from Union Mutual. He arranged the wire transfers from Union Mutual to coincide with the due dates of payments on the Paine/Mid-Northern debt to Foothill. See Government App. B. Union Mutual disbursed approximately $681,-000 of Plan funds to Goodstein and Caldwell, and, of that amount, less than $27,000 went to pay beneficiaries. More than $180,000 of Plan funds were paid directly to Goodstein, who used approximately $56,-000 to meet the demands of his personal indebtedness and for other personal purposes. See Government App. K. In addition, Goodstein dealt with Plan participants on behalf of DuPage Boiler, lulling them with false reassurances while mulcting them of their benefits. He was clearly a fiduciary with discretionary authority or discretionary responsibility in the administration of the DuPage Plan. Viewing the evidence in the light most favorable to the government, we think a reasonable jury could have concluded that Goodstein, acting in a fiduciary capacity, knowingly used profit sharing funds in an unauthorized manner, thereby converting the funds in violation of 18 U.S.C. section 664. C. Mail and Wire Fraud; Interstate Transportation of Securities Finally, Goodstein maintains that because the government failed to prove bankruptcy fraud or conversion of profit sharing funds, there was no illegal scheme upon which to base the convictions for mail fraud, wire fraud and interstate transportation of fraudulently obtained securities. Our affirmance of Goodstein’s convictions for bankruptcy fraud and conversion renders Goodstein’s argument meritless. III. In sum, we conclude that the evidence was sufficient to sustain Goodstein’s conviction for bankruptcy fraud, conversion of profit sharing funds, mail and wire fraud and interstate transportation of fraudulently obtained securities. Affirmed. . Title 18 XJ.S.C. section 152 provides: Whoever, either individually or as an agent or officer of any person or corporation, in contemplation of a case under title 11 by or against him or any other person or corporation, or with intent to defeat the provisions of title 11, knowingly and fraudulently transfers or conceals any of his property or the property of such other person or corporation ... [s]hall be fined not more than $5,000 or imprisoned not more than five years, or both. . In re First International Services Corp. was not a criminal bankruptcy fraud case under 18 U.S.C. section 152. Rather, it involved a challenge under 11 U.S.C. section 363(b) seeking to void a sale agreement that transferred control of the bankrupt corporation without notice and a hearing. The bankruptcy court declared that, in such circumstances, the failure to comply with the notice requirements rendered the agreement and transfer of stock null and void. Id. at 70-71. . We note that the "interest in Paine" terminology contained in Count 1 of the indictment is quite vague. Upon reviewing the record, it appears that at trial the government may have altered its original theory underlying this charge. See Record at 67. However, all this is not entirely clear because Goodstein did not request a bill of particulars from which to ascertain precisely what "interest" is alleged in Count 1. As far as we can determine in the absence of a bill of particulars on this point, the proof at trial appears adequate under the broad language of the indictment. See United States v. Pino-Perez, 870 F.2d 1230, 1241 (7th Cir.1989) (Cu-dahy, J., dissenting in part). More importantly, Goodstein did not challenge the indictment as impermissibly vague in the court below, nor does he raise the issue on appeal; therefore, the issue is waived. See United States v. Covelli, 738 F.2d 847, 862 (7th Cir.1984). . Goodstein concedes that Foothill apparently did not have advance notice of the transfer alleged in Count 1. See Appellant's Reply Brief at 3. . Paine’s surreptitious transfer of substantial equipment and inventory clearly contravened the terms of the draft agreement, notwithstanding the provision that "Paine may take preparatory steps in pursuance [of the agreement] with Foothill’s consent, prior to closing of the sale of the ‘telephone lines' ”. Appellant’s Supp.App. at 3. Notwithstanding Goodstein’s assertions to the contrary, the transfer cannot be construed as a mere "preparatory step"; nor did it occur with Foothill’s consent as required under the agreement. .Although Foothill’s motion, which was filed with the bankruptcy court on September 27, 1983, see Appellant's Supp.App. at 24, objected to the Paine relocation on the ground that Paine had “undertaken to move substantial portions of its equipment and inventory to the business premises of Mid-Northern ... without Foothill’s consent” and in violation of a prior agreement between the parties, it is uncertain whether the district court ever reviewed this motion since the parties eventually settled their differences and submitted an agreed order to the court on October 4, 1983. The agreed order was deceptively drafted in prospective terms, purporting to pre-approve a subsequent relocation of Paine. .Goodstein cites Southern Railway Co. v. Johnson Bronze Co., 758 F.2d 137 (3d Cir.1985), for the principle that notice to unsecured creditors is not required. However, Goodstein misapprehends the holding in Southern Railway. In that case, the court relied on Bankruptcy Rule 2002(i), which provides that the court “may order that notices ... be mailed only to the committees or their ... agents and to the creditors ... who file with the court a request that all notices be mailed to them.” In Southern Railway, notice of the sale of property was provided to the Committee of Unsecured Creditors. One of the unsecured creditors had not filed with the court a request that it receive notice. The Third Circuit determined that under Rule 2002(i), notice to the Committee was sufficient. 758 F.2d at 140-41. Because there was no notice given to a committee of unsecured creditors in the present case, and there was no court order requiring individual unsecured creditors to file requests for individual notice as authorized under Rule 2002(i), Southern Railway is clearly inapposite. . In In re Adeeb, 787 F.2d at 1345, the court articulated the two-fold purpose of the bankruptcy statutes: [FJirst, to secure the equitable distribution of the bankrupt’s estate among his creditors, and, second, ‘“to relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh from the obligations and responsibilities consequent upon business misfortune.’" [citations omitted]. . See also United States v. Shapiro, 101 F.2d 375, 379 (7th Cir.) (objective of bankruptcy fraud criminal statute is "to punish those debtors who, although wanting relief from their debts, did not want to surrender what property there was to the creditors;” affirming conviction for denuding corporation of its property immediately prior to filing bankruptcy petition), cert. denied, 306 U.S. 657, 59 S.Ct. 774, 83 L.Ed. 1054 (1939). . More specifically, Goodstein argues that "Paine was forced to relocate because of problems with its landlord, caused in good part by Foothill’s refusal to pay the rent. The relocation of its business, under these circumstances, is an action which could easily be deemed to arise in the normal course of business." Appellant’s Brief at 30. We find little merit in this argument. If the debtor was being forced to move because of a cash crunch, it would have taken little effort to apprise the bankruptcy court of the debtor's problem. Indeed, it appears that Paine complained repeatedly to the court of Foothill’s reluctance to forward cash due Paine. These complaints, at one point, resulted in a court order requiring Foothill to pay Paine’s rent. Appellant’s Brief at page 7. Yet, Goodstein fails to explain why, if his assertion is true, he never attempted to get permission from the court for Paine to relocate — after he had already gone to the trouble of getting a court order in an attempt to resolve the very same problem. Such a quiet relocation does not seem to constitute "normal course of business.” Similarly, we are unpersuaded by Goodstein’s argument that the previous court order concerning rent payment provided sufficient notice to Foothill and the bankruptcy court that Paine was being forced to move. Both Foothill and the bankruptcy court knew that Paine was having cash flow problems. (Indeed, notice to this effect was apparent from Paine’s involvement in bankruptcy proceedings.) But, neither was told flat out of the apparent gravity of Paine’s problems with its landlord. It does not necessarily follow that a business having trouble paying its rent will be forced to move immediately by its landlord. If landlord problems were, indeed, the reason for Paine’s clandestine relocation, it would have been easy to say as much before the move. Goodstein offers no reasons to account for his failure to give specific notice of this problem. From these and other facts, a jury would not have had difficulty in concluding that such a move involved fraudulent intent. . Title 18 U.S.C. section 664 provides: Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use or to the use of another, any of the moneys, funds, securities, premiums, credits, property, or other assets of any employee pension benefit plan, or of any fund connected therewith, shall be fined not more than 510,000 or imprisoned not more than 5 years, or both. As used in this section, the term any employee welfare benefit plan or employee pension plan means any employee benefit plan subject to any provision of title I of the Employee Retirement Income Security Act of 1974. . The separate acts of conversion alleged in counts 10, 11, 12 and 27 each employ similar language except that count 27 states "converted to their own use and to the use of Foothill....” Superseding Indictment at 36. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

songer_stpolicy

A

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". TOBACCO ACCESSORIES AND NOVELTY CRAFTSMEN MERCHANTS ASSOCIATION OF LOUISIANA, et al., Plaintiffs-Appellants, v. David C. TREEN, as Governor of Louisiana, et al., Defendants-Appellees. No. 80-3854. United States Court of Appeals, Fifth Circuit. July 29, 1982. William E. Rittenberg, New Orleans, La., Peter Meyers, Washington, D. C., Frederick J. King, Jr., New Orleans, La., for plaintiffs-appellants. Laughlin McDonald, Atlanta, Ga., for amicus curiae — American Civil Liberties Union. Kendall L. Vick, Asst. Atty. Gen., Paul A. Eckert, Staff Atty., New Orleans, La., for defendants-appellees. Before COLEMAN, POLITZ and GAR-WOOD, Circuit Judges. POLITZ, Circuit Judge: This case presents a pre-enforcement facial challenge to the constitutionality of Louisiana’s Drug Paraphernalia Law, La. R.S. 40:1031-36 (Louisiana Act). Invoking 42 U.S.C. §§ 1983, 1985 and 28 U.S.C. §§ 2201 and 2202, plaintiffs charge that the Louisiana Act is vague and overbroad, not rationally related to a legitimate state interest and infringes on first amendment guarantees. The district court upheld its validity. 501 F.Supp. 168. We affirm. Background The Louisiana Act is patterned after the Model Drug Paraphernalia Act (Model Act) drafted by the Department of Justice as part of the response to the explosive growth of illegal drug traffic across the country. The Model Act seeks to avoid the constitutional infirmities which resulted in successful challenges to various state and local drug paraphernalia laws. The Louisiana Act defines drug paraphernalia as “all equipment, products and materials of any kind which are used, intended for use, or designed for use ...” with a controlled substance, La.R.S. 40:1031(A)(1), and lists examples. The Act then identifies twelve factors which must be considered when determining whether a particular object is to be considered drug paraphernalia. La.R.S. 40:1032(1)-(12). Criminal liability is imposed for the sale, distribution, or display of drug paraphernalia, La. R.S. 40:1033(A) & (B), and for its use, 40:1033(C). Appellants and amicus curiae raise first, fifth and fourteenth amendment challenges to the Louisiana Act. We consider each assertion raised, first addressing over-breadth and vagueness, mindful that: In a facial challenge to the overbreadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. Hoffman Estates v. Flipside, Hoffman Estates, 102 S.Ct. 1186, 1189 (1982). Overbreadth A law is facially overbroad if it “does not aim specifically at evils within the allowable area of [government] control, but ... sweeps within its ambit other activities that constitute an exercise” of constitutionally protected rights. Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940). The overbreadth doctrine not only shields protected speech, but has been a vital force counteracting any deterrence to such speech. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). The only constitutionally protected activity implicated by the Louisiana Act is the first amendment commercial speech right of vendors of items which fall within the definition of drug paraphernalia. The Louisiana statute makes it unlawful for any person, “knowing the drug related nature of the object, to display for sale or possess with the intent to distribute, any drug paraphernalia.” La.R.S. 40:1033(B). The overbreadth doctrine, however, “does not apply to commercial speech.” Hoffman Estates, 102 S.Ct. at 1192 (citing Central Hudson Gas & Electric Co. v. Public Service Comm’n., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980)). The Court has refused to apply the overbreadth doctrine in the commercial speech context in part because persons advertising goods or services for a profit are not likely to be lightly deterred. Further, in the case at bar, as in Hoffman Estates: insofar as any commercial speech interest is implicated here, it is only the attenuated interest in displaying and marketing merchandise in the manner that the retailer desires .... The ordinance is expressly directed at commercial activity promoting or encouraging illegal drug use. If that activity is deemed ‘speech,’ then it is speech proposing an illegal transaction, which a government may regulate or ban entirely. 102 S.Ct. at 1192 (citing Central Hudson Gas and Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973)). There is no constitutionally protected conduct implicated by the Louisiana Act; the commercial speech doctrine offers appellants no succor. Vagueness Under the due process clauses of the fifth and fourteenth amendments, a criminal statute is unconstitutionally vague if it fails to provide meaningful and fair warning of the proscribed conduct and adequate standards to ensure even-handed enforcement. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). A number of factors are considered in determining the degree of vagueness constitutionally permissible. In Hoffman Estates, the Court stated that a successful challenge to the facial validity of an economic regulation requires a showing that the legislation is impermissibly vague in all applications, explaining that “economic regulation is subject to a less strict vagueness test because its subject-matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action.” 102 S.Ct. at 1193. Further, the Court noted that “a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Finally, “the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.” Id. Mindful of these guidons, we evaluate appellants’ vagueness challenge to the Louisiana Act. Appellants maintain that the Act is vague because (1) the phrase “used, intended for use, or designed for use” fails to apprise persons of characteristics which would distinguish innocent items from drug paraphernalia; (2) the Act imposes criminal liability on the seller based on the intent of the buyer (transferred intent); (3) the Act fails to provide guidelines sufficient to avoid discriminatory enforcement; and (4) the prohibitory sections, 1033(A) & (B), fail to require that the seller have the specific intent that the questioned item be used with a controlled substance. We address these contentions seriatim. “Intended for Use” Appellants insist that defining drug paraphernalia as items “used” or “intended for use,” with a controlled substance fails to differentiate purely innocent items from prohibited items, and thus fails to provide adequate warning of the verboten conduct. The district court found that this language, in the context of the total statutory scheme, clearly requires criminal intent on the part of the person charged with violating the statute, and therefore does provide fair warning of proscribed activities. Obviously, many items may be used in both a lawful and unlawful manner. To prosecute a person for the sale of an item, both intended and understood to be used lawfully, would run afoul of the due process clause. See Grayned v. City of Rockford, 408 U.S. at 108, 92 S.Ct. at 2298. The drafters of both the Model Act and the Louisiana Act addressed this problem by infusing the requirement of specific intent into the definition of drug paraphernalia and by providing examples. The Act condemns only items used, intended for use, or designed for use with a controlled substance. The “intended for use” language applies to the state of mind of the individual charged with the offense of selling, distributing, or displaying drug paraphernalia. The vendor of an item which may be used innocently, incurs no criminal vulnerability unless he believes or intends that the ambivalent item will be used with a controlled substance. No item bears the stigma of drug paraphernalia under La.R.S. 40:1033(A) & (B), absent the seller’s intent that it be used with a controlled substance. Further, no wholesaler or manufacturer can be convicted on the basis of the retailer’s intent. Therefore, the concern appellants raise that an individual could be prosecuted based on intent transferred from a third party is misplaced, at least at this stage, when the only question before us is the facial validity of the Act. In light of the protection of the scienter requirement, and considering that this is an economic regulation, we conclude that the Louisiana Act’s “intended for use” language is not imper-missibly vague. Discriminatory Enforcement Continuing in their challenge, appellants charge that the Louisiana Act is vague because it fails to provide adequate guidelines to avoid the danger of discriminatory enforcement. We find no merit in this contention. The Louisiana Act contains guidelines facially adequate to prevent discriminatory enforcement and to provide a consistent and uniform determination of items within the definitional bounds of drug paraphernalia. In this regard the Louisiana Act differs significantly from the Model Act. In determining whether an object is drug paraphernalia, the Model Act refers to the factors “a court or other authority should consider in addition to all other logically relevant factors.” The Louisiana Act contains twelve factors “a court or other authority shall consider, in addition to all other legally relevant factors.” The trial judge was of the opinion that this glossation narrowed the Louisiana Act and made it more precise. We agree. The dozen factors in the Louisiana Act, a refinement of the Model Act, reflect an effort by the Louisiana Legislature to insure that only items used with controlled substances are criminalized. Appellants argue that this listing and the use of the mandatory “shall” in lieu of the Model Act’s permissive “should” raise the spectre that the Louisiana Act will be discriminatorily enforced. We cannot accept this proposition. We decline to pronounce the Louisiana Act unconstitutionally vague based on the speculation that it may be discriminatorily enforced. Appellants raise a facial, pre-en-forcement challenge. In that posture, as the Court observed in Hoffman Estates: [i]n reviewing a business regulation for facial vagueness . . . the principal inquiry is whether the law affords fair warning of what is proscribed .... This emphasis is almost inescapable in reviewing a pre-enforcement challenge to a law. Here, no evidence has been, or could be, introduced to indicate whether the ordinance has been enforced in a discriminatory manner or with the aim of inhibiting unpopular speech. 102 S.Ct. at 1195-96. Designed for Use Appellants and amicus contend that the Louisiana Act’s definition of drug paraphernalia as items “designed for use” with a controlled substance is fatally vague. The district court did not separately consider this clause but tested the entire phrase “used, intended for use, or designed for use.” Because of the requirement of criminal intent, the entire phrase was found to pass constitutional muster. We agree with the trial judge and go one step further. In Hoffman Estates, the Court of Appeals declared the “designed for use” language unconstitutional. In reversing, the Supreme Court instructed: A principal meaning of “design” is “To fashion according to a plan.” Webster’s New International Dictionary of the English Language 707 (2d ed. 1957). Cf. Lanzetta v. New Jersey, 306 U.S. 451, 454, n.3 [59 S.Ct. 618, 619, n.3, 83 L.Ed. 888] (1939). It is therefore plain that the standard encompasses at least an item that is principally used with illegal drugs by virtue of its objective features, i.e., features designed by the manufacturer. A business person of ordinary intelligence would understand that this term refers to the design of the manufacturer, not the intent of the retailer or customer. It is also sufficiently clear that items which are principally .used for non-drug purposes, such as ordinary pipes, are not “designed for use” with illegal drugs. 102 S.Ct. at 1194-95. See Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213 (11th Cir. 1982). We are persuaded that the “designed for use” language of the Louisiana Act similarly applies only to manufacturers, for their own acts of design. This interpretation is supported by the comments to the Model Act, and by a common sense reading of the statutory language. Prohibited Acts — Section 1033 As the trial judge observed, the Louisiana Act diverges most significantly from the Model Act in section 1033, which specifies the prohibited acts. The Model Act forbids the manufacture or delivery of drug paraphernalia under circumstances where one “reasonably should know” of intended use with a controlled substance. The Louisiana Act prohibits any person or corporation from selling, distributing or displaying drug paraphernalia, “knowing the drug related nature of the object.” The Louisiana Act omits the constitutionally vulnerable “reasonably should know” language. Appellants argue.that the Louisiana Act gives inadequate notice and is thus defective because it fails to define “drug related nature of the object.” The prohibited acts refer to drug paraphernalia. By definition, drug paraphernalia must be an item “used, intended for use, or designed for use” with a controlled substance. Appellants’ suggestions that this qualifying clause refers to the purchaser or manufacturer, but not the seller, and that the definitions of § 1031 cannot be read into § 1033, are not persuasive. The intent requirement applies to the person or corporation charged. This includes the seller. The Louisiana Act is not constitutionally infirm for failure of adequate notice. Rationality Appellants dispute that the Act bears a rational relation to any legitimate state interest. Acknowledging the state interest in curbing drug abuse, appellants argue that the ready availability of drug paraphernalia does not contribute to that societal problem. The district court found the Act to be rationally related to a legitimate state purpose. We find that conclusion compelling. Meeting the rational relationship test imposes only a modest burden on the state. Williams v. Lee Optical, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). One need not squint in the dark to perceive a link between the illegal use of drugs, particularly by youngsters, and items used to facilitate drug use. The Louisiana Legislature is within its constitutional authority when it addresses, in this manner, the problems involved in drug abuse. Whether the measure is wise, prudent, or likely to succeed, is a decision for the legislature. The courtroom is not the forum for that debate. We echo the Supreme Court’s observation in Hoffman Estates: “Many American communities have recently enacted laws regulating or prohibiting the sale of drug paraphernalia. Whether these laws are wise or effective is not, of course, the province of this Court.” 102 S.Ct. at 1196 (citing Ferguson v. Skrupa, 372 U.S. 726, 728-30, 83 S.Ct. 1028, 1030, 10 L.Ed.2d 93 (1963)). The judgment of the district court is AFFIRMED. . Suit was filed by: (1) an association, Tobacco Accessories and Novelty Craftsmen Merchants Association of Louisiana; (2) seven corporations — A Better Place, Inc.; Entertainment Repertoire Associates Corporation; Warehouse Records and Tapes Distributing Co., Inc.; The Establishment, Inc.; The Mushroom, Inc.; Treehouse, Inc.; The Leather Pouch, Inc.; and (3) one individual, Timothy S. Hummel, owner of The Establishment, Inc. . United States Deputy Assistant Attorney General Irvin B. Nathan explained the reasons for the Model Act in his statement to the House of Representatives’ Select Committee on Narcotics and Drug Abuse Control (November 1, 1979): The Department of Justice recognizes the existence of an extensive industry in this country dealing in the manufacture and sale of implements for preparing and using illicit drugs, primarily marijuana and cocaine. The products include “roach clips,” water pipes, cocaine spoons and sophisticated kits used to test or process these drugs. We have been advised that total sales of these products amount to at least several hundred million dollars annually. The advertising, display and open sales of these implements, usually in so-called “head shops” and often in conjunction with the sale of legitimate products promoted among adolescents, are an affront to the communities in which these shops exist because they appear to condone and even glamorize the use of illegal drugs. The attraction of such shops to minors is of particular concern to these communities. As a result, interested community groups have increasingly begun to demand governmental action to deal with the drug paraphernalia industry. Hearings Before the House Select Comm, on Narcotics and Drug Abuse Control, 96th Cong., 1st Sess. (November 1, 1979) (statement of Dep. Ass’t. Atty. Gen’l. Irvin B. Nathan). See Brache v. County of Westminster, 507 F.Supp. 566 (S.D.N.Y.1981), rev’d, 658 F.2d 47 (2d Cir. 1981). . The comment to Article I of the Model Act states: Drug paraphernalia laws are most often attacked because they are too vaguely worded. They seldom explain what is meant by the term paraphernalia. They do not indicate whether it is the use, or the possession, or the sale of paraphernalia that is prohibited. Moreover, they are usually silent on the criminal state of mind that must accompany the prohibited conduct. This deprives an individual of fair warning as to what the law forbids. It also vests too much discretion in authorities to determine what property and what activities are controlled. In addition to Louisiana, a substantial number of states have adopted drug paraphernalia statutes based on the Model Act. See, e.g., 1980 Conn.Pub.Acts No. 80-224; 16 Del.Laws, §§ 4701 et seq. (1980); Fla.Stat. §§ 893.145-147 (Supp.1980); Ind.Code §§ 35-48-4-8.1 to 8.3 (Supp.1980); Md. [Crim.Law] Code Ann. § 287A (Supp.1980); N.Y.Gen.Bus.Law §§ 850-53 (McKinney Supp.1980). Versions of the Model Act have also been enacted in Colorado, Illinois, Nebraska, New Jersey, Pennsylvania and South Carolina. See Note, The Constitutionality of Drug Paraphernalia Laws, 81 Colum.L.Rev. 582, 585 n.30 (1981). | One successful challenge to a city ordinance not based on the Model Act was recently overturned by the Supreme Court in Hoffman Estates v. Flipside, Hoffman Estates, - U.S. -, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). . La.R.S. 40:1031. Definitions A. As used in this Part, unless the context clearly otherwise indicates, the term “drug paraphernalia” shall mean and include, but not be limited to: (1) All equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, re-packaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of the Uniform Controlled Dangerous Substances Law, as scheduled in R.S. 40:964. . La.R.S. 40:1031 (A)(2)-( 12) provides: (2) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived. (3) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances. (4) Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance. (5) Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of controlled substances. (6) Diluents and adulterants, such as quinine, hydrochloride, mannitol, mannite, dextrose, and lactose, used, intended for use, or designed for use in cutting controlled substances. (7) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining marijuana. (8) Blenders, bowls, containers, spoons, . and mixing devices used, intended for use, or designed for use in compounding controlled substances. (9) Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances. (10) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances. (11) Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body. (12) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as: (a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls. (b) Water pipes. (c) Carburetion tubes and devices. (d) Smoking and carburetion masks. (e) Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand. (f) Miniature cocaine spoons, and cocaine vials. (g) Chamber pipes. (h) Carburetor pipes. (i) Electric pipes. (j) Air-driven pipes. (k) Chillums. (l) Bongs. (m) Ice pipes or chillers. . La.R.S. 40:1032. Determination of drug paraphernalia In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other legally relevant factors, the following: (1) Statements by an owner or by anyone in control of the object concerning its use. (2) The proximity of the object, in time and space, to a direct violation of the Uniform Controlled Dangerous Substances Law. (3) The proximity of the object to controlled substances. (4) The existence of any residue of controlled substances on the object. (5) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows or should reasonably know intend to use the object to facilitate a violation of the Uniform Controlled Dangerous Substances Law; the innocence of an owner, or of anyone in control of the object, as to a direct violation of the Uniform Controlled Dangerous Substances Law shall not prevent a finding that the object is intended for use or designed for use as drug paraphernalia. (6) Instructions, oral or written, provided with the object concerning its use. (7) Descriptive materials accompanying the object which explain or depict its use. (8) National and local advertising concerning its use. (9) The manner in which the object is displayed for sale. (10) Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise. (11) The existence and scope of legitimate use for the object in the community. (12) Expert testimony concerning its use. . The constitutionality of this section is not at issue in the present appeal. . See L. Tribe, American Constitutional Law, at 710 (1978). . In Bates v. State Bar of Arizona, 433 U.S. 350, 381, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810 (1977), the Supreme Court stated: “The justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context. . . . Since advertising is linked to commercial well-being, it seems unlikely that such speech is particularly susceptible to being crushed by overbroad regulation.” See L. Tribe, American Constitutional Law, at 711 n.5 (1978). . For example, William Berry, President of Warehouse Records & Tapes Distributing Co., Inc., testified for the Association that one of his retail stores sells an alligator clip with a Mr. Bill doll attached to it, and that this could be used either as a lapel pin, or to hold a marijuana cigarette. . Four other circuits which have considered the “intended for use” language of the Model Act have reached the same conclusion. See Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213 (11th Cir. 1982); Hejira Corp. v. MacFarlane, 660 F.2d 1356 (10th Cir. 1981); Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982); Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916 (6th Cir. 1980), vacated, 451 U.S. 1013, 101 S.Ct. 2998, 69 L.Ed.2d 384 (1981), re-entered, 638 F.2d 916 (6th Cir. 1982). Several district courts have upheld this language. Atkins v. Clements, 529 F.Supp. 735 (N.D.Tex.1981); Stoianoff v. State of Montana, 529 F.Supp. 1197 (D.Mont.1981); New England Accessories Trade Ass’n v. Tierney, 528 F.Supp. 404 (D.Maine 1981); Nova Records, Inc. v. Sendak, 504 F.Supp. 938 (S.D.Ind.1980); New England Accessories Trade Association v. Browne, 502 F.Supp. 1245 (D.Conn.1980); Mid-Atlantic Accessories Trade Association v. Maryland, 500 F.Supp. 834 (D.Md.1980); Delaware Accessories Trade Ass’n v. Gebelein, 497 F.Supp. 289 (D.Del.1980); World Imports, Inc. v. Woodbridge Township, 493 F.Supp. 428 (D.N.J.1980). . See note 6. . Appellants also contend that the factors listed in § 1032 “do not adhere to evidentiary or constitutional guidelines.” Because the Act states that a court or other authority shall consider the enumerated factors, appellants assert that a court must allow the introduction of relevant evidence. So, for example, when § 1032(1) provides that statements by an owner concerning the use of an item must be considered, appellants argue that this renders the Act unconstitutional because such statements may be hearsay and their admission in evidence may violate the sixth amendment confrontation clause. We decline to invalidate a statute based on the speculation that there may be errors in the way in which an individual is prosecuted under its provisions. . We are cognizant that there are a number of distinctions that can be drawn between the Act before us and the ordinance at issue in Hoffman Estates. Most importantly, the ordinance does not provide for criminal penalties. The argument could therefore be made that we should scrutinize the “designed for use” language of the Act more closely than the Court scrutinized the village ordinance. However, in Hoffman Estates the Court stated: “the village concedes that the ordinance is ‘quasi-criminal,’ and its prohibitory and stigmatizing effect may warrant a relatively strict test. Flipside’s facial challenge fails because, under the test appropriate to either a quasi-criminal or a criminal law, the ordinance is sufficiently clear as applies to Flipside.” 102 S.Ct. at 1194. We perceive and accord precedential value to Hoffman Estates’ analysis of the “designed for use” language. . The comment to Article I of the Model Act in discussing definitions states: Objects whose sole or at least dominant purpose is to produce, package, store, test or use illicit drugs are considered to be “designed” for such use. A rebuttable presumption exists that these objects are intended for use for the purpose for which they are designed. ... As such, they are presumed to be drug paraphernalia. Isomerization devices designed for use in increasing the THC content of marijuana provide a good example. . The “reasonably should know” language of the Model Act has been held to be unconstitutionally vague in Record Revolution No. 6 v. City of Parma, 638 F.2d at 935-36, because it defined the offense of knowingly distributing drug paraphernalia in terms of an individual’s ability to perceive rather than his criminal intent. Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_genresp1

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. William R. VAN GEMERT, et al., Plaintiffs-Appellants, v. The BOEING COMPANY, Defendant-Appellee. Nos. 866, 1077 and 1078, Dockets 83-7843, 83-7851 and 83-7853. United States Court of Appeals, Second Circuit. Argued April 9, 1984. Decided June 29, 1984. Norman Winer, Joseph Sternberg, New York City (Kass, Goodkind, Wechsler & Labaton, New York City on the brief), for plaintiffs-appellants. Henry L. King, New York City (Carolyn Curtis, and Davis, Polk & Wardwell, New York City on the brief), for defendant-appellee. Allan E. Kirstein, Asst. Atty. Gen. of the State of New York, New York City (Robert Abrams; Atty. Gen., Daniel L. Kurtz, Asst. Atty. Gen. In Charge Charities, Trusts and Estates Bureau, and Jonathan J. Silbermann, Asst. Atty. Gen., New York City, on the brief), for State of New York, proposed intervenor-appellant, amicus curiae. Before TIMBERS and PRATT, Circuit Judges, and METZNER, Senior District Judge, Southern District of New York, sitting by designation. TIMBERS, Circuit Judge: Appellants class members and proposed intervenor, the State of New York, appeal from an order entered September 12, 1983 in the Southern District of New York, Irving Ben Cooper, District Judge, distributing to defendant, The Boeing Company, the unclaimed portion of a class action judgment fund, subject to the conditions that Boeing publish notice of the availability of the fund in its annual report and that Boeing stand ready to pay valid claims against, the fund in perpetuity. For the reasons stated below, we affirm. I. This is the latest, and probably not the last, of numerous appeals during the course of the eighteen years of this extensive litigation. We assume familiarity with the prior opinions and decisions referred to below — of the Supreme Court, of our Court, and of the District Court. We shall briefly summarize only those facts and pri- or proceedings believed necessary to an understanding of our ruling on the narrow question presented on the instant appeal. In March 1966, Boeing called for redemption of certain convertible debentures. Boeing announced the call by mailing notices to those investors who had registered their debentures. Pursuant to the terms of the Indenture Agreement, Boeing published in two national newspapers notices of its intention to call. In the notices, March 29, 1966 was set as the deadline for the debenture holders to exercise their conversion rights. After this deadline, holders of debentures with a face value of $1,544,300 (7.2% of the total) had not converted and were left only with the less attractive right to redeem. The debenture holders thus were faced with two choices: either deliver the debentures for conversion by March 29 and receive two shares of Boeing common stock worth a total $316.25 for each $100 principal amount or deliver the debentures for redemption at any time and receive $103.25 for each $100 principal amount. Rational investors, aware of this choice, presumably would have opted for conversion and the $216.25 conversion premium rather than redemption and the corresponding $3.25 call premium. Under the judgment of the district court filed July 6, 1977, there are two categories of class members: first, those who have neither converted nor redeemed their debentures, and, second, those who redeemed. Van Gemert and several other nonconverting debenture holders commenced a class action in the district court, contending that Boeing had violated the federal securities laws as well as state law, by failing to give the class members adequate and reasonable notice of its decision to redeem. The court dismissed the complaint, holding that Boeing had given the notice required by the Indenture Agreement. On appeal, we held that under state law Boeing had an implied duty to provide reasonable notice of its intention to redeem the debentures; that that duty had not been satisfied by the notice actually given; and accordingly that Boeing was liable despite its compliance with the notice provisions of the Indenture Agreement. We remanded the case for determination of damages. Van Gemert v. Boeing Co., 520 F.2d 1373 (2 Cir.) (Van Gemert I), cert. denied, 423 U.S. 947 (1975). On remand pursuant to Van Gemert I, the court calculated damages based on the difference between the redemption price and the market value of the shares of common stock that would have resulted from conversion on March 29, 1966. The total dollar amount was $3,289,359. The court, however, declined to award prejudgment interest. On appeal, we affirmed the damage calculation, but held that plaintiffs were entitled to prejudgment interest. Van Gemert v. Boeing Co., 553 F.2d 812 (2 Cir.1977) (Van Gemert II). We also held that the plaintiff class members should not share in the unclaimed portion of the judgment fund, since that would constitute a form of fluid class recovery in contravention of Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2 Cir.1973), vacated and remanded on other grounds, 417 U.S. 156 (1974). Since Boeing could have a right to the unclaimed money, we rejected the proposal that the claiming class members use the unclaimed portion to defray their legal expenses, for such a proposal might shift fees to the losing party in violation of the American rule. On remand pursuant to Van Gemert II, the court entered judgment on July 6, 1977, assessing damages, as it had before, in amount of $3,289,359, but this time adding prejudgment interest from March 29, 1966, the date of the breach. The court ordered Boeing to deposit in a bank account the total amount plus accrued postjudgment interest. The court further ordered that each individual debenture holder who recovered should bear his proportionate share of the fees, expenses, and disbursements. The court appointed a Special Master to administer the judgment and to pass on the validity of individual claims. Boeing appealed from the judgment of July 6, 1977, claiming that under Van Gemert II the attorneys for the class members should be paid only from the claimed portion of the judgment fund. A panel of our Court agreed in substance. We reversed and remanded, holding that class members could not be treated collectively; since non-claiming class members had not received any benefit from the attorneys’ services, they should not be required to pay. Van Gemert v. Boeing Co., 573 F.2d 733 (2 Cir.) (Van Gemert III), rev’d en banc, 590 F.2d 433 (2 Cir.1978) (Van Gemert IV). In our en banc opinion, we affirmed the judgment of the district court, holding that non-claiming class members had received a benefit within the meaning of the common fund doctrine. Van Gemert v. Boeing Co., 590 F.2d 433 (2 Cir. 1978) (Van Gemert IV). The Supreme Court affirmed Van Gemert IV. Boeing Co. v. Van Gemert, 444 U.S. 472 (1980). For an illuminating discussion of the common fund doctrine in the context of the instant case, see Note, Attorney’s Fees, Unclaimed Funds, and Class Actions: Application of the Common Fund Doctrine, 48 Fordham L.Rev. 370 (1979). Since the entry of the district court’s judgment of July 6, 1977 on remand from Van Gemert II, the Special Master has attempted to locate non-claiming class members entitled to payments from the fund. The amount of the fund has been decreased by the payment of fees to plaintiffs’ attorneys, administrative expenses of managing the fund, and payments to class members who have filed valid claims. For example, in July 1981, $3,348,545.71 was paid to plaintiffs’ attorneys; and, in June 1982, payments totalling $3,916,197.12, including interest, were made to the majority of claiming class members. On the other hand, the fund has been increased by interest resulting from investment of the fund. On September 22, 1982, Boeing moved for an order releasing the unclaimed funds to Boeing. In an order dated October 7, 1982, the court relieved the first Special Master and appointed a second Special Master to recommend how to deal with the unclaimed funds. The states of New York and Illinois filed motions to intervene and stated their positions to the second Special Master. On July 20, 1983, the Special Master recommended that Boeing’s motion be granted upon certain conditions, and that the motions of New York and Illinois to intervene be denied but with leave to file briefs as amicus curiae. On September 12, 1983, the court confirmed the Special Master’s report and recommendations. Specifically, the court denied the motions of New York and Illinois to intervene, but ordered that their briefs and papers be considered on an amicus curiae basis. The court further ordered that the undisbursed balance of the judgment fund be returned to Boeing, subject to the conditions that Boeing publish notice of the availability of the fund in its annual report for the next ten years and that Boeing pay in perpetuity any valid future claims by debenture holders who had not yet received payment. . The Special Master reported that, of the 7.2% of debentures outstanding after the March 29, 1966 conversion deadline, 59.4% had been paid. In a letter to this Court dated April 9, 1984, counsel for .Boeing advised that the amount remaining in the judgment fund returned to Boeing was $2,710,272. From this fund, the remaining class members are entitled to $1,317,948 in damages, plus prejudgment interest at the statutory rate and legal interest from the date of judgment to the date of payment. The question before us on the instant appeal is whether the district court’s distribution plan for the unclaimed’portion of the fund is proper. On previous appeals, we did not express any views as to how to disburse the unclaimed portion of the fund. Van Gemert III, supra, 573 F.2d at 737; Van Gemert IV, supra, 590 F.2d at 440 n. 17. Likewise, the Supreme Court declined to express any opinion on the matter. Boeing Co. v. Van Gemert, supra, 444 U.S. at 482 n. 8. For the reasons stated below, we hold that the district court’s plan is proper. II. Although we hold that the plan of distribution adopted and approved by the district court is fair and equitable, we nevertheless shall discuss in the balance of this opinion the claims of the respective appellants. We turn first to 28 U.S.C. §§ 2041 and 2042 (1982) to determine their legal applicability-to the facts and procedural history of this case. Their applicability in an equitable context will be considered in Section III of this opinion, infra. The statutory provisions referred to are as follows: 28 U.S.C. § 2041. Deposit of moneys in pending or adjudicated cases ■ “All moneys paid into any court of the United States, or received by the officers thereof, in any case pending or adjudicated in such court, shall be forthwith deposited with the Treasurer of the United States or a designated depositary, in the name and to the credit of such court. This section shall not prevent the delivery of any such money to the rightful owners upon security, according to agreement of parties, under the direction of the court.” 28 U.S.C. § 2042. Withdrawal “No money deposited under section 2041 of this title shall be withdrawn except by order of court. In every case in which the right to withdraw money deposited in court under section 2041 has been adjudicated or is not in dispute and such money has remained so deposited for at least five years unclaimed by the person entitled thereto, such court shall cause such money to be deposited in the Treasury in the name and to the credit of the United States. Any claimant entitled to any such money may, on petition to the court and upon notice to the United States attorney and full proof of the right thereto, obtain an order directing payment to him.” Appellants represented by the Kass firm and the proposed intervenor-appellant, the State of New York, argue that, since the court ordered that the fund be paid into a commercial bank account under the supervision of the Special Master, the fund constituted “moneys paid into ... court”. As such, they argue, §§ 2041 and 2042 require that the fund be deposited in the Treasury of the United States. In essence, appellants contend that, at the moment the court-ordered and Special Master-supervised fund was created, the unclaimed portion of the fund was destined to be deposited in the Treasury. Appellants cite several cases which they say demonstrate the applicability of §§ 2041 and 2042 to the instant case. In most of these cases, however, the issue was whether a judgment debtor had sustained its burden of proving a claim to portions of funds already on deposit with the Treasury under § 2042. For example, in Pennsylvania Railroad Co. v. United States, 98 F.2d 893 (3 Cir.1938), the railroad, which had issued bonds, sought to recover the unclaimed portion of a judgment fund. Ten years earlier, however, the unclaimed portion of the fund had been transferred from the registry of the court to the Treasury pursuant to a predecessor to § 2042. Id. at 894. The holding — that the judgment debtor had failed to sustain its burden of proving its right to the fund — is of doubtful value in analyzing whether §§ 2041 and 2042 require creation of a Treasury fund in the instant case. Likewise, In re Vulcan & Reiter Co., 80 F.Supp. 286 (S.D.N.Y.1948), and Hansen v. United States, 340 F.2d 142 (8 Cir.1965), are of no help in our analysis of this issue because in those cases funds already had been created. In Hodgson v. Wheaton Glass Co., 446 F.2d 527 (3 Cir.1971), the court observed that, while one provision of the Fair Labor Standards Act (29 U.S.C. § 216(c)) allowed a court to direct payment of unclaimed back wages to the Treasury, there was' no corresponding provision in 29 U.S.C. § 217 —the section upon which the disputed district court judgment was based. The court concluded, however, that a court of equity in a § 217 case has authority to order that unclaimed funds be deposited in the Treasury under 28 U.S.C. §§ 2041 and 2042. Id. at 535. We believe Wheaton Glass to be inapposite because on the instant appeal no one questions the court’s authority to use §§ 2041 and 2042 for unclaimed funds in an appropriate case. See also Hodgson v. YB Quezada, 498 F.2d 5, 6 (9 Cir.1974). Appellants rely heavily on Panhandle Eastern Pipe Line Co. v. Federal Power Commission, 179 F.2d 896 (8 Cir.1949) (en banc). Such reliance strikes us as misplaced. In Panhandle, a judgment debtor utility petitioned the Eighth Circuit for reimbursement of fund administration costs that it had ordered the utility to pay. The Federal Power Commission and several states argued that § 2042 compelled the deposit of all unclaimed money in the Treasury. The Eighth Circuit, however, reasserted its authority to reimburse the judgment debtor at a time prior to creation of the bank account for the overpayment fund and concluded that “nothing has since occurred to deprive the Court of jurisdiction to make any modification of the order which equitably ought to be made.” Id. at 901. While the court used §§ 2041 and 2042 to dispose of the bulk of the fund, the partial reimbursement to the utility strikes us as analogous to payment to Boeing in the instant case because it was made on the condition that in the future the utility would have to restore to the fund any portion of the reimbursement that might become necessary to enable the court to pay valid claims. We believe that Panhandle supports Boeing’s position. It reinforces our view that a court of equity may dispose of funds fairly — without being compelled to utilize §§ 2041 and 2042. Finally, appellants have dug deep to come up with a 170 year old case where the court considered money deposited in a bank account pursuant to a judgment to be money deposited with the court. Ex parte Prescott, 19 Fed.Cas. 1283 (C.C.N.H. 1814) (No. 11,388). Prescott was one of many cases where the issue was whether a court clerk, who statutorily was entitled to a commission on “money deposited in court”, was entitled to a commission on funds not directly paid into the registry of the court. True, Prescott does seem to interpret “money deposited in court” so broadly as to include any money deposited anywhere subject to the order of the court. Other cases, however, have interpreted the phrase more narrowly. For exampié, going back only 89 years, in Northwestern Mutual Life Insurance Co. v. Quinn, 69 F. 462 (C.C.W.D.Mich.1895), the court rejected a clerk’s argument that he was entitled to a commission on funds which a special master received and then paid out to plaintiffs under order of the court. The Quinn court, holding that the money never actually passed through the clerk’s hánds, rejected the clerk’s claim that the decree of the ordering court was void because in contravention of the predecessor of § 2041. The court stated: “In the absence of a direction to make some other disposition of the proceeds, a special master should comply with the statute, and pay the proceeds of sale to the designated depositary of the United States, to the credit of the court. To have done so in this instance would have been to disregard the decree, which explicitly ordered him to make the very disposition of the proceeds which he did make. The question as to whether the decree was inadvertently made was not for the master to quibble about. The provisó to the section cited seems to leave it within the power of the parties, under direction of the court, to have the fund disbursed by the master to those entitled, as a delivery on security satisfactory to those interested. No reason appears for construing this section of the statute as depriving the court of authority to make such special order as is deemed wise and prudent with regard to the special case, leaving the statute to cover cases where no disposition of the fund is made by decree.” Id. at 464. We agree with the reasoning of Quinn. We hold that § 2041 does not limit the discretion of the district court to control the unclaimed portion of a class action judgment fund. Whether the money has been paid into court or whether an alternative method of administering payment is used, the money held is within the court's jurisdiction and subject to the court’s order. Establishing a bank account to collect funds does not strip a court of authority to dispose of the unclaimed portion of the fund in a manner it deems wise and prudent. Sections 2041 and 2042 will control when a court so orders or when the court fails to make any disposition of this type of fund. The statutes referred to do not control when a court fashions a plan for distributing unclaimed funds. In short, we refuse to put the legal shackles of §§ 2041 and 2042 on the hands of a court which strives to do equity. In view of our holding that § 2041 does not limit the court’s authority in this case, we find it neither necessary nor appropriate to reach Boeing’s argument that, even if § 2041 does apply, § 2042 does not apply because the disposition of the unclaimed funds is in dispute and open to adjudication. III. Appellants and the proposed intervenorappellant, anticipating our holding that §§ 2041 and 2042 do not require as a matter of law that the unclaimed judgment fund be deposited in the Treasury, argue alternatively that other schemes for distribution of the unclaimed fund would be more equitable than the plan ordered by the district court. We shall consider the other proposed schemes seriatim. (A) The scheme advocated by appellants represented by Attorney Winer and those represented by the Kass firm is that there should be a pro rata distribution of the unclaimed portion of the fund among class members who have come forward. In Van Gemert II, based on-our holding in Eisen v. Carlisle & Jacquelin, supra, we rejected this contention. Van Gemert II, supra, 553 F.2d at 815. We believe that the reasoning of Van Gemert II is sound. The Winer appellants argue that Van Gemert II was overruled by Van Gemert IV. They misread the case because in Van Gemert IV we approved the holding of Van Gemert II. Van Gemert IV, supra, 590 F.2d at 440. Furthermore, we have explicitly differentiated Van Gemert II from Van Gemert III. E.g., Van Gemert IV, supra, 590 F.2d at 436 n. 9. The Winer appellants also argue that further distribution to claiming class members is appropriate to offset the costs of litigation and inflation. In Van Gemert II, we rejected the proposal for reimbursement of attorneys’ fees for claiming class members. Van Gemert II, supra, 553 F.2d at 816. We now reject appellants’ argument that due to inflation the claiming class members are entitled to further distributions. The result they seek is essentially no different than the previously rejected pro rata distribution proposal. Both proposals would give unclaimed funds to claiming class members. Both proposals, moreover, would seriously jeopardize the superior equitable interests of the non-claiming class members and both are contrary to our reasoning in Eisen. (B) The State of New York argues that the court incorrectly applied equitable principles in returning a judgment fund to a defendant who had been adjudicated liable for improper conduct. While it does not explicitly say so, the State apparently contends that the court should have applied §§ 2041-2042 in equity. Presumably New York and other claiming states eventually then could assert claims under state abandoned property laws. The Special Master found that there were three distinct equitable choices for distribution of the unclaimed funds: return the funds to Boeing, apply the cy pres doctrine, or apply §§ 2041 and 2042. Application of the cy pres doctrine would have produced the same result as applying §§ 2041-2042 but in a more direct fashion. No appellant urges this alternative before us now. After observing that there was a dearth of authority dealing with equitable disposition of an unclaimed judgment fund, the Special Master examined several equitable factors he believed to be dispositive. First, the Special Master considered the fact that the case is a private action. In reaffirming our holding as to Boeing’s liability, we made it clear that Boeing had breached private contractual duties to the indenture holders. Van Gemert II, supra, 553 F.2d at 815. Cf. SEC v. Golconda Mining Company, 327 F.Supp. 257, 259-60 (S.D.N.Y.1971) (No return of unclaimed funds allowed to defendant in an action commenced by Securities and Exchange Commission in the public interest to enforce the federal securities laws. “This litigation is not a private affair involving those with whom the defendant had the transactions.”). The Special Master concluded that, in a private action such as the instant one, a defendant should not be obligated to pay more than the amount claimed. The private nature of the action also was the reason he did not recommend that the unclaimed funds be turned over to the State of New York and others, which would be the result if §§ 2041-2042 were applied. The Special Master reasoned that in this private action the fact that certain private plaintiffs had failed to come forward to collect on their judgment should not entitle the states to a windfall. Second, the Special Master considered the nature of the wrong committed. He recognized our holding with respect to the inadequacy of Boeing’s notice to the debenture holders, but he pointed out that during each step of the process Boeing had acted without malice, without bad faith and relied on the advice of others before taking each step. For example, Boeing sought and received the advice of two outside law firms before concluding that it was bound by the terms of the Indenture and legally unable to convert debentures tendered after the expiration of the conversion privilege. Appellants argue that, since Boeing’s technical adherence to the notice requirements was found to be insufficient in Van Gemert I, to allow a return of the unclaimed fund would reward Boeing for its failure to deal with investors in good faith. They claim that the district court’s decision adopting the Special Master’s recommendation sanctions Boeing’s wrongful conduct and undermines the deterrent value of this class action. We find this argument to be unpersuasive. The proposition that a court of equity never can distribute unclaimed funds to a judgment debtor is untenable in our view. Appellants cite no authority in support of such a rule in essentially private actions such as the instant one. The Special Master placed significant emphasis on the fact that Boeing complied with the letter of the then existing law and could not have anticipated that it would have had notice duties beyond those in the Indenture. We agree. (C) Although the Winer-Kass proposal to distribute the . unclaimed fund to claiming class members is unacceptable for the reasons stated above, the proposal to apply §§ 2041-2042 in equity to this portion of the fund presents a closer question. The critical determining factor here, however, is that trial courts are given broad discretionary powers in shaping equitable decrees. “[Ejquitable remedies are a special blend of what is necessary, what is fair, and what is workable.” Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (footnotes omitted). Appellate review is narrow. Id. We believe that this principle should apply to equitable decrees involving the distribution of any unclaimed class action fund. As the Panhandle court stated: “To what .extent, if at all, the applicant should be reimbursed out of the earnings and the undistributable residue of the fund, will depend, we think, upon the circumstances of the particular case, and must be left largely to the sound judgment and discretion of the court which is charged with the distribution.” Panhandle Eastern Pipe Line Co. v. Federal Power Commission, supra, 179 F.2d at 902. Although under certain circumstances a court of appeals may be called upon to make the initial decision regarding the equitable distribution of an unclaimed fund, e.g., Panhandle, supra, 179 F.2d at 898-900, in the instant case that is not our function as a reviewing court. Reasonable minds may differ on whether the plan recommended by the Special Master and adopted by the district court was the most equitable. Based on the facts, procedural history and conduct of the parties disclosed by this record, however, we cannot say that the court abused its discretion in formulating this distribution plan. The Special Master correctly concluded that the superior equitable interest is that of the non-claiming class members. The court’s plan preserves that interest. IV. The State of New York also appeals from the court’s denial of its motion to intervene. A similar motion by the State of Illinois was denied. Illinois has not appealed. New York contends that the unclaimed judgment fund should be deposited with the Treasury. The state then could claim the fund by escheat at a later time, pursuant to federal statutory and case law and New York escheat law. The right to intervene is set forth in Fed.R.Civ.P. 24(a)(2) which provides in pertinent part: “Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” The court adopted the Special Master’s recommendation that the motion to intervene be denied because (1) New York’s motion was not timely, (2) New York did not have a significantly protectable interest, (3) New York was not so situated that as a practical matter its ability to protect its interest may be impaired or impeded, and (4) New York's interest was adequately represented by existing parties. Since we find that New York’s interest was adequately represented in the district court and since this factor is dispositive of New York’s appeal, we believe that it is neither necessary nor appropriate for us to reach the court’s findings with respect to the other requirements of Rule 24(a)(2). United States Postal Service v. Brennan, 579 F.2d 188, 191 (2 Cir.1978). The Special Master found that New York seeks to have the fund placed in the Treasury pursuant to §§ 2041-2042 and that this is what the appellants represented by the Kass firm argued is the correct disposition of the unclaimed fund. New York contends that, although the arguments advanced by the Kass firm are similar, they are not congruent with those of New York. According to New York, Kass has urged that the unclaimed fund be distributed to claiming plaintiffs — a proposition inconsistent with New York’s interest. It strikes us that this latter argument was advanced by Kass only as a last resort alternative to giving the money to Boeing. Clearly, the main thrust of the Kass argument was that the Treasury should receive the. fund pursuant to §§ 2041-2042. The Court adopted the Special Master’s recommendation that the interests of the State of New York were more than adequately represented by the arguments urged by the existing parties. Since this ruling cannot be characterized as an abuse of discretion, we affirm it. United States Postal Service v. Brennan, supra, 579 F.2d at 191; Rios v. Enterprise Association Steamfitters Local Union # 638, 520 F.2d 352, 355 (2 Cir.1975). Moreover, New York’s arguments set forth in its amicus curiae brief were thoroughly considered by the Special Master and the district court. We also have carefully considered the claims of New York in our Court as set forth by its counsel in oral argument and its briefs which we have treated as those of an amicus curiae. We affirm the order of the district court in all respects, with costs to appellee in this Court. 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_certreason

L

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. CREDIT SUISSE SECURITIES (USA) LLC et al. v. SIMMONDS No. 10-1261. Argued November 29, 2011 Decided March 26, 2012 Scalia, J., delivered the opinion of the Court, in which all other Members joined, except Roberts, C. J., who took no part in the consideration or decision of the case. Christopher Landau argued the cause for petitioners. With him on the briefs were Andrew B. Clubok, Brant W. Bishop, Susan E. Engel, Robert B. Gilmore, Carter G. Phillips, Judith Welcom, Andrew N. Vollmer, Noah A. Levine, Christopher B. Wells, Sri Srinivasan, Anton Metlitsky, Andrew J. Frackman, David W. Ichel, Joseph M. McLaughlin, Gandolfo V. DiBlasi, Penny Shane, and David M. J. Rein. Jeffrey B. Wall argued the cause for the United States as amicus curiae urging vacatur. With him on the brief were Solicitor General Verrilli, Deputy Solicitor General Stewart, Jacob H. Stillman, Susan S. McDonald, and Benjamin L. Schiffrin. Jeffrey I. Tilden argued the cause for respondent. With him on the brief were Jeffrey M. Thomas, Mark A. Wilner, David M. Simmonds, William C. Smart, and Ian S. Birk. Deanne E. Maynard, Brian R. Matsui, Seth M. Galanter, Robin S. Conrad, Rachel Brand, and Kevin Carroll filed a brief for the Chamber of Commerce of the United States of America et al. as amici curiae urging reversal. Justice Scalia delivered the opinion of the Court. We consider whether the 2-year period to file suit against a corporate insider under § 16(b) of the Securities Exchange Act of 1934, 15 U. S. C. § 78p(b), begins to run only upon the insider’s filing of the disclosure statement required by § 16(a) of the Act, § 78p(a). I Under § 16(b) of the Exchange Act, 48 Stat. 896, as amended, a corporation or security holder of that corporation may bring suit against the officers, directors, and certain beneficial owners of the corporation who realize any profits from the purchase and sale, or sale and purchase, of the corporation’s securities within any 6-month period. “The statute imposes a form of strict liability” and requires insiders to disgorge these “short-swing” profits “even if they did not trade on inside information or intend to profit on the basis of such information.” Gollust v. Mendell, 501 U. S. 115, 122 (1991). Section 16(b) provides that suits must be brought within “two years after the date such profit was realized.” 15 U. S. C. § 78p(b). In 2007, respondent Vanessa Simmonds filed 55 nearly identical actions under § 16(b) against financial institutions that had underwritten various initial public offerings (IPOs) in the late 1990⅛ and 2000, including these petitioners. In a representative complaint, she alleged that the underwriters and the issuers’ insiders employed various mechanisms to inflate the aftermarket price of the stock to a level above the IPO price, allowing them to profit from the aftermarket sale. App. 59. She further alleged that, as a group, the underwriters and the insiders owned in excess of 10% of the outstanding stock during the relevant time period, which subjected them to both disgorgement of profits under § 16(b) and the reporting requirements of § 16(a). Id., at 61. See 15 U. S. C. § 78m(d)(3); 17 CFR §§ 240.13d-5(b)(1) and 240.16a-1(a)(1) (2011). The latter requires insiders to disclose any changes to their ownership interests on a document known as a Form 4, specified in the Securities and Exchange Commission regulations. 15 U. S. C. § 78p(a)(2)(C); 17 CFR §240.16a-3(a). Simmonds alleged that the underwriters failed to comply with that requirement, thereby tolling § 16(b)’s 2-year time period. App. 62. Simmonds’ lawsuits were consolidated for pretrial purposes, and the United States District Court for the Western District of Washington dismissed all of her complaints. In re: Section 16(b) Litigation, 602 F. Supp. 2d 1202 (2009). As relevant here, the court granted petitioners’ motion to dismiss 24 complaints on the ground that § 16(b)’s 2-year time period had expired long before Simmonds filed the suits. The United States Court of Appeals for the Ninth Circuit reversed in relevant part. 638 F. 3d 1072 (2011). Citing its decision in Whittaker v. Whittaker Corp., 639 F. 2d 516 (1981), the court held that §16(b)’s limitations period is “tolled until the insider discloses his transactions in a Section 16(a) filing, regardless of whether the plaintiff knew or" should have known of the conduct at issue.” 638 F. 3d, at 1095. Judge Milan Smith, Jr., the author of the panel opinion, also specially concurred, expressing his disagreement with the Whittaker rule, but noting that the court was compelled to follow Circuit precedent. Id., at 1099-1101. We granted certiorari, 564 U. S. 1036 (2011). II Petitioners maintain that these suits were properly dismissed because they were filed more than, two years after the alleged profits were realized. Pointing to dictum in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350 (1991), petitioners argue that § 16(b)’s limitations period is a period of repose, which is not to be “extended to account for a plaintiff’s discovery of the facts underlying a claim.” Brief for Petitioners 17. See Lampf, supra, at 360, n. 5 (“Section 16(b)... sets a 2-year ... period of repose”). We do not reach that contention, because we conclude that, even assuming that the 2-year period can be extended, the Ninth Circuit erred in determining that it is tolled until the filing of a § 16(a) statement. In adopting its rule in Whittaker, the Ninth Circuit expressed its concern that “[i]t would be a simple matter for the unscrupulous to avoid the salutary effect of Section 16(b) ... simply by failing to file ... reports in violation of subdivision (a) and thereby concealing from prospective plaintiffs the information they would need” to bring a § 16(b) action. 639 F. 2d, at 528 (internal quotation marks omitted). Assuming that is correct, it does not follow that the limitations period is tolled until the § 16(a) statement is filed. Section 16 itself quite clearly does not extend the period in that manner. The 2-year clock starts from “the date such profit was realized.” §78p(b). Congress could have very easily provided that “no such suit shall be brought more than two years after the filing of a statement under subsection (a)(2)(C).” But it did not. The text of § 16 simply does not support the Whittaker rule. The Whittaker court suggested that the background rule of equitable tolling for fraudulent concealment operates to toll the limitations period until the § 16(a) statement is filed. See 639 F. 2d, at 527, and n. 9. Even accepting that equitable tolling for fraudulent concealment is triggered by the failure to file a § 16(a) statement, the Whittaker rule is completely divorced from long-settled equitable-tolling principles. “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U. S. 408, 418 (2005) (emphasis added). It is well established, moreover, that when a limitations period is tolled because of fraudulent concealment of facts, the tolling ceases when those facts are, or should have been, discovered by the plaintiff. 2 C. Corman, Limitation of Actions §9.7.1, pp. 55-57 (1991). Thus, we have explained that the statute does not begin to run until discovery of the fraud “ ‘where the party injured by the fraud remains in ignorance of it without any fault or want of diligence or care on his parV ” Lampf, supra, at 363 (quoting Bailey v. Glover, 21 Wall. 342, 348 (1875); emphasis added). Allowing tolling to continue beyond the point at which a § 16(b) plaintiff is aware, or should have been aware, of the facts underlying the claim would quite certainly be inequitable and inconsistent with the general purpose of statutes of limitations: “to protect defendants against stale or unduly delayed claims.” John R. Sand & Gravel Co. v. United States, 552 U. S. 130, 133 (2008). The inequity of the Whittaker rule is especially apparent in a case such as this, where the theory of § 16(b) liability of underwriters is so novel that petitioners can plausibly claim that they were not aware they were required to file a § 16(a) statement. And where they disclaim the necessity of filing, the Whittaker rule compels them either to file or to face the prospect of § 16(b) litigation in perpetuity. Simmonds has acknowledged that “under her theory she could buy stocks in companies who had IPOs 20 years ago and bring claims for short-swing transactions if the underwriters had undervalued a stock.” 602 F. Supp. 2d, at 1218. The potential for such endless tolling in cases in which a reasonably diligent plaintiff would know of the facts underlying the action is out of step with the purpose of limitations periods in general. And it is especially at odds with a provision that imposes strict liability on putative insiders, see Gollust, 501 U. S., at 122. Had Congress intended this result, it most certainly would have said so. Simmonds maintains that failing to apply the Whittaker rule would obstruct Congress’s objective of curbing short-swing speculation by corporate insiders. This objective, according to Simmonds, is served by § 16(a) statements, which “provide the information necessary to trigger § 16(b) enforcement.” Brief for Respondent 24. Simmonds — like the Ninth Circuit in Whittaker — disregards the most glaring indication that Congress did not intend that the limitations period be categorically tolled until the statement is filed: The limitations provision does not say so. This fact alone is reason enough to reject a departure from settled equitable-tolling principles. Moreover, § 16⅛ purpose is fully served by the rules outlined above, under which the limitations period would not expire until two years after a reasonably diligent plaintiff would have learned the facts underlying a § 16(b) action. The usual equitable-tolling inquiry will thus take account of the unavailability of sources of information other than the § 16(a) filing. Cf., e. g., Ruth v. Unifund CCR Partners, 604 F. 3d 908, 911-913 (CA6 2010); Santos ex rel. Beato v. United States, 559 F. 3d 189, 202-203 (CA3 2009). The oddity of Simmonds’ position is well demonstrated by the circumstances of this case. Under the Whittaker rule, because petitioners have yet to file § 16(a) statements (as noted earlier they do not think themselves subject to that requirement), Simmonds still has two years to bring suit, even though she is so well aware of her alleged cause of action that she has already sued. If § 16(a) statements were, as Simmonds suggests, indispensable to a party’s ability to sue, Simmonds would not be here. Simmonds also asserts that application of established equitable-tolling doctrine in this context would be inconsistent with Congress’s intention to establish in § 16 a clear rule that is capable of “mechanical application.” Brief for Respondent 57 (internal quotation marks omitted). Equitable tolling, after all, involves fact-intensive disputes “about what the notice was, where it was disseminated, who received it, when it was received, and whether it provides sufficient notice of relevant Section 16(a) facts.” Id., at 56-57. Of course this argument counsels just as much in favor of the “statute of repose” rule that petitioners urge (that is, no tolling whatever) as it does in favor of the Whittaker rule. No tolling is certainly an easily administrable bright-line rule. And assuming some form of tolling does apply, it is preferable to apply that form which Congress was certainly aware of, as opposed to the rule the Ninth Circuit has fashioned. See Meyer v. Holley, 537 U. S. 280, 286 (2003) (“Congress’ silence, while permitting an inference that Congress intended to apply ordinary background tort principles, cannot show that it intended to apply an unusual modification of those rules”). * * * Having determined that § 16(b)’s limitations period is not tolled until the filing of a § 16(a) statement, we remand for the lower courts to consider how the usual rules of equitable tolling apply to the facts of this case. We are divided 4 to 4 concerning, and thus affirm without precedential effect, the Court of Appeals’ rejection of petitioners’ contention that § 16(b) establishes a period of repose that is not subject to tolling. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. The Chief Justice took no part in the consideration or decision of this case. Section 16(b) regulates beneficial owners of more than 10% of any class of equity securities. 15 U. S. C. § 78p(a)(l). Section 16(b) provides in full: “For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) or a security-based swap agreement (as defined in section 206B of the Gramm-Leach-Bliley Act) involving any such equity security within any period of less than six months, unless such security or security-based swap agreement was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security or security-based swap agreement purchased or of not repurchasing the security or security-based swap agreement sold for a period exceeding six months. Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the issuer, or by the owner of any security of the issuer in the name and in behalf of the issuer if the issuer shall fail or refuse to bring such suit within sixty days after request or shall fail diligently to prosecute the same thereafter; but no such suit shall be brought more than two years after the date such profit was realized. This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase, of the security or security-based swap agreement (as defined in section 206B of the Gramm-Leach-Bliley Act) involved, or any transaction or transactions which the [Securities and Exchange] Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection.” 15 U.S. C. § 78p(b). Simmonds also named the issuing companies as nominal defendants. In re: Section 16(b) Litigation, 602 F. Supp. 2d 1202, 1204 (WD Wash. 2009). Petitioners have consistently disputed §16’s application to them, arguing that they, as underwriters, are generally exempt from the statute’s coverage. See 17 CFR §§240.16a-7(a) and 240.16a-10. Simmonds contends that this exemption does not apply where the underwriters do not act in good faith. Brief for Respondent 49. See §240.16a-7(a). We express no view on this issue. Simmonds voluntarily dismissed one of the complaints. 602 F. Supp. 2d, at 1206, n. 4. Relying on our decision in American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974), Simmonds argues that the Whittaker rule is best understood as applying legal — rather than equitable — tolling. In American Pipe, we held that “commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” 414 U. S., at 554. We based our conclusion on “the efficiency and economy of litigation which is a principal purpose of [Fed. Rule Civ. Proc. 23 class actions).” Id., at 553. Although we did not employ the term “legal tolling,” some federal courts have used that term to describe our holding on the ground that the rule “is derived from a statutory source,” whereas equitable tolling is “judicially created.” Arivella v. Lucent Technologies, Inc., 623 F. Supp. 2d 164, 176 (Mass. 2009). The label attached to the Whittaker rule does not matter. As we proceed to explain, neither general equitable-tolling principles nor the “statutory source” of § 16 supports the conclusion that the limitations period is tolled until the filing of a § 16(a) statement. It is for this reason that we also reject the Second Circuit’s rule that the 2-year period is tolled until the plaintiff “gets actual notice that a person subject to Section 16(a) has realized specific short-swing profits that are worth pursuing,” Litzler v. CC Investments, L. D. C., 362 F. 3d 203, 208 (2004). As that court itself recognized, this actual-notice rule departs from usual equitable-tolling principles. See id., at 207. The District Court said that “there is no dispute that all of the facts giving rise to Ms. Simmonds’ complaints against [petitioners] were known to the shareholders of the Issuer Defendants for at least five years before these cases were filed,” 602 F. Supp. 2d, at 1217. The Court of Appeals did not consider the accuracy of that statement, which Simmonds disputes, Brief for Respondent 12, since it concluded the period is tolled until a § 16(a) statement is filed. 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_circuit

L

What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. ABACOA RADIO CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. No. 19627. United States Court of Appeals District of Columbia Circuit. Argued Jan. 27, 1966. Decided Feb. 17, 1966. Mr. Joseph F. Hennessey, Washington, D. C., with whom Mr. Robert M. Booth, Jr., Washington, D. C., was on the brief, for appellant. Mr. Joseph A. Marino, Counsel, F.C.C., with whom Messrs. Henry Geller, Gen. Counsel, John H. Conlin, Associate Gen. Counsel, and Mrs. Lenore G. Ehrig, Counsel, F.C.C., were on the brief, for appel-lee. Before Wilbur K. Miller, Senior Circuit Judge, and Fahy and Leventhal, Circuit Judges. PER CURIAM: This appeal is from a Decision and Order of the Federal Communications Commission denying appellant’s application to increase the power of its radio station WMIA in Puerto Rico. The principal theory advanced for reversal is that since the Commission rested its decision, under 73.35(a) of the Commission’s Rules, upon applicant’s ownership, operation or control of three other stations serving substantially the same area, if one of the three stations is not under such control reversal must follow. Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L. Ed. 626. It is contended that one of the three stations, namely, WISO, was in fact not in such common control because appellant’s principals owned only 49.7% of the stock of the licensee of WISO, and only two of appellant’s three principals, the two being brothers, are among the four directors of WISO. They are also officers of the corporation. The Commission refused to review the decision of the Review Board adverse to appellant. Before the Hearing Examiner and the Review Board appellant raised no objection to the finding of ownership, operation or control of WISO. The finding under Section 73.35(a) was not there contested, appellant contending that the public interest, convenience and necessity nevertheless would be served through the multiple ownership situation. Objection to the finding of control was first raised in appellant’s application for review by the Commission. In the circumstances of this case we think it was not open to appellant to insist that the Commission itself should reopen the issue of multiple ownership. The Commission rules provide for waiver of an objection by failing to file an exception in the manner provided by the rules. 47 CFR § 1.277(a). And the rules specifically provide that “[No] application for review will be granted if it relies on questions of fact or law upon which the designated authority has been afforded no opportunity to pass.” 47 CFR § 1.115(c). The designated authority in this case was the Review Board. The policy expressed in these rules, with which appellant failed to conform, leads us to affirm, especially in the absence of a clear showing of a well-founded contention that the Commission’s decision under Section 73.35(a) of its rules was erroneous. We have considered other questions raised and find in them no adequate basis for the court to decide, contrary to the Commission, that the application should have been granted. Affirmed. . Section 73.35 — Multiple Ownership No license for a standard broadcast station shall be granted to any party (including all parties under common control) if: (a) Such party directly or indirectly owns, operates or controls another standard broadcast station, a substantial portion of whose primary service area would receive primary service from the station in question, except upon a showing that public interest, convenience and necessity will be served through such multiple ownership situation; * * * 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_fiduc

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 "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. BAKERY, CONFECTIONERY AND TOBACCO WORKERS LOCAL UNION NUMBER 362-T, AFL-CIO-CLC, Plaintiff-Appellee, v. BROWN AND WILLIAMSON TOBACCO CORPORATION, Defendant-Appellant. No. 91-8725. United States Court of Appeals, Eleventh Circuit. Sept. 3, 1992. Robert J. Martin, Richard Read Gignilli-at, Douglas H. Duerr, Elarbee, Thompson & Trapnell, Atlanta, Ga., for defendant-appellant. William Camp Harris, Macon, Ga., for plaintiff-appellee. Before EDMONDSON, Circuit Judge, and RONEY, and GIBSON, Senior Circuit Judges. See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. The Honorable Floyd R. Gibson, Senior Circuit Judge for the Eighth Circuit, sitting by designation. FLOYD R. GIBSON, Senior Circuit Judge: Brown and Williamson Tobacco Corporation (“the Company”) appeal the district court’s entry of judgment in favor of the Bakery, Confectionery, Tobacco Workers Local Union Number 362-T, AFL-CIO-CLC (“the Union”). We affirm. I. BACKGROUND This dispute stems from an arbitration dispute between the Union and the Company over the terms of the Company’s health care plan for its employees (“the Plan”). The Union and the Company are parties to a collective bargaining agreement (“the Long Term Agreement”), which covers employment terms and conditions of Union members employed at the Company’s Macon, Georgia plant. The Long Term agreement, which incorporates the provisions of the 1984-87 collective bargaining agreement (“the Agreement”), has been in effect since September 1,1984 and is scheduled to expire on August 30, 1993. In 1987, Nancy Young, an hourly employee, filed a claim with the Plan administrator for health care expenses resulting from an accident that was also covered under her no-fault automobile insurance. The Plan administrator refused to pay any expenses which were already covered under the employee’s no-fault insurance policies. Young brought a grievance against the Company alleging it improperly coordinated benefits in violation of the Plan’s terms. The grievance was submitted to final and binding arbitration and a hearing was held on February 22, 1989. At the hearing, the Union sought to stipulate that the decision would affect all similarly situated employees that had filed claims against the Company between the time the grievance was filed and the hearing; the Company refused to stipulate that the arbitration award would cover these employees. On April 3,1989, the arbitrator issued his opinion and award finding that the dispute concerned the interpretation of contractual language in the Basic Agreement. The arbitrator sustained the grievance and found that coordination of benefits against no-fault automobile insurance was impermissible under the language of the Plan. The award ordered the Company to “cease coordination of benefits against employees’ automobile insurance policies, and ... reimburse in full the named Grievant whose medical benefits were not paid in full by Company’s Health Insurance Plan.” (emphasis added). In discussing the Company’s right to coordinate benefits, the arbitrator stated, “in the spirit of progressive labor relations, it would seem that if [the] Company would like at this point to include such coverage in the coordination clause, such a change should be negotiated with [the] Union, although this is not mandatory for effectuating such a change.” On September 29, 1989, the Union filed a complaint in district court to enforce the award, and amended its complaint to include an ERISA claim on behalf of another similarly situated employee, Onza Wilson. The district court concluded the above-quoted language contained in the award was ambiguous and resubmitted the case to the arbitrator for clarification of two issues: (1) whether the award, which identifies Ms. Young and Mr. Bahotec as the named grievants, covered all similarly situated employees despite their failure to file separate grievances or appeals, and (2) whether the award allowed the Company to unilaterally amend the Plan to provide for the coordination of benefits. In his supplemental opinion issued March 21, 1991, the arbitrator stated he intended his original award to cover all similarly situated employees, and not to allow the unilateral amendment of the Plan. The district court then entered judgment for the Union and denied the Company’s motion to vacate the award. The Company appeals. II. DISCUSSION A. Statute of Limitations The Company argues the Union’s complaint filed in district court is an action to vacate, modify or correct an award under 9 U.S.C. § 12. The Union argues the complaint is a suit to enforce an award under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. We agree with the Union’s characterization of the action as one to enforce the arbitrator’s award. The district court found the Union was seeking merely to enforce the arbitrator’s award, as written, by having the Company cease coordinating benefits against the employees’ automobile insurance policies. Because the Union was not attempting to vacate or modify the arbitrator’s award, the three month statute of limitations under 9 U.S.C. § 12 is inapplicable. We have held that when applying Georgia law, the six month statute of limitation applies to actions to enforce arbitration awards. See Samples v. Ryder Truck Lines, Inc., 755 F.2d 881, 888 (11th Cir.1985) (court adopted six month limitation period found in Section 10(b) of the NLRA because Georgia law provides no specific statute of limitations for actions to enforce arbitration awards). The opinion is dated April 3, 1989, and the complaint was timely filed within the six month limitations period on September 29, 1989. B. Remand The Company first argues the district court erred in resubmitting the case to the arbitrator because the language of the award was unambiguous and the Company fully complied with the terms of the award by reimbursing Young and Bahotec, and ceasing to coordinate benefits under the Plan. The Union also argues the language of the award was unambiguous, but contends the Company did not comply with the award, thus making it necessary to bring an action in district court to enforce the terms of the award. The district court determined the language of the award was ambiguous because both parties offered “incongruous, yet plausible,” interpretations of the arbitrator’s award. We hold the district court did not err in remanding the decision for clarification of the ambiguous language in the award. American Fed’n of State, County and Mun. Employees v. Walker County Medical Ctr., 715 F.2d 1517, 1519 (11th Cir.1983). It is the duty of the arbitrator, and not the district court, to interpret the contractual language of an agreement. Id. at 1519 ([“T]he decision for which the parties bargained and the one to which they are entitled is that of the arbitrator. Neither the notions of the district court nor of this court ... are of relevance.”). Id. at 1518. Because the arbitrator’s authority to interpret the agreement is broad, the scope of our review is “exceedingly narrow.” Loveless v. Eastern Air Lines, Inc., 681 F.2d 1272, 1275 (11th Cir.1982). 1. Similarly situated employees The Company argues the district court erred in submitting the issue of the applicability of the award to similarly situated employees because the issue was beyond the scope of the original award. The Company contends that because the arbitrator’s jurisdiction is limited to the issues submitted to him through the grievance procedure, he had no authority to grant “class-wide” relief to all similarly situated employees. We disagree. Although the arbitrator is confined to deciding issues properly before him, it is the court’s task to determine what issues were originally submitted to the arbitrator. See Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1264 (5th Cir.1980). In this case, the district court determined the language of the award was ambiguous as it did not clearly indicate whether the arbitrator intended to grant relief to similarly situated employees. The court not only resubmitted the issue based on the ambiguous language in the award, but also because the original grievance was written on behalf of all members of the Union, thereby suggesting relief was granted to all similarly situated employees. We hold the court did not err in submitting the issue of similarly situated employees to the arbitrator. Furthermore, the arbitrator’s supplemental opinion holding that the award inures to all similarly situated employees is subject to limited review, and “[ajbsent exceptional circumstances, an arbitrator’s interpretation of the collective bargaining agreement is final and binding on the parties because it is this interpretation that is bargained for by the parties.” Drummond Coal v. United Mine Workers of America, 748 F.2d 1495, 1497 (11th Cir. 1984). 2. Amendment of the Plan The Company argues the district court erred in submitting the amendment issue to the arbitrator because it was not addressed at the first hearing. The Company argues the arbitrator’s scope of authority concerned only the interpretation of the Health Care Plan; thus, the issue of whether a subsequent amendment to the Plan violated the Long Term Agreement was not at issue in the original arbitration. The Union argues the amendment issue was properly before the arbitrator because any amendment to the Plan affects employee benefits. These benefits, in turn, are protected under Article VII of the Long Term Agreement, which states, “[t]he Company agrees that it will not implement any change in wage or benefit levels without the agreement of the Union.” The district court held the language of the award was ambiguous because it was not clear whether the arbitrator intended to give the Company an immediate option to unilaterally amend the Plan, or whether the arbitrator meant the issue should be addressed during the renegotiation of the Long Term Agreement. We agree. Regardless of the construction of the language of the award, the amendment of the Plan was at issue at the first hearing because it concerned employee benefits under the Plan; therefore, we hold the district court did not err in resubmitting the issue to the arbitrator for clarification. 3. ERISA The Company argues the court committed reversible error by overruling its motion to dismiss Count II of the Union’s amended complaint. Count II concerned Onza Wilson’s claim for breach of the terms of the Company’s Plan under § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B). In light of our affirmance of the district court’s order making the arbitrator’s supplemental opinion the judgment of the court, the ERISA claim raised in Count II is moot. III. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED. .The Honorable Wilbur D. Owens, Jr., United States District Judge for the Middle District of Georgia. . Georgia law requires all motorists to carry no-fault automobile insurance. . The arbitrator also considered the separate grievance of Joe Bohatec, whose complaint was essentially identical to that of Nancy Young. . Prior to bringing an action in district court, the Union, without the consent of the Company, wrote the arbitrator seeking clarification of the award. In response to the Union's request, the arbitrator issued a “Supplemental Advisory Opinion;" however, the arbitrator lacked jurisdiction to do so. Thus, the district court did not consider the advisory opinion and it is not an issue before this court. . These employees neither filed grievances within the ten day period under the terms of the Basic Agreement, nor appealed the denial of their claim pursuant to ERISA within sixty days. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted the case law of the former Fifth Circuit handed down as of September 30, 1981. . We also note the Company argued to the district court that the arbitrator had authorized its unilateral amendment of the Plan. By arguing the arbitrator had the authority to authorize the amendment, the Company acknowledges the issue was before the arbitrator. Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:

sc_lcdispositiondirection

A

What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations MARKS et al. v. UNITED STATES No. 75-708. Argued November 1-2, 1976 Decided March 1, 1977 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Rehnquist, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Stewart and Marshall, JJ., joined, post, p. 197. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 198. Robert Eugene Smith argued the cause for petitioners. With him on the brief were Gilbert H. Deitch and Andrew Dennison. Solicitor General Bork argued the cause for the United States. With him on the brief were Assistant Attorney General Thornburgh and Jerome M. Feit. Mr. Justice Powell delivered the opinion of the Court. This case presents the question, not fully answered in Hamling v. United States, 418 U. S. 87 (1974), whether the standards announced in Miller v. California, 413 U. S. 15 (1973), are to be applied retroactively to the potential detriment of a defendant in a criminal case. We granted certiorari, 424 U. S. 942 (1976), to resolve a conflict in the Circuits. I Petitioners were charged with several counts of transporting obscene materials in interstate commerce, in violation of 18 U. S. C. § 1465, and with conspiracy to transport such materials, 18 U. S. C. § 371. The conduct that gave rise to the charges covered a period through February 27, 1973. Trial did not begin until the following October. In the interim, on June 21, 1973, this Court decided Miller v. California, supra, and its companion cases. Miller announced new standards for “isolat[ing] ‘hard core’ pornography from expression protected by the First Amendment.” 413 U. S., at 29. That these new standards would also guide the future interpretation of the federal obscenity laws was clear from United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 129-130, and n. 7 (1973), decided the same day as Miller. See Hamling v. United States, supra, at 105, 113-114. Petitioners argued in the District Court that they were entitled to jury instructions not under Miller, but under the more favorable formulation of Memoirs v. Massachusetts, 383 U. S. 413 (1966) (plurality opinion). Memoirs, in their view, authoritatively stated the law in effect prior to Miller, by which petitioners charted their course of conduct. They focused in particular on the third part of the Memoirs test. Under it, expressive material is constitutionally protected unless it is “utterly without redeeming social value.” 383 U. S., at 418. Under Miller the comparable test is “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U. S., at 24. Miller, petitioners argue, casts a significantly wider net than Memoirs. To apply Miller retroactively, and thereby punish conduct innocent under Memoirs, violates the Due Process Clause of the Fifth Amendment—much as retroactive application of a new statute to penalize conduct innocent when performed would violate the Constitution’s ban on ex post facto laws, Art. I, § 9, cl. 3; § 10, cl. 1. The District Court overruled these objections and instructed the jury under the Miller standards. Petitioners were convicted, and a divided Court of Appeals for the Sixth Circuit affirmed. 520 F. 2d 913 (1975). We now reverse. II The Ex Post Facto Clause is a limitation upon the powers of the Legislature, see Calder v. Bull, 3 Dall. 386 (1798), and does not of its own force apply to the Judicial Branch of government. Frank v. Mangum, 237 U. S. 309, 344 (1915). But the principle on which the Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. See United States v. Harriss, 347 U. S. 612, 617 (1954); Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment. In Bouie v. City of Columbia, 378 U. S. 347 (1964), a case involving the cognate provision of the Fourteenth Amendment, the Court reversed trespass convictions, finding that they rested on an unexpected construction of the state trespass statute by the State Supreme Court: “[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. . . . If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” Id., at 353-354. Similarly, in Rabe v. Washington, 405 U. S. 313 (1972), we reversed a conviction under a state obscenity law because it rested on an unforeseeable judicial construction of the statute. We stressed that reversal was mandated because affected citizens lacked fair notice that the statute would be thus applied. Relying on Bouie, petitioners assert that Miller and its companion cases unforeseeably expanded the reach of the federal obscenity statutes beyond what was punishable under Memoirs. The Court of Appeals rejected this argument. It noted—correctly—that the Memoirs standards never commanded the assent of more than three Justices at any one time, and it apparently concluded from this fact that Memoirs never became the law. By this line of reasoning, one must judge whether Miller expanded criminal liability by looking not to Memoirs but to Roth v. United States, 354 U. S. 476 (1957), the last comparable plenary decision of this Court prior to Miller in which a majority united in a single opinion announcing the rationale behind the Court’s holding. Although certain language in Roth formed the basis for the plurality’s formulation in Memoirs, Roth’s test for distinguishing obscenity from protected speech was a fairly simple one to articulate: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U. S., at 489. If indeed Roth, not Memoirs, stated the applicable law prior to Miller, there would be much to commend the apparent view of the Court of Appeals that Miller did not significantly change the law. But we think the basic premise for this line of reasoning is faulty. When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .” Gregg v. Georgia, 428 U. S. 153, 169 n. 15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Three Justices joined in the controlling opinion in Memoirs. Two others, Mr. Justice Black and Mr. Justice Douglas, concurred on broader grounds in reversing the judgment below. 383 U. S., at 421, 424. They reiterated their well-known position that the First Amendment provides an absolute shield against governmental action aimed at suppressing obscenity. Mr. Justice Stewart also concurred in the judgment, based on his view that only “hardcore pornography” may be suppressed. Id., at 421. See Ginzburg v. United States, 383 U. S. 463, 499 (1966) (Stewart, J., dissenting). The view of the Memoirs plurality therefore constituted the holding of the Court and provided the governing standards. Indeed, every Court of Appeals that considered the question between Memoirs and Miller so read our decisions. Materials were deemed to be constitutionally protected unless the prosecution carried the burden of proving that they were “utterly without redeeming social value,” and otherwise satisfied the stringent Memoirs requirements. Memoirs therefore was the law. Miller did not simply clarify Roth; it marked a significant departure from Memoirs. And there can be little doubt that the third test announced in Miller—whether the work “lacks serious literary, artistic, political, or scientific value”—expanded criminal liability. The Court in Miller expressly observed that the “utterly without redeeming social value” test places on the prosecutor “a burden virtually impossible to discharge under our criminal standards of proof.” 413 U. S., at 22. Clearly it was thought that some conduct which would have gone unpunished under Memoirs would result in conviction under Miller. This case is not strictly analogous to Bouie. The statutory language there was “narrow and precise," 378 U. S., at 352, and that fact was important to our holding that the expansive construction adopted by the State Supreme Court deprived the accused of fair warning. In contrast, the statute involved here always has used sweeping language to describe that which is forbidden. But precisely because the statute is sweeping, its reach necessarily has been confined within the constitutional limits announced by this Court. Memoirs severely restricted its application. Miller also restricts its application beyond what the language might indicate, but Miller undeniably relaxes the Memoirs restrictions. The effect is the same as the new construction in Bouie. Petitioners, engaged in the dicey business of marketing films subject to possible challenge, had no fair warning that their products might be subjected to the new standards. We have taken special care to insist on fair warning when a statute regulates expression and implicates First Amendment values. See, e. g., Buckley v. Valeo, 424 U. S. 1, 40-41 (1976); Smith v. Goguen, 415 U. S. 566, 573 (1974). Section 1465 is such a statute. We therefore hold, in accordance with Bouie, that the Due Process Clause precludes the application to petitioners of the standards announced in Miller v. California, to the extent that those standards may impose criminal liability for conduct not punishable under Memoirs. Specifically, since the petitioners were indicted for conduct occurring prior to our decision in Miller, they are entitled to jury instructions requiring the jury to acquit unless it finds that the materials involved are “utterly without redeeming social value.” At the same time we reaffirm our holding in Hamling v. United States, 418 U. S., at 102, that “any constitutional principle enunciated in Miller which would serve to benefit petitioners must be applied in their case.” Accordingly, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. Two Courts of Appeals have found instructions derived from Miller appropriate in prosecutions based on conduct occurring before the Miller decision came down: United States v. Marks, 520 F. 2d 913 (CA6 1975) (the instant case); and United States v. Friedman, 528 F. 2d 784 (CA10 1976), cert. pending, No. 75-1663. Three Courts of Appeals have reversed convictions where Miller instructions were given by the District Court: United States v. Wasserman, 504 F. 2d 1012 (CA5 1974); United States v. Jacobs, 513 F. 2d 564 (CA9 1974); United States v. Sherpix, Inc., 168 U. S. App. D. C. 121, 512 F. 2d 1361 (1975). In two earlier cases both conduct and trial occurred prior to Miller, and the jury instructions were derived from Memoirs v. Massachusetts, 383 U. S. 413 (1966) (plurality opinion). United States v. Thevis, 484 F. 2d 1149 (CA5 1973) (Thevis I), cert. denied, 418 U. S. 932 (1974); United States v. Palladino, 490 F. 2d 499 (CA1 1974). The Courts of Appeals there, foreshadowing to some extent our later decision in Hamling v. United States, held that Miller did not void all Memoirs-based convictions, but that on review appellants were entitled to all the benefits of both the Miller and Memoirs standards. See Hamling, 418 U. S., at 102. In later cases presenting similar facts, the Fifth Circuit has applied its holding in Thevis I. See, e. g., United States v. Linetsky, 533 F. 2d 192 (1976); United States v. Thevis, 526 F. 2d 989 (1976) (Thevis II), cert. denied, 429 U. S. 928 (1976). See also United States v. Hill, 500 F. 2d 733 (CA5 1974), cert. denied, 420 U. S. 952 (1975). And the Ninth Circuit, following Hamling, has reached the same result. United States v. Cutting, 538 F. 2d 835 (1976) (en banc), cert. denied, 429 U. S. 1052 (1977). Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973); Kaplan v. California, 413 U. S. 115 (1973); United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973); United States v. Orito, 413 U. S. 139 (1973). Miller held: “The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U. S., at 24. Under part (b) of the test, it is adequate if the statute, as written or as judicially construed, specifically defines the sexual conduct, depiction of which is forbidden. The Court in Miller offered examples of what a State might constitutionally choose to regulate: “(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. “(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Id., at 25. The plurality in Memoirs held that “three elements must coalesce” if material is to be found obscene and therefore outside the protection of the First Amendment: "[I]t must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” 383 U. S., at 418. Petitioner American News Co., Inc., was convicted only on the conspiracy charge. The other four petitioners were convicted of conspiracy and also on seven of the eight substantive counts. Both in its brief and at oral argument in this Court the United States contended that petitioners’ convictions under the Miller standards were improper, and consequently the Government does not defend the judgment of the Court of Appeals on this issue but agrees with petitioners that their convictions should not stand. Shortly after Memoirs, in response to the divergence of opinion among Members of the Court, the Court began the practice of disposing of obscenity cases in brief per curiam decisions. Redrup v. New York, 386 U. S. 767 (1967), was the first. At least 31 cases were decided in this fashion. They are collected in Paris Adult Theatre I v. Slaton, 413 U. S., at 82-83, n. 8 (BRENNAN, J., dissenting). See, e. g., Books, Inc. v. United States, 358 F. 2d 935 (CA1 1966), rev’d per curiam, 388 U. S. 449 (1967); United States v. 35 Mm. Motion Picture Film, 432 F. 2d 705 (CA2 1970), cert. dismissed sub nom. United States v. Unicorn Enterprises, Inc., 403 U. S. 925 (1971); United States v. Ten Erotic Paintings, 432 F. 2d 420 (CA4 1970); United States v. Groner, 479 F. 2d 577 (CA5) (en banc) (the seven dissenting judges and one judge concurring in the result—constituting a majority on this issue—found that Memoirs stated the governing standard), vacated and remanded for further consideration in light of Miller, 414 U. S. 969 (1973); United States v. Pellegrino, 467 F. 2d 41 (CA9 1972); Southeastern Promotions, Ltd. v. Oklahoma City, 459 F. 2d 282 (CA10 1972); Huffman v. United States, 152 U. S. App. D. C 238, 470 F. 2d 386 (1971), conviction reversed on other grounds upon rehearing after Miller, 163 U. S. App. D. C. 417, 502 F. 2d 419 (1974). Cf. Grove Press, Inc. v. City of Philadelphia, 418 F. 2d 82 (CA3 1969); Cinecom Theaters Midwest States, Inc. v. City of Fort Wayne, 473 F. 2d 1297 (CA7 1973); Luros v. United States, 389 F. 2d 200 (CA8 1968). The statute provides in pertinent part: “Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 18 U. S. C. § 1465. For this reason, the instant case is different from Rose v. Locke, 423 U. S. 48 (1975), where the broad reading of the statute at issue did not upset a previously established narrower construction. In Hamling we rejected a challenge based on Bouie v. City of Columbia, ostensibly similar to the challenge that is sustained here. 418 U. S., at 115-116. But the similarity is superficial only. There the petitioners focused on part (b) of the Miller test. See n. 3, supra. They argued that their convictions could not stand because Miller requires that the categories of material punishable under the statute must be specifically enumerated in the statute or in authoritative judicial construction. No such limiting construction had been announced at the time they engaged in the conduct that led to their convictions. We held that this made out no claim under Bouie, for part (b) did not expand the reach of the statute. “[T]he enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U. S. C. § 1461, conduct which had not previously been thought criminal.” 418 U. S., at 116. For the reasons noted in text, the same cannot be said of part (c) of the Miller test, shifting from “utterly without redeeming social value” to “lacks serious literary, artistic, political or scientific value.” This was implicitly recognized by the Court in Harding itself. There the trial took place before Miller, and the jury had been instructed in accordance with Memoirs. Its verdict necessarily meant that it found the materials to be utterly without redeeming social value. This Court examined the record and determined that the jury’s verdict “was supported by the evidence and consistent with the Memoirs formulation of obscenity.” 418 U. S., at 100. We did not avoid that inquiry on the ground that Memoirs had no relevance, as we might have done if Miller applied retroactively in all respects. The Court of Appeals stated, apparently without viewing the materials, 520 F. 2d, at 923 n. 1 (McCree, J., dissenting), that in its opinion the materials here were obscene under either Memoirs or Miller. 520 F. 2d, at 922. Such a conclusion, absent other dependable means of knowing the character of the materials, is of dubious value. But even if we accept the court’s conclusion, under these circumstances it is not an adequate substitute for the decision in the first instance of a properly instructed jury, as to this important element of the offense under 18 U. S. C. § 1465. The Court of Appeals apparently thought that our remand in Miller and the companion cases necessarily meant that Miller standards were fully retroactive. 520 F. 2d, at 920. But the passage from Hamling quoted in the text, which simply reaffirms a principle implicit in Miller, makes it clear that the remands carried no such implication. Our 1973 cases were remanded for the courts below to apply the “benefits” of Miller. See n. 3, supra. In view of our disposition of the case, we have no occasion to reach the other questions presented in the petition. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable Answer:

songer_const1

114

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. LOCAL UNION NO. 35 OF the INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Plaintiff-Appellant, v. CITY OF HARTFORD, City Manager of the City of Hartford, Commission on Human Relations of the City of Hartford, Contract Enforcement Committee of the City of Hartford, and Ronald Fletcher, Individually and as Senior Field Representative of the Commission on Human Relations of the City of Hartford, Defendants-Appellees. No. 327, Docket 79-7253. United States Court of Appeals, Second Circuit. Argued Feb. 11, 1980. Decided June 13, 1980. Van Graafeiland, Circuit Judge, dissented and filed opinion. William S. Zeman, West Hartford, Conn. (Joel M. Ellis, West Hartford, Conn., of counsel), for plaintiff-appellant. Richard P. Bellman, New York City (Eisner, Levy, Steel & Bellman, P. C., New York City, Hubert J. Santos, Corp. Counsel, Richard M. Cosgrove, Deputy Corp. Counsel, Hartford, Conn., of counsel), for defendants-appellees. Before OAKES and VAN GRAAFEI-. LAND, Circuit Judges, and NICKERSON, District Judge. United States District Judge for the Eastern District of New York, sitting by designation. NICKERSON, District Judge. Plaintiff Local Union No. 35 of the International Brotherhood of Electrical Workers (“the Union”) appeals from a judgment entered for defendants in the United States District Court for the District of Connecticut, M. Joseph Blumenfeld, Judge. The defendants are the City of Hartford (“the City”) and certain City agencies and officials responsible for enforcing its Affirmative Action Ordinance (“the Ordinance”) and Affirmative Action Plan (“the Plan”). The Union is a labor organization representing all electrical workers who work for any employer with whom the Union has a collective bargaining agreement in Hartford County, five other Connecticut counties and one town in Rhode Island. The complaint sought declaratory and in-junctive relief against enforcement of the Ordinance and the Plan and alleged that as implemented they discriminate against non-minority Union members on the basis of race and thereby violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(c)), the Connecticut Constitution, and various provisions of the Connecticut General Statutes. I The events leading to the enactment of the Ordinance and Plan commenced in 1970, soon after the City experienced serious disturbances in lower income minority neighborhoods. A group of community and civil rights leaders approached Deputy Mayor Nicholas Carbone, a member of the Court of Common Council (“the Council”) since 1969, and chairman of its committee responsible for the City’s then building program of over $100 million. The leaders protested the discrimination against minorities in the building trades and insisted that minority persons be given the opportunity to work on the expected projects. They asked Carbone to try to get the unions and the contractors to remedy the pervasive pattern of discrimination. Carbone proceeded to bring together for negotiations the contractors, the unions, and the civil rights leaders. In September 1972, after negotiating for about one and a half years they finally agreed upon and made public an affirmative action plan providing for every good faith effort to achieve at least a fifteen percent level of minority and female employment. The plan was substantially the same as that later adopted as the Plan. However, the agreed plan provided no method of enforcement, and no further action was taken to implement it. Indeed, only a few of the union locals subscribed to what their representatives had negotiated. In mid-1974 community and civil rights leaders again approached Carbone to complain. He then informed the building trades representatives that the City could not be a party to the exclusion of minority workers from City jobs and that he would introduce legislation to implement the agreed plan. At his request representatives of the unions and the contractors helped draft the Ordinance. On February 9, 1975, the Council, the City’s chief legislative body, adopted the Ordinance, reciting as its purpose the ensuring of “equal employment opportunity for minority group persons and women” in the City’s major construction contracts. Shortly thereafter, the Council, pursuant to the Ordinance, adopted the Plan. II The Ordinance defines “minority group persons” to include persons of Black, Puerto Rican, Spanish-American, Oriental or American Indian ethnic or racial origin and identity and women, and declares and finds, among other things, that “(a) Many contractors, labor unions, hiring halls, crafts and trades in the construction industry in the Greater Hartford area have discriminated, and continue to discriminate, against minority group persons and women. “(b) It is the intention of the City not to aid or abet such discrimination by awarding contracts to contractors who practice or have practiced discrimination against minority group persons and women, or who have subcontracted to, or engaged the services of, individuals and organizations that deny or have denied equal employment opportunity to minority group persons and women. “(c) The continuing effects of past and present discrimination against minority group persons and women by the construction industry may be prevented, mitigated and/or eliminated by an affirmative action plan. “(d) There is a sufficient number of qualified group workers and women in the Greater Hartford Area to make such an affirmative action plan feasible and desirable.” The Ordinance requires all City construction contracts providing for payments of at least $10,000 to incorporate an Affirmative Action Plan to be adopted by the Council establishing reasonable minimum percentage goals for minority group and female employment in the construction industry. Principal responsibility for encouraging the employment of minorities and women is placed on the prime contractors. As a condition of acceptance of their bids they must obtain from their subcontractors and unions or other employment referral organizations affidavits agreeing to the Plan. Unions, such as the Union here, which do substantial work outside the Greater Hartford Area and decline to adopt the Plan as a contractual provision can be certified as eligible to do city work if, among other things, they have accepted or will in the immediate future be accepting adequate minority and female participation in their operations and have submitted an affidavit stating that they agree with and will make a good-faith effort to comply with the Plan. A contractor or union previously certified but not in compliance with its affidavit is subject, after a public hearing, to, among other things, possible decertification and preclusion from doing City work pending compliance or a good faith effort to comply. The Ordinance also provides for the designation of one or more job referral banks, which are required to seek out and compile lists by trade of all qualified minority and female workers in the area and make those lists available on request to any contractor or union. The Council thereafter designated Project Leap of the Greater Hartford Urban League as a job referral bank. The Plan provides that those agreeing to it will make every good faith effort to achieve employment of minority and female employees of at least fifteen percent on City projects and make a good faith effort to implement this goal on non-city jobs. The Ordinance defines good faith effort to mean “every reasonable attempt” to comply with the Ordinance and the Plan and “every possible measure” to achieve the level of participation of minority and female workers established by the Plan. Ill Incorporated in each of the union’s collective bargaining agreements with the contractors is a so-called “Principle Labor Agreement” negotiated by the Union with the local chapter of the National Electrical Contractors Association, Inc. That agreement makes the Union “the sole and exclusive source of referral of applicants for employment” as electrical workers with the contractor and provides that applicants will be referred without discrimination against them “by reason of membership or non-membership in the Union.” The “Principle Labor Agreement” also provides that the Union will maintain a register of applicants for employment in four groups and an “Out of Work List” containing all applicants within each group in the chronological order of the dates they sign the list. Referrals are required to be made first from Group I in the order of the applicants’ places on the list, then in the same manner successively from the other groups. Thus no applicants in a higher numbered group can be referred unless all those in lower numbered groups are working. Group I includes those applicants who have had four or more years experience, are residents of the area, have passed a journeyman’s examination given by the Union or one of its affiliates or have been certified by any Inside Joint Apprenticeship and Training Committee, and have been employed for at least one year of the last four under a collective bargaining agreement between the Union and the contractor. Group II includes applicants with the same qualifications except that they are not required to be residents of the area or to have been employed under a collective bargaining agreement between the Union and the contractor. Group III includes those who have had two or more years experience, are residents of the area, and have been employed for at least six months in the last three years under a collective bargaining agreement between the Union and the contractor. Group IV includes applicants who have worked at the trade for more than a year. IV On October 31, 1975, the Union, which had collective bargaining agreements with numerous contractors having City contracts, was certified under the Ordinance, having submitted the requisite affidavit stating that it would not discriminate, would eliminate any effects of past discrimination, and would make a good faith effort to comply with the Plan. Despite the provisions of the collective bargaining agreements the Union had not maintained or made referrals from an “Out of Work List” for thirty years. However, in January 1976, after adoption of the Ordinance and Plan, the Union began to make referrals from such a list to all jobs including City contracts. The City first learned of this in January 1977 when several contractors advised the City that they were unable to meet the Plan’s fifteen percent goal as to electrical workers. Investigation revealed that the Union was referring only those who had signed the list and in the order in which they had signed. Although in theory non-union applicants were free to. sign the list, in fact it contained only Union members. Furthermore, everyone on the list was in Group I. As of February 2, 1977, of the total Union membership of 550, 321 were not working. Of the 41 minority members (31 Black, 5 Spanish-surnamed, and 5 American Indian) seventeen were not working. Of the 321 on the list of the first minority worker was number 85. The City Manager ruled that the Union by making referrals only from the list in chronological order was not in compliance with the affidavit it had submitted to obtain certification. He referred the matter to the Contract Enforcement Committee of the Council. The Union thereupon commenced this action, which was stayed pending action by the Committee. After holding hearings the Contract Enforcement Committee on July 7, 1977, concluded that the Union was not making a good faith effort to comply with its affidavit and that unless the Union within thirty days complied or showed a good faith effort to comply with the Plan the Union would be decertified. Final action on the committee’s ruling was held in abeyance pending a determination by the District Court. In the hearings before District Court the parties agreed that there were no material issues of fact in dispute and made cross motions for summary judgment. Although the Ordinance defines the term minority group persons to include women, both parties treated the case as involving only alleged racial discrimination. Judge Blumenfeld postponed a decision pending the decision in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). After that decision was rendered the parties submitted further briefs. The court then granted defendants’ motion on December 11, 1978, 462 F.Supp. 1271, and thereafter denied the Union’s post-judgment motions. V The Equal Protection Clause of the Fourteenth Amendment prohibits the City from denying “to any person within its jurisdiction the equal protection of the laws.” The central issue in this case is whether non-minority Union members are denied the equal protection of the laws if the City disqualifies the Union from participating in City construction work while the Union makes referrals only from the “Out of Work List” in chronological order. It is well settled that laws which brand persons as inferior because of their color or race and thereby act as a stimulant to race prejudice are inconsistent with the Equal Protection Clause. Indeed, this was suggested as early as a century ago in Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880). By outlawing segregation in 1954 the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), gave concrete expression, to the constitutional mandate to eliminate such race consciousness and prejudice. However, few would claim that since that date the effort to eliminate discrimination has been an unqualified success. In fact the failure to change by racially neutral means the still widespread discrimination in our country has led to a variety of so-called affirmative action programs designed to advantage minority persons. Though racially conscious, these programs may primarily be intended not as deferred recompense for pást injustices but rather as the most, perhaps the only, effective way in the long run to end or to mitigate racial divisions and to bring about the moral equality of the races. Affirmative action programs to the degree they disadvantage non-minority individuals do so not on the theory that such persons are inferior but on the supposition that unless such programs are implemented there is faint hope of reducing race consciousness and of assuring that the time will come when the treatment of individuals will be based on their talent and not on their race. Undeniably there are risks in affirmative action programs. In the short run they may exacerbate rather than diminish race consciousness. They may cause resentment. They may foster the belief that some need special advantages because they cannot succeed on their merits. This court has therefore proceeded cautiously, approving affirmative action plans where their purpose and need has been appropriately established, their goals have been reasonable in terms of the affected minority, and their tendency to reinforce race consciousness has been minimized. A governmentally imposed affirmative action plan can only be sustained if its purpose and effect are to remedy the consequences of present or past discrimination. Fullilove v. Kreps, 584 F.2d 600 (2d Cir. 1978), cert. granted, 441 U.S. 960, 99 S.Ct. 2403, 60 L.Ed.2d 1064 (1979). Justice Powell indicated in Regents of the University of California v. Bakke, supra, 438 U.S. at 301-02 & n.41, 98 S.Ct. at 2754-55 & n.41, that judicial, legislative or administrative findings of the discrimination must support such a purpose. In the Fullilove case this court sustained under the Equal Protection Clause section 103(f)(2) of the Public Works Employment Act of 1977, 42 U.S.C. § 6705(f)(2), which mandates that at least ten percent of the monies appropriated pursuant to the statute shall be expended for minority business enterprises. The court held that Congress had the purpose of remedying the effects of past discrimination and had “sufficient evidence” of past discrimination in the construction industry. Earlier Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973), sanctioned hiring quotas of Black and Puerto Rican policemen aimed at eradicating past discrimination where the District Court had found that the patrolman’s examination had for many years resulted in invidious discrimination. In the present case the purpose of and need for the Ordinance and Plan were established beyond question. Previous efforts to mitigate or eliminate discrimination in the local building trades had clearly met with failure. In the Ordinance, the Council, a competent and responsible legislative body subject to political restraints, United States v. Carolene Products Co., 304 U.S. 144, 152 n.4, 58 S.Ct. 778, 783 n.4, 82 L.Ed. 1234 (1938), declared its purpose of ensuring equal employment opportunity for minority and female workers and made findings of past and present discrimination. Those findings were not attacked in the District Court. Indeed, when the contractors and the unions negotiated the voluntary plan and later assisted in drafting the Ordinance they acknowledged that minority workers were seriously under-represented in the building trades. That under-representation was documented in studies by the University of Connecticut, the Connecticut Labor Department and the City’s Human Relations Commission. Moreover, racial discrimination in the construction trades on racial grounds has been found so often by the courts as to make it a proper subject for judicial notice. United Steelworkers v. Weber, 443 U.S. 193, 198 n.l, 99 S.Ct. 2721, 2725, 61 L.Ed.2d 480 (1979). Although only 7.45 percent of the Union’s members are minority individuals and the percentage of blacks employed as skilled electricians in Connecticut actually decreased from 0.9% to 0.7% between 1960 and 1969, the Union claims that there was no legislative finding that it had discriminated in the past. The Union introduced no proof that it was an exception to the general finding. But in any event a valid affirmative action plan need not be based on a particularized finding of past discrimination by every employer or union affected. It is enough that there is a finding of discrimination in the industry concerned. To hold otherwise would enable parts of the industry to frustrate the plan by assigning various functions to those who had not previously discriminated. Other circuits have upheld affirmative action plans granting racial employment preferences where a legislative or administrative body charged with the responsibility made determination of past discrimination in the industries affected but did not make specific findings directed at those attacking the programs. Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971); Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (1st Cir. 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974). These decisions were cited with apparent approval by Justice Powell in the Bakke case, 438 U.S. at 301-02, 98 S.Ct. at 2754-55. Moreover, whether or not the Union discriminated in the past, to acquiesce in the Union’s position in this case would be to permit perpetuation of discrimination. The Union, which for thirty years had not maintained ah “Out of Work List,” now insists that referrals must be made only from such a list in chronological order. The list contains solely Union members. Yet it is evident that there are other unemployed, qualified and licensed electrical workers in the area, and the Council found that there were sufficient qualified minority and female workers to make feasible the fifteen percent goal of the Plan in respect to employees on City projects. Indeed, the union introduced no proof suggesting otherwise. While the collective bargaining agreements between the Union and the contractors by implication gave non-members the right to sign the “Out of Work List,” there is no showing that anyone not a Union member knew of the existence of the list. Even if a non-Union member had known of the list and had signed it, such a worker in all likelihood would not have been qualified to be included in Group I which had priority for referrals. To be listed in Group I an applicant must have been employed for at least one year of the last four under a collective bargaining agreement to which the Union was party. For most if not all non-union workers, therefore, it would probably have been futile to sign the list. They would not have been referred for employment until all Union members were employed. By making provisions for job referral banks the Ordinance contemplated that a union having a membership of less than fifteen percent minority and female workers could comply with the Plan by referring qualified non-Union workers. Project Leap, the job referral bank designated by the Council, evidently had the names of such workers, for when the Union failed to refer minority electricians, the City advised one contractor that it was required to use other sources and should apply to Project Leap to “assure” compliance with the Plan. The fact that the Union list contains the name of not a single non-Union person indicates that the Union made no effort to recruit qualified non-union minority and female workers, from the job referral banks or otherwise, into its referral system. If the Union is permitted to restrict minority and female employment to its forty-one members, the rather modest goal of employing fifteen percent minority employees on City projects may be effectively frustrated. The Union, now suggests for the first time that the fifteen percent goal may be too high because it is in excess of the percentage of the minority population in the Greater Hartford Area. However, in the District Court the Union did not attack that goal as unreasonable. Nor did the Union make the contention below that the group from which construction workers might reasonably be drawn was less than fifteen percent minority and female or refute the legislative finding that sufficient qualified minority and female workers were available to make the hiring of fifteen percent minorities on City contracts feasible and desirable. Furthermore, the representatives of both the unions and the contractors agreed in 1972 that a fifteen percent goal was reasonable. Finally, we think that the implementation of the Ordinance and Plan as shown in this record is calculated to attain the fifteen percent objective while causing as little resentment as possible. This case is not like those relied on by the Union. In the Bridgeport Guardians, Inc. case, supra, while approving hiring quotas of Black and Puerto Rican patrolmen, this court disapproved the use of quotas for promotion to ranks above that of patrolmen. The court found that there was no justification for promotion quotas because the promotion examinations were not found to be discriminatory and the quota would have a “harsh” impact on the few persons who had embarked on a police career with the expectation of advancement and would “only exacerbate rather than diminish racial attitudes.” Id. at 1341. Similarly in Kirkland v. New York State Department of Correctional Services, 520 F.2d 420 (2d Cir. 1975), the court reversed the District Court’s order that the New York State Department of Correctional Services promote to sergeant at least one Black or Hispanic employee for each three white employees promoted until the Blacks and Hispanics made up the same combined percentage of sergeants as they did of correction officers. The Court’s opinion stated that the proof of past racial discrimination in the appointment of supervisory personnel was inadequate and that those bypassed for advancement would be “a small number of readily identifiably candidates for promotion.” Id. at 429. On the other hand, in the Fullilove case this court sustained the set aside of ten percent of federal public works money for minority businesses and deemed any resentment likely to be caused by the act to the minimal since the amount set aside was only 25 percent of the funds expended yearly on construction work in the United States, and the effects were not “identifiable,” that is, “concentrated upon a relatively small, ascertainable group of non-minority persons.” 584 F.2d at 607. Similar criteria were used by Mr. Justice Powell in his opinion in the Bakke case finding invalid the program of a medical school reserving sixteen of one hundred seats for disadvantaged minority students. While he approved preferences to minorities where competent and responsible public bodies made findings of past discrimination, he referred to the “deep resentment” likely ' to be aroused by all classifications based on race, 438 U.S. at 294-95 n.34, 98 S.Ct. at 2751 n.34, and concluded that the exclusion of non-minority applicants from any competition for the sixteen seats would be viewed as “inherently unfair” both by the general public and by those who applied for admission to state universities. Id. at 319 n.53, 98 S.Ct. at 2763 n.53. The Union, citing these cases, contends that the Plan requires that minority Union members on the “Out of Work List” be “jumped over” the “readily identifiable” non-minority members on the list. This contention is based on the premise that this is the only way the Union can make a good faith effort to attain the fifteen percent goal. For reasons already discussed the premise is faulty. The Union can seek out and refer other qualified workers. Chronological referrals from a list including both Union and non-Union members and containing at least fifteen percent minority female persons might well have met the City’s goal. Qualified minority and female workers who are not Union members may well have been out of work longer than any persons on the Union’s list, and perhaps no Union member would be chronologically “jumped over” if referrals were made from a list including all those qualified to work. The court does not have before it a situation where referrals are made chronologically from a list containing all those qualified but less than fifteen percent minority or female persons. We need not rule on the validity of a jumping of minority and female over non-minority workers in such circumstances. Nor need we decide whether a non-minority Union member may enjoin the Union from referring out of turn a minority Union member on the present “Out of Work List.” Neither the decisions of this court nor the Supreme Court sanction the Union’s frustration of the Plan through the expedient of restricting referrals to the Union list,' indeed, for practical purposes, to its own membership, and then claiming that those few are readily identifiable. In instances in which the decisions disapproved racial quotas the list from which appointments could be made included all those legally qualified for the position. That is not the case here. Resentment there may be if the Union is required to make inquiries of a job referral bank and to compile a list including at least fifteen percent minority and female workers. But the effect of such a requirement is not comparable to the effect of the direction for quotas for police promotion which this court disapproved in the Kirkland and Bridgeport Guardians, Inc., opinions or to the effect of the program rejected by Mr. Justice Powell in the Bakke case. Any indignation here can hardly be as intense or appear as plausible. There is no issue of preferring someone over another presumably more qualified, at least on paper. Nor has it been shown that in order to show compliance the Union must refer a minority Union member out of chronological turn. For the foregoing reasons we hold that the Ordinance and Plan as implemented do not infringe the Equal Protection Clause. To accede to the Union’s contentions would be to require the City to condone conditions the Equal Protection Clause was designed to end. VI The Union contends that the Ordinance and Plan are invalid because they are inconsistent with section 703(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(c), which provides in pertinent part that it shall be “an unlawful employment practice” for a labor organization to “fail or refuse to refer for employment.any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such em-' ployment opportunities or otherwise adversely affect his status . . . as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin.” The argument is that the Plan and Ordinance violate this section by depriving non-minority and male workers of employment opportunities on the ground of race, of color or sex. This contention is foreclosed by United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). There the Court had before it the language of section 703(a), 42 U.S.C. § 2000e-2(a) prohibiting, in terms practically identical to section 703(c), an employer from refusing to hire because of an individual’s race, color or sex. The Court held that the prohibition did not condemn all private, voluntary, race conscious affirmative action plans, and that a plan of an employer and a union was valid where it reserved for black employees 50% of the openings in an in-plant craft training program until the percentage of black craft workers in the plant was commensurate with the percentage of blacks in the local labor force. The' Court noted that the plan, like Title VII itself, was designed to break down old patterns of racial segregation and hierarchy. Moreover, it was temporary, did not unnecessarily trammel the interests of white employees, did not require discharge of whites and their replacement with new black hires, and did not create an absolute bar to the advancement of whites since half of those trained would be white. The Ordinance and Plan before us have a less significant impact on non-minority workers than did the plan in the Weber case, and the Union has not suggested that we give section 703(c) a construction different than that given section 703(a). The Union urges in addition that the Ordinance and Plan violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the provisions of 42 U.S.C. § 1981 and 1983. However, any claim under these sections presupposes a violation of the Equal Protection Clause or Title VII, and the Union has shown no such violation. The Union also contends that the Ordinance and Plan prevent the Union from providing the equal representation to its members required by the National Labor Relations Act, 29 U.S.C. § 158(b). But there is no violation of equal representation where a union complies with a valid affirmative action program. VII Finally the Union asserts that the Ordinance and Plan violate Connecticut constitutional and statutory law. The argument is based on the premise that any affirmative action program is prohibited by (a) Article First, section 20 of the Connecticut Constitution, providing for “equal protection” and against “discrimination” on the ground of religion, race, color, ancestry or national origin, and (b) Connecticut’s “Fair Employment Practices” legislation, Chap. 563 Con.Gen.Stat., admittedly intended to be coextensive with Title VII, 42 U.S.C. § 2000e-2. As the District Court observed, the Connecticut courts have held that the equal protection clauses of the Connecticut and United States constitutions have substantially the same meaning. Snyder v. Town of Newton, 147 Conn. 374, 381, 161 A.2d 770 (1960). The Union cites no authority to the contrary. Nor does the Union point to any Connecticut decision suggesting that the Connecticut Fair Employment Practices Act should be construed to have a meaning different from Title VII on which it was modeled. VIII We have considered the Union’s other contentions and find them without merit. The judgment is affirmed. . Whether it is reasonable to require that fifteen percent minority workers be hired on City projects is a question different from, although perhaps related to, the question of whether seeking to have fifteen percent minority membership in the Union is a reasonable goal. This opinion need not and does not reach the latter issue. . The Union points to a statement by a representative of the City’s Commission on Human Relations at the hearing before the Contract Enforcement Committee that “My position was that in order to comply they would have to reexamine their rotation list and perhaps the rotation list should not be used. . . My position was that the rotation list would have to be rethought and reexamined and, yes, minorities would have to be moved up.” It is clear from the context of this statement that the representative of the Commission contemplated that the Union could go outside the “Out of Work List” to “move up” minorities. In any event the decision of the Contract Enforcement Committee decertifying the Union merely concluded that “use of the ‘out of work’ list” was clear evidence of lack of a good faith effort to comply. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:

sc_casesourcestate

38

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. PARKER v. NORTH CAROLINA No. 268. Argued November 17, 1969 Decided May 4, 1970 Norman B. Smith argued the cause for petitioner. With him on the brief was Larry B. Sitton. Jacob L. Safron argued the cause for respondent. With him on the brief were Robert Morgan, Attorney General of North Carolina, and Andrew A. Vañore, Jr. Jack Greenberg, James M. Nabrit III, Michael Meltsner, Norman C. Amaker, Charles Stephen Ralston, and Anthony G. Amsterdam filed a brief for Albert Bobby Childs et al. as amici curiae. Mr. Justice White delivered the opinion of the Court. At about 11 p. m. on July 16, 1964, petitioner was arrested after entering the yard of a home where a burglary and rape had been committed four days earlier. Petitioner, a Negro boy then 15 years old, was taken to the police station and was questioned for one or two hours. After the questioning, petitioner was placed alone in a dimly lit cell for the remainder of the night. Although petitioner refused to give even his name during the questioning, the police eventually determined his identity and notified petitioner’s mother the next day between 3:30 and 4:30 a. m. That morning, petitioner was given drinking water and was then questioned by the police; petitioner almost immediately confessed to the burglary and rape committed several days earlier at the house where he had been arrested. Shortly thereafter, an attorney retained by petitioner's mother came to the police station and talked with petitioner. Petitioner told the attorney that the confession had not been prompted by threats or promises and that he had not been frightened when he made the statement to the police. Petitioner was indicted for first-degree burglary, an offense punishable by death under North Carolina law. Petitioner’s retained attorney discussed with petitioner and his mother the nature and seriousness of the charge. In due course, petitioner and his mother signed written statements authorizing the entry of a plea of guilty. Both petitioner and his mother were aware at the time they signed the authorization for the guilty plea that, if the plea was accepted, petitioner would receive the mandatory sentence of life imprisonment. The prosecutor and the trial judge accepted the plea. In accepting the plea on August 18, 1964, the trial court asked the petitioner if the plea was made in response to any promise or threat and petitioner answered in the negative; petitioner affirmed that he tendered the plea “freely without any fear or compulsion.” Upon acceptance of the plea, petitioner was sentenced to life imprisonment. In 1967, petitioner, assisted by counsel, filed a petition under the North Carolina Post-Conviction Hearing Act to obtain relief from his conviction. In his petition, Parker urged that his plea of guilty was the product of a coerced confession and that the indictment to which he pleaded was invalid because members of his race had been systematically excluded from the grand jury which returned the indictment. After a hearing, the Superior Court of Halifax County found that there was no deliberate exclusion of Negroes from the grand jury that indicted petitioner and that petitioner had freely admitted his guilt and had pleaded guilty “freely, voluntarily, without threat, coercion or duress . . . The Court of Appeals of North Carolina, the highest state court in which petitioner could seek review, affirmed the conviction after reviewing not only the claims presented to the lower court but also the additional assertion by petitioner that his guilty plea was involuntary because North Carolina statutes at that time allowed a defendant to escape the possibility of a death penalty on a capital charge by pleading guilty to that charge. 2 N. C. App. 27, 162 S. E. 2d 526 (1968). We granted certiorari, 395 U. S. 974 (1969), to consider petitioner’s federal constitutional claims. For the reasons presented below, we affirm. I Parker would have us hold his guilty plea involuntary and therefore invalid for two reasons: first, because it was induced by a North Carolina statute providing a maximum penalty in the event of a plea of guilty lower than the penalty authorized after a verdict of guilty by a jury; and, second, because the plea was the product of a coerced confession given to the police shortly after petitioner was arrested. Neither reason is sufficient to warrant setting aside Parker’s plea. It may be that under United States v. Jackson, 390 U. S. 570 (1968), it was unconstitutional to impose the death penalty under the statutory framework which existed in North Carolina at the time of Parker’s plea. Even so, we determined in Brady v. United States, ante, p. 742, that an otherwise valid plea is not involuntary because induced by the defendant’s desire to limit the possible maximum penalty to less than that authorized if there is a jury trial. In this respect we see nothing to distinguish Parker’s case from Brady’s. Nor can we accept the claim that the plea was infirm because it was the product of a coerced confession. According to Parker’s testimony at the post-conviction hearing, he was denied food and water, promised unspecified help if he confessed, and denied counsel’s advice when he requested it. In the record, however, was an abundance of evidence contradicting Parker’s claim of coercion: Parker’s statements to his attorney soon after his interrogation that there had been no threats or promises and that he had not been afraid, his similar declarations in his sworn statement authorizing his plea, his answers to the trial judge at the time the plea was accepted, and his failure to complain of any mistreatment by the police until many months after he began serving his sentence. The North Carolina courts accordingly refused to credit his testimony and concluded that his confession was a free and voluntary act. We would in any event be reluctant to question the judgment of the state courts in this respect; but we need not evaluate the voluntariness of petitioner’s confession since even if the confession should have been found involuntary, we cannot believe that the alleged conduct of the police during the interrogation period was of such a nature or had such enduring effect as to make involuntary a plea of guilty entered over a month later. Parker soon had food and water, the lack of counsel was immediately remedied, and there was ample opportunity to consider the significance of the alleged promises. After the allegedly coercive interrogation, there were no threats, misrepresentations, promises, or other improper acts by the State. Parker had the advice of retained counsel and of his family for the month before he pleaded. The connection, if any, between Parker’s confession and his plea of guilty had “become so attenuated as to dissipate the taint.” Nardone v. United States, 308 U. S. 338, 341 (1939); Wong Sun v. United States, 371 U. S. 471, 491 (1963). As far as this record reveals, the guilty plea was Parker’s free and voluntary act, the product of his own choice, just as he affirmed it was when the plea was entered in open court. h-1 On the assumption that Parker’s confession was inadmissible, there remains the question whether his plea, even if voluntary, was unintelligently made because his counsel mistakenly thought his confession was admissible. As we understand it, Parker’s position necessarily implies that his decision to plead rested on the strength of the case against him: absent the confession, his chances of acquittal were good and he would have chosen to stand trial; but given the confession, the evidence was too strong and it was to his advantage to plead guilty and limit the possible penalty to life imprisonment. On this assumption, had Parker and his counsel thought the confession inadmissible, there would have been a plea of not guilty and a trial to a jury. But counsel apparently deemed the confession admissible and his advice to plead guilty was followed by his client. Parker now considers his confession involuntary and inadmissible. The import of this claim is that he suffered from bad advice and that had he been correctly counseled he would have gone to trial rather than enter a guilty plea. He suggests that he is entitled to plead again, a suggestion that we reject. For the reasons set out in McMann v. Richardson, ante, p. 759, even if Parker’s counsel was wrong in his assessment of Parker’s confession, it does not follow that his error was sufficient to render the plea unintelligent and entitle Parker to disavow his admission in open court that he committed the offense with which he was charged. Based on the facts of record relating to Parker’s confession and guilty plea, which we have previously detailed, we think the advice he received was well within the range of competence required of attorneys representing defendants in criminal cases. Parker’s plea of guilty was an intelligent plea not open to attack on the grounds that counsel misjudged the admissibility of Parker’s confession. Ill We also have before us the question whether the indictment to which Parker pleaded is invalid because members of his race were allegedly systematically excluded from the grand jury that returned the indictment. The North Carolina Court of Appeals refused to consider the claim sinqe under North Carolina law an objection to the composition of the grand jury must be raised by motion to quash the indictment prior to the entry of the guilty plea. Because Parker had failed to raise his objection in timely fashion, relief was unavailable. This state rule of practice would constitute an adequate state ground precluding our reaching the grand jury issue if this case were here on direct review. See Fay v. Noia, 372 U. S. 391, 428-429 (1963). We are under similar constraint when asked to review a state court decision holding that the same rule of practice requires denial of collateral relief. Ibid. Whether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide. Compare United States ex rel. Goldsby v. Harpole, 263 F. 2d 71 (C. A. 5th Cir.), cert. denied, 361 U. S. 838 and 850 (1959), with Labat v. Bennett, 365 F. 2d 698 (C. A. 5th Cir. 1966), cert. denied, 386 U. S. 991 (1967). See also McNeil v. North Carolina, 368 F. 2d 313 (C. A. 4th Cir. 1966). The North Carolina Court of Appeals correctly concluded that petitioner’s plea of guilty was intelligent and voluntary, and there was an adequate basis in North Carolina procedural law for the North Carolina Court of Appeals’ refusal to consider the claim of racial exclusion in the composition of the grand jury that indicted petitioner. Affirmed. In North Carolina the crime of first-degree burglary is defined as follows: “There shall be two degrees in the crime of burglary as defined at the common law. If the crime be committed in a dwelling house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling house or sleeping apartment at the time of the commission of such crime, it shall be burglary in the first degree.” N. C. Gen. Stat. § 14^51 (1969 Repl. vol.). The punishment for first-degree burglary is death unless the jury recommends that the penalty be life imprisonment: “Any person convicted, according to due course of law, of the crime of burglary in the first degree shall suffer death: Provided, if the jury when rendering its verdict in open court shall so recommend, the punishment shall be imprisonment for life in the State’s prison, and the court shall so instruct the jury.” N. C. Gen. Stat. § 14-52 '(1969 Repl. vol.). At the time petitioner’s plea was entered, North Carolina law provided that if a plea of guilty to first-degree burglary was accepted the punishment would be life imprisonment rather than death: “(a) Any person, when charged in a bill of indictment with the felony of murder in the first degree, or burglary in the first degree, or arson, or rape, when represented by counsel, whether employed by the defendant or appointed by the court . . . , may, after arraignment, tender in writing, signed by such person and his counsel, a plea of guilty of such crime; and the State, with the approval of the court, may accept such plea. Upon rejection of such plea, the trial shall be upon the defendant’s plea of not guilty, and such tender shall have no legal significance whatever. “(b) In the event such plea is accepted, the tender and acceptance thereof shall have the effect of a jury verdict of guilty of the crime charged with recommendation by the jury in open court that the punishment shall be imprisonment for life in the State’s prison; and thereupon, the court shall pronounce judgment that the defendant be imprisoned for life in the State’s prison.” N. C. Gen. Stat. § 15-162.1 (1965 Repl. vol.), repealed, effective March 25, 1969, N. C. Laws 1969, c. 117. The Court: “Has anybody made you any promise or forced you in any way to make this plea?” Petitioner: “No, sir.” The Court: “Did you sign this plea freely without any fear or compulsion?” Petitioner: “Yes, sir.” The Court: “Has any person promised you anything if you do this?” Petitioner: “No, sir.” App. 46. N. C. Gen. Stat. §§15-217 to 15-222 (Supp. 1969). N. C. Gen. Stat. § 7A-28 (1969 Repl. vol.). The statute authorizing guilty pleas to capital charges was repealed, effective March 25, 1969. See n. 2, supra. As a result of the repeal, a person who is charged with a capital offense and who is not allowed to plead to a lesser charge must apparently face a jury trial and a death penalty upon a verdict of guilty unless the jury recommends life imprisonment. In his affidavit authorizing the entry of a plea of guilty Parker stated that: “I have not been threatened or abused in any manner by any person and no promises have been made to me if I plead guilty to any charge.” See n. 3, supra. The North Carolina Court of Appeals noted that the prosecution may have had strong evidence against Parker in addition to the confession and that if other strong evidence existed the guilty plea could not be viewed as the product of the confession. 2 N. C. App. 27, 32, 162 S. E. 2d 526, 529 (1968). We find nothing in the record raising any doubts about the integrity of petitioner’s admission. The following appears in the findings entered after the post-conviction hearing in the state trial court: “[S]aid petitioner defendant freely admitted to his attorney his guilt of the crime with which he was charged, in fact said petitioner defendant Charles Lee Parker, upon cross examination at this hearing, and the Court so finds as a fact, has freely admitted his guilt of the capital offense of burglary and rape ...” “All exceptions to grand jurors on account of their disqualifications shall be taken before the petit jury is sworn and impaneled to try the issue, by motion to quash the indictment, and if not taken at that time shall be deemed to be waived. . . N. C. Gen. Stat. §9-23 (1969 Repl. vol.). See State v. Rorie, 258 N. C. 162, 128 S. E. 2d 229 (1962). Under North Carolina law, a guilty plea does not waive objections to racial exclusion in the selection of the grand jury if, before the plea of guilty, the defendant raises his objection in a motion to quash the indictment. State v. Covington, 258 N. C. 501, 128 S. E. 2d 827 (1963). Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

songer_casetyp1_1-2

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal". Theodore WAY, Appellant, v. UNITED STATES of America, Appellee. No. 6305. United States Court of Appeals Tenth Circuit. March 30, 1960. Donald W. Madole, Denver, Colo., for appellant. Charles M. Stoddard, Denver, Colo., Asst. U. S. Atty., District of Colorado (Donald G. Brotzman, U. S. Atty., Boulder, Colo., District of Colorado, on the brief), for appellee. Before PICKETT and BREITENSTEIN, Circuit Judges, and SAVAGE, District Judge. PER CURIAM. Way was convicted of stealing money in violation of 18 U.S.C. § 2113(b) from a bank insured by the Federal Deposit Insurance Corporation and was sentenced to a term of three years. Upon appeal to this court his conviction was affirmed. Way v. United States, 10 Cir., 268 F.2d 785. Thereafter he applied under 28 U.S.C. § 2255 for a vacation of sentence. This appeal is from the denial of that application. Way first asserts that evidence secured by an unlawful search was improperly admitted at his trial. The trial court expressly found that the search was lawful and the evidence properly admitted. Be that as it may, the reception of such evidence was not objected to at the trial and no point thereof was made in the subsequent appeal. This objection may not be raised for the first time in a proceeding under Section 2255. The next contention is that the conviction was secured upon evidence establishing entrapment which entitled Way to an acquittal. This defense was not raised in either the trial court or in the appeal. A motion under Section 2255 to vacate a sentence is a collateral proceeding in which errors in procedure on the initial trial of the case are not open for review. Here the defense of entrapment is raised for the first time in this Section 2255 proceeding and, hence, comes too late. The last point is that Way did not have effective representation of counsel because such counsel in the trial court did not raise the aforementioned issues. The issue of ineffective counsel was not raised by the motion to vacate and was not considered by the trial court. It cannot now be raised for the first time on appeal. The court notes that the retained trial counsel was a lawyer experienced in criminal trials. He may have had adequate reason for failing to raise these points. In any event if appropriate motions had been made, the propriety of the denial could not be questioned in a Section 2255 proceeding. Affirmed. . Barber v. United States, 10 Cir., 197 F.2d 815, certiorari denied 344 U.S. 857, 73 S.Ct. 94, 97 L.Ed. 665, and cases cited in footnote 1. . Horne v. United States, 5 Cir., 264 F.2d 40, certiorari denied 360 U.S. 934, 79 S.Ct. 1460, 3 L.Ed.2d 1549. . Stanley v. United States, 9 Cir., 239 F.2d 765. . It appears from the briefs that Way was represented by retained counsel at the trial and appointed counsel in the appeal. . Plummer v. United States, 104 U.S.App.D.C. 211, 260 F.2d 729. . See Barber v. United States, 10 Cir., 227 F.2d 431. . White v. United States, 98 U.S.App.D.C. 274, 235 F.2d 221. Question: What is the specific issue in the case within the general category of "criminal"? A. federal offense B. state offense C. not determined whether state or federal offense Answer:

sc_petitioner

070

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. PERKINS v. STANDARD OIL CO. OF CALIFORNIA. No. 624. Argued April 22-23, 1969. Decided June 16, 1969. Earl W. Kintner and George R. Kucik argued the cause for petitioner. With them on the briefs were Thomas L. Siegel, Roger Tilbury, Ernest Bonyhadi, and Bruce M. Hall. Richard J. MacLaury argued the cause for respondent. With him on the brief were Francis R. Kirkham and H. Helmut Loring. Mr. Justice Black delivered the opinion of the Court. In 1959 petitioner, Clyde A. Perkins, brought this civil antitrust action against the Standard Oil Company of California seeking treble damages under § 2 of the Clayton Act, as amended by the Robinson-Patman Act, for injuries alleged to have resulted from Standard’s price discriminations in the sale of gasoline and oil during a period of over two years from 1955 to 1957. In 1963, after a lengthy and complicated trial, the jury returned a verdict for Perkins and assessed damages against Standard of $333,404.67, which, after trebling by the court and after the addition of attorney’s fees, resulted in a total judgment against Standard of $1,298,213.71. On review, the Court of Appeals for the Ninth Circuit held that the assessment of damages included injuries to Perkins that were not recoverable under the Act and therefore ordered a new trial. Standard Oil Co. of California v. Perkins, 396 F. 2d 809. We granted certiorari to determine whether the Court of Appeals, in reversing the judgment, had correctly construed the Robinson-Patman Act. Petitioner Perkins entered the oil and gasoline business in 1928 as the operator of a single service station in the State of Washington. By the mid-1950’s he had become one of the largest independent distributors of gasoline and oil in both Washington and Oregon. He was both a wholesaler, operating storage plants and trucking equipment, and a retailer through his own Perkins stations. From 1945 until 1957, Perkins purchased substantially all of his gasoline requirements from Standard. From 1955 to 1957 Standard charged Perkins a higher price for its gasoline and oil than Standard charged to its own Branded Dealers, who competed with Perkins, and to Signal Oil & Gas Co., a wholesaler whose gas eventually reached the pumps of a major competitor of Perkins. Perkins contends that Standard’s price and price-related discriminations against him seriously harmed his competitive position and forced him, in 1957, to sacrifice by sale what remained of his once independent business to one of the major companies in the gasoline business, Union Oil. Many of the elements of liability on the part of Standard are not in dispute. Standard has admitted that it sold gasoline and oil to its Branded Dealers and to Signal Oil at discriminatorily lower prices than those at which it sold to Perkins. The Court of Appeals found that Standard’s liability for the harm done Perkins by the favorable treatment of the Branded Dealers was beyond dispute. Of this aspect of the damages, the Court of Appeals said: “The Branded Dealers purchased gasoline and oil from Standard which they in turn sold at retail. With respect to them, Perkins’ story is quickly told. Because of Standard’s favoritism and discrimination they were able to and did offer lower prices and better services and facilities than Perkins in marketing at retail.” 396 F. 2d, at 812. With regard to Perkins’ damage resulting from Standard’s discrimination in favor of Signal Oil, however, the Court of Appeals took a different view because of the following circumstances under which the discriminatory sales were made. Standard admittedly sold gasoline to Signal at a lower price than it sold to Perkins. Signal sold this Standard gasoline to Western Hyway, which in turn sold the Standard gasoline to Regal Stations Co., Perkins’ competitor. Perkins alleged that the lower price charged Signal by Standard was passed on to Signal’s-subsidiary Western Hyway, and then to Western’s subsidiary, Regal. Regal’s stations were thus able to undersell Perkins’ stations and, according to Perkins, the resulting competitive harm, along with that he suffered at the hands of Standard’s favored Branded Dealers, destroyed his ability to compete and eventually forced him to sell what was left of his business. The Court of Appeals held, however, that any harm suffered by Perkins from impaired competition with Regal stations was beyond the scope of the Robinson-Patman Act because Regal was too far removed from Standard in the chain of distribution. A substantial part of the damages the jury assessed against Standard, as the Court of Appeals viewed it, might have been based upon a finding that Perkins suffered competitive harm from the price advantage held by Regal stations. That court, concluding that “the whole verdict is tainted, since the amount reflected in it by Regal’s conduct cannot be ascertained, . . .” reversed the judgment and ordered a new trial. 396 F. 2d, at 813. We disagree with the Court of Appeals’ conclusion that § 2 of the Clayton Act, as amended by the Robinson-Patman Act, does not apply to the damages suffered by Perkins as a result of the price advantage granted by Standard to Signal, then by Signal to Western, then by Western to Regal. The Act, in pertinent part, provides: “(a) It shall be unlawful for any person engaged in commerce, . . . either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them . . . .” The Court of Appeals read this language as limiting “the distributing levels on which a supplier’s price discrimination will be recognized as potentially injurious to competition.” 396 F. 2d, at 812. According to that court, the coverage of the Act is restricted to injuries caused by an impairment of competition with (1) the seller (“any person who . . . grants . . . such discrimination”), (2) the favored purchaser (“any person who . . . knowingly receives the benefit of such discrimination”), and (3) customers of the discriminating seller or favored purchaser (“customers of either of them”). Here, Perkins’ injuries resulted in part from impaired competition with a customer (Regal) of a customer (Western Hyway) of the favored purchaser (Signal). The Court of Appeals termed these injuries “fourth level” and held that they were not protected by the Robinson-Patman Act. We conclude that this limitation is wholly an artificial one and is completely unwarranted by the language or purpose of the Act. In FTC v. Fred Meyer, Inc., 390 U. S. 341 (1968), we held that a retailer who buys through a wholesaler could be considered a “customer” of the original supplier within the meaning of § 2 (d) of the Clayton Act, as amended by the Robinson-Patman Act, a section dealing with discrimination in promotional allowances which is closely analogous to § 2 (a) involved in this case. In Meyer, the Court stated that to read “customer” narrowly would be wholly untenable when viewed in light of the purposes of the Robinson-Patman Act. Similarly, to read “customer” more narrowly in this section than we did in the section involved in Meyer would allow price discriminators to avoid the sanctions of the Act by the simple expedient of adding an additional link to the distribution chain. Here, for example, Standard supplied gasoline and oil to Signal. Signal, allegedly because it furnished Standard with part of its vital supply of crude petroleum, was able to insist upon a discriminatorily lower price. Had Signal then sold its gas directly to the Regal stations, giving Regal stations a competitive advantage, there would be no question, even under the decision of the Court of Appeals in this case, that a clear violation of the Robinson-Patman Act had been committed. Instead of selling directly to the retailer Regal, however, Signal transferred the gasoline first to its subsidiary, Western Hyway, which in turn supplied the Regal stations. Signal owned 60% of the stock of Western Hyway; Western in turn owned 55% of the stock of the Regal stations. We find no basis in the language or purpose of the Act for immunizing Standard’s price discriminations simply because the product in question passed through an additional formal exchange before reaching the level of Perkins’ actual competitor. Erom Perkins’ point of view, the competitive harm done him by Standard is certainly no less because of the presence of an additional link in this particular distribution chain from the producer to the retailer. Here Standard discriminated in price between Perkins and Signal, and there was evidence from which the jury could conclude that Perkins was harmed competitively when Signal’s price advantage was passed on to Perkins’ retail competitor Regal. These facts are sufficient to give rise to recoverable damages under the Robinson-Patman Act. Before an injured party can recover damages under the Act, he must, of course, be able to show a causal connection between the price discrimination in violation of the Act and the injury suffered. This is true regardless of the “level” in the chain of distribution on which the injury occurs. The court below held that, as a matter of law, “Section 2 (a) of the Act does not recognize a causal connection, essential to liability, between a supplier’s price discrimination and the trade practices of a customer as far removed on the distributive ladder as Regal was from Standard.” 396 F. 2d, at 816. As we have noted above, we do not accept such an artificial limitation. If there is sufficient evidence in the record to support an inference of causation, the ultimate conclusion as to what that evidence proves is for the jury. Continental Co. v. Union Carbide, 370 U. S. 690, 700-701 (1962). Here the trial judge properly charged the jury that Perkins had the burden of showing that any damage to his business was proximately caused by Standard’s price discrimina-tions and there was substantial evidence from which the jury could infer causation. There was evidence that Signal received a lower price from Standard than did Perkins, that this price advantage was passed on, at least in part, to Regal, and that Regal was thereby able to undercut Perkins’ price on gasoline. Furthermore, there was evidence that Perkins repeatedly complained to Standard officials that the discriminatory price advantage given Signal was being passed down to Regal and evidence that Standard officials were aware that Perkins’ business was in danger of being destroyed by Standard’s discriminatory practices. This evidence is sufficient to sustain the jury’s award of damages under the Robinson-Patman Act. One other minor group of damages was found to be improper by the Court of Appeals and we conclude that this ruling was also erroneous. Perkins submitted some evidence tending to show that he as an individual had suffered financial losses because the two failing Perkins corporations (Perkins of Washington and Perkins of Oregon) were unable to pay him agreed brokerage fees for securing gasoline, rental on leases of service stations, and other indebtedness. The Court of Appeals, in order to give guidance to the trial judge at the proposed new trial, noted that, in its opinion, these damages were not proximately caused by Standard’s violations and that Perkins should not recover for these damages in a second trial. For this proposition the Court of Appeals cited Karseal Corp. v. Richfield Oil Corp., 221 F. 2d 358, 363, which held that “the rule is that one who is only incidentally injured by a violation of the antitrust laws,— the bystander who was hit but not aimed at, — cannot recover against the violator.” It is clear in this case, however, that Perkins was no mere innocent bystander; he was the principal victim of the price discrimination practiced by Standard. Since he was directly injured and was clearly entitled to bring this suit, he was entitled to present evidence of all of his losses to the jury. Moreover, it is obvious from the opinion of the Court of Appeals that this question was being decided, not because there was any reversible error at the first trial, but in order to give guidance for the conduct of any new trial. The record in this case does not show that the jury included an award for any of these minor items in its judgment. It is impossible to say that they were included because they were not covered in the trial judge’s charge to the jury. While the trial judge treated many items of damage specifically, there was no charge — either specific or general — upon which the jury could have felt free to include such items in its award. For this reason, the Court of Appeals could not have reversed the jury’s verdict in this case on this ground. Respondent has argued in its brief several minor trial rulings which it contends were in error. Most of these additional arguments were rejected by the Court of Appeals. We have examined the others and find them without merit. We therefore see no need to prolong this litigation which began nearly 10 years ago. The jury’s verdict and judgment should be reinstated. It is so ordered. Me. Justice Harlan took no part in the consideration or decision of this case. Section 2 of the Clayton Act, 38 Stat. 730, as amended, 49 Stat. 1526, 15 U. S. C. § 13, provides in pertinent part as follows: “(a) It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them . . . .” Branded Dealers were independent operators of Standard’s Signal and Chevron stations who marketed gasoline and oil under Standard’s brand names. During the claim period the Signal Branded Dealers had no connection with Signal Oil & Gas Co., which is involved in this litigation as a wholesaler. Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:

sc_lcdispositiondirection

A

What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY v. ROCHE MOLECULAR SYSTEMS, INC., et al. No. 09-1159. Argued February 28, 2011 — Decided June 6, 2011 Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, Alito, Sotomayor, and Kagan, JJ., joined. Soto-mayor, J., filed a concurring opinion, post, p. 794. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined, post, p. 794. Donald B. Ayer argued the cause for petitioner. With him on the briefs were Lawrence D. Rosenberg, Christian G. Vergonis, Jennifer L. Swize, Pamela S. Karlan, Ricardo Rodriguez, Stephen C. Neal, Lori R. E. Ploeger, Michelle S. Rhyu, Benjamin G. Damstedt, Debra L. Zumwalt, and Patrick H. Dunkley. Deputy Solicitor General Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Katyal, Assistant Attorney General West, Deputy Assistant Attorney General Brinkmann, Nicole A. Saharsky, and Teal Luthy Miller. Mark C. Fleming argued the cause for respondents. With him on the brief were Adrian M. Pruetz, Brian C. Cannon, and Paul R. Q. Wolf son. Briefs of amici curiae urging reversal were filed for BayhDole25, Inc., by Douglas D. Salyers, Jeffrey C. Morgan, and Susan Finston; for the National Venture Capital Association by Sri Srinivasan; and for Alexander M. Shukh by Constantine John Gekas. Briefs of amici curiae urging vacation were filed for the Association of American Universities et al. by Douglas Hallward-Driemeier and James R. Myers; and for John P. Sutton by Mr. Sutton, pro se. Briefs of amici curiae' urging affirmance were filed for the American Association of University Professors et al. by David P. Swenson; for the Biotechnology Industry Organization by Carter G. Phillips, Jeffrey P. Rushan, and Rachel H. Townsend; for Intel Corp. et al. by Theodore B. Olson, Matthew D. McGill, William G. Jenks, Tina Chappell, Philip S. Johnson, Robert A. Armitage, and Alan Hammond; and for the Pharmaceutical Research and Manufacturers of America by Robert A. Long, Jr., and Alan Pemberton. Briefs of amici curiae were filed for the American Intellectual Property Law Association by David W. Hill; for the Intellectual Property Owners Association by George L. Graff, Victoria A Cundiff, Douglas K. Norman, and Kevin H. Rhodes; and for Birch Bayh by William D. Coston, John F. Cooney, and Michael A. Gollin. Chief Justice Roberts delivered the opinion of the Court. Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor. The question here is whether the University and Small Business Patent Procedures Act of 1980 — commonly referred to as the Bayh-Dole Act — displaces that norm and automatically vests title to federally funded inventions in federal contractors. We hold that it does not. I A In 1985, a small California research company called Cetus began to develop methods for quantifying blood-borne levels of human immunodeficiency virus (HIV), the virus that causes AIDS. A Nobel Prize winning technique developed at Cetus — polymerase chain reaction, or PCR — was an integral part of these efforts. PCR allows billions of copies of DNA sequences to be made from a small initial blood sample. In 1988, Cetus began to collaborate with scientists at Stanford University’s Department of Infectious Diseases to test the efficacy of new AIDS drugs. Dr. Mark Holodniy joined Stanford as a research fellow in the department around that time. When he did so, he signed a Copyright and Patent Agreement (CPA) stating that he “agree[d] to assign” to Stanford his “right, title and interest in” inventions resulting from his employment at the University. App. to Pet. for Cert. 118a-119a. At Stanford Holodniy undertook to develop an improved method for quantifying HIV levels in patient blood samples, using PCR. Because Holodniy was largely unfamiliar with PCR, his supervisor arranged for him to conduct research at Cetus. As a condition of gaining access to Cetus, Holodniy signed a Visitor’s Confidentiality Agreement (VCA). That agreement stated that Holodniy “will assign and do[es] hereby assign” to Cetus his “right, title, and interest in each of the ideas, inventions and improvements” made “as a consequence of [his] access” to Cetus. Id., at 122a-124a. For the next nine months, Holodniy conducted research at Cetus. Working with Cetus employees, Holodniy devised a PCR-based procedure for calculating the amount of HIV in a patient’s blood. That technique allowed doctors to determine whether a patient was benefiting from HIV therapy. Holodniy then returned to Stanford where he and other University employees tested the HIV measurement technique. Over the next few years, Stanford obtained written assignments of rights from the Stanford employees involved in refinement of the technique, including Holodniy, and filed several patent applications related to the procedure. Stanford secured three patents to the HIV measurement process. In 1991, Roche Molecular Systems, a company that specializes in diagnostic blood screening, acquired Cetus’s PCR-related assets, including all rights Cetus had obtained through agreements like the VC A signed by Holodniy. After conducting clinical trials on the HIV quantification method developed at Cetus, Roche commercialized the procedure. Today, Roche’s HIV test “kits are used in hospitals and AIDS clinics worldwide.” Brief for Respondents 10-11. B In 1980, Congress passed the Bayh-Dole Act to “promote the utilization of inventions arising from federally supported research,” “promote collaboration between commercial concerns and nonprofit organizations,” and “ensure that the Government obtains sufficient rights in federally supported inventions.” 85 U. S. C. §200. To achieve these aims, the Act allocates rights in federally funded “subject invention[s]” between the Federal Government and federal contractors (“any person, small business firm, or nonprofit organization that is a party to a funding agreement”). §§ 201(e), (c), 202(a). The Act defines “subject invention” as “any invention of the contractor conceived or first actually reduced to practice in the performance of work under a funding agreement.” § 201(e). The Bayh-Dole Act provides that contractors may “elect to retain title to any subject invention.” § 202(a). To be able to retain title, a contractor must fulfill a number of obligations imposed by the statute. The contractor must “disclose each subject invention to the [relevant] Federal agency within a reasonable time”; it must “make a written election within two years after disclosure” stating that the contractor opts to retain title to the invention; and the contractor must “file a patent application prior to any statutory bar date.” §§202(c)(l)-(3). The “Federal Government may receive title” to a subject invention if a contractor fails to comply with any of these obligations. Ibid. The Government has several rights in federally funded subject inventions under the Bayh-Dole Act. The agency that granted the federal funds receives from the contractor “a nonexclusive, nontransferrable, irrevocable, paid-up license to practice . . . [the] subject invention.” § 202(c)(4). The agency also possesses “[m]arch-in rights,” which permit the agency to grant a license to a responsible third party under certain circumstances, such as when the contractor fails to take “effective steps to achieve practical application” of the invention. §203. The Act further provides that when the contractor does not elect to retain title to a subject invention, the Government “may consider and after consultation with the contractor grant requests for retention of rights by the inventor.” § 202(d). Some of Stanford’s research related to the HIV measurement technique was funded by the National Institutes of Health (NIH), thereby subjecting the invention to the BayhDole Act. Accordingly, Stanford disclosed the invention, conferred on the Government a nonexclusive, nontransferable, paid-up license to use the patented procedure, and formally notified NIH that it elected to retain title to the invention. C In 2005, the Board of Trustees of Stanford University filed suit against Roche Molecular Systems, Inc., Roche Diagnostics Corporation, and Roche Diagnostics Operations, Inc. (collectively Roche), contending that Roche’s HIV test kits infringed Stanford’s patents. As relevant here, Roche responded by asserting that it was a eo-owner of the HIV quantification procedure, based on Holodniy’s assignment of his rights in the VCA. As a result, Roche argued, Stanford lacked standing to sue it for patent infringement. 487 F. Supp. 2d 1099, 1111, 1115 (ND Cal. 2007). Stanford claimed that Holodniy had no rights to assign because the University’s HIV research was federally funded, giving the school superior rights in the invention under the Bayh-Dole Act. Ibid. The District Court held that the “VCA effectively assigned any rights that Holodniy had in the patented invention to Cetus,” and thus to Roche. Id., at 1117. But because of the operation of the Bayh-Dole Act, “Holodniy had no interest to assign.” Id., at 1117, 1119. The court concluded that the Bayh-Dole Act “provides that the individual inventor may obtain title” to a federally funded invention “only after the government and the contracting party have declined to do so.” Id., at 1118. The Court of Appeals for the Federal Circuit disagreed. First, the court concluded that Holodniy’s initial agreement with Stanford in the CPA constituted a mere promise to assign rights in the future, unlike Holodniy’s agreement with Cetus in the VCA, which itself assigned Holodniy’s rights in the invention to Cetus. See 583 F. 3d 832, 841-842 (2009). Therefore, as a matter of contract law, Cetus obtained Holodniy’s rights in the HIV quantification technique through the VCA. Next, the court explained that the Bayh-Dole Act “does not automatically void ab initio the inventors’ rights in government-funded inventions” and that the “statutory scheme did not automatically void the patent rights that Cetus received from Holodniy.” Id., at 844-845. The court held that “Roche possesse[d] an ownership interest in the patents-in-suit” that was not extinguished by the Bayh-Dole Act, “depriv[ing] Stanford of standing.” Id., at 836-837. The Court of Appeals then remanded the case with instructions to dismiss Stanford’s infringement claim. Id., at 849. We granted certiorari. 562 U. S. 1001 (2010). II A Congress has the authority “[t]o promote the Progress of Science and useful Arts, by securing ... to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U. S. Const., Art. I, §8, cl. 8. The First Congress put that power to use by enacting the Patent Act of 1790. That Act provided “[t]hat upon the petition of any person or persons . . . setting forth, that he, she, or they, hath or have invented or discovered” an invention, a patent could be granted to “such petitioner or petitioners” or “their heirs, administrators or assigns.” Act of Apr. 10, 1790, § 1, 1 Stat. 109-110. Under that law, the first patent was granted in 1790 to Samuel Hopkins, who had devised an improved method for making potash, America’s first industrial chemical. U. S. Patent No. XI (issued July 81, 1790). Although much in intellectual property law has changed in the 220 years sinee the first Patent Act, the basic idea that inventors have the right to patent their inventions has not. Under the law in its current form, “[wjhoever invents or discovers any new and useful process, machine, manufacture, or composition of matter... may obtain a patent therefor.” 35 U. S. C. § 101. The inventor must attest that “he believes himself to be the original and first inventor of the [invention] for which he solicits a patent.” § 115. In most cases, a patent may be issued only to an applying inventor, or — because an inventor’s interest in his invention is “assignable in law by an instrument in writing” — an inventor’s assignee. §§151,152, 261. Our precedents confirm the general rule that rights in an invention belong to the inventor. See, e. g., Gayler v. Wilder, 10 How. 477, 498 (1851) (“the discoverer of a new and useful improvement is vested by law with an inchoate right to its exclusive use, which he may perfect and make absolute by proceeding in the manner which the law requires”); Solo mons v. United States, 137 U. S. 342, 346 (1890) (“whatever invention [an inventor] may thus conceive and perfect is his individual property”); United States v. Dubilier Condenser Corp., 289 U. S. 178, 188 (1933) (an inventor owns “the product of [his] original thought”). The treatises are to the same effect. See, e. g., 8 D. Chisum, Patents §22.01, p. 22-2 (2011) (“The presumptive owner of the property right in a patentable invention is the single human inventor”). It is equally well established that an inventor can assign his rights in an invention to a third party. See Dubilier Condenser Corp., supra, at 187 (“A patent is property and title to it can pass only by assignment”); 8 Chisum, supra, §22.01, at 22-2 (“The inventor . . . [may] transfer ownership interests by written assignment to anyone”). Thus, although others may acquire an interest in an invention, any such interest — as a general rule — must trace back to the inventor. In accordance with these principles, we have recognized that unless there is an agreement to the contrary, an employer does not have rights in an invention “which is the original conception of the employee alone.” Dubilier Condenser Corp., 289 U. S., at 189. Such an invention “remains the property of him who conceived it.” Ibid. In most circumstances, an inventor must expressly grant his rights in an invention to his employer if the employer is to obtain those rights. See id., at 187 (“The respective rights and obligations of employer and employee, touching an invention conceived by the latter, spring from the contract of employment”). B Stanford and the United States as amicus curiae contend that the Bayh-Dole Act reorders the normal priority of rights in an invention when the invention is conceived or first reduced to practice with the support of federal funds. In their view, the Act moves inventors from the front of the line to the back by vesting title to federally funded inventions in the inventor’s employer — the federal contractor. See Brief for Petitioner 26-27; Brief for United States as Amicus Curiae 6. Congress has in the past divested inventors of their rights in inventions by providing unambiguously that inventions created pursuant to specified federal contracts become the property of the United States. For example, with respect to certain contracts dealing with nuclear material and atomic energy, Congress provided that title to such inventions “shall be vested in, and be the property of, the [Atomic Energy] Commission.” 42 U. S. C. §2182. Congress has also enacted laws requiring that title to certain inventions made pursuant to contracts with the National Aeronautics and Space Administration “shall be the exclusive property of the United States,” Pub. L. 111-314, §3, 124 Stat. 3339, 51 U. S. C. § 20135(b)(1), and that title to certain inventions under contracts with the Department of Energy “shall vest in the United States,” 42 U. S. C. § 5908. Such language is notably absent from the Bayh-Dole Act. Nowhere in the Act is title expressly vested in contractors or anyone else; nowhere in the Act are inventors expressly deprived of their interest in federally funded inventions. Instead, the Act provides that contractors may “elect to retain title to any subject invention.” 35 U. S. C. § 202(a). A “subject invention” is defined as “any invention of the contractor conceived or first actually reduced to practice in the performance of work under a funding agreement.” § 201(e). Stanford asserts that the phrase “invention of the contractor” in this provision “is naturally read to include all inventions made by the contractor’s employees with the aid of federal funding.” Brief for Petitioner 32 (footnote omitted). That reading assumes that Congress subtly set aside two centuries of patent law in a statutory definition. It also renders the phrase “of the contractor” superfluous. If the phrase “of the contractor” were deleted from the definition of “subject invention,” the definition would cover “any invention ... conceived or first actually reduced to practice in the performance of work under a funding agreement.” Reading “of the contractor” to mean “all inventions made by the contractor’s employees with the aid of federal funding,” as Stanford would, adds nothing that is not already in the definition, since the definition already covers inventions made under the funding agreement. That is contrary to our general “reluctan[ce] to treat statutory terms as surplusage.” Duncan v. Walker, 533 U. S. 167, 174 (2001) (internal quotation marks omitted). Construing the phrase to refer instead to a particular category of inventions conceived or reduced to practice under a funding agreement — inventions “of the contractor,” that is, those owned by or belonging to the contractor — makes the phrase meaningful in the statutory definition. And “invention owned by the contractor” or “invention belonging to the contractor” are natural readings of the phrase “invention of the contractor.” As we have explained, “[t]he use of the word ‘of’ denotes ownership.” Poe v. Seaborn, 282 U. S. 101, 109 (1930); see Flores-Figueroa v. United States, 556 U. S. 646, 647, 657 (2009) (treating the phrase “identification [papers] of another person” as meaning such items belonging to another person (internal quotation marks omitted)); Ellis v. United States, 206 U. S. 246, 259 (1907) (interpreting the phrase “works of the United States” to mean “works . . . belonging to the United States” (internal quotation marks omitted)). That reading follows from a common definition of the word “of.” See Webster’s Third New International Dictionary 1565 (2002) (“of” can be “used as a function word indicating a possessive relationship”); New Oxford American Dictionary 1180 (2d ed. 2005) (defining “of” as “indicating an association between two entities, typically one of belonging”); Webster’s New Twentieth Century Dictionary 1241 (2d ed. 1979) (defining “of” as “belonging to”). Stanford’s reading of the phrase “invention of the contractor” to mean “all inventions made by the contractor’s employees” is plausible enough in the abstract; it is often the ease that whatever an employee produces in the course of his employment belongs to his employer. No one would claim that an autoworker who builds a car while working in a factory owns that car. But, as noted, patent law has always been different: We have rejected, the idea that mere employment is sufficient to vest title to an employee’s invention in the employer. Against this background, a contractor’s invention — an “invention of the contractor” — does not automatically include inventions made by the contractor’s employees. The Bayh-Dole Act’s provision stating that contractors may “elect to retain title” confirms that the Act does not vest title. 35 U. S. C. § 202(a) (emphasis added). Stanford reaches the opposite conclusion, but only because it reads “retain” to mean “acquire” and “receive.” Brief for Petitioner 36 (internal quotation marks omitted). That is certainly not the common meaning of “retain.” “[Rjetain” means “to hold or continue to hold in possession or use.” Webster’s Third, supra, at 1938; see Webster’s New Collegiate Dictionary 980 (1980) (“to keep in possession or use”); American Heritage Dictionary 1109 (1969) (“[t]o keep or hold in one’s possession”). You cannot retain something unless you already have it. See Alaska v. United States, 545 U. S. 75, 104 (2005) (interpreting the phrase “ 'the United States shall retain title to all property’” to mean that “[t]he United States . . . retained title to its property located within Alaska’s borders” (emphasis added)). The Bayh-Dole Act does not confer title to federally funded inventions on contractors or authorize contractors to unilaterally take title to those inventions; it simply assures contractors that they may keep title to whatever it is they already have. Such a provision makes sense in a statute specifying the respective rights and responsibilities of federal contractors and the Government. The Bayh-Dole Act states that it “take[s] precedence over any other Act which would require a disposition of rights in subject inventions ... that is inconsistent with” the Act. 85 U. S. C. § 210(a). The United States as amicus curiae argues that this provision operates to displace the basic principle, codified in the Patent Act, that an inventor owns the rights to his invention. See Brief for United States 21. But because the Bayh-Dole Act, including § 210(a), applies only to “subject inventions” — “invention[s] of the contractor” — it does not displace an inventor’s antecedent title to his invention. Only when an invention belongs to the contractor does the Bayh-Dole Act come into play. The Act’s disposition of rights — like much of the rest of the Bayh-Dole Act — serves to clarify the order of priority of rights between the Federal Government and a federal contractor in a federally funded invention that already belongs to the contractor. Nothing more. The isolated provisions of the Bayh-Dole Act dealing with inventors’ rights in subject inventions are consistent with our construction of the Act. Under the Act, a federal agency may “grant requests for retention of rights by the inventor” “[i]f a contractor does not elect to retain title to a subject invention.” § 202(d). If an employee inventor never had title to his invention because title vested in the contractor by operation of law — as Stanford submits — it would be odd to allow the Government to grant “requests for retention of rights by the inventor.” By using the word “retention,” § 202(d) assumes that the inventor had rights in the subject invention at some point, undermining the notion that the Act automatically vests title to federally funded inventions in federal contractors. The limited scope of the Act’s procedural protections also bolsters our conclusion. The Bayh-Dole Act expressly confers on contractors the right to challenge a Government-imposed impediment to retaining title to a subject invention. § 202(b)(3) (2006 ed., Supp. III). As Roche correctly notes, however, “the Act contains not a single procedural protection for third parties that have neither sought nor received federal funds,” such as cooperating private research institutions. Brief for Respondents 29. Nor does the Bayh-Dole Act allow inventors employed by federal .contractors to contest their employer’s claim to a subject invention. The Act, for example, does not expressly permit an interested third party or an inventor to challenge a claim that a particular invention was supported by federal funding. In a world in which there is frequent collaboration between private entities, inventors, and federal contractors, see Brief for Pharmaceutieal Research and Manufacturers of America as Amicus Curiae 22-23, that absence would be deeply troubling. But the lack of procedures protecting inventor and third-party rights makes perfect sense if the Act applies only when a federal contractor has already acquired title to an inventor’s interest. In that case, there is no need to protect inventor or third-party rights, because the only rights at issue are those of the contractor and the Government. The Bayh-Dole Act applies to subject inventions “conceived or first actually reduced to practice in the performance of work” “funded in whole or in part by the Federal Government.” 35 U. S. C. §§ 201(e), 201(b) (2006 ed.) (emphasis added). Under Stanford’s construction of the Act, title to one of its employee’s inventions could vest in the University even if the invention was conceived before the inventor became a University employee, so long as the invention’s reduction to practice was supported by federal funding. What is more, Stanford’s reading suggests that the school would obtain title to one of its employee's inventions even if only one dollar of federal funding was applied toward the invention’s conception or reduction to practice. It would be noteworthy enough for Congress to supplant one of the fundamental precepts of patent law and deprive inventors of rights in their own inventions. To do so under such unusual terms would be truly surprising. We are confident that if Congress had intended such a sea change in intellectual property rights it would have said so clearly— not obliquely through an ambiguous definition of “subject invention” and an idiosyncratic use of the word “retain.” Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (“Congress ... does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions”). Though unnecessary to our conclusion, it is worth noting that our construction of the Bayh-Dole Act is reflected in the common practice among parties operating under the Act. Contractors generally institute policies to obtain assignments from their employees. See Brief for Respondents 34; Brief for Pharmaceutical Research and Manufacturers of America as Amicus Curiae 13-18. Agencies that grant funds to federal contractors typically expect those contractors to obtain assignments. So it is with NIH, the agency that granted the federal funds at issue in this case. In guidance documents made available to contractors, NIH has made clear that “[b]y law, an inventor has initial ownership of an invention” and that contractors should therefore “have in place employee agreements requiring an inventor to ‘assign’ or give ownership of an invention to the organization upon acceptance of Federal funds.” NIH Policies, Procedures, and Forms, A “20-20” View of Invention Reporting to the National Institutes of Health (Sept. 22, 1995). Such guidance would be unnecessary if Stanford’s reading of the statute were correct. Stanford contends that reading the Bayh-Dole Act as not vesting title to federally funded inventions in federal contractors “fundamentally undermin[es]” the Act’s framework and severely threatens its continued “successful application.” Brief for Petitioner 45. We do not agree. As just noted, universities typically enter into agreements with their employees requiring the assignment to the university of rights in inventions. With an effective assignment, those inventions — if federally funded — become “subject inventions” under the Act, and the statute as a practical matter works pretty much the way Stanford says it should. The only significant difference is that it does so without violence to the basic principle of patent law that inventors own their inventions. The judgment of the Court of Appeals for the Federal Circuit is affirmed. It is so ordered. Roche submitted a host of other claims to the District Court, including that it had “shop rights” to the patents and was entitled to a license to use the patents. See 583 F. 3d 832, 838 (CA Fed. 2009). None of those claims is now before us; we deal only with Roche’s claim to co-ownership to rebut Stanford’s standing to bring an infringement action. Because the Federal Circuit’s interpretation of the relevant assignment agreements is not an issue on which we granted certiorari, we have no occasion to pass on the validity of the lower court’s construction of those agreements. The patent was signed by President George Washington, Secretary of State Thomas Jefferson, and Attorney General Edmund Randolph. See Maxey, Samuel Hopkins, The Holder of the First U. S. Patent: A Study of Failure, 122 Pa. Magazine of Hist, and Biography 3, 6 (1998). The dissent suggests that “we could interpret the Bayh-Dole Act as ordinarily assuming, and thereby ordinarily requiring, an assignment of patent rights by the federally funded employee to the federally funded employer.” Post, at 801 (opinion of Breyer, J.). That suggestion is based in large part on Executive Order No. 10096, which “governs Federal Government employee-to-employer patent right assignments.” Post, at 802. Lest there be any doubt, employees of nonfederal entities that have federal funding contracts — like Holodniy — are not federal employees. And there is no equivalent Executive Order governing invention rights with respect to federally funded research; that issue is of course addressed by the Bayh-Dole Act. Far from superseding the Patent Act in such a backhanded way, it is clear that §210(a)’s concern is far narrower. That provision specifies 21 different statutory provisions that the Bayh-Dole Act “take[s] precedence over,” the vast majority of which deal with the division of ownership in certain inventions between a contractor and the Government. 35 U. S. C. §§ 210(a)<l) — (21); see, e.g., §§210(a)(19)-(20) (the Bayh-Dole Act takes precedence over “section 6(b) of the Solar Photovoltaic Energy Research Development and Demonstration Act” and “section 12 of the Native Latex Commercialization and Economic Development Act”). Stanford contends that it cannot be the case “that the contractor can only ‘retain title’ to an invention that it already owns, while an inventor may be considered for ‘retention’ of title only when he has assigned title away.” Reply Brief for Petitioner 8. That argument has some force. But there may be situations where an inventor, by the terms of an assignment, has subsidiary rights in an invention to which a contractor has title, as § 202(d) suggests. Compare § 202(d) (“retention of rights”) with § 202(a) (“retain title”) (emphasis added). And at the end of the day, it is Stanford’s contention that “retain” must be “read as a synonym for ‘acquire’ or ‘receive’” that dooms its argument on this point. Brief for Petitioner 37. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable Answer:

songer_geniss

G

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". ST. REGIS PAPER COMPANY, Plaintiff-Appellee, v. ROYAL INDUSTRIES, and Plas-Ties Subsidiary, Defendants-Appellants. ST. REGIS PAPER COMPANY, Plaintiff-Appellant, v. ROYAL INDUSTRIES, and Plas-Ties Subsidiary, Defendants-Appellees. Nos. 74-3268 and 74-3336. United States Court of Appeals, Ninth Circuit. April 19, 1977. Robert M. Newell, Newell & Chester, Los Angeles, Cal., argued, for defendants-appellants. Nicholas L. Coch, Anderson, Russell, Kill & Olick, New York City, argued, for plaintiff-appellee. Before ELY and WALLACE, Circuit Judges, and SOLOMON, District Judge. Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation. SOLOMON, District Judge: This case involves the validity of a patent on a plastic tie strip and a method for manufacturing the product. It also involves a license agreement for the patent rights and for the know-how used to manufacture the patented tie strips. The District Court held the patent invalid and permitted rescission of the license agreement. The Court denied the licensor royalties after the filing of this action, denied the licensee recovery of royalties paid before the filing of this action, and granted the licensor some compensation for its know-how. Both parties appeal. Some time before June 1950, Gerald Bower formed a partnership to develop and market a plastic tie strip which could be used to tie bunches of fresh vegetables. In June 1950, the business was incorporated under the name of Plas-Ties Corporation (Plas-Ties). On June 2, 1952, Bower filed an application for a patent on a plastic tie strip and a method for making the tie strip. The Patent Office rejected all of Bower’s original claims, but he later succeeded by amendments to the application in getting some claims allowed on a narrower basis. A patent (U.S. Patent No. 2,767,113) was issued to Bower on October 16, 1956 (the Bower patent). The patented device consists of two plastic strips reinforced by a wire between them. The wire is embedded in one of the plastic strips and secured with a “cementitious substance” so that the casing cannot slide from or bunch up on the wire. The wire permits fastening the tie by merely twisting it. The plastic outer casing permits easy handling and prevents the wire from cutting the stalks of the vegetables. In April 1963, Bower assigned his patent to Royal Industries (Royal), and Royal acquired 80 per cent of the outstanding stock of Plas-Ties. Bower owned the remaining 20 per cent of the stock, and he became president of Plas-Ties. In 1965, Royal acquired Bower’s shares and Plas-Ties became a wholly owned subsidiary. St. Regis Paper Company (St. Regis) supplies wrapping paper to the bakery industry through one of its subsidiaries, Pollack Paper Company. The use of tie strips significantly changed the packaging of bakery products in the early 1960’s. The new method used a tie strip around one end of the package instead of having the package tightly sealed at both ends. St. Regis lacked the technical ability to manufacture tie strips. The Bower tie strips and the machines Bower developed were suitable for bakery packaging. On May 1, 1963, Royal and its subsidiary Plas-Ties (hereinafter referred to jointly as “Royal”) entered into a license agreement with St. Regis. Under this agreement, Royal licensed St. Regis to use the Bower patent and Royal’s know-how to manufacture and sell the patented tie strips. St. Regis agreed to pay Royal 10 per cent of its net dollar sales as royalties and also agreed to pay all reasonable expenses incurred by Royal in transferring its know-how to St. Regis. The agreement provided that it would terminate upon the expiration of the Bower patent in 1973. Royal did make its know-how available to St. Regis. From 1963 to 1967, St. Regis paid Royal $174,642.04 for royalties and expenses. Later, a dispute unrelated to this action arose between Royal and St. Regis on whether they had entered into an oral price fixing agreement. The dispute resulted in litigation between the parties. In preparing for that litigation, St. Regis discovered evidence which it believed showed that Bower’s patent was invalid. St. Regis stopped paying royalties after July 19,1967. On April 24, 1968, St. Regis brought this action against Royal and Plas-Ties to declare the Bower patent invalid, to rescind the license agreement, and to recover royalties it paid. In a counterclaim, Royal sued St. Regis for patent infringement. The District Court held the Bower patent invalid. It also dismissed Royal’s counterclaim. The Court held that St. Regis was entitled to rescind the license agreement, but denied St. Regis and Royal a money judgment against the other. In other words, the Court held that St. Regis could not recover the royalties it had paid, and Royal could not collect additional royalties under the license agreement. The Court awarded Royal the reasonable value of its know-how, but found that this amount had been fully satisfied by St. Regis. Both parties have appealed. The appeals raise four issues: (1) Is the Bower patent valid? (2) If the Bower patent is invalid, is St. Regis entitled to recover royalties it paid to use. the patent? (3) If the Bower patent is invalid, is Royal entitled to recover royalties for its know-how? (4) Is St. Regis entitled to attorney fees? I. VALIDITY OF THE PATENT The District Court held that the Bower patent was invalid for obviousness and because of a false oath, which failed to disclose that the patented product had been on sale for more than one year prior to the filing of the patent application. A condition of patentability under the Patent Act of 1952 is non-obviousness. Section 103 of the Act provides: “A patent may not be obtained . if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103. Royal contends on appeal that the District Court failed to apply the proper standard for determining obviousness. The issue of obviousness is ultimately a question of law, but the underlying analysis is one of fact. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). The Supreme Court in Graham set forth the standard for determining obviousness under Section 103. The court must determine the scope and content of the prior art, the differences between the prior art and the claims at issue, and the level of ordinary skill in the pertinent art. Here, the District Court determined that the prior art consisted of two lines of teachings. One consisted of tie strips manufactured and sold for more than a year before Bower applied for his patent. The other consisted of seven patents which teach the use of a cementitious substance to bind wire or cord between two sheets of paper or other material. The Court compared the teachings of the prior art with the claims of the Bower patent. It found that it was undisputed that tie strips manufactured and sold by Plas-Ties for more than a year before Bower applied for his patent were identical to the claims of the Bower patent, except for the use of a “cementitious coating” in the Bower patent to bind the wire to the plastic strips. And the Court found that the Wisbrock, Schindler, Crosby, Wick, and French patents teach the use of a cementitious substance to secure wire or cord between pieces of paper or other materials in the same manner and for the same purpose as the Bower patent. Finally, the Court accepted the testimony of St. Regis’s expert witness (Dean Fischer) on the level of skill in the art. Fischer testified that in view of prior teachings and the prior public use of unbonded tie strips, the product claimed in the Bower patent would have been obvious to a person of ordinary skill in the art. Royal also argues that the Court failed to give proper weight to the presumed validity of a patent. Any such presumption would disappear, or at least be weakened, when it is shown that all the prior art had not been brought to the attention of the patent examiner. 35 U.S.C. § 282; Alcor Aviation, Inc. v. Radair, Inc., 527 F.2d 113, 115 (9th Cir. 1975), cert. denied, 426 U.S. 949, 96 S.Ct. 3170, 49 L.Ed.2d 1186 (1976). Claim 1 of the Bower patent describes a product which depends both on the position of the wire (embedded in one of the plastic strips) and the use of a “cementitious coating” to bind the wire to the plastic strips. The District Court, based on the file wrapper, found that the patent examiner was persuaded to allow claim 1, not because of the cementitious coating, but by the argument that Bower’s positioning of the wire was a novel solution to the problem of enabling the plastic to get a good grip on the wire. Nevertheless, at the trial Royal did not dispute that more than a year before the patent application, Plas-Ties manufactured and sold tie strips which conformed in every respect to the claims of the Bower patent except for the use of a cementitious coating on the wire. These findings at least raised an issue whether Bower misrepresented the state of the prior art in his patent application and weakened the presumption of validity. See Monroe Auto Equipment Co. v. Superior Industries, Inc., 332 F.2d 473, 482 (9th Cir.), cert. denied, 379 U.S. 901, 85 S.Ct. 190, 13 L.Ed.2d 175 (1964). We hold that the Bower patent is invalid for obviousness. Because we affirm the District Court’s holding of invalidity for obviousness, we need not reach the second ground, Bower’s false oath. II. THE LICENSE AGREEMENT Under the license agreement, Royal licensed St. Regis to manufacture plastic tie strips using the Bower patent and Royal’s know-how. In return, St. Regis agreed to pay Royal 10 per cent of net dollar sales in royalties. The agreement provided for the possibility that the Bower patent might be declared invalid. Section 12(b)(1) of the agreement stated: “12. This agreement shall terminate upon the expiration of United States Patent No. 2,767,113, which is October 16, 1973, unless sooner terminated as hereinafter provided . (b) Pollock may terminate this agreement after the expiration of three years from the effective date of this agreement by serving six months written notice on Royal to that effect, in the event that: (1) Said Patent No. 2,767,113 is held invalid or so restricted in scope as to substantially lessen the protection of said patent by the final judgment of a court from which no appeal has been or can be taken . . . .” St. Regis stopped all royalty payments on the basis of Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), but it did not comply with the procedure for terminating the agreement set out in section 12(b)(1). The District Court held that section 12(b)(1) of the agreement was unenforceable under Lear, and that St. Regis did not have to pay royalties after the filing of this action. The Court also held that St. Regis was entitled to rescind the agreement because the patent was invalid and because Bower knew the patent was invalid, which knowledge was imputed to Royal. The Court found that Royal was entitled to compensation for the know-how it conveyed to St. Regis and fixed the value of the know-how at $53,088.90. But the Court denied Royal payment on the ground that this amount had been fully satisfied by the royalty payments of more than $174,000, which St. Regis had paid Royal from 1963 to 1967. The Court disallowed St. Regis’s claim for royalties paid before this action was filed. A. Refund of Royalties Paid In Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), the Supreme Court rejected the doctrine of licensee estoppel which prohibited a licensee from challenging the validity of his licensor’s patent in an action for royalties under the license agreement. Under the Lear doctrine, a licensee can avoid payment of royalties withheld before the patent was declared invalid. The question here is whether a licensee can recover royalties on a patent paid before filing an action in which the patent was found to be invalid. The Court in Lear was not faced with this issue because the licensee had paid no royalties after the patent was issued. St. Regis contends that under California law it is entitled to restitution of all royalties paid to Royal under the license agreement less the value of Royal’s know-how. St. Regis relies on California Civil Code, Section 1692, which it contends provides for “automatic” restitution of benefits conferred when a contract is rescinded. Section 1692 provides: “§ 1692 Relief based on rescission The aggrieved party shall be awarded complete relief, including restitution of benefits, if any, conferred by him as a result of the transaction and any consequential damages to which he is entitled; but such relief shall not include duplicate or inconsistent items of discovery. If in an action or proceeding a party seeks relief based upon rescission, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require and may otherwise in its judgment adjust the equities between the parties.” Section 1692 was designed to eliminate the confusing and complex duality of rescission procedures which existed in California by providing a single procedure to be followed in all cases where rescission is sought. Runyan v. Pacific Air Industries, Inc., 2 Cal.3d 304, 85 Cal.Rptr. 138, 466 P.2d 682 (1970). The provision permits a court in an action for rescission to grant any relief, including restitution and consequential damages, to which a party is entitled. It does not require restitution even when rescission is ordered. Restitution is discretionary with the court. We believe that St. Regis is not entitled to restitution in this case due to overriding federal patent law policies. The Sixth Circuit considered the Lear doctrine in light of the goals sought to be achieved and concluded that the federal policy which permits a licensee to assert invalidity of the underlying patent does not entitle the licensee to a refund of all royalties paid for the use of the invalid patent. See Troxel Mfg. Co. v. Schwinn Bicycle Co., 465 F.2d 1253 (6th Cir. 1972) (Troxel I); Troxel Mfg. Co. v. Schwinn Bicycle Co., 489 F.2d 968 (6th Cir. 1973), cert. denied, 416 U.S. 939, 94 S.Ct. 1942, 40 L.Ed.2d 290 (1974) (Troxel II); Atlas Chemical Industries, Inc. v. Moraine Products, 509 F.2d 1 (6th Cir. 1974). See also Zenith Laboratories, Inc. v. Carter-Wallace, Inc., 530 F.2d 508 (3d Cir. 1976), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976). The Sixth Circuit noted that the Supreme Court in Lear rejected the estoppel doctrine on the ground that it effectively “muzzled” licensees who might be the only individuals with sufficient economic incentive to challenge the patentability of an invention. As stated in Lear, supra, 395 U.S. at 668, 89 S.Ct. at 1910 “federal law requires that all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent.” This policy encourages full and free competition in the use of ideas which are in the public domain. Lear, therefore, is an inducement to an early adjudication of invalidity; but the Sixth Circuit cautioned that the possibility of a royalty refund might delay such a determination. The possibility of obtaining a refund of all royalties paid might induce a manufacturer to accept a license based on a patent of doubtful validity, derive the benefits of suppressed competition which the patent affords, and challenge validity only after the patent’s expiration. The licensee would have a chance to regain all the royalties paid while having enjoyed the fruits of the license agreement. Therefore, if a refund were permitted, licensees who were only recently unmuzzled by Lear would again be silenced by economic self-interest rather than by state law. We agree with the reasoning of the Sixth Circuit, and we hold that St. Regis is not entitled to the refund of royalties paid before it challenged the validity of the patent. In Troxel I, supra, at 1259, n. 5, the Court noted that it has been held without reliance on Lear that a licensee is entitled to recover royalties paid when the licensed patent was procured fraudulently. St. Regis, relying on that comment, asserts that it is entitled to restitution because Bower obtained the patent by fraud. Even if fraud is a proper basis for allowing recovery of royalties, here the District Court found there was no fraud. The findings of the Court on this issue are not clearly erroneous. B. Payment for Know-How Royal contends that the District Court erred when it held section 12(b)(1) unenforceable. It asserts that the Court failed to distinguish between the payment of royalties for the patent rights and payment for the know-how. Royal concedes that if the patent is invalid, it is not entitled to the payment of royalties for the patent rights on the basis of section 12(b)(1); but it contends that section 12(b)(1) is valid and enforceable on royalties for know-how. RoyaFs know-how consisted of the knowledge of how the machinery used to manufacture plastic tie strips was constructed, and how this machinery operated. It included detailed information of the process for manufacturing the patented tie strips, a list of material suppliers, and work room dimensions. An employee of St. Regis spent several weeks at Royal’s plant studying the manufacturing process. The District Court found that this know-how was fully revealed to St. Regis. The Court found that Royal’s know-how was not essential to the manufacture of the patented plastic tie strips, but was valuable to St. Regis because it permitted St. Regis to enter the plastic tie market sooner. St. Regis bargained both for the right to use the Bower patent and for the know-how needed to use the patent effectively. The know-how was closely related to the patent rights. This interdependence is reflected in the provision sought to be enforced. Section 12(b)(1) provides that St. Regis may terminate the agreement if the patent is declared invalid. Royal’s attempt to separate the know-how from the patent rights and to enforce the agreement for know-how alone is inconsistent with section 12(b)(1) and, we believe, contrary to the intent of the parties. When, as here, the patent rights and the know-how are so intimately intertwined, we believe that the same rule which makes royalties for patent rights uncollectible if the patent is invalid should apply with equal force to know-how. This does not mean Royal will be deprived of compensation for know-how; it merely means Royal is not entitled to royalties under the license agreement, which did not distinguish between royalties for patent rights and royalties for know-how. Royal urges us to address the broader question whether a contract for the payment of royalties for know-how is enforceable under Lear. But here we do not have a naked know-how license. In our view, the patent rights and know-how here are so intertwined that it would be unreasonable to enforce the agreement for one and not the other. We hold that section 12(b)(1) is unenforceable for both the patent rights and the know-how. Nevertheless, we believe that Royal is entitled to compensation for its know-how. The District Court valued the know-how at $53,088.90. Royal asserts it is worth much more. Although the Court ordered the contract rescinded, Royal urges us to value the know-how at one-half of the royalty rate because the parties placed this value on the know-how in discussions before the contract was executed. The contract as executed does not contain any such valuation. And the Court, after ordering rescission, was not required to place this value on the know-how even if it had been agreed to. Royal did not offer any other evidence on value. St. Regis suggested that the know-how be valued at $53,088.90, which represents a $20,000 advance on royalties paid by St. Regis before Royal permitted access to its know-how and one-half of the royalties paid through the second quarter of 1965, at which point the value of the know-how to St. Regis had become de minimus. The District Court accepted this valuation. In our view, it is fairly generous. And in any event, it was the only evidence on the value of the know-how before the Court. The Court had a rational basis for this valuation, and we affirm this holding. III. ATTORNEY FEES In exceptional patent cases, the court may award reasonable attorney fees to the prevailing party. 35 U.S.C. § 285. St. Regis contends that this is an exceptional case and that it is entitled to attorney fees. St. Regis asserts there are two factors which make this an exceptional case: Bower obtained his patent by fraud or material misrepresentation; and Royal knew or should have known that the Bower patent was invalid long before this litigation and yet it vigorously prosecuted this action. The District Court rejected St. Regis’s contentions and found that Bower’s representations to the Patent Office were not motivated by fraudulent intent and that Royal had no knowledge of the infirmity of the Bower patent before trial. The award of attorney fees is a matter of discretion, and a trial court may not be reversed except for abuse of discretion. Hayes Spray Gun Co. v. E. C. Brown Co., 291 F.2d 319, 327 (9th Cir. 1961); Pickering v. Holman, 459 F.2d 403, 408 (9th Cir. 1972). There was no abuse here. The judgment of the District Court is affirmed in all respects. . Royal Industries v. St. Regis Paper Co., 420 F.2d 449 (9th Cir. 1969). Royal brought the action against St. Regis for patent infringement and unfair competition. The District Court granted St. Regis’s motion for summary judgment, and we affirmed on appeal. . Wisbrock patent, U.S. Patent No. 1,474,699; Schindler patents, U.S. Patent Nos. 1,910,510, 1,929,903 and 2,290,386; Crosby patent, U.S. Patent No. 2,577,843; Wick et al. patent, U.S. Patent No. 2,228,332; French patent, U.S. Patent No. 918,218. . “1. A plant-tie comprising: two ribbons of polyvinyl chloride joined face to face in parallel to form a unified strip; a wire disposed between said ribbons lengthwise thereof; one of said ribbons being flat and the other of said ribbons having a channel at least as deep as the diameter of said wire, in which said wire is embedded; and a cementitious coating on said wire for bonding said wire to said ribbons.” . The patent examiner at first rejected claims 1-4 of Bower’s patent application. He was later persuaded to allow claim 4, which became claim 1 of the issued patent. . In Lear, the license agreement was entered into before a patent issued. Lear, the licensee, terminated all payment of royalties before the issuance of the patent. The Court held that Lear could avoid payment of royalties from the date of the issuance of the patent. In this case the license agreement was entered into more than six years after the patent issued. St. Regis paid royalties after the patent had issued, from 1963 to 1967, and it seeks to recover those royalties. . St. Regis contends that this issue was not properly raised on appeal because Royal made a binding election of remedies in its counterclaim when it implicitly accepted the termination of the license agreement and sued for patent infringement rather than for enforcement of the agreement. We do not agree. Royal did not specifically seek to enforce the agreement in its counterclaim, but the pretrial order lists as an issue whether St. Regis was entitled to rescind the agreement. Royal at the trial asserted that it had a contract with St. Regis, that St. Regis breached the contract, and that Royal was entitled to appropriate relief. This was sufficient to prevent Royal from being precluded from seeking to enforce the license agreement on appeal. 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_immunity

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to reach the merits of the appeal because it concluded that the defendant had immunity (e.g., the governmental immunity doctrine)?" 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". Richard Lee GILPIN, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee. No. 13327. United States Court of Appeals Sixth Circuit. May -14, 1959. Richard Lee Gilpin, in pro. per. Russell E. Ake, U. S. Atty., Cleveland, Ohio, Richard M. Colasurd, Asst. U. S. Atty., Toledo, Ohio, for appellee. Before MARTIN, Chief Judge, SIMONS, Circuit Judge, and BOYD, District Judge. PER CURIAM. Appellant, who is confined in the Federal Correctional Institution at Milan, Michigan, has appealed from his conviction in the District Court for the Northern District of Ohio, Western Division. Prior to consideration of this appeal, appellant’s request, filed April 17, 1959, for the assignment of counsel to represent him in this proceeding, was overruled as having already been heard and properly denied in an opinion dated March 28, 1959, 6 Cir., 265 F.2d 203, by Judge Miller of this Court. There being no merit in the points raised by appellant in his brief, the judgment of the district court is affirmed. Question: Did the court refuse to reach the merits of the appeal because it concluded that the defendant had immunity? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_genresp1

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. In re TENNESSEE PUB. CO. TENNESSEE PUB. CO. v. AMERICAN NAT. BANK et al. CARPENTER v. TENNESSEE PUB. CO. Nos. 7266, 7267. Circuit Court of Appeals, Sixth Circuit. Feb. 13, 1936. ALLEN, Circuit Judge, dissenting in part. Lewis S. Pope and Albert Roberts, both of Nashville, Tenn. (Lewis S. Pope, White & Howard, and Roberts & Roberts, all of Nashville, Tenn., on the brief), for Tennessee Pub. Co. Cecil Sims, of Nashville, Tenn. (Bass, Berry & Sims, of Nashville, Tenn., on the brief), for American Nat. Bank and Paul M. Davis. H. G. Fowler, of Knoxville, Tenn. (J. A. Fowler and S. F. Fowler, both of Knoxville, Tenn., on the brief), for receiver C. O. Carpenter. Charles C. Trabue and Thomas H. Malone, both of Nashville, Tenn., for M. & O. Paper Co. Pitts, McConnico, Hatcher & Waller, of Nashville, Tenn., for Ingram and Bradford. W. E. Norvell, of Nashville, Tenn., for American Union Bank and others. Before MOORMAN, STMONS, and ALLEN, Circuit Judges. SIMONS, Circuit Judge. The main appeal is from a final order and decree dismissing the debtor’s petition and plan for corporate reorganization under the provisions of section 7713 of the Bankruptcy Act, as amended (11 U.S.C.A. § 207). The appeal was allowed by the District Judge, but the debtor later, conceiving the appeal to be governed by section 24b, as amended (11 U.S.C.A. § 47 (b), filed a petition with this court for leave. It appearing that the petition was timely, we treat the appeal as having been allowed, and an order to that effect may be entered. The cross-appeal is from a final order incorporated in the decree overruling a motion to dismiss the debtor’s petition on the ground that it was not filed in good faith as provided by the statute. The cross-appeal was likewise allowed by the District Judge, but no petition, timely or otherwise, for its allowance here was presented. A motion to dismiss the cross-appeal is before us. Regarding the main appeal as properly allowed under section 24b, Vitagraph, Inc., v. St. Louis Properties Corp., 77 F.(2d) 590 (C.C.A.8); Credit Alliance Corp. v. Atlantic, Pacific & Gulf Refining Co., 77 F.(2d) 595 (C.C.A.8); Campbell v. Alleghany Corp., 75 F.(2d) 947, 955 (C.C.A.4); Humber v. Bankers’ Trust Co., 70 F.(2d) 265 (C.C.A.6), and regarding it also, as will later appear, as raising, the question generally of the validity of the decree, whether based upon valid or invalid grounds, we give no consideration to the cross-appeal, and it may be dismissed. The Tennessee Publishing Company, designated as the debtor, according to the statute, had for many years published both a morning and an evening newspaper in Nashville, Tenn. On March 3, 1933, by general creditors’ bill, its affairs were placed in charge of a receiver appointed by the District Court. The proceedings were filed by appellee Carpenter, receiver ofoa closed bank, which held $28,-000 of the debtor’s bonds, which were part of an issue of $750,000 dated November 1, 1928. The rate of interest borne by the bonds and their maturity dates nowhere appear, but they were secured by a deed of trust executed by the debt- or, which provided that upon default in the payment of interest or principal the security might be foreclosed and sold at public auction, either through proceedings in equity or by advertisement. The equity bill averred operating losses sustained by the debtor during the years 1929 to 1932. Losses continued during the receivership, but at a reduced rate. The usual reference to a master for consideration of claims followed, with the result that claims were filed in the total amount - of approximately $1,500,000. A final hearing was set for June 6, 1935, and it was then the reasonable expectation of all parties m interest that a sale of assets would be ordered and the receivership terminated. On June 5, 1935, Carfnack, son of a former editor of the debtor’s papers, acquired from the Leas, then its owners, all of the debtor’s common stock. He immediately had himself elected president, and instituted the debtor proceedings here involved under section 77B. His first reorganization plan being objected to by the various classes of creditors, a second and a third plan of reorganization with modifications thereof followed. All were vigorously opposed by each interest concerned save for approval by a relatively small number of unsecured creditors. Not any of the bondholders gave assent to the plans proposed, and about 50 per cent, of the unsecured creditors have affirmatively opposed all reorganization plans. Section 77B provides for a scheme of corporate reorganization similar in many of its aspects to that provided for the reorganization of railroads engaged in interstate commerce by section 77 (11 U.S.C.A. § .205), discussed and held constitutionally valid in general scope and application in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pacific Railway Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110. It provides that .upon the filing of a petition for reorganization the court shall enter an order approving its filing if satisfied that the petition complies with the section and has been filed in good faith. The plan of reorganization shall- include provisions modifying or altering the rights of creditors generally, or any class of them, either through the issuance of new securities or otherwise. Subsection (e), of section 77B, 11 U.S.C.A. § 207 (c), in so far as pertinent, is as follows: “A plan of reorganization shall not be confirmed until it has been accepted in writing, * * * and such acceptance shall have been filed in the proceeding by or on behalf of creditors holding two thirds in amount of the claims of each class whose claims have been allowed and would be affected by the plan: * * * Provided, however, That such acceptance shall not be requisite to the confirmation of the plan by any creditor or class of creditors (a) whose claims are not affected by the plan, or (b) if the plan makes provision for the payment of their claims in cash in full, or (c) if provision is made in the plan for the protection of the interests, claims, or liens of such creditor or class of creditors in the manner provided, in subdivision (b), clause (5), of this section.” In so far as the reorganization permitted by section 77B requires approval by two-thirds of the creditors of each class and in so far as such approval is not requisite to confirmation from creditors whose claims are not affected or for the payment of which cash is provided, 77B follows substantially the provisions of section 77. It departs from that section in clause (c) of the proviso, which makes approval of creditors unnecessary “if provision is made in the plan for the protection of the interests, claims, or liens of such creditor or class of creditors in the manner provided in subdivision (b), clause (5), of this section.” 11 U.S.C.A. § 207 (e) (1) (c). It therefore becomes necessary to consider subsection (b), clause (5), 11 U.S.C.A. § 207 (b) (5), which provides that the plan of reorganization “shall provide in respect of each class of creditors of which less than two thirds in amount shall accept such plan (unless the claims of such class of creditors will not be affected by the plan, or the plan makes provision for the payment of their claims in cash in full), provide adequate protection for the realization by them of the value of their interests, claims, or liens, if the property affected by such interests, claims, or liens is dealt with by the plan, either as provided in the plan (a) by the transfer or sale of such property subject to such interests, claims, or liens, or by the retention of such property by the debtor subject to such interests, claims, or liens, or (b) by a sale free of such interests, claims, or liens at not less than a fair upset price and the transfer of such interests, claims, or liens to the proceeds of such sale; or (c) by appraisal and payment either in cash of the value either of such interests, claims, or liens, or, at the objecting creditors’ election, of the securities allotted to such interests, claims, or liens under the plan, if any shall be so allotted; or (d) by such method as will in the opinion of the judge, under and consistent with the circumstances of the particular case, equitably and fairly provide such protection.” It will be observed that section 77B, unlike section 77, furnishes a method by which a reorganization plan may be put into effect in the event that the debtor is unable to secure consent to its plan of two-thirds of each class of creditors to be affected thereby, not only without their approval, but, by necessary implication, despite their opposition. The plan may provide under subsection (b) (S) for the sale of the property subject to lien, for its sale free of liens and the transfer of the liens to the proceeds, or for the method recited in clauses (c) and (d). With the first two of the methods incorporated in the subsection, we are not concerned, because - the debtor does not desire to have the property sold either free from or subject to liens. It wishes to secure possession of the property and to resume its operation. We are concerned, therefore, only with the methods provided by which the debtor may regain its property without consent of creditors, have it appraised, and then relieve itself of obligation by paying each of them in cash, either (1) of the value of their interests, claims, or liens; or (2) at the creditors’ election (of the value) of the securities allotted to such interests, claims, or liens, if any shall be so allotted; or (3) by such method as will in the opinion of the judge equitably and fairly provide such protection. The present debtor’s several plans of reorganization, particularly the third, arc in recognition of the futility under existing circumstances of securing the consent of two-thirds of its creditors of each class. It proceeds upon the assumption that such consent is not necessary by framing its reorganization plans under the alternative method provided by subsection (b) (5). We assume it to be unnecessary to give detailed consideration to the first or second plan, for, faced with a contention that neither is feasible, and that each would invade vested constitutional rights, it presented its third plan and modifications thereof, and we may assume that this represents up to the time of the decree its ultimate effort to repel attack upon the feasibility of reorganization, and upon asserted invalidity in the application of the statute. We confess our inability to understand the debtor’s proposed reorganization plan in all of its phases, even after diligent study, effort to separate argument from concrete proposals, and an earnest attempt to reconcile apparently conflicting clauses. This much, however, seems reasonably clear: The debtor desires to have all the property which for two years has been in the possession of the equity receiver, including unmortgaged property, returned to it, subject to such liens as the court shall determine. It proposes that the bondholders shall have their securities scaled down to 80 per cent, of their face value, and that the court shall fix a reasonable rate of interest in place of the agreed interest. Nonassenting bondholders are to have the value of their securities fixed by the court, and to have a lien on the mortgaged property for such value, though it is also proposed to pay non-assenting' bondholders such ascertained value in cash.. The debtor proposes to pay for the unmortgaged property in the hands of the receiver the sum of $40,000 in cash at a time to be fixed by the court. For the further purpose of protecting bondholders, the debtor proposes to deposit $10,-000 to pay interest in advance upon the bonds for a three months’ period, but nothing is provided in the plan with respect to the defaulted interest upon the bonds during the two years that the debt- or’s properties have been in the hands of the receiver. Then follow provisions for a bond issue and for class A and class B preferred stock, out of the proceeds of which present unsecured creditors and preferred stockhdders are to be compensated. We make no effort to state them, for they are wholly incomprehensible. The court is also asked to reascertain the present holders of the debtor s mortgage bonds, and the amount due each bondholder although a judicial determination as to these matters has already been had m the equity proceedings by a master, with his report presumably confirmed by the court without objection thereto by the debtor, though a party to the receivership proceedings. From the argument, interwoven with the proposals of the submitted plan, it appears that the debtor is informed that 1 , .. . ,, ,, . some of the present bondholders have paid , . , j . , A . for their bonds an amount less than their , . , ., . , . „ face value, and it appears, mferentially . , . A' ’. at least, that the debtor desires the court , „ , ^ , i, ,, , to fix the amount due bondholders who , r . ., , have paid for their holdings since the be- ■ . , ?. . ginmng of the receivership an amount f , , 1 .1 •. less than their face value,- the amount ., , ^ , , so paid, and then have such amount scaled j ! on ^ „ ur down to 80 cents upon the dollar. We .,,, ^ . . are pointed to-no provision of the stat-t , • 1 ^ , . . ute which permits this to be done, and . , . . . - £ -1 , ,. , ’ mdependent inquiry fails to disclose any. 1 ^ J J The reorganization plan is opposed on the ground that it is not presented in good faith, and that any scaling down of secured indebtedness or of agreed interest or denial of the right of lienholders to have the mortgaged property sold at public sale in accordance with the terms of the trust deed, is taking the property of the bondholders without due process in violation of the Fifth Amendment to the Constitution of the United States. While the court found the plan to have been presented in good faith, it is urged that the court erroneously applied the law; that good faith is not a question of honest motive or intention, but is to be determined by the feasibility of the plan and a reasonable expectation that it will be successful, in reliance upon Manati Sugar Company v. Mock et al., 75 F.(2d) 284 (C.C.A.2), and In re 235 West 46th Street Company, Inc., 74 F.(2d) 700 (C.C.A.2). The District Judge rejected the contention as to absence of good faith, but declared subsection (b) (5), in so far as it permits adjustment of liens without the consent of creditors, Constitutionally invalid, and dismissed the petition, We have first t0 consider whether the tion of the debtor,s d faith in submitti its proposed plan of organization is j before this court the ma¡n L This involves a con_ sideration as t0 whether the decision be_ low that question involves ^ issue of Iaw izable n al under sec_ üon 24b_ It ig dear from tbe court>s memoranda that in decidi the issue of d faith it was gu¡ded mainl b a con_ sideration of the honesty of purpose on ^ of the debtor in submitting its ^ Section 77B does not undertake t0 define d faitbL We think it clea bowever5 in agreement with the Second drcuit that something more than sincerity , . . • , j j intention was intended. The purpose f ...... ... A f, , of the statute is to relieve distressed debt- ,- , . . < ., or corporations and to provide the me- , . ¿ , chames for reorganization where reason- ,, , .. , ,. , , , able expectation of continued useful ex- . . 1.^-1 . •. • , rr,, . istence may be fairly entertained. This , . J . . , being so, something more must be demon- . ® , (. ,, , , . 1. strated by the debtor than mere honesty r, x TJ. , ,, or sincerity of purpose. If not, then the . . ., way is open to the exploitation of every - . r . . -. , J involved corporation by visionaries whose , ...... - ,- illusory and optimistic imaginations out- . 1 . , .a , ., . run their business judgments, and the 111- . , r , J... . ’ ... . , terest of every legitimate creditor is at the mercy of debtors whose sole hope of financial salvation is an abiding faith in miracles. If we are right in this, there was erroneous application of the law in the finding of good faith, and the decree dismissing the petition should upon familiar principles governing appeals in equity be affirmed if right, however erroneous may be any given conclusion of law. It appears from the record that the total assets of the debtor upon fair appraisal are worth less than $300,000. The bonded indebtedness exceeds $900,000, and the unsecured indebtedness is more than $300,000. To this must now be added the cost and expenses of the receivership. Moreover, the receiver has been operating at a loss, and the debtor concedes that it also will for a time operate at a loss; its most optimistic undertaking being, if the property is restored to it, to reduce current losses 25 per cent. When these figures are considered together with the vagueness of detail in the proposed plan, the doubt that exists as to whether under section 77B there may now be a reopening of the adjudication of the claims against the debtor in the equity proceeding, it seems clear to us that the proposed plan is not a workable plan, offers no reasonable prospect for successful rehabilitation of the debtor, and is in consequence not, in the sense the phrase is used in the section, presented in good faith. Having concluded that the plan fails to meet the statutory test, it may appear that discussion should end here with mandate for affirmance of the decree, and that upon familiar principles no holding as to constitutionality of the assailed subsection is required. As was said by the Supreme Court in Howat v. Kansas, 258 U.S. 181, 184, 42 S.Ct. 277, 279, 66 L.Ed. 550, “Obviously we should not pass upon the constitutional validity of an act * * * unless the case before us requires it,” and in Euclid v. Ambler Realty Co., 272 U.S. 365, 397, 47 S.Ct. 114, 121, 71 L.Ed. 303, 54 A.L.R. 1016, “In the realm of constitutional law, especially, this court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue.” With profound deference to the canons of self-restraint to which courts subordinate their high power to inquire into the constitutional validity of acts of Congress, we have carefully explored the possibility of avoiding the constitutional question here presented. We are confronted with difficulty. Faced with attack upon the feasibility of its plan of reorganization, the debt- or has repeatedly presented alternatives and modifications. This is its right, not only by virtue of the liberal spirit of the statute, but by the express language of subsection (f) (7) of section 77B (11 U.S.C.A. § 207 (f) (7), which provides that before or after a plan is confirmed changes -and modifications may be proposed therein by any party in interest. The debtor, having finally received approval of the court upon the good faith of its latest plan, proceeded no further in its efforts to comply with the statutory requirement in that respect. Were we now to rest - decision solely upon lack of good faith, it would seem appropriate to permit further proposals, for the debt- or, having been misled by the court, should not be precluded from further effort to meet statutory requirements. Moreover, we see no legal impediment to submission by the debtor, or at least by a group of friendly creditors, of an entirely new plan of reorganization not heretofore considered and adjudicated. In either event the constitutional question would remain open for ultimate decision upon perhaps no better presentation than at present, and the submission of amendments to more fully demonstrate good faith, purely academic and fruitless. In the meanwhile the property of the debtor and the security of the lienholders will be further depleted by operating losses of the receiver. We see no escape therefore from present decision upon the validity of subsection (b) (5). The constitutionality of section 77B in its general scope and application is not here assailed, and, in view of the decision in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pac. Railway, supra, is perhaps not open to successful assault. That case, however, goes no farther in its consideration of the due process clause of the Fifth- Amendment than to hold that statutory provisions permitting delay in the enforcement of contracts affect only the remedy, and deals with a statute which does not permit adjustments of liens without lienholders’ consent. Such delay in the application of remedies impairs no vested right, and this was also the rationale of the decision in Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 89 A.L.R. 1481, in consideration of the due process clause of the Fourteenth Amendment. We are here concerned only with the validity of a clause which provides for adjustment of debts without the consent of creditors. It has long been settled that provisions in bankruptcy statutes authorizing compositions have never been held to invalidate them. This is because a composition is a matter of agreement between the bankrupt and his creditors as a class, with the will of the majority imposed upon the minority. In re Lane (D.C.) 125 F. 772, 773; Cumberland Glass Mfg. Co. v. DeWitt, 237 U.S. 447, 452, 35 S.Ct. 636, 59 L.Ed. 1042. We confine ourselves to the provisions of subsection (b) (5), which outline a method for adjustment of claims of nonassenting creditors, and inquire as to their validity in the light of the due process clause. Upon this issue we view' the decision of the Supreme Court in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106, controlling. Here, under Tennessee law, as there under Kentucky law, the lien holders had the .right under their contract to retain the lien until the indebtedness secured was paid, the right to realize upon the security by a judicial public sale, the right to determine when such sale should be held, subject' only to the discretion of the court, the right to protect their interest in the property by bidding at such sale, the right to have the mortgaged property devoted primarily to the satisfaction of the debt; and the right to control the property meanwhile during the period of default, subject only to the discretion of the court, and to have the rents and profits during such period applied to the satisfaction of the debt. These rights are substantive property rights, and any invasion of them under the authority of the present statute is as clearly violative of the due process clause of the Fifth Amendment as it was in the Radford Case. We have no occasion to renew our excursion into the history of bankruptcy legislation or to again undertake that realistic approach to the problem that we ventured upon in the Rad-ford Case when ito was considered by us (74 F.(2d) 576). That manner of approach was rejected by the Supreme Court as an aid to solution, and so must we now reject it when it is again urged upon us. We hold subsection (b) (5) of section 77B (11 U.S.C.A. § 207 (b) (5) of the Bankruptcy Act unconstitutional and invalid in the respects indicated. Stripped of invalidity, the section is still an operable statute, and as to validity in its general scope and application there is no occasion for comment other than has been indicated. The decree below is affirmed. ALLEN, Circuit Judge (concurring). I concur in the conclusion and in that part of the decision which relates to the unconstitutionality of the statute. The decision in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106, compels this result. I dissent, however, from that part of. the opinion which defines “good faith” as requiring’ feasibility of the plan proposed. Congress, in enacting the statute, required simply that the District Judge should be satisfied of “good faith.” In so doing, it doubtless bore in mind the fact that in innumerable cases covering every kind of legal situation, the courts of this country, from the highest to the lowest, have defined good faith as meaning honesty of purpose. It is an unfortunate circumstance that integrity and business acumen are not always united. In this statute the Congress required integrity, and the District Judge correctly found that good faith was shown in the submission of this plan. 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_genapel2

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 is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. FRONTIER AIRLINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Braniff Airways, Inc. and United Air Lines, Inc., Intervenors. CITY AND COUNTY OF DENVER, COLORADO, et al., Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, Braniff Airways, Inc., and United Air Lines, Inc., Intervenors. Nos. 8052, 8072. United States Court of Appeals Tenth Circuit. Aug. 12, 1965. James L. Highsaw, Jr., Washington, D. C. (Richard A. Fitzgerald and Harry A. Bowen, Washington, D. C., of counsel, were with him on the brief), for petitioner Frontier Airlines, Inc. Tedford Dees, Asst. City Atty. (Max P. Zall, City Atty., was with him on the brief), for petitioners City and County of Denver, Colo., and Denver Chamber of Commerce. O. D. Ozment, Washington, D. C. (William H. Orrick, Jr., Asst. Atty. Gen., Lionel Kestenbaum, John H. Wanner, Joseph B. Goldman and Robert L. Toomey, Washington, D. C., were with him on the brief), for respondent Civil Aeronautics Board. John T. Rigby, Washington, D. C. (B. Howell Hill and Arnold, Fortas & Porter, Washington, D. C., were with him on the brief), for intervenor Braniff Airways, Inc. Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Chicago, 111., and Akolt, Shepherd & Dick, Denver, Colo., filed brief for intervenor United Air Lines, Inc. Before PHILLIPS, PICKETT and LEWIS, Circuit Judges. LEWIS, Circuit Judge. Frontier Airlines and the City and County of Denver, Colorado, by separate petitions now consolidated for hearing, seek review of and relief from orders of the Civil Aeronautics Board issued in a pending proceeding designated as the Pacific Northwest-Southwest Service Investigation, C.A.B. Docket 15459. The proceeding, initiated by the Board on August 13, 1964, pursuant to sections 204(a) and 401(g) of the Federal Aviation Act of 1958, was intended to probe the necessity and desirability of providing carrier authorization for long-haul, single carrier service between the Pacific Northwest (Washington, Oregon, Idaho, Wyoming, Utah and Northwest Colorado), and the Southwest (Southeast Colorado, New Mexico, Kansas, Oklahoma, Texas, Louisiana, and the cities of Kansas City and St. Louis, Missouri). Principal service cities within the area were designated by group number which placed.. Seattle and Portland in Group I; Salt Lake City and Denver, Group II; Kansas City and St. Louis, Group III; and Fort Worth, Dallas, Houston, San Antonio, and New Orleans, Group IV. The original Board order included the following restrictions as to the scope of the inquiry to be made as set forth in paragraph 3 of the order: “3. That any awards made as a result of this proceeding shall be subject to the following restrictions: (a) No flights may originate or terminate in Denver or Salt Lake City; (b) At least one city in at least two Groups of cities * * * must be served on all flights except that there shall be no new single-carrier service between cities in Group III and cities in Group IV * * Following issuance of its August 13 order the Board gave consideration to numerous petitions filed by interested airlines and cities seeking clarification, expansion or restriction of the order. Most such petitions were denied but paragraph 3 (a) was modified by allowing consideration of short-haul, inter-city service between Denver-St. Louis, and 3(b) was changed to provide that there should be no operation of aircraft between cities in Groups III and IV. However the substance of paragraph 3(a), that no flights may originate or terminate in Denver or Salt Lake City, remains a basic restriction in the scope of the Board’s investigation. The effect of this restriction is to refuse consideration of any application or the need for turnaround service by single carrier for flights originating or terminating in Salt Lake City or Denver and serving the Northwest cities of Group I, or the Southwest cities of Group IV, or between the cities of St. Louis/Denver and the city of Salt Lake. The continuance of this restriction, admittedly made by the Board without evi-dentiary hearing, constitutes the premise of both petitioners’ complaint. Frontier is presently certificated to operate commercial aircraft over a route system extending across a vast geographic area from Montana and North Dakota east to Kansas City, south to Arizona and west to Utah. Prior to the Board’s August 13 order Frontier had filed two applications for authorization to provide extended or new service. On October 3, 1962, Frontier had sought a certificate to serve St. Louis and Seattle (a) via Kansas City, Omaha, Lincoln, Denver, Salt Lake City, Spokane, and Portland, and (b) via Columbia and St. Joseph, Missouri; Omaha and Lincoln, Nebraska; Rapid City, South Dakota; Billings and Great Falls, Montana; and Spokane, Washington. The other application (Docket No. 15304) filed on June 4, 1964, requested a certificate to provide air service over a route between Seattle, Washington; and Miami, Florida; via Portland, Oregon; Salt Lake City, Denver, Dallas/Ft. Worth and Houston, Texas; New Orleans, Tampa/St.Petersburg and Orlando, Florida. Although these applications pertained in part to the Northwest-Southwest Investigation area they also extended beyond such area and subsequently, on September 2, 1964, Frontier filed a third application covering the Board’s exact proposed routes. The refusal of the Board to consolidate into its present hearing Frontier’s two earlier existent applications, or the substance of them to the extent turnaround service is not to be considered for the cities of Salt Lake and Denver, is the specific complaint made by Frontier in the case at bar. The specific complaint of the City and County of Denver is substantially the same. Denver has pending a petition to investigate the need for: “1. First direct single-carrier trunkline authority between Denver, Colorado and St. Louis, Missouri and Tucson, Arizona. 2. Unrestricted direct single-carrier competitive trunkline authority between Denver, Colorado and Albuquerque, New Mexico, Dallas, Houston, and San Antonio, Texas, Kansas City, Missouri, Phoenix, Arizona, Portland, Oregon, Seattle, Washington, and Tulsa, Oklahoma.” The Board’s restriction 3(a) has also refused present consideration of Denver’s petition to the extent that turnaround service is requested except as to the Denver-St. Louis route. The Board’s present refusal to hear matters pertaining to turnaround service at the cities of Salt Lake and Denver is attacked by petitioners in varied ways, but each argument is somewhat dependent upon whether the principle of due process set forth in Ashbacker Radio Corp. v. Federal Communications Commission, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108, is applicable. This principle, termed “a practical conclusion of sound common sense,” Delta Air Lines, Inc. v. Civil Aeronautics Board, 107 U.S.App. D.C. 174, 275 F.2d 632, 637, cert. denied, Trans World Airlines v. Delta Air Lines, Inc., 362 U.S. 969, 80 S.Ct. 953, 4 L.Ed. 2d 900, requires administrative boards to consolidate for hearing all applications that are competing and mutually exclusive in nature. In other words, due process is refused an applicant through indirection when a competing application is heard and granted upon mutually exclusive subject matter, for the substance of the applications (need for service) is determined and satisfied by the application first heard. The granting of the first award effectively denies, without a hearing, all competing applications. In the case at bar, claim is made that should the Board, for example, grant certification for a Dallas/Denver/Seattle (and reverse) single carrier flight, such grant would, as a matter of economic fact, deny Frontier’s present application for turnaround service between such cities and Denver’s application for consideration of increased service between such cities. And it is apparent that, at least to some degree, the establishment of long-haul, through service would affect the need for turnaround service at the centrally located cities of Salt Lake and Denver and the proposed terminal cities. We thus consider the case to be within the shadow of the Ashbacker doctrine and petitioners’ related arguments that the Board has prejudged the need for local service originating or terminating at Salt Lake and Denver, that the Board has denied “speedy” consideration of Frontier’s and Denver’s specific applications, and that the restrictive order of the Board is arbitrary. The common sense and legal compulsion of the Ashbacker principle is based upon the existence of a mutual exclusivity between applications that is legally and factually irrefutable by the very nature of the proceeding. Thus when two or more airlines seek certification for service between cities A and B, and the Board hears one such application separately, the other applications are doomed upon grant to the applicant heard. The result is inherent in the procedure. Here, exclusivity is but now potential, a possibility that the Board has presently recognized in its order in general aspects and must recognize in its final order if exclusivity becomes a specific reality. And in terming the issue of exclusivity to be but potential at the outset of the Board investigation we are not unmindful of the statistical support that petitioners present which may indicate that certain areas cannot support three carrier services, or that certain areas will not be adequately served by long-haul service. These matters are incidents to the general investigation and are primarily, or at least preliminarily, for the consideration of the Board. Indeed, when presented merely as statistics the inference to be drawn therefrom is not dictated. Frontier may be granted long-haul certification in its pending application, and if so, its remaining applications would be complementary; or, if its own long-haul service satisfied the total service needed between given cities, it is obvious that Frontier would not be prejudiced. Although the Board is bound by Ashbacker that principle is not boundless in its implications. The Board has a basic right to limit the scope of its inquiries. Eastern Air Lines v. Civil Aeronautics Board, 85 U.S.App.D.C. 412, 178 F.2d 726; Eastern Air Lines v. Civil Aeronautics Board, D.C.Cir., 243 F.2d 607. And practicality dictates that the existence of overlapping applications does not require the expansion of specific inquiry into a generalized study of air needs by area or types of service. The pertinency of pending applications is a fact that must be noted by the Board in order to avoid the denial of an Ashbacker right; but such pendency does not dictate consolidation. So, too, it is for Board decision to determine the order of its docket in view of public need. Western Air Lines v. Civil Aeronautics Board, 9 Cir., 184 F.2d 545, 549. Although petitioners’ earlier applications must probably now await the Board’s more general inquiry, we cannot say that this discretionary act so abuses a private right as to be unlawful. The statutory requirement, 49 U.S.C. § 1371(c), that applications be processed “as speedily as possible” does not require that hearings be granted in the order of filing, and it is seldom indeed that a court should interfere with a matter of discretion so peculiarly with the expertise of a specialized administrative body. Frontier also asserts that the restrictions imposed in 3(a) unfairly discriminate against it in its long-haul application because it establishes a procedural framework that protects the intervenors United Air Lines and Braniff Airways. United has for many' years been certificated for Denver/Salt Lake/Portland/ Seattle; Braniff for Denver/Texas cities. These intervenors could thus propose, in support of their own long-haul applications schedules correlated with their existent right to operate turnaround seirv-ice at the named cities. To allow these airlines to approach the long-haul inquiry with short-haul authority but to refuse consideration by consolidation of Frontier’s application for turnaround service amounts to discrimination, so says Frontier. But to extend such argument to ultimate conclusion would require the Board to equalize as far as possible all inherent advantage between applicants before a general investigation could go forward. The complexity of such procedure would destroy its worth and result in a hopeless administrative jumble. We find no merit to the contention of petitioner. Finally, Frontier claims that the Board’s restriction is arbitrary and “without any basis in rhyme or reason.” And indeed we feel that Frontier’s factual presentation of traffic data and other supporting argument indicates strongly that the Board might very properly have removed the restriction. It does not follow that the Board acted arbitrarily in refusing to do so. The prime purpose of the Northwest-Southwest Service Investigation is directed to long-haul, direct carrier service; it is for the Board to determine the discretionary point at which remoteness of inquiry will be detrimental to public service. We have considered other arguments advanced by petitioners, but conclude that none convinces us that the subject order of the Board presently results in the setting of legal consequences in derogation of petitioners’ rights. It follows that the order of the Board is not a final order as defined in Cities Service Gas Co. v. Federal Power Commission, 10 Cir., 255 F.2d 860, 863, cert. denied, 358 U.S. 837, 79 S.Ct. 61, 3 L.Ed.2d 73; Phillips Petroleum Co. v. Federal Power Commission, 10 Cir., 227 F.2d 470, 475, cert. denied, Michigan Wisconsin Pipe Line Co. v. Phillips Petroleum Co., 350 U.S. 1005, 76 S.Ct. 649, 100 L.Ed. 868; City of Houston v. Civil Aeronautics Board, 115 U.S.App.D.C. 94, 317 F.2d 158; Delta Air Lines v. Civil Aeronautics Board, 97 U.S.App.D.C. 46, 228 F.2d 17, 20; but that it is interlocutory in form and fact and thus not subject to review. See Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 330 U.S. 103, 112-113, 68 S.Ct. 431, 92 L.Ed. 568; Amerada Petroleum Corp. v. Federal Power Commission, 10 Cir., 285 F.2d 737; United Air Lines, Inc. v. Civil Aeronautics Board, D.C. Cir., 228 F.2d 13; Seaboard & Western Airlines v. Civil Aeronautics Board, 86 U.S.App.D.C. 9, 181 F.2d 777, 779. The petitions to review are dismissed. . In allowing this extension to the scope of the investigation the Board noted that one of the facets of its original order was to consider the elimination of existent interchange service. Denver and St. Louis are served only by a Continental-Braniff interchange, the latter term meaning a single aircraft operated by two or more carriers over connecting routes. The situation did not exist elsewhere in the area. Group II cities (Salt Lake and Denver) are served to the northwest by a single carrier (intervenor United) and to the south by a single carrier (intervenor Braniff). . “Of course, each party to this proceeding will have the opportunity to establish on the record mutual exclusivity with respect to any application not included for consideration in this case.” . This is true particularly as it pertains to petitioner Denver. We do not consider it necessary to here decide whether a civic body can make any claim under Ashbacker. But certain it is that Denver has no legal interest in which airline services its needs. However, we consider petitioners’ claims that the need for turnaround service at Denver has been prejudged by the Board order to, in effect, raise a comparable question of due process not necessarily dependent upon mutual exclusivity, but substantially the same in basic theory. Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

sc_caseorigin

041

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. DEPARTMENT OF HOMELAND SECURITY, et al., Petitioners v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.; Donald J. Trump, President of the United States, et al., Petitioners National Association for the Advancement of Colored People, et al.; and Chad Wolf, Acting Secretary of Homeland Security, et al., Petitioners v. Martin Jonathan Batalla Vidal, et al. No. 18-587 No. 18-588 No. 18-589 Supreme Court of the United States. Argued November 12, 2019 Decided June 18, 2020 Noel J. Francisco, Solicitor General, Department of Justice, Washington, DC, for Petitioners. Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney, General, Jeffrey B. Wall, Deputy Solicitor General, Hashim M. Mooppan, Deputy Assistant Attorney, General, Jonathan Y. Ellis, Assistant to the Solicitor General, Mark B. Stern, Abby C. Wright, Thomas Pulham, Attorneys, Department of Justice, Washington, DC, for Petitioners. Benjamin M. Eidelson, Cambridge, MA, Lindsay C. Harrison, Ian Heath Gershengorn, Thomas J. Perrelli, Matthew E. Price, Ishan K. Bhabha, Jenner & Block LLP, Washington, DC, for Respondents The Trustees of Princeton University, Microsoft Corporation, and Maria De La Cruz Perales Sanchez. Joseph M. Sellers, Julie S. Selesnick, Cohen Milstein Sellers, & Toll PLLC, Washington, DC, for Respondents NAACP; American Federation of Teachers, AFL-CIO; and United Food and Commercial Workers International Union, AFL-CIO, CLC. Bradford M. Berry, NAACP, Baltimore, MD, for Respondent NAACP. Ramona E. Romero, Wesley Markham, Princeton, NJ, for Respondent The Trustees of Princeton University. Cynthia L. Randall, Microsoft Corporation, Redmond, WA, for Respondent Microsoft Corporation. David J. Strom, American Federation, of Teachers, Washington, DC, for Respondent American Federation of Teachers, AFL-CIO. Peter J. Ford, United Food &, Commercial Workers, International Union, AFL-CIO, CLC, Washington, DC, for Respondent United Food & Commercial Workers International Union, AFL-CIO, CLC. Xavier Becerra, Attorney General of California, Michael J. Mongan, Solicitor General, Michael L. Newman, Senior Assistant Attorney General, Samuel P. Siegel, Joshua Patashnik, Deputy Solicitors General, Shubhra Shivpuri, James F. Zahradka II, Deputy Attorneys General, San Francisco, CA, Aaron M. Frey, Attorney General of Maine, Susan P. Herman, Deputy Attorney General, Augusta, ME, Brian E. Frosh, Attorney General of Maryland, Steven M. Sullivan, Solicitor General, Leah J. Tulin, Assistant Attorney General, Baltimore, MD, Keith Ellison, Attorney General of Minnesota, Liz Kramer, Solicitor General, Jacob Campion, Assistant Attorney General, St. Paul, MN, for Respondents. Theodore J. Boutrous, Jr., Ethan D. Dettmer, Jonathan N. Soleimani, Gibson, Dunn & Crutcher LLP, Mark D. Rosenbaum, Judy London, Public Counsel, Los Angeles, CA, Theodore B. Olson, Stuart F. Delery, Matthew S. Rozen, Andrew J. Wilhelm, Suria M. Bahadue, Gibson, Dunn & Crutcher LLP, Washington, DC, for DACA Recipient Respondents in No. 18-587. Erwin Chemerinsky, University of California, Berkeley School of Law, Berkeley, CA, Laurence H. Tribe, Harvard Law School, Cambridge, MA, Luis Cortes Romero, Immigrant Advocacy & Litigation, Center, PLLC, Kent, WA, Leah M. Litman, University of Michigan, Law School, Ann Arbor, MI, Michael J. Wishnie, Muneer I. Ahmad, Marisol Orihuela, Karen C. Tumlin, Cooperating Attorney, Jerome N. Frank, Legal Services Organization, New Haven, CT, Amy S. Taylor, Paige Austin, Brooklyn, NY, Trudy S. Rebert, National Immigration Law Center, Jackson Heights, NY, Araceli Martínez-Olguín, Mayra B. Joachin, National Immigration Law Center, Los Angeles, CA, Scott Foletta, Jackson Heights, NY, for DACA Recipient Respondents and, Make the Road New York in No. 18-589. Stacey M. Leyton, Altshuler Berzon LLP, San Francisco, CA, for Respondents County of, Santa Clara and Service Employees, International Union Local 521 in, No. 18-587. James R. Williams, Greta S. Hansen, Laura S. Trice, Marcelo Quiñones, Office Of The County Counsel, County of Santa Clara, San Jose, CA, for Respondent County of, Santa Clara in No. 18-587. Jeffrey M. Davidson, David Watnick, Covington & Burling LLP, San Francisco, CA, Charles F. Robinson, Margaret Wu, Sonya Sanchez, University of California, Office of the General Counsel, Oakland, CA, Robert A. Long, Lanny A. Breuer, Mark H. Lynch, Alexander A. Berengaut, Megan A. Crowley, Ivano M. Ventresca, Covington & Burling LLP, Washington, DC, for The Regents of the University of California, and Janet Napolitano. Justin T. Berger, Brian Danitz, Tamarah Prevost, Cotchett, Pitre & McCarthy, LLP, Burlingame, CA, for City of San José. Letitia James, Attorney General of New York, Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, Andrew W. Amend, Assistant Deputy Solicitor General, David S. Frankel, Assistant Solicitor General, New York, NY, for Respondents. Chief Justice ROBERTS delivered the opinion of the Court, except as to Part IV. In the summer of 2012, the Department of Homeland Security (DHS) announced an immigration program known as Deferred Action for Childhood Arrivals, or DACA. That program allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity. Five years later, the Attorney General advised DHS to rescind DACA, based on his conclusion that it was unlawful. The Department's Acting Secretary issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her decision. For the reasons that follow, we conclude that the Acting Secretary did violate the APA, and that the rescission must be vacated. I A In June 2012, the Secretary of Homeland Security issued a memorandum announcing an immigration relief program for "certain young people who were brought to this country as children." App. to Pet. for Cert. in No. 18-587, p. 97a (App. to Pet. for Cert.). Known as DACA, the program applies to childhood arrivals who were under age 31 in 2012; have continuously resided here since 2007; are current students, have completed high school, or are honorably discharged veterans; have not been convicted of any serious crimes; and do not threaten national security or public safety. Id., at 98a. DHS concluded that individuals who meet these criteria warrant favorable treatment under the immigration laws because they "lacked the intent to violate the law," are "productive" contributors to our society, and "know only this country as home." Id., at 98a-99a. "[T]o prevent [these] low priority individuals from being removed from the United States," the DACA Memorandum instructs Immigration and Customs Enforcement to "exercise prosecutorial discretion[ ] on an individual basis... by deferring action for a period of two years, subject to renewal." Id., at 100a. In addition, it directs U.S. Citizenship and Immigration Services (USCIS) to "accept applications to determine whether these individuals qualify for work authorization during this period of deferred action," id., at 101a, as permitted under regulations long predating DACA's creation, see 8 CFR § 274a.12(c)(14) (2012) (permitting work authorization for deferred action recipients who establish "economic necessity"); 46 Fed. Reg. 25080-25081 (1981) (similar). Pursuant to other regulations, deferred action recipients are considered "lawfully present" for purposes of, and therefore eligible to receive, Social Security and Medicare benefits. See 8 CFR § 1.3(a)(4)(vi) ; 42 CFR § 417.422(h) (2012). In November 2014, two years after DACA was promulgated, DHS issued a memorandum announcing that it would expand DACA eligibility by removing the age cap, shifting the date-of-entry requirement from 2007 to 2010, and extending the deferred action and work authorization period to three years. App. to Pet. for Cert. 106a-107a. In the same memorandum, DHS created a new, related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. That program would have authorized deferred action for up to 4.3 million parents whose children were U.S. citizens or lawful permanent residents. These parents were to enjoy the same forbearance, work eligibility, and other benefits as DACA recipients. Before the DAPA Memorandum was implemented, 26 States, led by Texas, filed suit in the Southern District of Texas. The States contended that DAPA and the DACA expansion violated the APA's notice and comment requirement, the Immigration and Nationality Act (INA), and the Executive's duty under the Take Care Clause of the Constitution. The District Court found that the States were likely to succeed on the merits of at least one of their claims and entered a nationwide preliminary injunction barring implementation of both DAPA and the DACA expansion. See Texas v. United States, 86 F.Supp.3d 591, 677-678 (2015). A divided panel of the Court of Appeals for the Fifth Circuit affirmed the preliminary injunction. Texas v. United States, 809 F.3d 134, 188 (2015). In opposing the injunction, the Government argued that the DAPA Memorandum reflected an unreviewable exercise of the Government's enforcement discretion. The Fifth Circuit majority disagreed. It reasoned that the deferred action described in the DAPA Memorandum was "much more than nonenforcement: It would affirmatively confer 'lawful presence' and associated benefits on a class of unlawfully present aliens." Id., at 166. From this, the majority concluded that the creation of the DAPA program was not an unreviewable action "committed to agency discretion by law." Id., at 169 (quoting 5 U.S.C. § 701(a)(2) ). The majority then upheld the injunction on two grounds. It first concluded the States were likely to succeed on their procedural claim that the DAPA Memorandum was a substantive rule that was required to undergo notice and comment. It then held that the APA required DAPA to be set aside because the program was "manifestly contrary" to the INA, which "expressly and carefully provides legal designations allowing defined classes" to "receive the benefits" associated with "lawful presence" and to qualify for work authorization, 809 F.3d at 179-181, 186 (internal quotation marks omitted). Judge King dissented. This Court affirmed the Fifth Circuit's judgment by an equally divided vote, which meant that no opinion was issued. United States v. Texas, 579 U.S. ----, 136 S.Ct. 2271, 195 L.Ed.2d 638 (2016) (per curiam ). For the next year, litigation over DAPA and the DACA expansion continued in the Southern District of Texas, while implementation of those policies remained enjoined. Then, in June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum. In explaining that decision, DHS cited the preliminary injunction and ongoing litigation in Texas, the fact that DAPA had never taken effect, and the new administration's immigration enforcement priorities. Three months later, in September 2017, Attorney General Jefferson B. Sessions III sent a letter to Acting Secretary of Homeland Security Elaine C. Duke, "advis[ing]" that DHS "should rescind" DACA as well. App. 877. Citing the Fifth Circuit's opinion and this Court's equally divided affirmance, the Attorney General concluded that DACA shared the "same legal... defects that the courts recognized as to DAPA" and was "likely" to meet a similar fate. Id., at 878. "In light of the costs and burdens" that a rescission would "impose[ ] on DHS," the Attorney General urged DHS to "consider an orderly and efficient wind-down process." Ibid. The next day, Duke acted on the Attorney General's advice. In her decision memorandum, Duke summarized the history of the DACA and DAPA programs, the Fifth Circuit opinion and ensuing affirmance, and the contents of the Attorney General's letter. App. to Pet. for Cert. 111a-117a. "Taking into consideration the Supreme Court's and the Fifth Circuit's rulings" and the "letter from the Attorney General," she concluded that the "DACA program should be terminated." Id., at 117a. Duke then detailed how the program would be wound down: No new applications would be accepted, but DHS would entertain applications for two-year renewals from DACA recipients whose benefits were set to expire within six months. For all other DACA recipients, previously issued grants of deferred action and work authorization would not be revoked but would expire on their own terms, with no prospect for renewal. Id., at 117a-118a. B Within days of Acting Secretary Duke's rescission announcement, multiple groups of plaintiffs ranging from individual DACA recipients and States to the Regents of the University of California and the National Association for the Advancement of Colored People challenged her decision in the U.S. District Courts for the Northern District of California (Regents, No. 18-587), the Eastern District of New York (Batalla Vidal, No. 18-589), and the District of Columbia (NAACP, No. 18-588). The relevant claims are that the rescission was arbitrary and capricious in violation of the APA and that it infringed the equal protection guarantee of the Fifth Amendment's Due Process Clause. All three District Courts ruled for the plaintiffs, albeit at different stages of the proceedings. In doing so, each court rejected the Government's threshold arguments that the claims were unreviewable under the APA and that the INA deprived the court of jurisdiction. 298 F.Supp.3d 209, 223-224, 234-235 (DDC 2018) ; 279 F.Supp.3d 1011, 1029-1033 (ND Cal. 2018) ; 295 F.Supp.3d 127, 150, 153-154 (EDNY 2017). In Regents and Batalla Vidal, the District Courts held that the equal protection claims were adequately alleged. 298 F.Supp.3d 1304, 1315 (ND Cal. 2018) ; 291 F.Supp.3d 260, 279 (EDNY 2018). Those courts also entered coextensive nationwide preliminary injunctions, based on the conclusion that the plaintiffs were likely to succeed on the merits of their claims that the rescission was arbitrary and capricious. These injunctions did not require DHS to accept new applications, but did order the agency to allow DACA recipients to "renew their enrollments." 279 F.Supp.3d at 1048 ; see 279 F.Supp.3d 401, 437 (EDNY 2018). In NAACP, the D. C. District Court took a different course. In April 2018, it deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, holding that Acting Secretary Duke's "conclusory statements were insufficient to explain the change in [the agency's] view of DACA's lawfulness." 298 F.Supp.3d at 243. The District Court stayed its order for 90 days to permit DHS to "reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority." Id., at 245. Two months later, Duke's successor, Secretary Kirstjen M. Nielsen, responded via memorandum. App. to Pet. for Cert. 120a-126a. She explained that, "[h]aving considered the Duke memorandum," she "decline[d] to disturb" the rescission. Id., at 121a. Secretary Nielsen went on to articulate her "understanding" of Duke's memorandum, identifying three reasons why, in Nielsen's estimation, "the decision to rescind the DACA policy was, and remains, sound." Ibid. First, she reiterated that, "as the Attorney General concluded, the DACA policy was contrary to law." Id., at 122a. Second, she added that, regardless, the agency had "serious doubts about [DACA's] legality" and, for law enforcement reasons, wanted to avoid "legally questionable" policies. Id., at 123a. Third, she identified multiple policy reasons for rescinding DACA, including (1) the belief that any class-based immigration relief should come from Congress, not through executive non-enforcement; (2) DHS's preference for exercising prosecutorial discretion on "a truly individualized, case-by-case basis"; and (3) the importance of "project[ing] a message" that immigration laws would be enforced against all classes and categories of aliens. Id., at 123a-124a. In her final paragraph, Secretary Nielsen acknowledged the "asserted reliance interests" in DACA's continuation but concluded that they did not "outweigh the questionable legality of the DACA policy and the other reasons" for the rescission discussed in her memorandum. Id., at 125a. The Government asked the D. C. District Court to revise its prior order in light of the reasons provided by Secretary Nielsen, but the court declined. In the court's view, the new memorandum, which "fail[ed] to elaborate meaningfully" on the agency's illegality rationale, still did not provide an adequate explanation for the September 2017 rescission. 315 F.Supp.3d 457, 460, 473-474 (2018). The Government appealed the various District Court decisions to the Second, Ninth, and D. C. Circuits, respectively. In November 2018, while those appeals were pending, the Government simultaneously filed three petitions for certiorari before judgment. After the Ninth Circuit affirmed the nationwide injunction in Regents, see 908 F.3d 476 (2018), but before rulings from the other two Circuits, we granted the petitions and consolidated the cases for argument. 588 U.S. ----, 139 S.Ct. 2779, 204 L.Ed.2d 1156 (2019). The issues raised here are (1) whether the APA claims are reviewable, (2) if so, whether the rescission was arbitrary and capricious in violation of the APA, and (3) whether the plaintiffs have stated an equal protection claim. II The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so. The APA "sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts." Franklin v. Massachusetts, 505 U.S. 788, 796, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). It requires agencies to engage in "reasoned decisionmaking," Michigan v. EPA, 576 U.S. 743, 750, 135 S.Ct. 2699, 192 L.Ed.2d 674 (2015) (internal quotation marks omitted), and directs that agency actions be "set aside" if they are "arbitrary" or "capricious," 5 U.S.C. § 706(2)(A). Under this "narrow standard of review,... a court is not to substitute its judgment for that of the agency," FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (internal quotation marks omitted), but instead to assess only whether the decision was "based on a consideration of the relevant factors and whether there has been a clear error of judgment," Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). But before determining whether the rescission was arbitrary and capricious, we must first address the Government's contentions that DHS's decision is unreviewable under the APA and outside this Court's jurisdiction. A The APA establishes a "basic presumption of judicial review [for] one'suffering legal wrong because of agency action.' " Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (quoting § 702 ). That presumption can be rebutted by a showing that the relevant statute "preclude[s]" review, § 701(a)(1), or that the "agency action is committed to agency discretion by law," § 701(a)(2). The latter exception is at issue here. To "honor the presumption of review, we have read the exception in § 701(a)(2) quite narrowly," Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U.S. ----, ----, 139 S.Ct. 361, 370, 202 L.Ed.2d 269 (2018), confining it to those rare "administrative decision[s] traditionally left to agency discretion," Lincoln v. Vigil, 508 U.S. 182, 191, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993). This limited category of unreviewable actions includes an agency's decision not to institute enforcement proceedings, Heckler v. Chaney, 470 U.S. 821, 831-832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and it is on that exception that the Government primarily relies. In Chaney, several death-row inmates petitioned the Food and Drug Administration (FDA) to take enforcement action against two States to prevent their use of certain drugs for lethal injection. The Court held that the FDA's denial of that petition was presumptively unreviewable in light of the well-established "tradition" that "an agency's decision not to prosecute or enforce" is "generally committed to an agency's absolute discretion." Id., at 831, 105 S.Ct. 1649. We identified a constellation of reasons that underpin this tradition. To start, a non-enforcement decision "often involves a complicated balancing of a number of factors which are peculiarly within [the agency's] expertise," such as "whether the particular enforcement action requested best fits the agency's overall policies." Ibid. The decision also mirrors, "to some extent," a prosecutor's decision not to indict, which has "long been regarded as the special province of the Executive Branch." Id., at 832, 105 S.Ct. 1649. And, as a practical matter, "when an agency refuses to act" there is no action to "provide[ ] a focus for judicial review." Ibid. The Government contends that a general non-enforcement policy is equivalent to the individual non-enforcement decision at issue in Chaney. In each case, the Government argues, the agency must balance factors peculiarly within its expertise, and does so in a manner akin to a criminal prosecutor. Building on that premise, the Government argues that the rescission of a non-enforcement policy is no different-for purposes of reviewability-from the adoption of that policy. While the rescission may lead to increased enforcement, it does not, by itself, constitute a particular enforcement action. Applying this logic to the facts here, the Government submits that DACA is a non-enforcement policy and that its rescission is therefore unreviewable. But we need not test this chain of reasoning because DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely "refus[e] to institute proceedings" against a particular entity or even a particular class. Ibid. Instead, it directed USCIS to "establish a clear and efficient process" for identifying individuals who met the enumerated criteria. App. to Pet. for Cert. 100a. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively "adjudicat[ions]." Id., at 117a. And the result of these adjudications-DHS's decision to "grant deferred action," Brief for Petitioners 45-is an "affirmative act of approval," the very opposite of a "refus[al] to act," Chaney, 470 U.S. at 831-832, 105 S.Ct. 1649. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program-and its rescission-is an "action [that] provides a focus for judicial review." Id., at 832, 105 S.Ct. 1649. The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. See supra, at 1901. Unlike an agency's refusal to take requested enforcement action, access to these types of benefits is an interest "courts often are called upon to protect." Chaney, 470 U.S. at 832, 105 S.Ct. 1649. See also Barnhart v. Thomas, 540 U.S. 20, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (reviewing eligibility determination for Social Security benefits). Because the DACA program is more than a non-enforcement policy, its rescission is subject to review under the APA. B The Government also invokes two jurisdictional provisions of the INA as independent bars to review. Neither applies. Section 1252(b)(9) bars review of claims arising from "action[s]" or "proceeding[s] brought to remove an alien." 66 Stat. 209, as amended, 8 U.S.C. § 1252(b)(9). That targeted language is not aimed at this sort of case. As we have said before, § 1252(b)(9) "does not present a jurisdictional bar" where those bringing suit "are not asking for review of an order of removal," "the decision... to seek removal," or "the process by which... removability will be determined." Jennings v. Rodriguez, 583 U.S. ----, ---- - ----, 138 S.Ct. 830, 841, 200 L.Ed.2d 122 (2018) (plurality opinion); id., at ----, 138 S.Ct., at 875-876 (BREYER, J., dissenting). And it is certainly not a bar where, as here, the parties are not challenging any removal proceedings. Section 1252(g) is similarly narrow. That provision limits review of cases "arising from" decisions "to commence proceedings, adjudicate cases, or execute removal orders." § 1252(g). We have previously rejected as "implausible" the Government's suggestion that § 1252(g) covers "all claims arising from deportation proceedings" or imposes "a general jurisdictional limitation." Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). The rescission, which revokes a deferred action program with associated benefits, is not a decision to "commence proceedings," much less to "adjudicate" a case or "execute" a removal order. With these preliminary arguments out of the way, we proceed to the merits. III A Deciding whether agency action was adequately explained requires, first, knowing where to look for the agency's explanation. The natural starting point here is the explanation provided by Acting Secretary Duke when she announced the rescission in September 2017. But the Government urges us to go on and consider the June 2018 memorandum submitted by Secretary Nielsen as well. That memo was prepared after the D. C. District Court vacated the Duke rescission and gave DHS an opportunity to "reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority." 298 F.Supp.3d at 245. According to the Government, the Nielsen Memorandum is properly before us because it was invited by the District Court and reflects the views of the Secretary of Homeland Security-the official responsible for immigration policy. Respondents disagree, arguing that the Nielsen Memorandum, issued nine months after the rescission, impermissibly asserts prudential and policy reasons not relied upon by Duke. It is a "foundational principle of administrative law" that judicial review of agency action is limited to "the grounds that the agency invoked when it took the action." Michigan, 576 U.S. at 758, 135 S.Ct. 2699. If those grounds are inadequate, a court may remand for the agency to do one of two things: First, the agency can offer "a fuller explanation of the agency's reasoning at the time of the agency action." Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S. 633, 654, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (emphasis added). See also Alpharma, Inc. v. Leavitt, 460 F.3d 1, 5-6 (CADC 2006) (Garland, J.) (permitting an agency to provide an "amplified articulation" of a prior "conclusory" observation (internal quotation marks omitted)). This route has important limitations. When an agency's initial explanation "indicate[s] the determinative reason for the final action taken," the agency may elaborate later on that reason (or reasons) but may not provide new ones. Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam ). Alternatively, the agency can "deal with the problem afresh" by taking new agency action. SEC v. Chenery Corp., 332 U.S. 194, 201, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) ( Chenery II ). An agency taking this route is not limited to its prior reasons but must comply with the procedural requirements for new agency action. The District Court's remand thus presented DHS with a choice: rest on the Duke Memorandum while elaborating on its prior reasoning, or issue a new rescission bolstered by new reasons absent from the Duke Memorandum. Secretary Nielsen took the first path. Rather than making a new decision, she "decline[d] to disturb the Duke memorandum's rescission" and instead "provide[d] further explanation" for that action. App. to Pet. for Cert. 121a. Indeed, the Government's subsequent request for reconsideration described the Nielsen Memorandum as "additional explanation for [Duke's] decision" and asked the District Court to "leave in place [Duke's] September 5, 2017 decision to rescind the DACA policy." Motion to Revise Order in No. 17-cv-1907 etc. (D DC), pp. 2, 19. Contrary to the position of the Government before this Court, and of Justice KAVANAUGH in dissent, post, at 1933 (opinion concurring in judgment in part and dissenting in part), the Nielsen Memorandum was by its own terms not a new rule implementing a new policy. Because Secretary Nielsen chose to elaborate on the reasons for the initial rescission rather than take new administrative action, she was limited to the agency's original reasons, and her explanation "must be viewed critically" to ensure that the rescission is not upheld on the basis of impermissible "post hoc rationalization." Overton Park, 401 U.S. at 420, 91 S.Ct. 814. But despite purporting to explain the Duke Memorandum, Secretary Nielsen's reasoning bears little relationship to that of her predecessor. Acting Secretary Duke rested the rescission on the conclusion that DACA is unlawful. Period. See App. to Pet. for Cert. 117a. By contrast, Secretary Nielsen's new memorandum offered three "separate and independently sufficient reasons" for the rescission, id., at 122a, only the first of which is the conclusion that DACA is illegal. Her second reason is that DACA is, at minimum, legally questionable and should be terminated to maintain public confidence in the rule of law and avoid burdensome litigation. No such justification can be found in the Duke Memorandum. Legal uncertainty is, of course, related to illegality. But the two justifications are meaningfully distinct, especially in this context. While an agency might, for one reason or another, choose to do nothing in the face of uncertainty, illegality presumably requires remedial action of some sort. The policy reasons that Secretary Nielsen cites as a third basis for the rescission are also nowhere to be found in the Duke Memorandum. That document makes no mention of a preference for legislative fixes, the superiority of case-by-case decisionmaking, the importance of sending a message of robust enforcement, or any other policy consideration. Nor are these points included in the legal analysis from the Fifth Circuit and the Attorney General. They can be viewed only as impermissible post hoc rationalizations and thus are not properly before us. The Government, echoed by Justice KAVANAUGH, protests that requiring a new decision before considering Nielsen's new justifications would be "an idle and useless formality." NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766, n. 6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (plurality opinion). See also post, at 1934. Procedural requirements can often seem such. But here the rule serves important values of administrative law. Requiring a new decision before considering new reasons promotes "agency accountability," Bowen v. American Hospital Assn., 476 U.S. 610, 643, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986), by ensuring that parties and the public can respond fully and in a timely manner to an agency's exercise of authority. Considering only contemporaneous explanations for agency action also instills confidence that the reasons given are not simply "convenient litigating position[s]." Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012) (internal quotation marks omitted). Permitting agencies to invoke belated justifications, on the other hand, can upset "the orderly functioning of the process of review," SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943), forcing both litigants and courts to chase a moving target. Each of these values would be markedly undermined were we to allow DHS to rely on reasons offered nine months after Duke announced the rescission and after three different courts had identified flaws in the original explanation. Justice KAVANAUGH asserts that this "foundational principle of administrative law," Michigan, 576 U.S. at 758, 135 S.Ct. 2699, actually limits only what lawyers may argue, not what agencies may do. Post, at 1934. While it is true that the Court has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc rationalizations, not advocate rationalizations, because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency or by agency officials themselves. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 539, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981) ("[T]he post hoc rationalizations of the agency... cannot serve as a sufficient predicate for agency action."); Overton Park, 401 U.S. at 419, 91 S.Ct. 814 (rejecting "litigation affidavits" from agency officials as "merely 'post hoc'rationalizations"). Justice Holmes famously wrote that "[m]en must turn square corners when they deal with the Government." Rock Island, A. & L. R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 65 L.Ed. 188 (1920). But it is also true, particularly when so much is at stake, that "the Government should turn square corners in dealing with the people." St. Regis Paper Co. v. United States, 368 U.S. 208, 229, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision. B We turn, finally, to whether DHS's decision to rescind DACA was arbitrary and capricious. As noted earlier, Acting Secretary Duke's justification for the rescission was succinct: "Taking into consideration" the Fifth Circuit's conclusion that DAPA was unlawful because it conferred benefits in violation of the INA, and the Attorney General's conclusion that DACA was unlawful for the same reason, she concluded-without elaboration-that the "DACA program should be terminated." App. to Pet. for Cert. 117a. Respondents maintain that this explanation is deficient for three reasons. Their first and second arguments work in tandem, claiming that the Duke Memorandum does not adequately explain the conclusion that DACA is unlawful, and that this conclusion is, in any event, wrong. While those arguments carried the day in the lower courts, in our view they overlook an important constraint on Acting Secretary Duke's decisionmaking authority-she was bound by the Attorney General's legal determination. The same statutory provision that establishes the Secretary of Homeland Security's authority to administer and enforce immigration laws limits that authority, specifying that, with respect to "all questions of law," the determinations of the Attorney General "shall be controlling." 8 U.S.C. § 1103(a)(1). Respondents are aware of this constraint. Indeed they emphasized the point in the reviewability sections of their briefs. But in their merits arguments, respondents never addressed whether or how this unique statutory provision might affect our review. They did not discuss whether Duke was required to explain a legal conclusion that was not hers to make. Nor did they discuss whether the current suits challenging Duke's rescission decision, which everyone agrees was within her legal authority under the INA, are proper vehicles for attacking the Attorney General's legal conclusion. Because of these gaps in respondents' briefing, we do not evaluate the claims challenging the explanation and correctness of the illegality conclusion. Instead we focus our attention on respondents' third argument-that Acting Secretary Duke "failed to consider... important aspect[s] of the problem" before her. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General. But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS. Acting Secretary Duke plainly exercised such discretionary authority in winding down the program. See App. to Pet. for Cert. 117a-118a (listing the Acting Secretary's decisions on eight transition issues). Among other things, she specified that those DACA recipients whose benefits were set to expire within six months were eligible for two-year renewals. Ibid. But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General's legal reasoning left off. The Attorney General concluded that "the DACA policy has the same legal... defects that the courts recognized as to DAPA." App. 878. So, to understand those defects, we look to the Fifth Circuit, the highest court to offer a reasoned opinion on the legality of DAPA. That court described the "core" issue before it as the "Secretary's decision" to grant "eligibility for benefits"-including work authorization, Social Security, and Medicare-to unauthorized aliens on "a class-wide basis." Texas, 809 F.3d at 170 ; see id., at 148, 184. The Fifth Circuit's focus on these benefits was central to every stage of its analysis. See id., at 155 (standing); id., at 163 (zone of interest); id., at 164 (applicability of § 1252(g) ); id., at 166 (reviewability); id., at 176-177 (notice and comment); id., at 184 (substantive APA). And the Court ultimately held that DAPA was "manifestly contrary to the INA" precisely because it "would make 4.3 million otherwise removable aliens" eligible for work authorization and public benefits. Id., at 181-182 (internal quotation marks omitted). But there is more to DAPA (and DACA) than such benefits. The defining feature of deferred action is the decision to defer removal (and to notify the affected alien of that decision). See App. to Pet. for Cert. 99a. And the Fifth Circuit was careful to distinguish that forbearance component from eligibility for benefits. As it explained, the "challenged portion of DAPA's deferred-action program" was the decision to make DAPA recipients eligible for benefits. See Texas, 809 F.3d at 168, and n. 108. The other "[p]art of DAPA," the court noted, "involve[d] the Secretary's decision-at least temporarily-not to enforce the immigration laws as to a class of what he deem[ed] to be low-priority illegal aliens." Id., at 166. Borrowing from this Court's prior description of deferred action, the Fifth Circuit observed that "the states do not challenge the Secretary's decision to 'decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation.' " Id., at 168 (quoting Reno, 525 U.S. at 484, 119 S.Ct. 936 ). And the Fifth Circuit underscored that nothing in its decision or the preliminary injunction "requires the Secretary to remove any alien or to alter" the Secretary's class-based "enforcement priorities." Texas, 809 F.3d at 166, 169. In other words, the Secretary's forbearance authority was unimpaired. Acting Secretary Duke recognized that the Fifth Circuit's holding addressed the benefits associated with DAPA. In her memorandum she explained that the Fifth Circuit concluded that DAPA "conflicted with the discretion authorized by Congress" because the INA " 'flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.' " App. to Pet. for Cert. 114a (quoting Texas, 809 F.3d at 184 ). Duke did not characterize the opinion as one about forbearance. In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for "[e]stablishing national immigration enforcement policies and priorities." 116 Stat. 2178, 6 U.S.C. § 202(5). But Duke's memo offers no reason for terminating forbearance. She instead treated the Attorney General's conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error we identified in one of our leading modern administrative law cases, Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. There, the National Highway Traffic Safety Administration (NHTSA) promulgated a requirement that motor vehicles produced after 1982 be equipped with one of two passive restraints: airbags or automatic seatbelts. 463 U.S. at 37-38, 46, 103 S.Ct. 2856. Four years later, before the requirement went into effect, NHTSA concluded that automatic seatbelts, the restraint of choice for most manufacturers, would not provide effective protection. Based on that premise, NHTSA rescinded the passive restraint requirement in full. Id., at 38, 103 S.Ct. 2856. We concluded that the total rescission was arbitrary and capricious. As we explained, NHTSA's justification supported only "disallow[ing] compliance by means of " automatic seatbelts. Id., at 47, 103 S.Ct. 2856. It did "not cast doubt" on the "efficacy of airbag technology" or upon "the need for a passive restraint standard." Ibid. Given NHTSA's prior judgment that "airbags are an effective and cost-beneficial lifesaving technology," we held that "the mandatory passive restraint rule [could] not be abandoned without any consideration whatsoever of an airbags-only requirement." Id., at 51, 103 S.Ct. 2856. While the factual setting is different here, the error is the same. Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only "disallow[ing]" benefits. Id., at 47, 103 S.Ct. 2856. It did "not cast doubt" on the legality of forbearance or upon DHS's original reasons for extending forbearance to childhood arrivals. Ibid. Thus, given DHS's earlier judgment that forbearance is "especially justified" for "productive young people" who were brought here as children and "know only this country as home," App. to Pet. for Cert. 98a-99a, the DACA Memorandum could not be rescinded in full "without any consideration whatsoever" of a forbearance-only policy, State Farm, 463 U.S. at 51, 103 S.Ct. 2856. The Government acknowledges that "[d]eferred action coupled with the associated benefits are the two legs upon which the DACA policy stands." Reply Brief 21. It insists, however, that "DHS was not required to consider whether DACA's illegality could be addressed by separating" the two. Ibid. According to the Government, "It was not arbitrary and capricious for DHS to view deferred action and its collateral benefits as importantly linked." Ibid. Perhaps. But that response misses the point. The fact that there may be a valid reason not to separate deferred action from benefits does not establish that DHS considered that option or that such consideration was unnecessary. The lead dissent acknowledges that forbearance and benefits are legally distinct and can be decoupled. Post, at 1929 - 1930, n. 14 (opinion of THOMAS, J). It contends, however, that we should not "dissect" agency action "piece by piece." Post, at 1929. The dissent instead rests on the Attorney General's legal determination-which considered only benefits-"to supply the'reasoned analysis' " to support rescission of both benefits and forbearance. Post, at 1930 (quoting State Farm, 463 U.S. at 42, 103 S.Ct. 2856 ). But State Farm teaches that when an agency rescinds a prior policy its reasoned analysis must consider the "alternative[s]" that are "within the ambit of the existing [policy]." Id., at 51, 103 S.Ct. 2856. Here forbearance was not simply "within the ambit of the existing [policy]," it was the centerpiece of the policy: DACA, after all, stands for "Deferred Action for Childhood Arrivals." App. to Pet. for Cert. 111a (emphasis added). But the rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits. Duke "entirely failed to consider [that] important aspect of the problem." State Farm, 463 U.S. at 43, 103 S.Ct. 2856. That omission alone renders Acting Secretary Duke's decision arbitrary and capricious. But it is not the only defect. Duke also failed to address whether there was "legitimate reliance" on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996). When an agency changes course, as DHS did here, it must "be cognizant that longstanding policies may have 'engendered serious reliance interests that must be taken into account.' " Encino Motorcars, LLC v. Navarro, 579 U.S. ----, ----, 136 S.Ct. 2117, 2126, 195 L.Ed.2d 382 (2016) (quoting Fox Television, 556 U.S. at 515, 129 S.Ct. 1800 ). "It would be arbitrary and capricious to ignore such matters." Id., at 515, 129 S.Ct. 1800. Yet that is what the Duke Memorandum did. For its part, the Government does not contend that Duke considered potential reliance interests; it counters that she did not need to. In the Government's view, shared by the lead dissent, DACA recipients have no "legally cognizable reliance interests" because the DACA Memorandum stated that the program "conferred no substantive rights" and provided benefits only in two-year increments. Reply Brief 16-17; App. to Pet. for Cert. 125a. See also post, at 1930 - 1931 (opinion of THOMAS, J). But neither the Government nor the lead dissent cites any legal authority establishing that such features automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that consideration must be undertaken by the agency in the first instance, subject to normal APA review. There was no such consideration in the Duke Memorandum. Respondents and their amici assert that there was much for DHS to consider. They stress that, since 2012, DACA recipients have "enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance" on the DACA program. Brief for Respondent Regents of Univ. of California et al. in No. 18-587, p. 41 (Brief for Regents). The consequences of the rescission, respondents emphasize, would "radiate outward" to DACA recipients' families, including their 200,000 U.S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. See id., at 41-42; Brief for Respondent State of New York et al. in No. 18-589, p. 42 (Brief for New York). See also Brief for 143 Businesses as Amici Curiae 17 (estimating that hiring and training replacements would cost employers $6.3 billion). In addition, excluding DACA recipients from the lawful labor force may, they tell us, result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Brief for Regents 6. Meanwhile, States and local governments could lose $1.25 billion in tax revenue each year. Ibid. These are certainly noteworthy concerns, but they are not necessarily dispositive. To the Government and lead dissent's point, DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the DACA Memorandum. Or it might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight. And, even if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider. DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency's job, but the agency failed to do it. DHS has considerable flexibility in carrying out its responsibility. The wind-down here is a good example of the kind of options available. Acting Secretary Duke authorized DHS to process two-year renewals for those DACA recipients whose benefits were set to expire within six months. But Duke's consideration was solely for the purpose of assisting the agency in dealing with "administrative complexities." App. to Pet. for Cert. 116a-118a. She should have considered whether she had similar flexibility in addressing any reliance interests of DACA recipients. The lead dissent contends that accommodating such interests would be "another exercise of unlawful power," post, at 1930 (opinion of THOMAS, J.), but the Government does not make that argument and DHS has already extended benefits for purposes other than reliance, following consultation with the Office of the Attorney General. App. to Pet. for Cert. 116a. Had Duke considered reliance interests, she might, for example, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. Alternatively, Duke might have considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen. Or she might have instructed immigration officials to give salient weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion. To be clear, DHS was not required to do any of this or to "consider all policy alternatives in reaching [its] decision." State Farm, 463 U.S. at 51, 103 S.Ct. 2856. Agencies are not compelled to explore "every alternative device and thought conceivable by the mind of man." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 551, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). But, because DHS was "not writing on a blank slate," post, at 1929, n. 14 (opinion of THOMAS, J.), it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns. The lead dissent sees all the foregoing differently. In its view, DACA is illegal, so any actions under DACA are themselves illegal. Such actions, it argues, must cease immediately and the APA should not be construed to impede that result. See post, at 1928 - 1930 (opinion of THOMAS, J.). The dissent is correct that DACA was rescinded because of the Attorney General's illegality determination. See post, at 1928. But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA. IV Lastly, we turn to respondents' claim that the rescission violates the equal protection guarantee of the Fifth Amendment. The parties dispute the proper framing of this claim. The Government contends that the allegation that the Executive, motivated by animus, ended a program that disproportionately benefits certain ethnic groups is a selective enforcement claim. Such a claim, the Government asserts, is barred by our decision in Reno v. American-Arab Anti-Discrimination Committee. See 525 U.S. at 488, 119 S.Ct. 936 (holding that "an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation"). Respondents counter that their claim falls outside the scope of that precedent because they are not challenging individual enforcement proceedings. We need not resolve this debate because, even if the claim is cognizable, the allegations here are insufficient. To plead animus, a plaintiff must raise a plausible inference that an "invidious discriminatory purpose was a motivating factor" in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Possible evidence includes disparate impact on a particular group, "[d]epartures from the normal procedural sequence," and "contemporary statements by members of the decisionmaking body." Id., at 266-268, 97 S.Ct. 555. Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54-55. None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. See B. Baker, DHS, Office of Immigration Statistics, Population Estimates, Illegal Alien Population Residing in the United States: January 2015, Table 2 (Dec. 2018), https://www.dhs.gov/sites/default/files/publications/18_1214_PLCY_pops-est-report.pdf. Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds. Second, there is nothing irregular about the history leading up to the September 2017 rescission. The lower courts concluded that "DACA received reaffirmation by [DHS] as recently as three months before the rescission," 908 F.3d at 519 (quoting 298 F.Supp.3d at 1315 ), referring to the June 2017 DAPA rescission memo, which stated that DACA would "remain in effect," App. 870. But this reasoning confuses abstention with reaffirmation. The DAPA memo did not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA's legal defects, DHS's decision to reevaluate DACA was not a "strange about-face." 908 F.3d at 519. It was a natural response to a newly identified problem. Finally, the cited statements are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not "identif[y] statements by [either] that would give rise to an inference of discriminatory motive." 291 F.Supp.3d at 278. Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements-remote in time and made in unrelated contexts-do not qualify as "contemporary statements" probative of the decision at issue. Arlington Heights, 429 U.S. at 268, 97 S.Ct. 555. Thus, like respondents' other points, the statements fail to raise a plausible inference that the rescission was motivated by animus. * * * We do not decide whether DACA or its rescission are sound policies. "The wisdom" of those decisions "is none of our concern." Chenery II, 332 U.S. at 207, 67 S.Ct. 1760. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew. The judgment in NAACP, No. 18-588, is affirmed. The judgment in Regents, No. 18-587, is vacated in part and reversed in part. And in Batalla Vidal, No. 18-589, the February 13, 2018 order granting respondents' motion for a preliminary injunction is vacated, the November 9, 2017 order partially denying the Government's motion to dismiss is affirmed in part, and the March 29, 2018 order partially denying the balance of the Government's motion to dismiss is reversed in part. All three cases are remanded for further proceedings consistent with this opinion. It is so ordered. Justice SOTOMAYOR, concurring in part, concurring in the judgment in part, and dissenting in part. The majority rightly holds that the Department of Homeland Security (DHS) violated the Administrative Procedure Act in rescinding the Deferred Action for Childhood Arrivals (DACA) program. But the Court forecloses any challenge to the rescission under the Equal Protection Clause. I believe that determination is unwarranted on the existing record and premature at this stage of the litigation. I would instead permit respondents to develop their equal protection claims on remand. Respondents' equal protection challenges come to us in a preliminary posture. All that respondents needed to do at this stage of the litigation was state sufficient facts that would "allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The three courts to evaluate respondents' pleadings below held that they cleared this modest threshold. 908 F.3d 476, 518-520 (CA9 2018) (affirming the District Court's denial of the Government's motion to dismiss); see also Batalla Vidal v. Nielsen, 291 F.Supp.3d 260, 274 ( Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:

sc_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. DICKMAN et al. v. COMMISSIONER OF INTERNAL REVENUE No. 82-1041. Argued November 1, 1983 Decided February 22, 1984 Burger, C. J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Powell, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 345. Frank P. Riggs argued the cause for petitioners. With him on the briefs were Guy S. Emerich, Vester T. Hughes, Jr., M. David Bryant, Jr., and Kathryn G. Henkel. Deputy Solicitor General Wallace argued the cause for respondent. With him on the brief were Solicitor General Lee, Assistant Attorney General Archer, Harriet S. Shapiro, Michael L. Paup, Jonathan S. Cohen, and Farley P. Katz Briefs of amici curiae urging reversal were filed for D’Ancona & Pflaum by Byron S. Miller and Alan L. Reinstein; and for Jones, Day, Reavis & Pogue by Erwin N. Griswold. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to resolve a conflict among the Circuits as to whether intrafamily, interest-free demand loans result in taxable gifts of the value of the use of the money lent. I A Paul and Esther Dickman were husband and wife; Lyle Dickman was their son. Paul, Esther, Lyle, and Lyle’s wife and children were the owners of Artesian Farm, Inc. (Arte-sian), a closely held Florida corporation. Between 1971 and 1976, Paul and Esther loaned substantial sums to Lyle and Artesian. Over this 5-year interval, the outstanding balances for the loans from Paul to Lyle varied from $144,715 to $342,915; with regard to Paul’s loans to Artesian, the outstanding balances ranged from $207,875 to $669,733. During the same period, Esther loaned $226,130 to Lyle and $68,651 to Artesian. With two exceptions, all the loans were evidenced by demand notes bearing no interest. Paul Dickman died in 1976, leaving a gross estate for federal estate tax purposes of $3,464,011. The Commissioner of Internal Revenue audited Paul Dickman’s estate and determined that the loans to Lyle and Artesian resulted in taxable gifts to the extent of the value of the use of the loaned funds. The Commissioner then issued statutory notices of gift tax deficiency both to Paul Dickman’s estate and to Esther Dickman. Esther Dickman and the estate, petitioners here, sought redetermination of the deficiencies in the Tax Court. Reaffirming its earlier decision in Crown v. Commissioner, 67 T. C. 1060 (1977), aff’d, 685 F. 2d 234 (CA7 1978), the Tax Court concluded that intrafamily, interest-free demand loans do not result in taxable gifts. 41 TCM 620, 623 (1980), ¶80,575 P-H Memo TC, at 2428. Because the Tax Court determined that all the loans to Lyle and Artesian were made payable on demand, it held that the loans were not subject to the federal gift tax. Id., at 624, ¶80,575 P-H Memo TC, at 2428. B The United States Court of Appeals for the Eleventh Circuit reversed, holding that gratuitous interest-free demand loans give rise to gift tax liability. 690 F. 2d 812, 819 (1982). Reviewing the language and history of the gift tax provisions of the Internal Revenue Code of 1954 (Code), 26 U. S, C. §2501 et seq., the Court of Appeals concluded that Congress intended the gift tax to have the broadest and most comprehensive coverage possible. The court reasoned that the making of an interest-free demand loan constitutes a “transfer of property by gift” within the meaning of 26 U. S. C. § 2501(a)(1), and accordingly is subject to the gift tax provisions of the Code. In so holding, the Court of Appeals squarely rejected the contrary position adopted by the United States Court of Appeals for the Seventh Circuit in Crown v. Commissioner, 585 F. 2d 234 (1978). We granted certiorari to resolve this conflict, 459 U. S. 1199 (1983); we affirm. II A The statutory language of the federal gift tax provisions purports to reach any gratuitous transfer of any interest in property. Section 2501(a)(1) of the Code imposes a tax upon “the transfer of property by gif t. ” Section 2511 (a) highlights the broad sweep of the tax imposed by §2501, providing in pertinent part: “Subject to the limitations contained in this chapter, the tax imposed by section 2501 shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible . . . The language of these statutes is clear and admits of but one reasonable interpretation: transfers of property by gift, by whatever means effected, are subject to the federal gift tax. The Committee Reports accompanying the Revenue Act of 1932, ch. 209, 47 Stat. 169, which established the present scheme of federal gift taxation, make plain that Congress intended the gift tax statute to reach all gratuitous transfers of any valuable interest in property. Among other things, these Reports state: “The terms ‘property,’ ‘transfer,’ ‘gift,’ and ‘indirectly’ are used in the broadest and most comprehensive sense; the term ‘property’ reaching every species of right or interest protected by law and having an exchangeable value. “The words ‘transfer ... by gift’ and ‘whether . . . direct or indirect’ are designed to cover and comprehend all transactions . . . whereby, and to the extent. . . that, property or a property right is donatively passed to or conferred upon another, regardless of the means or the device employed in its accomplishment.” H. R. Rep. No. 708, 72d Cong., 1st Sess., 27-28 (1932); S. Rep. No. 665, 72d Cong., 1st Sess., 39 (1932). The plain language of the statute reflects this legislative history; the gift tax was designed to encompass all transfers of property and property rights having significant value. On several prior occasions, this Court has acknowledged the expansive sweep of the gift tax provisions. In Commissioner v. Wemyss, 324 U. S. 303, 306 (1945), the Court explained that “Congress intended to use the term ‘gifts’ in its broadest and most comprehensive sense ... [in order] to hit all the protean arrangements which the wit of man can devise that are not business transactions within the meaning of ordinary speech.” The Court has also noted that the language of the gift tax statute “is broad enough to include property, however conceptual or contingent,” Smith v. Shaughnessy, 318 U. S. 176, 180 (1943), so as “to reach every kind and type of transfer by gift,” Robinette v. Helvering, 318 U. S. 184, 187 (1943). Thus, the decisions of this Court reinforce the view that the gift tax should be applied broadly to effectuate the clear intent of Congress. B In asserting that interest-free demand loans give rise to taxable gifts, the Commissioner does not seek to impose the gift tax upon the principal amount of the loan, but only upon the reasonable value of the use of the money lent. The taxable gift that assertedly results from an interest-free demand loan is the value of receiving and using the money without incurring a corresponding obligation to pay interest along with the loan’s repayment. Is such a gratuitous transfer of the right to use money a “transfer of property” within the intendment of § 2501(a)(1)? We have little difficulty accepting the theory that the use of valuable property — in this case money — is itself a legally protectible property interest. Of the aggregate rights associated with any property interest, the right of use of property is perhaps of the highest order. One court put it succinctly: “ ‘Property’ is more than just the physical thing — the land, the bricks, the mortar — it is also the sum of all the rights and powers incident to ownership of the physical thing. It is the tangible and the intangible. Property is composed of constituent elements and of these elements the right to use the physical thing to the exclusion of others is the most essential and beneficial. Without this right all other elements would be of little value . . . .” Passailaigue v. United States, 224 F. Supp. 682, 686 (MD Ga. 1963) (emphasis in original). What was transferred here was the use of a substantial amount of cash for an indefinite period of time. An analogous interest in real property, the use under a tenancy at will, has long been recognized as a property right. E. g., Restatement (Second) of Property § 1.6 (1977); 3 G. Thompson, Commentaries on the Modem Law of Real Property §1020 (J. Grimes ed. 1980). For example, a parent who grants to a child the rent-free, indefinite use of commercial property having a reasonable rental value of $8,000 a month has clearly transferred a valuable property right. The transfer of $100,000 in cash, interest-free and repayable on demand, is similarly a grant of the use of valuable property. Its uncertain tenure may reduce its value, but it does not undermine its status as property. In either instance, when the property owner transfers to another the right to use the object, an identifiable property interest has clearly changed hands. The right to the use of $100,000 without charge is a valuable interest in the money lent, as much so as the rent-free use of property consisting of land and buildings. In either case, there is a measurable economic value associated with the use of the property transferred. The value of the use of money is found in what it can produce; the measure of that value is interest — “rent” for the use of the funds. We can assume that an interest-free loan for a fixed period, especially for a prolonged period, may have greater value than such a loan made payable on demand, but it would defy common human experience to say that an intrafamily loan payable on demand is not subject to accommodation; its value may be reduced by virtue of its demand status, but that value is surely not eliminated. This Court has noted in another context that the making of an interest-free loan results in the transfer of a valuable economic right: “It is virtually self-evident that extending interest-free credit for a period of time is equivalent to giving a discount equal to the value of the use of the purchase price for that period of time.” Catalano, Inc. v. Target Sales, Inc., 446 U. S. 643, 648 (1980) (per curiam). Against this background, the gift tax statutes clearly encompass within their broad sweep the gratuitous transfer of the use of money. Just as a tenancy at will in real property is an estate or interest in land, so also is the right to use money a cognizable interest in personal property. The right to use money is plainly a valuable right, readily measurable by reference to current interest rates; the vast banking industry is positive evidence of this reality. Accordingly, we conclude that the interest-free loan of funds is a “transfer of property by gift” within the contemplation of the federal gift tax statutes. C Our holding that an interest-free demand loan results in a taxable gift of the use of the transferred funds is fully consistent with one of the major purposes of the federal gift tax statute: protection of the estate tax and the income tax. The legislative history of the gift tax provisions reflects that Congress enacted a tax on gifts to supplement existing estate and income tax laws. H. R. Rep. No. 708, at 28; S. Rep. No. 665, at 40; see also 65 Cong. Rec. 3119-3120, 8095-8096 (1924); Harriss, Legislative History of Federal Gift Taxation, 18 Taxes 531, 536 (1940). Failure to impose the gift tax on interest-free loans would seriously undermine this estate and income tax protection goal. A substantial no-interest loan from parent to child creates significant tax benefits for the lender quite apart from the economic advantages to the borrower. This is especially so when an individual in a high income tax bracket transfers income-producing property to an individual in a lower income tax bracket, thereby reducing the taxable income of the high-bracket taxpayer at the expense, ultimately, of all other taxpayers and the Government. Subjecting interest-free loans to gift taxation minimizes the potential loss to the federal fisc generated by the use of such loans as an income tax avoidance mechanism for the transferor. Gift taxation of interest-free loans also effectuates Congress’ desire to supplement the estate tax provisions. A gratuitous transfer of income-producing property may enable the transferor to avoid the future estate tax liability that would result if the earnings generated by the property — rent, interest, or dividends — became a part of the transferor’s estate. Imposing the gift tax upon interest-free loans bolsters the estate tax by preventing the diminution of the transferor’s estate in this fashion. Ill Petitioners contend that administrative and equitable considerations require a holding that no gift tax consequences result from the making of interest-free demand loans. In support of this position, petitioners advance several policy arguments; none withstands studied analysis. A Petitioners first advance an argument accepted by the Tax Court in Crown v. Commissioner: “[O]ur income tax system does not recognize unrealized earnings or accumulations of wealth and no taxpayer is under any obligation to continuously invest his money for a profit. The opportunity cost of either letting one’s money remain idle or suffering a loss from an unwise investment is not taxable merely because a profit could have been made from a wise investment.” 67 T. C., at 1063-1064. Thus, petitioners argue, an interest-free loan should not be made subject to the gift tax simply because of the possibility that the money lent might have enhanced the transferor’s taxable income or gross estate had the loan never been made. This contention misses the mark. It is certainly true that no law requires an individual to invest his property in an income-producing fashion, just as no law demands that a transferor charge interest or rent for the use of money or other property. An individual may, without incurring the gift tax, squander money, conceal it under a mattress, or otherwise waste its use value by failing to invest it. Such acts of consumption have nothing to do with lending money at no interest. The gift tax is an excise tax on transfers of property; allowing dollars to lie idle involves no transfer. If the taxpayer chooses not to waste the use value of money, however, but instead transfers the use to someone else, a taxable event has occurred. That the transferor himself could have consumed or wasted the use value of the money without incurring the gift tax does not change this result. Contrary to petitioners’ assertion, a holding in favor of the taxability of interest-free loans does not impose upon the transferor a duty profitably to invest; rather, it merely recognizes that certain tax consequences inevitably flow from a decision to make a “transfer of property by gift.” 26 U. S. C. § 2501(a)(1). B Petitioners next attack the breadth of the Commissioner’s view that interest-free demand loans give rise to taxable gifts. Carried to its logical extreme, petitioners argue, the Commissioner’s rationale would elevate to the status of taxable gifts such commonplace transactions as a loan of the proverbial cup of sugar to a neighbor or a loan of lunch money to a colleague. Petitioners urge that such a result is an untenable intrusion by the Government into cherished zones of privacy, particularly where intrafamily transactions are involved. Our laws require parents to provide their minor offspring with the necessities and conveniences of life; questions under the tax law often arise, however, when parents provide more than the necessities, and in quantities significant enough to attract the attention of the taxing authorities. Generally, the legal obligation of support terminates when the offspring reach majority. Nonetheless, it is not uncommon for parents to provide their adult children with such things as the use of cars or vacation cottages, simply on the basis of the family relationship. We assume that the focus of the Internal Revenue Service is not on such traditional familial matters. When the Government levies a gift tax on routine neighborly or familial gifts, there will be time enough to deal with such a case. Moreover, the tax law provides liberally for gifts to both family members and others; within the limits of the prescribed statutory exemptions, even substantial gifts may be entirely tax free. First, under § 2503(e) of the Code, 26 U. S. C. § 2503(e) (1982 ed.), amounts paid on behalf of an individual for tuition at a qualified educational institution or for medical care are not considered “transfer^] of property by gift” for purposes of the gift tax statutes. More significantly, § 2503(b) of the Code provides an annual exclusion from the computation of taxable gifts of $10,000 per year, per donee; this provision allows a taxpayer to give up to $10,000 annually to each of any number of persons, without incurring any gift tax liability. The “split gift” provision of Code § 2513(a), which effectively enables a husband and wife to give each object of their bounty $20,000 per year without liability for gift tax, further enhances the ability to transfer significant amounts of money and property free of gift tax consequences. Finally, should a taxpayer make gifts during one year that exceed the § 2503(b) annual gift tax exclusion, no gift tax liability will result until the unified credit of Code §2505 has been exhausted. These generous exclusions, exceptions, and credits clearly absorb the sorts of de minimis gifts petitioners envision and render illusory the administrative problems that petitioners perceive in their “parade of horribles.” C Finally, petitioners urge that the Commissioner should not be allowed to assert the gift taxability of interest-free demand loans because such a position represents a departure from prior Internal Revenue Service practice. This contention rests on the fact that, prior to 1966, the Commissioner had not construed the gift tax statutes and regulations to authorize the levying of a gift tax on the value of the use of money or property. See Crown v. Commissioner, 585 F. 2d, at 241; Johnson v. United States, 254 F. Supp. 73 (ND Tex. 1966). From this they argue that it is manifestly unfair to permit the Commissioner to impose the gift tax on the transactions challenged here. Even accepting the notion that the Commissioner’s present position represents a departure from prior administrative practice, which is by no means certain, it is well established that the Commissioner may change an earlier interpretation of the law, even if such a change is made retroactive in effect. E. g., Dixon v. United States, 381 U. S. 68, 72-75 (1965); Automobile Club of Michigan v. Commissioner, 353 U. S. 180, 183-184 (1957). This rule applies even though a taxpayer may have relied to his detriment upon the Commissioner’s prior position. Dixon v. United States, supra, at 73. The Commissioner is under no duty to assert a particular position as soon as the statute authorizes such an interpretation. See also Bob Jones University v. United States, 461 U. S. 574 (1983). Accordingly, petitioners’ “taxpayer reliance” argument is unavailing. I — < <J As we have noted, supra, at 341-342, Congress has provided generous exclusions and credits designed to reduce the gift tax liability of the great majority of taxpayers. Congress clearly has the power to provide a similar exclusion for the gifts that result from interest-free demand loans. Any change in the gift tax consequences of such loans, however, is a legislative responsibility, not a judicial one. Until such a change occurs, we are bound to effectuate Congress’ intent to protect the estate and income tax systems with a broad and comprehensive tax upon all “transferís] of property by gift.” Cf. Diedrich v. Commissioner, 457 U. S. 191, 199 (1982). We hold, therefore, that the interest-free demand loans shown by this record resulted in taxable gifts of the reasonable value of the use of the money lent. Accordingly, the judgment of the United States. Court of Appeals for the Eleventh Circuit is Affirmed. One exception was a loan made to Lyle on “open account” and payable on demand; the parties have agreed that the gift tax consequences of this “open account” loan are identical to those of the loans evidenced by the demand notes. 41 TCM 620, 623, n. 4 (1980), ¶80,575 P-H Memo TC, at 2427, n. 4. The other exception was a loan made to Artesian and memorialized by a no-interest note having a term of 10 years, the characterization of which has been a matter of dispute. Although the Tax Court held that this loan to Artesian was in substance a demand loan, id., at 624, ¶80,575 P-H Memo TC, at 2428, the Court of Appeals declined to reach the issue, suggesting that the Tax Court consider the valuation consequences of the loan’s characterization on remand. 690 F. 2d 812, 814, n. 3 (CA11 1982). For present purposes, we shall refer to all the loans from Paul and Esther Dickman to Lyle and Artesian as demand loans. In valuing the gifts, the Commissioner multiplied the loan balances outstanding at the end of each taxable quarter by interest rates ranging from six percent to nine percent per annum. These interest rates were taken from § 6621 of the Internal Revenue Code of 1954, 26 U. S. C. § 6621, made applicable by Code § 6601 to underpayments of tax. The Commissioner asserted a $42,212.91 deficiency against Paul Dick-man’s estate and a $41,109.78 deficiency against Esther Dickman. The comprehensive scope of the gift tax, reflected by its statutory language and legislative history, is analogous to that of § 61 of the Code, 26 U. S. C. § 61, which defines gross income as “all income from whatever source derived.” Section 61 has long been interpreted to include all forms of income except those specifically excluded from its reach. See, e. g., Commissioner v. Glenshaw Glass Co., 348 U. S. 426 (1955). Similarly, the gift tax applies to any “transfer of property by gift,” Code § 2501(a)(1), “[s]ubjeet to the limitations contained in this chapter,” Code § 2511(a). Accordingly, absent an express exclusion from its provisions, any transfer meeting the statutory requirements must be held subject to the gift tax. The Commissioner’s tax treatment of interest-free demand loans may perhaps be best understood as a two-step approach to such transactions. Under this theory, such a loan has two basic economic components: an arm’s-length loan from the lender to the borrower, on which the borrower pays the lender a fair rate of interest, followed by a gift from the lender to the borrower in the amount of that interest. See Crown v. Commissioner, 585 F. 2d 234, 240 (CA7 1978). See also Barker v. Publishers’ Paper Co., 78 N. H. 571, 573, 103 A. 757, 758 (1918) (“In its final analysis, the property in any thing consists in the use”); 1 G. Thompson, Commentaries on the Modern Law of Real Property § 5, p. 31 (J. Grimes ed. 1980) (“The use of a given object is the most essential and beneficial quality or attribute of property”). Petitioners argue that no gift tax consequences should attach to interest-free demand loans because no “transfer” of property occurs at the time the loan is made. Petitioners urge that the term “transfer” “connotes a discrete, affirmative act whereby a person conveys something to another person, not a continuous series of minute failures to require return of something loaned.” Brief for Petitioners 22. We decline to adopt that construction of the statute. In order to make a taxable gift, a transferor must relinquish dominion and control over the transferred property. Treas. Reg. § 25.2511 — 2(b), 26 CFR § 25.2511-2(b) (1983). At the moment an interest-free demand loan is made, the transferor has not given up all dominion and control; he could terminate the transferee’s use of the funds by calling the loan. As time passes without a demand for repayment, however, the transferor allows the use of the principal to pass to the transferee, and the gift becomes complete. See ibid.; Rev. Rul. 69-347, 1969-1 Cum. Bull. 227; Rev. Rul. 69-346, 1969-1 Cum. Bull. 227. As the Court of Appeals realized, 690 F. 2d, at 819, the fact that the transferor’s dominion and control over the use of the principal are relinquished over time will become especially relevant in connection with the valuation of the gifts that result from such loans; it does not, however, alter the fact that the lender has made a gratuitous transfer of property subject to the federal gift tax. During the taxable periods involved in this case, Code § 2503(b) provided an annual exclusion of $3,000 per year, per donee. Section 441(a) of the Economic Recovery Tax Act of 1981, Pub. L. 97-34, 95 Stat. 319, amended § 2503(b) by raising the annual exclusion to $10,000 for transfers made after December 31, 1981. Under Code § 2513(a), 26 U. S. C. § 2513(a), a husband and wife may elect to treat a gift in fact made by one spouse as having been made one-half by each spouse. Simply put, the net effect of this “gift-splitting” provision is to double the gift tax exclusions and exemptions applicable to each gift by the donor. In some states, of course, community property laws achieve the same “gift-splitting” result. See generally C. Lowndes, R. Kramer, & J. McCord, Federal Estate and Gift Taxes §35.1 (3d ed. 1974). Under the gift tax system in effect during the taxable periods involved in this case, former Code § 2521 provided a lifetime gift tax exemption of $30,000 for each taxpayer. Section 2001(b)(3) of the Tax Reform Act of 1976, Pub. L. 94-455, 90 Stat. 1849, replaced the lifetime exemption with a unified credit. As modified by the Economic Recovery Tax Act of 1981, supra, the unified credit provided by Code § 2505 is scheduled to increase each year until 1987; at that time, the credit will total $192,800, the equivalent of a lifetime exemption of $600,000 per taxpayer. See Code § 2505(b), 26 U. S. C. § 2505(b) (1982 ed.). The Treasury Regulations implementing the gift tax provisions have always reflected the broad scope of the statutory language. See Treas. Regs. 79, Art. 2 (1933); Treas. Regs. 79, Art. 2 (1936); Treas. Regs. 108, § 86.2(a) (1943). The regulation presently in force is virtually identical to those in effect during the preceding five decades; it provides: “The gift tax also applies to gifts indirectly made. Thus, all transactions whereby property or property rights or interests are gratuitously passed or conferred upon another, regardless of the means or device employed, constitute gifts subject to tax.” Treas. Reg. § 25.2511 — 1(c), 26 CFR § 25.2511-l(c) (1983). The longstanding interpretation of the statute embodied in these regulations indicates that the Commissioner’s allegedly novel assertion in 1966 regarding the gift taxability of interest-free demand loans was not without a reasonable and well-established foundation. Indeed, the explanation for the dearth of pre-1966 cases presenting this precise issue is probably economic; the low interest rates that prevailed until recent years diminished the attractiveness of the interest-free demand loan as a tax-planning device and reduced the likelihood that the value of such loans would exceed the annual gift tax exclusion. Petitioners’ detrimental reliance argument must fail for an additional reason. The interest-free demand loans challenged by the Commissioner in this case were made between 1971 and 1976. The Commissioner first litigated the question of the gift taxability of such loans in Johnson v. United States, 254 F. Supp. 73 (ND Tex. 1966). Six years later, in Rev. Rui. 78-61, 1973-1 Cum. Bull. 408, the Commissioner formally announced the position that interest-free demand loans give rise to taxable gifts. Because approximately half the loans in this case were made after the Commissioner had issued Rev. Rui. 73-61, petitioners are hardly in a position to argue that they relied to their detriment on a different interpretation of the gift tax statute. In determining the value of the gifts made by Paul and Esther Dickman to Lyle Dickman and Artesian, the Commissioner applied to the loan balances outstanding during each taxable quarter certain interest rates derived from § 6621 of the Code, 26 U. S. C. § 6621. See n. 2, supra. The Court of Appeals declined to address the question, but remanded to the Tax Court for consideration of the method by which the gifts associated with interest-free demand loans should be valued. 690 F. 2d, at 820, and n. 11. The valuation issue is therefore not presented on the record before us. We note, however, that to support a gift tax on the transfer of the use of $100,000 for one year, the Commissioner need not establish that the funds lent did in fact produce a particular amount of revenue; it is sufficient for the Commissioner to establish that a certain yield could readily be secured and that the reasonable value of the use of the funds can be reliably ascertained. 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_appel2_7_2

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. 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 "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). Kenneth G. LLOYD, Plaintiff-Appellee, v. Irma LOEFFLER and Alvin F. Loeffler, Defendants-Appellants. No. 82-1824. United States Court of Appeals, Seventh Circuit. Argued Oct. 5, 1982. Decided Nov. 30, 1982. Mark J. Rogers, Milwaukee, Wis., for defendants-appellants. Carole S. Gailor, Raleigh, N.C., for plaintiff-appellee. Before PELL, ESCHBACH and POSNER, Circuit Judges. POSNER, Circuit Judge. This is an appeal from a judgment in favor of the plaintiff in a diversity suit for tortious interference with the custody of a child. The child, Carol Lloyd, was born in 1978, in Washington, D.C., to Kenneth Lloyd, the plaintiff below and the appellee in this court, and Bonnie Loeffler, now Bonnie McMahan, who was named as a defendant but, for reasons that will appear, is not an appellant. Kenneth and Bonnie have never been married. In 1979 a Maryland state court awarded Kenneth custody of Carol in a contested proceeding but gave visitation rights to Bonnie who by then was married to Earl McMahan, also a defendant below but not an appellant in this court. On July 20, 1979, the McMahans, ostensibly in the exercise of Bonnie’s summer visitation rights, picked up Carol from Kenneth Lloyd’s babysitter in Virginia (where Lloyd lived) to take her to Wisconsin to visit Bonnie’s parents, the Loefflers, who were defendants below and are the appellants here. The McMahans were to return Carol to her father in Virginia on August 5, but when they arrived at the Loefflers’ house they told the Loefflers they would never return the child to her father — and they never have. Apart from brief clandestine visits by the McMahans and Carol to the Loefflers’ house in November 1979 and April 1980, the whereabouts of the three of them have been and are unknown. Kenneth Lloyd got a contempt judgment against Bonnie, and arrest warrants, from the Maryland state court that had issued the custody decree, and he has spent thousands of dollars on private detectives to locate the McMahans and Carol, but all to no avail. In June 1980 Kenneth Lloyd brought this suit in a Wisconsin federal district court against the McMahans and the Loefflers. Lloyd is a citizen of Virginia and the Loefflers citizens of Wisconsin, but the domicile of the McMahans is uncertain; if it is Virginia, the “complete” diversity of citizenship required for jurisdiction under 28 U.S.C. § 1332, see Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806), would be lacking. Until their abduction of Carol the McMahans were citizens of Maryland. Lloyd believes they are now living in Wisconsin because the Loefflers have received some correspondence from the McMahans postmarked Milwaukee. We have found no case involving the question of the domicile for diversity purposes of a fugitive from justice. It seems absurd to hold that since a fugitive might be domiciled anywhere or maybe even nowhere (cf. Pannill v. Roanoke Times Co., 252 Fed. 910, 913-15 (W.D.Va.1918)), the act of becoming a fugitive puts a person beyond the jurisdiction of the federal courts. Probably the last domicile of the fugitive before he fled should be his domicile for diversity purposes. Cf. Gregg v. Louisiana Power & Light Co., 626 F.2d 1315 (5th Cir.1980). That would be Maryland in this case, and would not destroy diversity. This is a simple rule, and avoids rewarding the fugitive for his elusiveness. But in any event the probability that the McMahans were citizens of Virginia when this suit was filed is too slight to make us worry that there may not in fact be complete diversity. After a bench trial, the district court, 539 F.Supp. 998, found that the McMahans and the Loefflers had committed a tort under the common law of Wisconsin by interfering with Kenneth Lloyd’s custody of Carol. The Loefflers’ liability was based on conspiracy. Aware at all times of the custody decree and of the fact that the McMahans were in contempt of it, the Loefflers helped the McMahans conceal the child’s whereabouts from Kenneth. Among other things they let the McMahans give the Loefflers’ address to the federal government, which owed the McMahans (former federal employees) refunds of their retirement contributions; and when the money arrived the Loefflers forwarded it to the McMahans without revealing the McMahans’ whereabouts to Kenneth. The Loefflers testified that they tried to persuade the McMahans to return the child to Kenneth, but the district court found their testimony unconvincing and instead credited testimony that Mrs. Loeffler had told a detective: “just tell that son-of-a-bitch that he will never see that child again.” Mrs. Loeffler admitted that she thought Kenneth “physically incapable of taking care of this child.” The district court awarded Kenneth $70,-000 in compensatory damages for which all the defendants were to be jointly and severally liable and $25,000 in punitive damages for which the McMahans alone were to be liable because of their greater culpability. The judgment provides that the award of punitive damages is to grow by $2,000 every month until Carol is returned to her father’s lawful custody. The McMahans entered no appearance in the district court or this court. Before reaching the merits we must decide whether this suit is within the exception to the diversity jurisdiction for domestic relations matters, including disputes over who should have custody of a child. Recently two circuits have held that tort suits for interference with custody are not within the exception. See Wasserman v. Wasserman, 671 F.2d 832 (4th Cir.1982); Bennett v. Bennett, 682 F.2d 1039 (D.C.Cir.1982). A third has upheld a damage award in such a case without discussing jurisdiction. See Fenslage v. Daukins, 629 F.2d 1107 (5th Cir.1980). But it is a question of first impression in this circuit, though Daily v. Parker, 152 F.2d 174 (7th Cir.1945), could be likened to Fenslage. The short but perhaps incomplete answer to the question is that such cases do not involve an actual dispute over custody. The McMahans have not challenged the decree of the Maryland court awarding custody of Carol to Kenneth Lloyd; they have defied it. This answer would be conclusive if the McMahans and the Loefflers were strangers who had kidnapped Carol. But because Bonnie McMahan is Carol’s mother and the Loefflers her maternal grandparents the abduction is in a sense a continuation of the custody fight that the Maryland court thought it had resolved when it awarded custody to Kenneth and visitation rights to Bonnie. Cf. 18 U.S.C. § 1201(a) (the exception in the federal kidnapping statute for the kidnapping of a minor by a parent). The usual account of the domestic relations exception, as of the probate exception discussed recently in Dragan v. Miller, 679 F.2d 712 (7th Cir.1982), is a historical one. The first judiciary act gave the federal courts diversity jurisdiction of “all suits of a civil nature at common law or in equity,” Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 78 (simplified in the present diversity statute, but without change of meaning, see Reviser’s Note to 28 U.S.C. § 1332 (1976), to “all civil actions,” 28 U.S.C. § 1332(a)); and divorce, custody, and related matters were in England the province of the ecclesiastical courts (on which see 3 Blackstone, Commentaries on the Laws of England 87-103 (1768)) rather than of the common law and equity courts. The historical account is unconvincing. See Spindel v. Spindel, 283 F.Supp. 797, 802-03, 806-09 (E.D.N.Y.1968). It exaggerates the nicety with which the jurisdictional distinctions among the English courts were observed. Applied to this case, it overlooks the extensive custody jurisdiction of the Court of Wards and Liveries, a royal court distinct from the ecclesiastical courts. See Bell, An Introduction to the History and Records of the Court of Wards & Liveries 112-32 (1953). And it assumes without discussion that the proper referent is English rather than American practice, though if only because there was no ecclesiastical court in America American law and equity courts had a broader jurisdiction in family-law matters than their English counterparts had. Probably the reference to law and equity in the first judiciary act is mainly to English practice rather than to the diverse judicial systems of the colonies and states; but it would be odd if the jurisdiction of England’s ecclesiastical courts, theocratic institutions unlikely to be well regarded in America, should have been thought to define the limits of the jurisdiction of the new federal courts. The historical account would be of little assistance in this case even if it were sound. The tort of wrongful interference with a child’s custody did not exist at the time the first judiciary act was passed, and it would strain our historical imagination to the breaking point to try to determine whether, had there been such a tort then in England, it would have been within the exclusive jurisdiction of the ecclesiastical courts. However dubious and unhelpful its historical pedigree, the domestic relations exception is too well established to be questioned any longer by a lower court. See e.g., Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 512-14 (2d Cir.1973); Solomon v. Solomon, 516 F.2d 1018, 1021-26 (3d Cir.1975). This is so even though one might question, see Dragan, supra, 679 F.2d at 713, the suggestion in Rosenstiel, supra, 490 F.2d at 514, that a century of congressional silence constitutes legislative adoption of what was originally, and maybe still is today, a purely judge-made exception to the diversity jurisdiction. The boundaries of the exception are uncertain, however; and to fix them we must consider what contemporary function the exception might be thought to serve. At its core are certain types of cases, well illustrated by divorce, that the federal courts are not, as a matter of fact, competent tribunals to handle. The typical divorce decree provides for alimony payable in installments until the wife remarries, and if there are children it will provide for custody, visitation rights, and child support payments as well. These remedies — alimony, custody, visitation, and child support— often entail continuing judicial supervision of a volatile family situation. The federal courts are not well suited to this task. They are not local institutions, they do not have staffs of social workers, and there is too little commonality between family law adjudication and the normal responsibilities of federal judges to give them the experience they would need to be able to resolve domestic disputes with skill and sensitivity. The present case, a tort suit that does not — not overtly anyway — seek one of the distinctive remedies provided by family courts, is not within the core of the domestic relations exception as we have described it. But there is also a periphery to be considered. When a case must begin in state court, as a divorce or custody case must, retention of any ancillary litigation in the same court is supported by considerations of judicial economy, and also by considerations of relative expertness since the issues in an ancillary proceeding may be the same as those in cases that are within the core of the domestic relations exception and hence within the exclusive jurisdiction of the state courts. Cf. Dragan, supra, 679 F.2d at 714-15. In this vein Judge Friendly suggested in Rosenstiel that if the plaintiff had been seeking attorney’s fees for work performed in connection with his client’s divorce action the federal court should have declined jurisdiction. See 490 F.2d at 515. The concept of ancillarity may explain decisions which hold that actions to enforce an alimony or custody decree are outside the diversity jurisdiction if the decree remains subject to modification by the court that entered it, see Morris v. Morris, 273 F.2d 678, 681-82 (7th Cir.1960); Hernstadt v. Hernstadt, 373 F.2d 316 (2d Cir.1967); Sutter v. Pitts, 639 F.2d 842 (1st Cir.1981), though it is true that in such cases the risk of inconsistent state and federal decrees is substantial and presents an even stronger reason than judicial economy for federal abstention. At the other extreme is Crouch v. Crouch, 566 F.2d 486 (5th Cir.1978), where the federal court was asked simply to enforce the monetary provisions of a separation agreement between persons long divorced. There the connection with the original matrimonial action was tenuous, the danger of inconsistent decrees trivial. Alimony decrees that have become final are sometimes enforced in diversity cases on similar grounds. See 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3609 at pp. 673-74 (1975). But Rosenstiel suggests, sensibly in our view, that the question is not only whether the exercise of federal jurisdiction will create a potential for inconsistent decrees but also whether it will result in piecemeal, duplicative, or inexpert handling of what is substantially a single controversy. On this analysis, if under Maryland law a tort action arising out of a custody decree had to be tried in a proceeding ancillary to the custody proceeding, this would be a strong'argument against federal jurisdiction. Cf. Dragan, supra, 679 F.2d at 716. But though we have found no Maryland case dealing with the tort of wrongful interference with custody, it is clear that such a case if it arose would be litigated as an independent civil action and not as an appendix to the custody proceeding, which is strictly equitable. See Md.Code § 3-602(a), as interpreted in Kapneck v. Kapneck, 31 Md.App. 410, 356 A.2d 572 (1976). In addition, of course, a Maryland court might not be able to obtain personal jurisdiction over the Loefflers, even though the new federal Parental Kidnapping Prevention Act of 1980, codified in 18 U.S.C. § 1073, 28 U.S.C. § 1738A, and 42 U.S.C. § 663, makes it easier for states to enforce their state custody decrees against parental abductors who cross state lines. Incidentally, by declining to create federal judicial remedies for parental abductions, the Act confirms the primacy of the states in custody matters. But it cannot we think be read to express a federal policy against the exercise of federal jurisdiction in a case such as this if the ordinary requirements of diversity jurisdiction are satisfied. There is thus no issue of judicial economy here. The choice is not between one Maryland action and two actions — the custody action in Maryland and a tort action in a state or federal court in Wisconsin — but between a tort action in a Wisconsin state court and this suit in a federal district court in Wisconsin. And since the Loefflers do not contest the validity of the Maryland custody decree, the tort issues in this case are not entangled with issues that only state courts are competent to resolve. The federal court is being asked to decide not who should have custody over Carol but only whether the McMahans and the Loefflers have violated or (in the case of the Loefflers) conspired to violate the custody decree by taking Carol away from her father, and if so what damages he has suffered. The resolution of these issues requires no special experience with the business of domestic relations courts; the requisite empathy, if any is required, is possessed by any parent. Finally, this is not a case like Rosenstiel where the plaintiff’s invocation of the diversity jurisdiction has no basis in the concern with prejudice to out-of-state litigants that underlies that jurisdiction. The plaintiff is not a resident of Wisconsin, where the case was tried; the Loefflers, the only appearing defendants, are Wisconsin residents. One feature of the decree, though, raises a serious question under the domestic relations exception: the provision that makes the award of punitive damages against the McMahans grow by $2,000 a month until they restore Carol to Kenneth Lloyd’s lawful custody. That provision may not, strictly speaking, be before us since the only people who could complain about it, the McMahans, are not before us. But to pass over it in silence might leave the impression that there are no problems with the district court’s jurisdiction to issue such a decree, and there are; and as they may affect a child’s welfare we shall discuss them. In a case of, a continuing tort a variable award of punitive damages, though unprecedented so far as we are able to determine and seemingly not contemplated by the Federal Rules of Civil Procedure, see Rule 58, is perfectly logical; the enormity of the wrong that the McMahans have committed against Kenneth Lloyd grows with every day that they fail to return Carol to his custody. But the variable award is also the practical equivalent of an injunction ordering the McMahans to return Carol. It is as if the district court had issued an injunction, the McMahans had disobeyed it, and the court had then found them in civil contempt of its decree and ordered them to pay the plaintiff $2,000 a month until they complied. Of course there was no injunction and no finding of contempt and perhaps that is reason enough to doubt the propriety of the relief. But in any event it would seem that, before entering the kind of judgment it did, the district court should have considered whether it had the power to enjoin the McMahans directly. An affirmative answer would produce a collision with the recent decision of the District of Columbia Circuit in Bennett v. Bennett, supra. The court allowed the plaintiff in a tortious interference with custody suit to obtain damages but held that the grant of an injunction directing that the child be returned to the plaintiff was barred by the domestic relations exception to the diversity jurisdiction. The court was concerned that enforcing such an injunction would be the equivalent of issuing a custody decree. The basis of its concern is illustrated by the facts of the present case. It is three years since Carol was abducted. She is now four and a half years old. She probably does not remember her father. No matter how egregiously the McMahans have behaved, it might be a terrible thing today to wrench Carol from their custody and return her to her father — and all the more terrible at some hypothetical future date when the McMahans, finally intimidated by the mounting costs of their contumacy, as the district court intended they be intimidated, surrender Carol. The district court can try to compensate Kenneth Lloyd for his loss. But to put pressure on the McMahans to return the child, by means of an escalating damage award bearing no necessary relationship to Kenneth’s loss, is implicitly to answer the question who should have custody of Carol today. True, the escalating damage award is contingent on Kenneth’s retaining lawful custody of Carol, so it is open to the McMahans to go back to the Maryland court and ask for a modification of the decree in light of changed circumstances — the growing attachment, as we may assume, of Carol to her mother and her mother’s husband. But this would be a costly option for the McMahans to pursue; every month that passed while the Maryland court was deciding whether to modify the decree would cost them another $2,000. Against all this it may be said that so long as Kenneth is free to bring fresh suits against the Loefflers and the McMahans for damages incurred by him after the date of the judgment below, the same financial pressure will be brought to bear on the McMahans to return the child regardless of what is best for her. But it will not be quite the same. We do not know whether Kenneth will bring another suit, or if he does whether he will be able to prove substantial damages beyond what he has already incurred. If there is another suit, we do not know whether the McMahans will again be joined as defendants along with the Loefflers, and if they are whether Kenneth will try to collect any part of the judgment from the McMahans, assuming that they and the Loefflers are held to be jointly and severally liable for that judgment as they were for the compensatory damages awarded in this case. So there is a difference, and though it is one of degree rather than of kind it is sufficient in our judgment to raise a substantial question whether the escalating punitive damage award in the district court’s decree was within the court’s subject-matter jurisdiction. As no party to this appeal is challenging this portion of the decree we doubt that we have the power to vacate it, but we should not like our affirmance of the judgment to be interpreted as approval of the decree in its entirety. Still another threshold issue in this case is choice of law. The court below held that the applicable substantive law was that of Wisconsin. The only basis it gave for this conclusion was a citation to Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). But Erie did not hold, as the district court’s citation may seem to imply, that in common law diversity cases the substantive law to be applied is that of the state in which the case is tried. On the contrary, Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941), deduced from Erie that the proper choice of law rule to apply in a diversity suit is the rule of the forum state. The district court should have determined whether under Wisconsin conflict of laws principles the substantive law applicable to this case is that of Wisconsin or that of some other state, such as Maryland where the custody decree was issued, or Virginia where Lloyd resides and where the tort might be said to have occurred if the McMahans formed the intent not to return Carol before they picked her up from the babysitter. There is no indication that the district court made such a determination. In a supplementary brief the Loefflers argue that Maryland rather than Wisconsin substantive law should be applied under Wisconsin’s choice of law rules. But they did not raise this issue in their main brief or even, it appears, in the district court. At the oral argument of this appeal both counsel stated that the parties had stipulated in the district court that Wisconsin substantive law applied to the case, and though we do not find a written stipulation in the record we cannot see what difference it makes whether it is written or oral. So there is no conflict of laws issue before us unless the issue goes to our subject-matter jurisdiction. We hesitate to say that a conflicts question never can affect jurisdiction. If the parties had stipulated that the substantive law to be applied was the Code of Hammurabi, we think the district court should have said that it did not have the power to render a decision on that basis. Such a decision could not have any value as precedent, and the production of precedents is a major function of judicial decision-making. Stipulations of law, as distinct from fact, thwart that function; maybe that is why they have no binding force. See, e.g., Sanford’s Estate v. Commissioner of Internal Revenue, 308 U.S. 39, 51, 60 S.Ct. 51, 59, 84 L.Ed. 20 (1939). But reasonable stipulations of choice of law are honored in contract cases, see Weintraub, Commentary on the Conflict of Laws 355-56 (2d ed. 1980), and we do not see why the same principle should not apply in tort cases, though the issue has not to our knowledge arisen in such a case. There is no necessary inconsistency between this principle and cases like Sanford’s Estate. A court has an interest as we have said in applying a body of law that is in force somewhere, but less interest in which such body of law to apply. The stipulation of Wisconsin law was reasonable here — indeed, if the parties, rather than so stipulating, had not raised any choice of law issue, and had litigated the ease under Wisconsin law, that would have been proper. An implicit rule of Wisconsin conflicts law is that in the absence of objection the substantive law to be applied to a suit tried in a Wisconsin state court is that of Wisconsin. Central Soya Co. v. Epstein Fisheries, Inc., 676 F.2d 939, 941 (7th Cir.1982); cf. Electronic Associates, Inc. v. Automatic Equipment Development Corp., 440 A.2d 249, 251 n. 3 (Conn.1981). Klaxon makes this rule equally applicable to suits brought in federal court in Wisconsin under the diversity jurisdiction. Central Soya Co., supra, 676 F.2d at 941. We arrive finally at the merits, where the principal issue is whether Wisconsin recognizes the tort of wrongful interference with a child’s custody — more precisely, whether it would recognize it if the question arose in a Wisconsin state court case, as it has not yet done. The appellants pitch their whole case that Wisconsin would not recognize such a tort on In re Pierce, 44 Wis. 411 (1878). Pierce had been divorced from her husband, and custody of their child had been awarded to him. She abducted the child, was imprisoned for contempt of the decree, and petitioned for habeas corpus. The court believed that she could not properly be adjudged in contempt unless her conduct had caused “a loss or injury which would entitle the injured party [her husband] to maintain an action against the offender to recover damages for his misconduct,” id. at 424, and the court thought her husband could not maintain such an action because a father’s status under a divorce and custody decree “is not that of father and child, nor yet that of master and servant. It is more nearly like that of guardian of the person and ward. In that relation the guardian is not entitled to the services of the ward.” Id. at 425. Portions of In re Pierce have been overruled, see Emerson v. Huss, 127 Wis. 215, 226, 106 N.W. 518, 522 (1906); Larson v. State ex rel. Bennett, 221 Wis. 188, 194, 266 N.W. 170, 173 (1936), but not the analysis of the father’s right to maintain a damage action for the abduction of a child. Nevertheless, we are pretty confident it would not be followed today. The analysis assumes that a parent can complain about a child’s being disabled (or what amounts to the same thing, abducted) only if the parent has lost money in the quite literal sense that the child’s earnings, which at common law belong to the parents during the child’s minority, are impaired. That was the common law rule when In re Pierce was decided. See, e.g., Callies v. Reliance Laundry Co., 188 Wis. 376, 380, 206 N.W. 198, 200 (1925). Since a father who had custody under a divorce decree had no right to the child’s earnings — unlike a married parent but like a guardian — he had no basis for maintaining a damage action against the abductor. This is the entire premise of In re Pierce so far as is relevant to this case and it was destroyed in 1975 when the Supreme Court of Wisconsin, in Shockley v. Prier, 66 Wis.2d 394, 225 N.W.2d 495 (1975), overruled Callies and held that parents are entitled to recover damages for loss of the companionship of a minor child who has been injured by someone’s negligence. The fact that as in Pierce there is no pecuniary loss is now irrelevant under Wisconsin law. Pierce is therefore no obstacle to Wisconsin’s recognizing a tort of wrongful interference with a child’s custody; and Shockley fairly requires such recognition, for it can make no logical or practical difference, so far as a parent’s action for loss of companionship is concerned, whether the child is physically injured by a third party’s negligence or abducted by the third party. At least this is clear where the abductor is a stranger rather than, as is more common, a relative. Although these two eases are not identical, those states that recognize a tort of wrongful interference with custody make no distinction based on the relationship between the abductor and the child, provided of course that the abductor does not have lawful custody of the child. See, e.g., McBride v. Magnuson, 282 Or. 433, 578 P.2d 1259 (1978); Kipper v. Vokolek, 546 S.W.2d 521 (Mo.App.1977); Restatement of Torts (Second) § 700 (1981). As no other state has made such a distinction we think it unlikely that Wisconsin would. The only question therefore is whether it would draw the line at physical injury and refuse to recognize any tort liability for abduction even though the effect on the parent’s interest in the companionship of the child is the same. This would be an arbitrary distinction, and we doubt very much that Wisconsin would make it. We know of no state that, having swallowed the camel of allowing parents to sue for intangible loss of companionship as well as pecuniary loss, has strained at the gnat of allowing that loss to be recovered when it is caused by abduction rather than by physical injury. Moreover, since abductions are always deliberate and physical injuries usually, as in Shockley, merely negligent, it would be anomalous to allow liability only in the latter case. Consistently with this distinction, California allows it only in the former. See Baxter v. Superior Ct. of Los Angeles Cty., 19 Cal.3d 461, 466 and n. 3, 138 Cal.Rptr. 315, 318 and n. 3, 563 P.2d 871, 874 and n. 3 (1977). The Loefflers argue, finally, that even if Wisconsin would recognize a tort of wrongful interference with a child’s custody, their role in the abduction by the McMahans was too small to make them guilty of conspiracy. This argument raises only an evidentiary issue, which the district court resolved against them, and we cannot say that its finding was clearly erroneous. Without the active cooperation of the Loefflers the McMahans would have found it much more expensive to conceal Carol’s whereabouts, as the McMahans would have been afraid to give their address to any creditor lest Kenneth Lloyd’s detectives get hold of it and track them down. The Loefflers, fully aware of, and we may infer from the “son of a bitch” remark sharing, the McMahans’ purpose of concealing Carol, provided them with a discreet mail drop and other assistance. It is true, as we observed in a recent case, that conspiracy has a somewhat anomalous status under tort law, since a tort, to be actionable, requires that an injury actually be suffered, while conspiracies are no less unlawful for being nipped in the bud. See Cenco, Inc. v. Seidman & Seidman, 686 F.2d 449, 453 (7th Cir.1982). But that observation has no relevance where the conspiracy achieves its object, as it did here. The purpose of the conspiracy concept in such a case is not to punish merely preparatory conduct — a more suitable function for criminal law than for tort law — but to identify the tortfeasors. By helping the McMahans conceal Carol the Loefflers became joint tortfeasors in the original sense of the term. See, e.g., Brown v. Brown, 338 Mich. 492, 503-04, 61 N.W.2d 656, 661-62 (1953); Prosser, Handbook of the Law of Torts 291 (4th ed. 1971). Affirmed. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:

songer_origin

F

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. Sorachai SIDA and Nongyao Puasirirut-skul Sida, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 80-7435. United States Court of Appeals, Ninth Circuit. Submitted April 9, 1981. Decided June 15, 1981. As Amended on Denial of Rehearing and Rehearing En Banc Dee. 21, 1981. M. Rito Corrales, Santa Ana, Cal., for petitioners. Carolyn M. Reynolds, Asst. U. S. Atty., Los Angeles, Cal., for respondent. Before PREGERSON and REINHARDT, Circuit Judges, and HARDY , District Judge. The Honorable Charles L. Hardy, United States District Judge for the District of Arizona, sitting by designation. PREGERSON, Circuit Judge: Mr. and Mrs. Sorachai and Nongyao Pua-sirirutskul Sida petition for review of the denial by the Board of Immigration Appeals (BIA) of Mrs. Sida’s motion to reopen the deportation proceedings. Because the BIA abused its discretion in denying Mrs. Sida’s motion to reopen, we reverse. Petitioners are husband and wife, natives and citizens of Thailand. Both entered the United States in 1969 as students. They left the country for one month in 1972 to be married in Thailand, and returned. In June 1977, their visas having expired, they were found deportable as overstays. At that time they requested and were granted additional time to file for suspension of deportation and voluntary departure. Two months later, in August 1977, petitioners applied only for voluntary departure, which was granted. In January 1978, Mrs. Sida moved to reopen the deportation proceedings on the ground that she was eligible for suspension of deportation. The unopposed motion was granted. At the hearing on May 8, 1978, however, petitioner’s counsel withdrew the application for suspension of deportation, stating that Mrs. Sida’s one month visit to Thailand in 1972 to be married interrupted the seven years continuous presence required for eligibility for suspension of deportation. In light of counsel’s representation, Mrs. Sida reapplied only for voluntary departure, which was again granted to both her and her husband. Although Mrs. Sida withdrew her application for suspension of deportation, the immigration judge, without holding an evidentiary hearing, nevertheless ruled on the application. He found that Mrs. Sida’s trip to Thailand was a meaningful departure which broke the seven year continuous presence requirement of 8 U.S.C. § 1254(a). One year later, in February 1979, new counsel for petitioners moved to reopen the deportation proceedings once more on the ground that Mrs. Sida was entitled to suspension of deportation. On April 18, 1979, the immigration judge denied the motion to reopen on the ground that Mrs. Sida had failed to present new, additional, and previously unavailable evidence as required by 8 C.F.R. 242.22. The immigration judge also ruled that: A failure to comply with the regulations as to new material might be excused if she had a meritorious case, but this is not the case. The burden is upon the [petitioner] to establish that she has seven years continuous physical presence in the United States. This she cannot do. Her trip to Thailand was a lengthy one involving several thousand miles. Of necessity it required that she obtain travel documents and make advance preparations. The purpose of the trip was to get married and as indicated on the suspension application, she in fact did marry within a week after her arrival in Thailand. This was not a casual spur of the moment excursion beyond the borders of the United States. Wadman v. INS, 329 F.2d 812 (9th Cir. 1964). It was a carefully planned deliberate trip which was “meaningfully interruptive” of her presence in the United States, Rosenberg v. Fleuti, 374 U.S. [449] 461 [83 S.Ct. 1804, 10 L.Ed.2d 1000] (1963); Heitland v. INS, 551 F.2d 495 (2d Cir. 1977). This is not the type of case that I would excuse from compliance with the regulations governing motion to reopen. The motion to reopen will be denied. The BIA dismissed petitioners’ appeal from the denial of the motion to reopen. Petitioners now pursue their case before this court, contending that the BIA erred in refusing to reopen the deportation proceedings. The BIA may not grant a motion to reopen unless it is based upon new, material facts. 8 C.F.R. § 3.2 (1979) (emphasis added). The new facts must be supported by “affidavits or other evidentiary material.” 8 C.F.R. § 3.8 (1979). As the Supreme Court recently observed: The present regulation [8 C.F.R. § 3.2] is framed negatively; it directs the Board that it may not reopen unless certain showings are made. It does not affirmatively require the Board to reopen the proceedings under any particular condition. Thus, the regulations may be construed to provide the Board with discretion in determining under what circumstances a proceeding should be reopened. INS v. Wang, 450 U.S. 139, 143 n.5, 101 S.Ct. 1027, 1030 n.5, 67 L.Ed.2d 123 (1981). Failure to allege new facts supported by evidentiary material is an adequate ground for denial of a motion to reopen. Id. at 143, 101 S.Ct. 1030. Therefore two questions are presented: (1) Did Mrs. Sida allege new facts supported by evidentiary material; and (2) if so, did the BIA abuse its discretion in denying the motion to reopen. 1. New Facts The government asserts that Mrs. Sida, in support of the second motion to reopen, did not submit any new evidence by way of affidavit or other evidentiary material. The government argues that Mrs. Sida merely resubmitted her previously withdrawn 1978 application for suspension of deportation which asserted extreme hardship to herself and to her American citizen child. This is incorrect. Attached to the motion to reopen dated February 26, 1979, is previously submitted documentation plus a letter dated February 7, 1979, from the citizen child’s doctor stating: “This child is suffering from recurrent tonsillitis and pulmonary congestion and fever by history. This child historically becomes very ill in Thailand. He shouldn’t return to Thailand.” Mrs. Sida states that this respiratory condition was “recently discovered” when the child traveled to Thailand to visit his grandparents. Thus the record reflects that Mrs. Sida did submit new evidence in support of her motion to reopen. Perhaps the immigration judge did not believe the new evidence was material, but there are no findings in that regard. The doctor’s letter satisfies the “other evi-dentiary material” requirement of 8 C.F.R. § 3.8. 2. Abuse of Discretion In affirming the denial of the motion to reopen, the BIA did not address the government’s claim that no new evidence had been submitted. Rather, the BIA dismissed the appeal as a matter of discretion, stating: Inasmuch as the respondents have twice failed to leave the country voluntarily and have already had an opportunity to establish eligibility for suspension of deportation, we do not believe that reopening of proceedings is warranted a second time. The Supreme Court in INS v. Wang, supra, did not explicitly identify the standard of review of a denial of a motion to reopen. The Court appeared to suggest, however, that the abuse of discretion standard applies and that the BIA has discretion to deny a motion to reopen even if the alien establishes a prima facie case of eligibility for suspension of deportation. If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations. INS v. Wang, 450 U.S. at 143 n.5, 101 S.Ct. at 1030 n.5, quoting Villena v. INS, 622 F.2d 1352, 1362 (9th Cir. 1980) (en banc) (Wallace, J., dissenting). We hold that the BIA abused its discretion in denying the motion to reopen. The BIA ignored the new evidence presented in the motion to reopen. Instead, it refused to reopen the proceedings on the ground that the Sidas previously had been given two opportunities to apply for suspension of deportation, and had failed to do so; therefore, according to the BIA, their case did not warrant any consideration. This was improper. We have recently held that although aliens have no absolute right to the discretionary relief of suspension of deportation, they are entitled to due consideration of all relevant factors which may establish extreme hardship. Santana-Figueroa v. INS, 644 F.2d 1354, 1357 (9th Cir. 1981). In Santana-Figueroa, the BIA denied an alien’s request for suspension of deportation without discussing the basis of its decision. This court reversed and remanded, stating: [WJhen allegations are specific and supported by evidentiary material, and the Board denies eligibility for relief, it must give reasons for its decisions showing that it has properly considered the circumstances. To affirm on the theory that the Board necessarily considered whatever the petitioner asserted would free the Board of the obligation to articulate a reasoned basis for its decisions, eliminating any guaranty of rationality and foreclosing meaningful review for abuse of discretion. Id. (Citations and footnote omitted.) As with the discretionary relief of suspension of deportation, an alien is not entitled to a reopening of deportation proceedings. But the principles underlying our holding in Santana-Figueroa are equally applicable here. Just as an alien is entitled to consideration of all relevant factors that may establish extreme hardship, an alien should be entitled to consideration of new evidence presented in support of a motion to reopen. Otherwise we open the door to potentially arbitrary administrative decisions as to what new evidence will be considered and what new evidence will be cast aside. The better approach requires the BIA to consider an alien’s newly available evidence and to rule on the merits; it does not allow the BIA to refuse to consider new evidence whenever it feels that the alien, for whatever reason, does not merit any consideration. Requiring the BIA to address and rule on new evidence presented in a motion to reopen is not at odds with the Supreme Court’s decision in INS v. Wang. This approach does not compel the BIA to grant motions to reopen where a prima facie case is established. Rather, this approach compels the BIA to address the evidence presented, and state the reasons why, for example, the evidence is not sufficient under the applicable regulations; why a prima facie case has not been made out; or why, if a prima facie case is made out, a reopening is not warranted. We note that the BIA’s decision makes little sense. There is no limit, by statute or regulation, on the number of times an alien may move to reopen deportation proceedings. The only prerequisite for filing a motion to reopen is the existence of new facts supported by affidavit or other evidentiary material. It is unfair to grant the opportunity to present newly available evidence and then to refuse to consider the evidence on the ground that the alien had other opportunities to apply for discretionary relief. Moreover, if the medical evidence was not previously available, it could not have been presented earlier. If the evidence was previously available, the BIA should have so found instead'of summarily dismissing the appeal. Our problem is with an administrative system that holds out the opportunity to present new evidence, but does not assure that the new evidence will be meaningfully evaluated. This is what the BIA did here — an action we cannot condone. Accordingly we remand this matter to the BIA with instructions to reconsider the motion to reopen and to articulate the underlying reasons and basis for any rulings it makes. See Perez v. INS, 643 F.2d 640, 641 (9th Cir. 1981). Finally, we also point out that the immigration judge erred in determining that the one month trip to Thailand was “meaningfully interruptive” of Mrs. Sida’s stay in the United States. In making this determination, the immigration judge relied on factors previously rejected by this court in Kamheangpatiyooth v. INS, 597 F.2d 1253, 1257-58 (9th Cir. 1979). See also Gallardo v. INS, 624 F.2d 85 (9th Cir. 1980). If on remand the Board concludes that Mrs. Sida has established extreme hardship, it will then have to determine, under the test set forth in Kamheangpatiyooth, whether Mrs. Sida has satisfied the seven year residence requirement. The Board will also have to determine whether Mrs. Sida meets the standards for good moral character. As noted in footnote 1, supra, all three requirements must be satisfied before the Board and the Attorney General may exercise their discretion to suspend deportation. REMANDED. . Motions to reopen permit an alien to apply for the discretionary relief of suspension of deportation. Suspension of deportation is available if the alien demonstrates: (1) seven years continuous presence in the United States; (2) good moral character during that time; (3) extreme hardship “to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1254(a)(1). 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:

songer_state

44

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, Plaintiff-Appellee, v. Maximo AVILA-DOMINGUEZ, Albert Perez, Evangeline Salazar and Carolyn Sanchez, Defendants-Appellants. No. 78-5575. United States Court of Appeals, Fifth Circuit. Feb. 1, 1980. Rehearing and Rehearing En Banc Denied Feb. 28, 1980. Herbert E. Cooper, Asst. Federal Public Defender, El Paso, Tex., for Avila-Dominguez. Anthony C. Aguilar, El Paso, Tex., for Perez, Salazar & Sanchez. LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee. Before WISDOM, AINSWORTH and RO-NEY, Circuit Judges. RONEY, Circuit Judge: This case involves multiple convictions for assisting Mexican aliens in illegally entering the United States. The most serious question is whether the convictions should be reversed because the Government deported potential witnesses before defendants’ counsel could interview them. Acknowledging that the Government violated defendants’ constitutional rights, we nevertheless affirm the convictions, partly because the case has an element of waiver of those rights, but more importantly because no suggestion has been made to this Court or the district court as to how the witnesses might have, in the slightest way, helped defendants in the defense of this case. The facts on this controlling issue are undisputed. Acting on an informant’s tip and surveillance, an Immigration and-Naturalization Service (INS) agent stopped a pickup truck driven by defendant Perez and placed him under arrest. Perez opened the truck’s camper shell at the agent’s request, and twenty-two illegal aliens were discovered within. In the meantime, another INS agent arrested defendants Avila, Salazar and Sanchez in the nearby parking lot from which the truck had departed. The twenty-two illegal aliens were taken into the custody of the INS and each was interviewed by an INS agent. The United States Attorney determined that eight of them would be detained as material witnesses, and a written statement was taken from each of those eight. The sole woman alien in custody and the two children accompanying her were granted voluntary return to Mexico on the day of defendants’ arrests because of the inadequacy of detention facilities. Deportation proceedings were begun against the other eleven aliens and they were deported to Mexico ten days later. The dates are significant. The arrests occurred on April 22, 1978. Initial appearances were made and bonds were set on April 24. Defendants then had an attorney. The eleven aliens in question were deported on May 2. At the preliminary hearing on May 3, an INS agent unintentionally misinformed defendants’ counsel that nineteen aliens remained in custody, including the eleven who had actually been deported the previous day. On June 16, defendants moved for dismissal because of the Government’s failure to provide the names of the deported aliens and make them available for interviews. The district court denied the motion to dismiss, but ordered the Government to furnish the names and addresses of the witnesses. The aliens resided in Mexico, however, and were not available to be interviewed or deposed by defendants’ counsel. Defendants Avila, Perez, Salazar and Sanchez were convicted of conspiracy, 18 U.S.C.A. § 371, to encourage or induce the entry of illegal aliens into the United States in violation of 8 U.S.C.A. § 1324(a)(4), and to transport those aliens within the United States in violation of 8 U.S.C.A. § 1324(a)(2). Avila was also convicted on six counts for violating 8 U.S.C.A. § 1324(a)(4), and Perez was convicted on eight counts for violating 8 U.S.C.A. § 1324(a)(2). Deportation of Witnesses Relying on United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), defendants argue the Government violated their Fifth Amendment right to due process and their Sixth Amendment right to compulsory process by deporting the potential witnesses before defendants were notified of their impending deportation and given an opportunity to interview them. In Mendez-Rodriguez, defendant was charged with violations of 18 U.S.C.A. § 371 and 8 U.S.C.A. § 1324(a)(2) and convicted on the basis of testimony of three aliens who had been detained in the United States pending his trial. In reversing the convictions, the Ninth Circuit held that defendant’s Fifth and Sixth Amendment rights were violated by the deportation to Mexico of three other alien witnesses before defendant had an opportunity to interview them. The court held the defendant was not required to show prejudice resulting from the unavailability of the deported witnesses. See also United States v. Tsutagawa, 500 F.2d 420 (9th Cir. 1974). The Seventh Circuit adopted the rule of Mendez-Rodriguez in United States v. Calzada, 579 F.2d 1358, cert. dismissed, 439 U.S. 920 (1978). That decision affirmed the district court’s dismissal of indictments against eight defendants because seven of thirteen potential alien witnesses had been made unavailable by the Government for interviewing by defendants. The court based its decision solely on the right to compulsory process, and rejected the Government’s argument that defendants would be entitled to relief only on a showing of either prosecutorial bad faith or prejudice to defendants. The effect of Government conduct such as this has not heretofore been addressed by our Court. The opinion in Uribe v. United States, 529 F.2d 742 (5th Cir. 1976), specifically reserved the issue for later determination: Because of our resolution of this question, we need not decide whether we agree with the Ninth Circuit that due process is denied when the Government deports potential witnesses before the defendant has an opportunity to interview them. United States v. Mendez-Rodriguez, 9 Cir. 1971, 450 F.2d 1. 529 F.2d at 743 n. 3. We agree with the Ninth and Seventh Circuits that a criminal defendant’s constitutional rights are violated if an alien witness is deported before the defendant is given an opportunity to interview the witness. The reasoning of those cases appears sound and we adopt it as our own, without repetition here. We disagree, however, with the automatic reversals and indictment dismissals which occurred in those cases. We base the affirmance of these convictions on two rationales. First, defendants’ interest in the deported aliens heightened once they were unavailable, and the case is flavored with an element of waiver, even though defendants’ conduct is not clothed with a full-dress waiver of a constitutional right. Cf. United States v. Lujan-Castro, 602 F.2d 877 (9th Cir. 1979) (defendant knowingly waived right to have alien witnesses retained in the United States). Defendants were arrested and the illegal aliens taken into custody on April 22, 1978. Complaints issued against defendants on April 24, notifying them of the crimes with which they were charged. That same day defendants were represented by counsel at initial appearances before the court. More than a week after the initial appearances, on the tenth day after defendants’ arrests, the eleven aliens were ordered deported to Mexico by a special inquiry officer of the INS. Although defense counsel asserted that he had inquired about the names and location of the aliens on or about April 24, the district judge noted that defense counsel failed to show that he had made any efforts to follow up that informal inquiry. A requirement that defendants act diligently to preserve the testimony of illegal aliens must be imposed in the circumstances of these cases. Otherwise, the great burden and expense of detaining and housing alien witnesses is borne by the Government, while defendants delay the simple efforts involved in locating and interviewing them. Although detention methods involving parole or work programs rather than incarceration would be less burdensome to the Government, these entail the risk of escape by the alien, defeating the purposes of both detention for trial and deportation. See United States v. Verduzco-Macias, 463 F.2d 105 (9th Cir.), cert. denied, 409 U.S. 883, 93 S.Ct. 173, 34 L.Ed.2d 139 (1972). Defendants could have preserved the testimony of the eleven deported aliens by making a prompt formal request for their names and whereabouts. If there had been insufficient time to interview all the witnesses, a postponement of their deportation could have been sought. Any alien believed by defendants to be able to give exculpatory testimony could have been detained in this country until trial. Since we believe, however, that the better procedure for protecting the constitutional rights here involved would be for the Government to give notice of prospective deportation and a reasonable opportunity for defense counsel to interview the witnesses, we are not comfortable with resting an affirmance on the ground of waiver alone. The second and more compelling rationale for this decision is that not the slightest suggestion has been made as to what testimony helpful to defendants these witnesses could offer. We are in general accord with the proposition set forth in Mendez-Rodriguez and Calzada that to obtain relief in a case of this kind, the defendant need not show prejudice arising from the violation with “any degree of assuredness.” 579 F.2d at 1362. But we agree with the dissents in both of those cases that reversal is not warranted where the “record is completely devoid of anything which would suggest that the testimony of any one, or more, of the deported persons would have been helpful” to the defendants, 450 F.2d at 6, and that “it does not seem too much to require that they offer at least a plausible theory” of how the testimony of the witnesses would be helpful to the defense. 579 F.2d at 1365. The purpose of a criminal trial is to produce evidence which shows the truth. The purpose of criminal procedure is to assure that end through fair means. It is important to remember that the defendants presumably know the truth in this case. It does not damage the underlying purposes of the Fifth Amendment to require that at least in counsel’s brief or argument, some suggestion be made as to how the deported witnesses might advance the cause of revealing the truth. Nothing in the record permits an inference that defendants were prejudiced by the unavailability of the alien witnesses. An INS agent testified that each of the aliens related basically the same story, and that the decision as to deportation turned on the superior health and fitness of the aliens chosen for detention. Proof of conspiracy focused on transactions between various defendants and the aliens who testified at trial, not those who were deported. Prosecution of the substantive counts was based on the illegal entry and transportation of the aliens who testified at trial, not those who were deported. Thus, while adhering to the principles set forth in the Ninth and Seventh Circuit cases, we refuse to blindly apply those principles where there is no suggested suspicion that the deported witnesses could give testimony which would affect the trial in any way at all. We need not here decide with what strength any such theory of helpfulness would need to be advanced by counsel to justify relief. All we do is hold that where there is nothing, reversal is not required. We especially note that the Government neither acted' in bad faith nor purposefully deprived defendants of their rights. Now that the Government knows we subscribe to the rule that defendants have a constitutional right to interview such witnesses, and must be given reasonable notice before their deportation, this decision will not necessarily immunize subsequent similar conduct. Likewise, our comments here about the need for counsel to act promptly should suggest that purposeful delay which imposes on the Government the hardship of retaining witnesses not needed in good faith by the defense will be of little avail. Duplicity Defendants sought dismissal of Count One of the indictment for duplicity because it alleged conspiracy to commit two distinct substantive offenses, the inducement of illegal alien entry and the transport of illegal aliens. “The fact that the alleged conspiracy includes the violation of more than one federal statute does not make [the indictment] duplicitous.” Overstreet v. United States, 321 F.2d 459, 461 (5th Cir. 1963), cert. denied, 376 U.S. 919, 84 S.Ct. 675, 11 L.Ed.2d 614 (1964). The failure of the guilty verdict to specify which substantive crime was determined to be the object of the conspiracy is not prejudicial. Once a defendant is found guilty of participating in a conspiracy, it is “unnecessary that the verdict specify the particular statutory provision which an individual defendant conspired to violate.” United States v. Bolts, 558 F.2d 316, 325-326 (5th Cir.), cert. denied, 434 U.S. 930, 98 S.Ct. 417, 54 L.Ed.2d 290 (1977). Search and Seizure The district court refused to suppress three types of evidence: Salazar’s statements at the time of her arrest, the testimony of the detained alien witnesses, and certain sums of money taken from the defendants upon arrest. Defendants argue this evidence was obtained as the result of illegal arrests and should have been suppressed. United States v. Cruz, 581 F.2d 535, 538 (5th Cir. 1978) (en banc). See United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). The Constitution does not require that a warrant issue prior to an arrest based on probable cause, even if no exigent circumstances prevented the obtainment of a warrant. United States v. Watson, 423 U.S. 411, 423-424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). The test is whether the INS agents had probable cause at the time the arrests occurred: Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. United States v. Lowery, 436 F.2d 1171, 1174 (5th Cir. 1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1208, 28 L.Ed.2d 329 (1971), citing Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The INS agents clearly had probable cause to arrest defendants. An agent testified he had dealt with the informant on twenty prior occasions and was convinced of his reliability. Moreover, the informant’s detailed information about the aliens’ whereabouts, Salazar’s appearance, and the presence of a woman alien accompanied by two children was corroborated by the agents’ personal observations soon after surveillance began. See United States v. Tuley, 546 F.2d 1264 (5th Cir.), cert. denied, 424 U.S. 837, 98 S.Ct. 128, 54 L.Ed.2d 99 (1977). Finally, an agent observed through a window that more people were concealed in the camper than he had seen enter. This served to corroborate the informant’s allegation of criminal conduct, especially in view of the lengthy time the truck remained in the parking lot. See United States v. Smith, 598 F.2d 936, 939-940 (5th Cir. 1979). The searches of defendants incident to their lawful arrests were clearly proper, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), even though the searches took place at the courthouse rather than at the sites of the arrests. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); United States v. Castro, 596 F.2d 674, 677 (5th Cir.), cert. denied, — U.S. —, 100 S.Ct. 448, 62 L.Ed.2d 375 (1979). The agent had probable cause for the search of the camper shell, so the testimony of the illegal aliens discovered therein was properly admissible. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Wright, 588 F.2d 189, 193 (5th Cir. 1979). Moreover, there was reason for concern that the aliens might flee if not taken promptly into custody. The district court did not err in admitting the evidence resulting from defendants’ arrests and the accompanying searches. Sufficiency of the Evidence Defendants challenge the sufficiency of the evidence to support the convictions. The essential elements of criminal conspiracy are an agreement between two or more persons to commit a crime and an overt act in furtherance of the agreement by one of the conspirators. United States v. White, 569 F.2d 263, 266 (5th Cir. 1978), cert. denied, 439 U.S. 848, 99 S.Ct. 148, 58 L.Ed.2d 149 (1979). Once the existence of the conspiracy is established, there must be substantial evidence that each alleged conspirator knew of, intended to join and participated in the conspiracy. United States v. Malatesta, 590 F.2d 1379 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979). The evidence is viewed in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In this case the evidence establishing the essential elements of conspiracy and defendants’ knowledge, intent and participation therein is sufficient. Several weeks before their arrests, Salazar, Sanchez and Perez entered Mexico and recruited the aliens in Juarez, arranging to transport them to Chicago or Denver. Perez later returned to Mexico, and on the morning of April 22, 1978, he supervised the transportation of the aliens by municipal bus from downtown Juarez to an abandoned house near the border. Avila and several unknown persons escorted the aliens to the border, where Avila crossed first, ascertained that no INS patrols were present, and signalled the aliens to follow. He then walked the aliens to a pickup point, from which they were driven into El Paso. Sanchez and Avila collected fees from the aliens for the conspirators’ assistance in bringing them into the United States. Additional payments were to be made after the aliens secured employment in Chicago and Denver. As thus described by the testimony of the eight alien witnesses, the activities engaged in by defendants were not “random” or “separate,” but rather evinced “continuous planning and cooperation [among] the persons involved.” United States v. Michel, 588 F.2d 986, 995 (5th Cir.), cert. denied, — U.S. —, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). Avila also challenges the sufficiency of the evidence by which he was convicted on six counts of encouraging and inducing the aliens’ entry into the United States, in violation of 8 U.S.C.A. § 1324(a)(4). The testimony of the alien witnesses fairly established that Avila met them across the border, assisted their transportation to the river, told them he would signal from the other side when it was safe to cross, scouted the vicinity for law enforcement officers, then called, whistled and waved to the aliens to indicate the right time for crossing. The surreptitious manner in which Avila led the aliens across the border and his subsequent acceptance of cash payments in exchange for that guidance amply support an inference of his knowledge that they were not lawfully entitled to enter the United States, and of the willfulness of his activity. See United States v. Boerner, 508 F.2d 1064, 1068 (5th Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2419, 44 L.Ed.2d 681 (1975). From this evidence, a jury could reasonably conclude that Avila encouraged or induced the entry of illegal aliens into the United States. Perez met the aliens in Mexico, coordinated their illegal entry into the United States, and was apprehended in El Paso while driving a truck in which they were passengers. The evidence is sufficient to establish his violations of 8 U.S.C.A. § 1324(a)(2), the transportation of illegal aliens within the United States. 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_genresp1

B

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. DISTRICT DIRECTOR OF INTERNAL REVENUE, Appellant, v. LONG BEACH JUNIOR CHAMBER OF COMMERCE, Appellee. No. 18704. United States Court of Appeals Ninth Circuit. Feb. 7, 1964. Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Harry Baum and Gilbert E. Andrews, Attys., Dept, of Justice, Washington, D. C., Francis C. Whelan, U. S. Atty., Loyal E. Keir, Asst. U. S. Atty., Chief, Tax Section, and Richard G. Sherman, Asst. U. S. Atty., Los An-geles, Cal., for appellant. Riedman & Dalessi, and James W. Ed-son, Long Beach, Cal., for appellee. Before ORR, JERTBERG and BROWNING, Circuit Judges. ORR, Circuit Judge: The trial court found that the Long Beach Junior Chamber of Commerce was a “civic or community membership association” within the meaning of section 4233(a) (3) of the Internal Revenue Code of 1954, and thus was entitled to the admissions tax exemption provided in that section. The government here challenges that finding. As set forth in its Constitution and ByLaws, the purpose of the Long Beach Junior Chamber of Commerce is: “to provide the younger business and professional men of the City of Long Beach a medium for training in citizenship and Chamber of Commerce work, to promote and publicize the civic, industrial, recreational, and educational activities of the community, to secure and disseminate accurate information relating thereto, to oppose legislation unfavorable thereto, and to promote and support legislation favorable thereto. “The organization shall be nonpartisan in all respects and shall not at any time endorse any candidate or individual for public office; and it shall be the policy of this organization to refrain from endorsing or opposing any and all definitely partisan measures.” The activities of the taxpayer have included the following: “Boys Junior Olympics”, an annual boys track meet; “Wings Over the World”, an activity designed to publicize aviation; a Christmas Tree Lighting Contest; “Operation Phone Santa”, where members of the organization take calls from children to Santa Claus; “My True Security”, an essay contest; good citizenship awards; the “Miss Welcome to Long Beach Contest”, where a girl to welcome beauty contestants to Long Beach for the Miss Universe Contest is selected; “Christmas Cheer Clearing House”, where food and gifts are gathered and distributed to needy families during the Christmas season ; social surveys in the area requested by the City of Long Beach and other governmental agencies; programs to combat juvenile delinquency such as having the Wink Martindale Television Show held at the Long Beach Municipal Auditorium for several weeks, and publicizing same in Long Beach schools; and sponsorship of shows in which Duke Ellington, Fred Waring, Spade Cooley, and others appeared. No profit, commission, or bonus has inured to the benefit of any member of the Long Beach Junior Chamber of Commerce from these activities. The statute in question here reads: “§ 4231. Imposition of tax “There is hereby imposed: “(1) General.— “(A) Single admission.— “A tax of 1 cent for each 10 cents or major fraction thereof of the amount in excess of $1 paid for admission to any place. ****** “§ 4233. Exemptions “(a) Allowance._ “No tax shall be imposed under section 4231 in respect of: ****** „ _ . . , ,. (3) Certain musical or dramatic performances. ^ “Any admissions to musical or dramatic performances conducted by a civic or community membership association if no part of the net earnings thereof inures to the benefit of any stockholders or members of such association.” The performance on which the government claims that the admissions tax was described as follows in the trial court’s proper was findings of fact. “On January 29, and 30, and February 1, 2 and 3 of 1959 the plaintiff sponsored at the Long Beach California Municipal Auditorium an American version of the Oberam-mergau Passion Play. The perform-anee was presented by a professional theatrical group, Consolidated Concerts Corporation, 30 Rockefeller Plaza, New York, New York, for a consideration of $7,500. The net proceeds, if any, after payment of this consideration and other necessary expenses would go to the Long Beach Junior Chamber of Commerce ‘Youth Activities Fund’.” The government contends that “the term ‘civic or community membership association’ as used in Section 4233 (a) (3) has reference only to those nonprofit membership associations which are organized and operated primarily for the purpose of conducting musical or dramatic performances for the cultural benefit of the members of the association, such as civic music associations whose members pay annual dues for the right to attend a senf f cor|ce.rtjs; “ requires a rather tortuous twisting of the plain meaning of the statute’s words to reach result contended for by the gov. ernment, and our conclusion is that it says no such thing. The term “civic or community” contemplates an association formed for purposes beneficial to the cornmunity as a whole; one in which members of the community cooperate for cornmunity ends. Taxpayer’s purposes and prior activities indicate that it is precisely the type of association described in the statute. The several exemptions from the admissions tax for non-profit musical and dramatic productions contained in section 4233 indicate that Congress intended to encourage such productions by eliminating the economic burden of the admissions tax on them. In view of this policy, there is no reason to engraft onto the statute a limitation denying the exemption to a civic or community membership association formed for general purposes which also engages in musical or dramatic productions. The “primary purpose” test urged by the government would deny the exemption to those associations which are most public in nature and limit its benefits to those associations whose activities are more oriented toward benefiting their members, an<^ no^ community as a whole, We find nothing in the legislative his-tory which would justify ignoring the clear and unambiguous language of the section, even assuming we would be free to do so. Affirmed. . See Erie Endowment v. United States, 316 F.2d 151 (3d Cir. 1963); United States v. Pickwick Electric Membership Corp., 158 F.2d 272 (6th Cir. 1946); and Debs Memorial Radio Fund v. Commissioner, 148 F.2d 948 (2d Cir. 1945), all construing the phrase “civic leagues or organizations” which appears in § 501 (c) (4) of the Internal Revenue Code of 1954. . Int.Rev.Code of 1954, § 4233(a) (1) (A) (iv), (a) (3), (a) (7). . Compare United States v. Public Util. Comm. of Calif., 345 U.S. 295, 315, 73 S.Ct. 706, 97 L.Ed. 1020 (1953), and Gilbert v. Commissioner, 241 F.2d 491 (9th Cir. 1957), with Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 87 L.Ed. 407 (1943), and United States v. American Trucking Ass’n, 310 U.S. 534, 543-544, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). 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_caseoriginstate

31

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. FISHER v. DISTRICT COURT OF THE SIXTEENTH JUDICIAL DISTRICT OF MONTANA, IN AND FOR THE COUNTY OF ROSEBUD No. 75-5366. Decided March 1, 1976 Per Curiam. Disagreeing with an advisory opinion of the Appellate Court of the Northern Cheyenne Tribe, the Montana Supreme Court held that the state court has jurisdiction over an adoption proceeding in which all parties are members of the Tribe and residents of the Northern Cheyenne Indian Reservation. We reverse. Petitioner is the mother of Ivan Fireerow. On July 1, 1969, after petitioner and Ivan’s father were divorced, the Tribal Court of the Northern Cheyenne Tribe found that petitioner had neglected Ivan, awarded temporary custody to Josephine Runsabove, and made Ivan a ward of the court. In 1973 the Tribal Court rejected petitioner’s request to regain custody of her son. On August 30,1974, however, the Tribal Court entered an order granting petitioner temporary custody of Ivan “for a period of six weeks during the summer months.” Four days before the entry of that order, Josephine Runsabove and her husband initiated an adoption proceeding in the District Court for the Sixteenth Judicial District of Montana. Petitioner moved to dismiss for lack of subject-matter jurisdiction, asserting that the Tribal Court possessed exclusive jurisdiction. After a hearing, the District Court certified to the Appellate Court of the Northern Cheyenne Tribe the question whether an ordinance of the Northern Cheyenne Tribe conferred jurisdiction upon the District Court. The Appellate Court of the Tribe expressed the opinion that it did not, and the State District Court dismissed for lack of jurisdiction. The Runsaboves then filed an original application in the Montana Supreme Court for a writ of supervisory control or other appropriate writ to set aside the order of dismissal. The Montana Supreme Court granted the requested relief, holding that the District Court possessed jurisdiction. The court reasoned that prior to the organization of the Northern Cheyenne Tribe in 1935, the Montana courts possessed jurisdiction over adoptions involving tribal members residing on the reservation and that this jurisdiction could not be unilaterally divested by tribal ordinance; that Congress recognized that jurisdiction of state courts over Indian adoptions in 25 U. S. C. § 372a; and that depriving the Montana courts of jurisdiction would deny equal protection to Indian plaintiffs, at least under the Montana Constitution. State ex rel. Firecrow v. District Court, - Mont. -, 536 P. 2d 190 (1975). In litigation between Indians and non-Indians arising out of conduct on an Indian reservation, resolution of conflicts between the jurisdiction of state and tribal courts has depended, absent a governing Act of Congress, on “whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U. S. 217, 220 (1959); accord, Kennedy v. District Court of Montana, 400 U. S. 423, 426-427 (1971) (per curiam). Since this litigation involves only Indians, at least the same standard must be met before the state courts may exercise jurisdiction. Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 168-173, 179-180 (1973). The right of the Northern Cheyenne Tribe to govern itself independently of state law has been consistently protected by federal statute. As early as 1877, Congress ratified an agreement between the Tribe and the United States providing that “Congress shall, by appropriate legislation, secure to [the Indians] an orderly government; they shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life.” 19 Stat. 256. This provision remained unaffected by the Act enabling Montana to enter the Union, and by the other statutes specifically concerned with the Northern Cheyenne Tribe. In 1935, the Tribe adopted a constitution and bylaws pursuant to § 16 of the Indian Reorganization Act, 48 Stat. 987, 25 U. S. C. § 476, a statute specifically intended to encourage Indian tribes to revitalize their self-government. Mescolero Apache Tribe, supra, at 151. Acting pursuant to the constitution and bylaws, the Tribal Council of the Northern Cheyenne Tribe established the Tribal Court and granted it jurisdiction over adoptions “among members of the Northern Cheyenne Tribe.” State-court jurisdiction plainly would interfere with the powers of self-government conferred upon the Northern Cheyenne Tribe and exercised through the Tribal Court. It would subject a dispute arising on the reservation among reservation Indians to a forum other than the one they have established for themselves. As the present record illustrates, it would create a substantial risk of conflicting adjudications affecting the custody of the child and would cause a corresponding decline in the authority of the Tribal Court. No federal statute sanctions this interference with tribal self-government. Montana has not been granted, nor has it assumed, civil jurisdiction over the Northern Cheyenne Indian Reservation, either under the Act of Aug. 15, 1953, 67 Stat. 588, or under Title IV of the Civil Rights Act of 1968, 82 Stat. 78, 25 U. S. C. § 1321 et seq. And contrary to the Runsaboves’ contention, 25 U. S. C. § 372a manifests no congressional intent to confer jurisdiction upon state courts over adoptions by-Indians. The statute is concerned solely with the documentation necessary to prove adoption by an Indian in proceedings before the Secretary of the Interior. It recognizes adoption “by a judgment or decree of a State court” as one means of documentation but nowhere addresses the jurisdiction of state courts to render such judgments or decrees. The statute does not confer jurisdiction upon the Montana courts. See McClanahan, 411 U. S., at 174-175; Williams, 358 U. S., at 220-221. Since the adoption proceeding is appropriately characterized as litigation arising on the Indian reservation, the jurisdiction of the Tribal Court is exclusive. The Runsaboves have not sought to defend the state court’s jurisdiction by arguing that any substantial part of the conduct supporting the adoption petition took place off the reservation. Cf. DeCoteau v. District County Court, 420 U. S. 425, 428-430, and n. 3 (1975). The remaining points may be dealt with briefly. The Runsaboves argue that the ordinances of the Northern Cheyenne Tribe could not deprive the Montana courts of the jurisdiction they exercised over tribal matters prior to organization of the Tribe in 1935. The tribal ordinance conferring jurisdiction on the Tribal Court was authorized by § 16 of the Indian Reorganization Act, 25 U. S. C. § 476. Consequently, it implements an overriding federal policy which is clearly adequate to defeat state jurisdiction over litigation involving reservation Indians. Accordingly, even if we assume that the Montana courts properly exercised adoption jurisdiction prior to the organization of the Tribe, a question we do not decide, that jurisdiction has now been pre-empted. Finally, we reject the argument that denying the Runs-aboves access to the Montana courts constitutes impermissible racial discrimination. The exclusive jurisdiction of the Tribal Court does not derive from the race of the plaintiff but rather from the quasi-sovereign status of the Northern Cheyenne Tribe under federal law. Moreover, even if a jurisdictional holding occasionally results in denying an Indian plaintiff a forum to which a non-Indian has access, such disparate treatment of the Indian is justified because it is intended to benefit the class of which he is a member by furthering the congressional policy of Indian self-government. Morton v. Mancari, 417 U. S. 535, 551-555 (1974). The motion of the Northern Cheyenne Tribe for leave to file a brief, as amicus curiae, is granted. The petition for certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Court of Montana is reversed. It is so ordered. See State ex rel. Firecrow v. District Court, — Mont. —, —, 536 P. 2d 190, 192 (1975). In re Firecrow (Northern Cheyenne Tribal Ct., filed Aug. 1, 1973). Defendant’s Exhibit C. In re Firecrow (Northern Cheyenne Tribal Ct., filed Aug. 30, 1974). Defendant’s Exhibit A. They alleged that petitioner had voluntarily abandoned the child to Josephine Runsabove on June 2, 1969, and had not supported the child for over a year. The natural father consented to the adoption and waived further notice. Chapter 3, § 2, of the Revised Law and Order Ordinances of the Northern Cheyenne Tribe of the Northern Cheyenne Reservation, approved by the Commissioner of Indian Affairs, June 9, 1966. The ordinance provides: “The Tribal Court of the Northern Cheyenne Reservation shall have jurisdiction to hear, pass upon, and approve applications for adoptions among members of the Northern Cheyenne 'Tribe. “Upon proper showing and decision by the court, such adoptions shall be binding upon all concerned and hereafter only adoptions so approved by the Tribal Court shall be recognized. “On all adoptions involving non-members of the Northern Cheyenne Tribe or non-Indians or both who wish to adopt a member of the Northern Cheyenne Tribe, the Tribal Court of the Northern Cheyenne Reservation shall have concurrent jurisdiction to hear, pass upon, and approve applications for adoption and upon written consent of the court, adoption proceedings affecting members of the Northern Cheyenne Tribe of the Northern Cheyenne Reservation may be tafeen up and consummated in the State Courts.” The opinion of the Appellate Court of the Northern Cheyenne Tribe reads, in relevant part: “It is the opinion of this Court, and this Court so rules, that the Tribal Court has exclusive jurisdiction of all adoptions of members of the Northern Cheyenne Tribe of Indians where it appears that the minor who is being adopted and all other parties to the adoption proceedings, which is to say, the parent and/or parents of the minor and the person and/or persons adopting said minor are each and all members of the Northern Cheyenne Tribe and each and all reside within the exterior boundaries of the Northern Cheyenne Indian Reservation. “This Court has not been called upon to decide any issue involving non-members of the Northern Cheyenne Tribe or non-Indians or both, who wish to adopt a member of the Northern Cheyenne Tribe. Therefore, this Court does not make any opinion or interpretation as to the provisions of the last (3rd) paragraph of said Section 1 of Chapter III of the Tribal Code.” In re Firecrow, at 5 (filed Apr. 12, 1975). The writ of supervisory control issued by the Montana Supreme Court is a final judgment within our jurisdiction under 28 U. S. C. § 1257 (3). It is available only in original proceedings in. the Montana Supreme Court, Mont. Const., Art. VII, §§2(1), (2); Mont. Rule App. Civ. Proc. 17 (a), and although it may issue in a broad range of circumstances, it is not equivalent to an appeal. See ibid.; State ex rel. Amsterdam Lumber, Inc. v. District Court, 163 Mont. 182, 186-187, 516 P. 2d 378, 380-381 (1973); Walker v. Tschache, 162 Mont. 213, 215-217, 510 P. 2d 9, 10-11 (1973). A judgment that terminates original proceedings in a state appellate court, in which the only issue decided concerns the jurisdiction of a lower state court, is final, even if further proceedings are to be had in the lower court. Madruga v. Superior Court, 346 U. S. 556, 557 n. 1 (1954); Rescue Army v. Municipal Court, 331 U. S. 549, 565-568 (1947); Bandini Co. v. Superior Court, 284 U. S. 8, 14-15 (1931); see Costarelli v. Massachusetts, 421 U. S. 193, 197-199 (1975) (per curiam). Act of Feb. 22, 1889, 25 Stat. 676. Section 4 (2) of the Act provides that “Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States ....’’ For an interpretation of this provision, and similar language in other statehood enabling Acts, see McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 175-176, and n. 15 (1973); Organized Village of Kake v. Egan, 369 U. S. 60, 69-71 (1962). The Northern Cheyenne Tribe first came under federal trusteeship by the Treaty of May 10, 1868, 15 Stat. 655, which was subsequently modified by the agreement quoted in text. The Northern Cheyenne Indian Reservation was created by Executive Orders on November 26, 1884, and March 19, 1900, 1 C. Kapp-ler, Indian Affairs 860-861 (1904), and it was confirmed as property of the Tribe held in trust by the United States by the Act of June 3, 1926, c. 459, 44 Stat. pt. 2, 690. None of the cited sources grants jurisdiction to Montana. Constitution and bylaws of the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, approved by the Secretary of the Interior, Nov. 23, 1935. These have since been superseded by the Amended Constitution and By-Laws of the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, approved by the Assistant Secretary of the Interior, July 8, 1960. C. 3, §2, of the Revised Law and Order Ordinances of the Northern Cheyenne Tribe of the Northern Cheyenne Reservation. Quoted at n. 5, supra. The third paragraph of § 2 does not confer jurisdiction over this case upon the Montana courts. By its express terms, it confers concurrent jurisdiction only over “adoptions involving non-members of the Northern Cheyenne Tribe or non-Indians or both who wish to adopt a member of the Northern Cheyenne Tribe,” see n. 5, supra, and only upon written consent of the Tribal Court. Neither the constitution and bylaws nor the ordinance of the Northern Cheyenne Tribe manifests an intent to cede jurisdiction to Montana. This factor alone distinguishes the decisions upon which the Montana Supreme Court relied. Bad Horse v. Bad Horse, 163 Mont. 445, 450-451, 517 P. 2d 893, 896, cert. denied, 419 U. S. 847 (1974); State ex rel. Iron Bear v. District Court, 162 Mont. 335, 337-338, 342-343, 512 P. 2d 1292, 1294, 1297 (1973). We do not decide, however, whether an enactment of a tribal council prior to the effective date of Pub. L. 280, Act of Aug. 15, 1953, 67 Stat. 588, may be sufficient to confer jurisdiction upon the state courts. See Kennerly v. District Court of Montana, 400 U. S. 423, 426-429 (1971) (per curiam); McClanahan v. Arizona State Tax Comm’n, supra, at 179-180. Act of July 8, 1940, c. 555, §§ 1, 2, 54 Stat. 746. The statute provides: “[Sec. 1] [I]n probate matters under the exclusive jurisdiction of the Secretary of the Interior, no person shall be recognized as an heir of a deceased Indian by virtue of an adoption— “(1) Unless such adoption shall have been— “(a) by a judgment or decree of a State court; “(b) by a judgment or decree of an Indian court;- “(c) by a written adoption approved by the superintendent of the agency having jurisdiction over the tribe of which either the adopted child or the adoptive parent is a member, and duly recorded in a book kept by the superintendent for that purpose; or “(d) by an adoption in accordance with a procedure established by the tribal authority, lecognized by the Department of the Interior, of the tribe either of the adopted child or the adoptive parent, and duly recorded in a book kept by the tribe for that purpose; or “(2) Unless such adoption shall have been recognized by the Department of the Interior prior to the effective date of this Act or in the distribution of the estate of an Indian who has died prior to that date: Provided, That an adoption by Indian custom made prior to the effective date of this Act may be made valid by recordation with the superintendent if both the adopted child and the adoptive parent are still living, if the adoptive parent requests that the adoption be recorded, and if the adopted child is an adult and makes such a request or the superintendent on behalf of a minor child approves of the recordation. “Sec. 2. This Act shall not apply with respect to the distribution of the estates of Indians of the Five Civilized Tribes or the Osage Tribe in the State of Oklahoma, or with respect to the distribution of estates of Indians who have died prior to the effective date of this Act.” The Runsaboves alleged as grounds for adoption that petitioner had abandoned Ivan and given custody to Josephine Runs-above and that petitioner had not supported the child for over a year. Since all parties resided on the reservation at all relevant times, and since the reservation has not been partially terminated, cf. DeCoteau v. District County Court, 420 U. S., at 429 n. 3, it appears that none of the acts giving rise to the adoption proceedings occurred off the reservation. The Runsaboves do not contend otherwise. They do, however, point out that the birth of Ivan and the marriage and divorce of his parents occurred off the reservation. These facts do not affect our conclusion that the adoption proceeding is within the Tribal Court’s exclusive jurisdiction. In a proceeding such as an adoption, which determines the permanent status of litigants, it is appropriate to predicate jurisdiction on the residence of the litigants rather than the location of particular incidents of marginal relevance, at best. 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_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. Robert KRAHM et al., Plaintiffs-Appellees, v. Milton GRAHAM, etc., et al., Defendants-Appellants. No. 25711. United States Court of Appeals, Ninth Circuit. May 10, 1972. Rehearing Denied June 27, 1972. John A. LaSota, Jr., Asst. City Atty. (argued), Barry Leverent, Asst. City Atty., Joe R. Purcell, Phoenix City Atty., Ralph Majowald, Phoenix, Ariz., for defendants-appellants. Richard J. Hertzberg, Phoenix, Ariz. (argued), for plaintiff s-appellees. Before DUNIWAY and TRASK, Circuit Judges, and BYRNE, Sr., District Judge. Honorable William M. Byrne, Sr., United States District Judge, Central District of California, sitting by designation. DUNIWAY, Circuit Judge: This is an appeal from the granting of an injunction. The action was brought under 28 U.S.C. §§ 1331 and 1343, and 42 U.S.C. § 1983. The relief sought and granted was an injunction against harrassment of the plaintiffs by prosecutions brought against them in bad faith in the courts of Phoenix, Arizona under that state’s anti-obscenity law, Ariz.Rev.Stat. § 13-532. We affirm in part and reverse in part. 1. The facts. The following statement of facts, which is fully supported by the record, is largely taken from the brief of the plaintiff-appellees : Plaintiffs are owners of and clerks in newsstands and bookstores in Phoenix, Arizona. Defendants are the mayor, the chief of police and the city prosecutor of Phoenix. In 1968 and 1969 over 100 criminal charges for the sale of allegedly obscene books and magazines were initiated against plaintiffs in the City Court of Phoenix by Phoenix police officers at the direction of the defendants. Eleven of the cases came to trial. None resulted in convictions. Of these cases, two were dismissed at the close of the prosecution’s case; in three there was a directed verdict of not guilty; in two the judge found the defendants not guilty; in four a jury found them not guilty. The cases were tried before different judges and different juries. The police were filing cases faster than they could be tried. On May 16, 1969, after 6 findings of Not Guilty in a 2-week period, 14 new prosecutions were instituted. The 11th and last trial was held in the middle of June of 1969. There were 2 more eases set for trial that month and the plaintiffs (defendants in City Court) and their attorney prepared and appeared in court on those dates ready for trial, but at the last minute those cases were dismissed on motion of the prosecutor. No more cases were set down for trial for a while. On June 25, 1969, an anti-pornography campaign began, spearheaded by the mayor, with announcements on television and to the newspapers. Concurrently, at the mayor’s direction, anti-obscenity petitions were circulated to 50,000 people in Phoenix, Arizona, over 21 years of age. The mayor stated publicly that the purpose of the petitions was to influence the tenor of the community so that jurors would be more likely to convict than they had been in the cases already tried. The newspapers reported this statement. The mayor announced that another purpose of the drive was to “make clear to the courts” what the community felt about pornography, and that was reported in the papers. The city magistrates can be fired without cause by the city manager who, in turn, can be fired without cause by the mayor and council. The mayor indicated to a newspaper reporter that plaintiffs were involved with the Mafia. This appeared in the newspapers. At trial the mayor admitted he had no basis for this statement. He stated publicly that parents had told him that minors were being sold obscene items; at trial he could name no parents or minors, nor could he name any stores that had sold to minors and he admitted he had never reported any of these alleged sales to minors to the police. These alleged sales to minors were further rebutted by the police officer in charge of the obscenity detail who admitted under cross-examination that plaintiffs do not sell to minors and that minors are not even allowed in the “adult” section of plaintiffs’ stores. The mayor also indicated to a newspaper reporter that he had been offered a bribe because of his anti-pornography stand. Although at trial he claimed that he had a general discussion with the police about the alleged bribe, he admitted that he gave the police no names and did not tell them, or imply, “That any individual had made me a flat bribe offer.” A month or two after the drive began, 19 more cases were filed against plaintiffs making a total of 101. The mayor was a candidate for re-election in the fall. Concurrently with the filing of charges the police seized merchandise from plaintiffs on at least eleven occasions, and, in spite of a state court order that the method they were using to seize material was illegal, defendants continued to make illegal seizures of large amounts of materials until stopped by the Federal District Court in Arizona. Good, et al. v. Blubaum, et al., D.C.Ariz., No.Civ. 6774 Phx.; Sayles v. Graham, D.C.Ariz., No.Civ. 6981 Phx. All of the pending cases are similar to the eleven that resulted in. acquittals and the two that were dismissed on the morning of trial. In all cases the “victim” of the alleged crime (the purchaser) was a willing police officer. In none was there any pandering, obtrusive assaults upon privacy or sale to minors. Yet after the eleven straight acquittals, no move was made to dismiss the remaining cases except for the two already mentioned. Although no court or jury at any level, in either a civil or criminal action, had ever determined that plaintiffs sold or were selling obscene material or had engaged in criminal conduct, the defendants achieved the following results by their actions: Plaintiffs closed down their stores for two days, large amounts of “adult” merchandise were removed from the stands, money was expended for legal defense and for the quashing of illegal seizures and the return of merchandise wrongfully taken by the police.' The prospective costs for future defense and appeals of the cases yet untried and yet to be filed were mounting. Some plaintiffs sold their stores and left town. Another considered selling his. 2. The judgment. The trial judge did not rule upon the constitutionality of the method of appointing and removing city magistrates. Nor did he feel it necessary “to redress any alleged attempts on the part of the defendants to influence judicial and public opinion against plaintiffs.” The judge did find that there was “bad faith law enforcement,” which had a “chilling effect,” and that the facts met the “special circumstances” rule of Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. The judgment enjoins (1) further prosecution of any pending criminal action against any of the plaintiffs under A.R.S. § 13-532, and (2) any future actions against any of them under that statute in the absence of a prior adversary judicial hearing on the question of obscenity. 3. Propriety of an injunction. The Supreme Court has held that a federal court may enjoin state prosecution only under special circumstances. Dombrowski v. Pfister, supra. There the Court found that absent a federal injunction the appellants would have been irreparably injured by the bad faith prosecutions of local authorities. The Court felt that the criminal process was being invoked against the appellants with no hope of ultimate success, but as a device to discourage the appellants’ civil rights activities. That case, like this one, involved claims that the plaintiffs’ First Amendment rights were being invaded. This case was decided on February 12, 1970. On February 23, 1971, the Court handed down a sextet of decisions dealing with problems more or less common to those in Dombrowski and in this case. See Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Boyle v. Landry, 1971, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Perez v. Ledesma, 1971, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701; Dyson v. Stein, 1971, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781; Byrne v. Karalexis, 1971, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792. These eases stand for the following propositions: (1) Principles of equity govern federal orders enjoining state proceedings, and federal courts should therefore refuse to grant an injunction unless irreparable injury is demonstrated. (2) In the case of state criminal prosecutions, the injury must be both “great and immediate.” Younger v. Harris, 401 U.S. at 46, 91 S.Ct. 746. (3) The cost, anxiety, and inconvenience of defending against a single state prosecution do not constitute such injury. (4) The threat to plaintiff’s federally protected right must be one that could not be eliminated by his defense against a single state criminal prosecution. Id. (5) Plaintiff must be able to demonstrate that the prosecution was undertaken in bad faith. Id. at 49, 91 S.Ct. 746. In each of the sextet cases the Court held that a federal order enjoining state criminal prosecutions was unjustified because these prerequisites had not been shown. It is argued that the sextet require that we reverse the judgment and direct that the action be dismissed. We have heard it suggested that the effect of the sextet is that henceforth Dombrowski will be authoritative only in cases in which the plaintiff is named Dombrow-ski and the defendant is named Pfister. We do not find that the sextet go that far. Dombrowski was distinguished, not overruled; it is still good law in those cases where the sextet’s criteria are met. They are met here. Here over 100 prosecutions are involved, not just one. Nor is it correct that only a few, an average of four, prosecutions have been instituted against each particular plaintiff. We are unpersuaded by defendants’ rather deceptive mathematics. Plaintiff Arizona Magazine Distributors, Inc., for example, which employs or employed six other plaintiffs, has twenty-one charges pending against it. Plaintiffs Sam Bard, Myles Bard, and Bard Enterprises, Inc. have eleven charges pending against them. Defendants have filed ten charges against plaintiffs Vernon and Phyllis Hickman. Surely the damage from this sort of activity is both irreparable and “great and immediate.” It can put the plaintiffs out of business without ever convicting any of them of anything. Nor can the threat to plaintiffs’ first amendment rights be eliminated by defense against the state prosecutions. Successful defense against eleven of them, plus the voluntary dismissal of two others, brought the filing of fourteen more, and later of an additional nineteen. There are about ninety still pending. We also agree with the trial judge’s finding of bad faith. Defendants argue that the fact that there were no arrests — the plaintiffs appeared in response to summonses — and few seizures of materials distinguishes the present case from Dombrowski, supra, where the Court based its decision in part on the presence of illegal seizures and arrests. Being summoned to answer a criminal charge may be less traumatic to the defendant than an arrest. The summons, however, is not a mere piece of paper to be lightly cast aside. It is a substitute for an arrest, and carries the threat of arrest if it is disregarded. It initiates the burden of defense just as surely as an arrest does. There were enough seizures to force the plaintiffs to institute an action in the state court and, when defendants disregarded that judgment, two other actions in the District Court. The attempted distinction is specious. Nor can Dombrowski be distinguished on the ground that the state statute there involved was unconstitutional while here the constitutionality of A.R. S. § 13-532 is conceded. In the vital area of First Amendment rights it is just as easy to discourage exercise of them by abusing a valid statute as by using an invalid one. The fact was recognized by the Supreme Court as long ago as 1896, in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. See also Dombrowski, supra, 380 U.S. at 489-490, 85 S.Ct. at 1122: “We hold that the abstention doctrine is inappropriate for eases where . . . statutes are justifiably attacked ... as applied for the purpose of discouraging protected activities.” Defendants finally argue that even assuming that plaintiffs demonstrated irreparable injury and bad faith prosecution, 28 U.S.C. § 2283 prohibits the issuance of injunctive relief. Section 2283 provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” In the sextet, the Court did not decide whether 42 U.S.C. § 1983 is an express authorization by Act of Congress within the meaning of § 2283. Younger v. Harris, 401 U.S. at 40-41, 91 S.Ct. at 748-749 (Black, J.) and at 55, 91 S.Ct. at 757 (concurring opinion of Stewart, J.'). The question was also reserved in Dombrowski v. Pfister, 380 U.S. at 484 n. 2, 85 S.Ct. 1116, in Cameron v. Johnson, 1968, 390 U.S. 611-613 n. 3, 88 S.Ct. 1335, 20 L.Ed.2d 182, and in Lynch v. Household Finance Co., 1972, 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). In Lenske v. Sercombe, 9 Cir., 1968, 401 F.2d 520, we found it unnecessary to decide the question. We did observe, however, that if § 1983 is an exception, it would be applicable only “under extraordinary circumstances where irreparable injury is threatened to federally created rights.” Id. at 521. Other circuits are divided on the question. Compare Baines v. City of Danville, 4 Cir., 1964, 337 F.2d 579; Goss v. Illinois, 7 Cir., 1963, 312 F.2d 257; Smith v. Village of Lansing, 7 Cir., 1957, 241 F.2d 856; Sexton v. Barry, 6 Cir., 1956, 233 F.2d 220, 226, holding that § 1983 is not an exception to § 2283 with Cooper v. Hutchinson, 3 Cir., 1950, 184 F.2d 119, 124, holding that § 1983 is such an exception. We confess that we find the reservation of the question in Dombrowski rather puzzling. It is based on the proposition that § 2283 applies only to enjoining pending state court proceedings, not to enjoining threatened proceedings not yet filed. In Dombrowski, no state proceeding had been commenced when Dombrowski filed his civil rights action. However, while that action was pending, a restraining order having been dissolved and no injunction having issued, state prosecutions were begun, and the Court in Dombrowski, in its order of remand, specifically provided for “prompt framing of a decree restraining prosecution of the pending indictments . . ..” 380 U.S. at 497, 85 S.Ct. at 1127. This was in accord with the ancient rule in equity applied by the Court in Chapman v. Sheridan-Wyoming Coal Co., 1950, 338 U.S. 621, 630, 70 S.Ct. 392, 397, 94 L.Ed. 393: “But the action is one in equity, and ‘equity will administer such relief as the exigencies of the case demand at the close of the trial.’ Bloomquist v. Farson, 222 N.Y. 375, 380, 118 N.E. 855, 856; Lightfoot v. Davis, 198 N.Y. 261, 273, 91 N.E. 582, 586.” Section 2283 does not prohibit the filing of an action; it prohibits the granting of an injunction. The idea that the decree in Dombrowski does not enjoin pending prosecutions and thus does not conflict with § 2283 is, we confess, a bit of metaphysics that eludes our grasp. All that it can accomplish is a race between prospective defendants and the prosecutor, the former running to the federal courts, the latter to the state courts. See Honey v. Goodman, 6 Cir., 1970, 432 F.2d 333, 343. Be that as it may, we find that the injunction issued here was not in violation of § 2283, but for a different reason. Judge Haynesworth, speaking for the Fourth Circuit in Baines v. City of Danville, supra, holds that § 2283 is a limitation on the exercise by the federal courts of their equitable jurisdiction, but is not a jurisdictional statute. It is grounded on principles of comity. Thus, it is “inapplicable in extraordinary cases in which an injunction against state court proceedings is the only means of avoiding grave and irreparable injury.” 337 F.2d at 593. Accord, Honey v. Goodman, supra, 432 F.2d at 343. There can be no doubt that the civil rights act confers upon the federal courts not only jurisdiction, but equitable jurisdiction, to enforce federal constitutional rights against state action which violates those rights. In the extraordinary type of case to which Judge Haynesworth refers, an injunction against state prosecutions, pending or prospective, may indeed be necessary in aid of that jurisdiction. Such an injunction, under such circumstances, is expressly permitted by § 2283. Nothing in the sextet cases is contrary to the foregoing. In those cases the Court expressly recognized the exceptional type of case that we are discussing. E. g., Younger v. Harris, supra, 401 U.S. at 46, 53-54, 91 S.Ct. at 751, 754-755 (Black, J.); at 56, 91 S.Ct. at 757 (Stewart, J.); Perez v. Ledesma, supra, 401 U.S. at 85, 91 S.Ct. at 677 (Black, J.) and at 96-97, 91 S.Ct. at 682-683 (Brennan, J.) ; Dyson v. Stein, supra, 401 U.S. at 203, 91 S.Ct. 769. We hold that the court properly enjoined the pending prosecutions. 4. The requirement that future prosecutions be preceded by adversary hearings. We think that the requirement that all future prosecutions be preceded by adversary hearings is overbroad. Such a requirement has been imposed in cases involving mass seizures of material said to be obscene. A Quantity of Copies of Books v. Kansas, 1964, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; Tyrone, Inc. v. Wilkinson, 4 Cir., 1969, 410 F.2d 639. Some courts have extended this principle to arrests in connection with the publication or distribution of obscene materials. See, e. g., Delta Book Distributors, Inc. v. Cronvich, E.D.La., 1969, 304 F.Supp. 662, rev’d sub nom. Perez v. Ledesma, 1971, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701. The argument is that a prior restraint is effected when an arrest is made, and therefore an adversary hearing prior to the inception of the criminal process is required. The Supreme Court, however, appears to have concluded to the contrary. Milky Way Productions, Inc. v. Leary, S.D.N.Y., 1969, 305 F.Supp. 288, aff’d, New York Feed Co. v. Leary, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970); Perez v. Ledesma, supra. This result also comports with the Court’s strongly enunciated policy that state courts be permitted “to try state cases free from interference by federal courts.” Younger v. Harris, supra, 401 U.S. at 43, 91 S.Ct. at 750. Here we do not deal with an unconstitutional statute, such as was involved in Dombrowski, supra. Rather, we deal with an admittedly valid statute which the state has a right to enforce, so long as it proceeds in good faith. We think that the blanket requirement of prior adversary hearings is improper under these circumstances. The court, however, should retain jurisdiction so that if in the future further harassing enforcement measures, undertaken in bad faith, should again occur, prompt relief can be afforded. The portion of the judgment enjoining the pending prosecutions is affirmed. The balance of the judgment is vacated, and the ease is remanded for modification of the judgment in accordance with the views here expressed, and for such further proceedings, if any, as the court may deem proper: 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_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, Appellee, v. David Carson JACKSON, Appellant. UNITED STATES of America, Appellee, v. Margaret Frances McKENZIE, Appellant. Nos. 77-2530, 77-2531. United States Court of Appeals, Fourth Circuit. Argued May 5, 1978. Decided Oct. 5, 1978. H. Duncan Garnett, Jr., Newport News, Va. (Jones, Blechman, Woltz & Kelly, Newport News, Va., on brief), for appellants. Robert F. McDermott, Jr., Asst. U. S. Atty., Alexandria, Va. (William B. Cummings, U. S. Atty. and Leonie M. Brinkema, Asst. U. S. Atty., Alexandria, Va., on brief), for appellee. Before HAYNSWORTH, Chief Judge, RUSSELL, Circuit Judge, and FIELD, Senior Circuit Judge. DONALD RUSSELL, Circuit Judge: The defendants are appealing their convictions under an indictment charging the conduct, operation and management of an illegal gambling business in violation of § 1955, 18 U.S.C. We affirm. The prosecution of the defendants grew out of an extended investigation by local, state and federal officers begun in August and continuing through the balance of 1976, of an alleged gambling operation centered at the Madison Avenue Confectionery, located at 4713 Madison Avenue in Newport News, Virginia, and at the Twenty-First Street News Stand in the same city. The newsstand had been operated in 1970 and 1971 by the defendant Jackson and, since 1972, by the defendant McKenzie. There is no statement of the ownership of the Confectionery in the record but the defendant Jackson appears connected in some way with its operation. Both businesses were placed under surveillance in early September. Jackson was observed regularly between 9 and 11 o’clock in the morning going back and forth between the two establishments. The officers observed what appeared to be a “look-out” system set up at each location. The person identified as the “look-out” by the officers maintaining surveillance at the Confectionery would knock on the window whenever an officer appeared. At the newsstand, a person assumed by the officers to be a “look-out” would go inside whenever an officer approached. An undercover agent testified to three occasions in late August and early September when he placed bets at the Confectionery. On September 24, 1976, a search warrant for the Confectionery was executed, presumably based on these statements by the undercover agent. The validity of the search warrant and its execution was not questioned. When the officers entered the Confectionery to execute the search warrant the defendant Jackson, who was present, immediately shouted towards the back of the Confectionery, “[hjere they come, here they come.” As a result of the search, several pieces of paper were found with number plays on them in the rear of the Confectionery. On the same day, a search warrant was executed for the newsstand. The defendant McKenzie was present and number slips were seized from a person on the premises. Subsequently on December 17, the officers raided the newsstand again and recovered two combination locks. These locks had a number face up and, according to the testimony at trial, these numbers corresponded to the “hit numbers” of that day. Though they raise two other issues to which we refer later, the principal controversy in the case, however, involves the validity of the execution of a search warrant on a residence located at 636 Twenty-First Street, immediately adjacent to the newsstand, and the warrantless search of a room in a vacant house at 640 Twenty-First Street. Both searches occurred on December 17, 1976. The officers had procured a search warrant for 636 Twenty-First Street. The validity of that search warrant was not questioned. When the officers went to 636 Twenty-First Street to execute the warrant, they knocked; receiving no response, they “announced then that [they] were police officers and * * * had a search warrant for the apartment and [they] then forced open the door.” The defendant McKenzie and one Boyd were in the apartment. Between the two of them, the officers found numbers slips, which Boyd apparently attempted to hide, but which the officers seized. McKenzie was on the telephone. The Government, of course, contended that, based on these facts, the two were engaged in activity related to the gambling operation. The warrantless search on the same day of a room in a vacant house at 640 Twenty-First Street resulted from the report of an officer who had seen Jackson, for whom other officers had a search warrant of his person, on Twenty-First Street. When he saw the officer, Jackson had run into a house located at 642 Twenty-First Street. This house was occupied by Mrs. Sally Pollard. The officer reported to the local Vice-Squad the suspicious movements of Jackson and his entrance into 642 Twenty-First Street. Other officers with a search warrant for Jackson’s person, then went to 642 Twenty-First Street, told Mrs. Pollard that they had been advised that Jackson had been observed entering her house and said that they had a search warrant for Jackson’s person. Mrs. Pollard told them that Jackson was not in the house but added that they (the officers) could “come in and look” if they liked. As the officers were going into the house with Mrs. Pollard, they inquired whether Jackson had been there. Mrs. Pollard answered that Jackson had been there with a bag but she had told him “not to bring those numbers [presumably in the bag] into the house, she wanted nothing to do with them.” Jackson, she said, then left her house and “placed the bag in the vacant house next door.” Jackson returned, after putting the bag in the vacant house, and gave Mrs. Pollard a paper bag with two sets of keys in it. He told her to give the keys to Prances (meaning, as Mrs. Pollard understood it, the defendant McKenzie). Mrs. Pollard told the officers during her conversation with them how they might look into the house where Jackson had put the bag containing the numbers by standing on a chair outside an open window at the house. The officers followed her direction. Two of them took turns standing on the chair and looking into the room. Plainly visible in the room was a bag similar to the one Mrs. Pollard had told Jackson not to bring into her house because she didn’t want any “numbers” on her premises. Even though the bag was in plain view the officers did not attempt immediately to enter the house. They called the Commonwealth’s attorney to inquire whether they should secure a search warrant before entering the room. They were advised that they did not need a search warrant and were told they could search the room. The officers followed this advice. Other than accumulated trash, the only article to be seen or found in the room was the bag. When opened with one of the keys from the bag given the officers by Mrs. Pollard, numbers slips to the extent of $2,600.00 were taken from the bag and were seized by the officers. The defendants contest the search at 636 Twenty-First Street on the ground that the search, though supported by a search warrant, was illegally executed. They would find the warrantless search of the room in the vacant house at 640 Twenty-First Street invalid because it was effected as a result of an illegal trespass. We find neither ground tenable. In seeking to justify their argument for the suppression of the evidence secured through the warrantless search of 640 Twenty-First Street, the defendants begin by asserting their standing to contest such search. The grounds for standing, as stated by the two defendants, are somewhat different and we shall accordingly consider individually the two defendants’ claims to standing. The defendant Jackson contends he acquired standing because of a “substantial proprietary or possessory interest [on his part] in the thing seized [i. e., the bag]” and because “mere possession of the bag recovered without warrant was itself an essential element of the crime charged both defendants.” The claim by Jackson of standing on the ground that “mere possession” of the seized bag was itself an “essential element of the crime charged both defendants” may be quickly dismissed. Such possession was not an “essential element” of the crime of operating a gambling establishment. The other ground for standing asserted by Jackson (/. e., a “proprietary or possessory” interest in the thing seized) was effectively disposed of by Judge (now Justice) Stevens in United States v. Lisk (7th Cir. 1975), 522 F.2d 228, cert. denied, 423 U.S. 1078, 96 S.Ct. 865, 47 L.Ed.2d 89 (1976). In that case, the officers seized an illegal firearm as a result of a search of an automobile owned by one Hunt. The search of the automobile was conceded to have been illegal. It was stipulated, however, that, while he had no possessory or proprietary interest in the car searched, the defendant had “a proprietary interest” in the seized firearm. He urged that, because of such “proprietary interest” in the thing seized, he was “entitled to Fourth Amendment protection against its seizure.” In disposing of this contention, Judge Stevens began by noting the “difference between a search and a seizure”; i. e., “[a] search involves an invasion of privacy; a seizure is a taking of property.” He then proceeded to declare, quoting Alderman v. United States [394 U.S. 165, 171-2, 89 S.Ct. 961, 965, 22 L.Ed.2d 176] “ ‘that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.’ ” Applying that principle, the Court found that, while Hunt as the owner of the car searched was the “victim of the search” and had standing to contest the search in violation of his Fourth Amendment rights, the defendant who had neither a proprietary nor possessory interest in the car was not a “victim of the search” and had no standing to object to a search of the car. Accordingly, the “violation” [as represented by the illegal search of the car] was “clearly not available to the defendant as a basis for suppressing evidence acquired thereby * * *. In sum, defendant has standing [as the owner of the seized article] to object to the seizure, but no standing to object to the search.” Since the defendant was without standing to object to the search, “as far as defendant is concerned the case [was] the same as though the firearm had been found in plain view in a public place [where the defendant would have had no reasonable expectation of privacy].” The Court accordingly concluded that, under this reasoning, the seizure was “lawful” and “the evidence [was] admissible against defendant even though it could not be used against Hunt because it was found during a search which violated his Fourth Amendment rights.” Lisk is consistent with a long line of cases involving searches of hotel or motel rooms. These cases recognized the shift made by Katz in the rule for standing to contest a search from a proprietary interest in the premises searched to a reasonable expectation of privacy. Thus it is the present well-settled rule that a guest in a hotel or motel loses his reasonable expectation of privacy and consequently any standing to object to “an unauthorized search of the premises” after his rental period has terminated. And this is true even though he may have left property in the hotel room. United States v. Parizo (2d Cir. 1975), 514 F.2d 52, 54-55; United States v. Akin (7th Cir. 1977), 562 F.2d 459, 463, cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978); United States v. Croft (10th Cir. 1970), 429 F.2d 884, 887; Granza v. United States (5th Cir. 1967), 377 F.2d 746, 748-749; D’Argento v. United States (9th Cir. 1965), 353 F.2d 327, 344, cert. denied, 384 U.S. 963, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966). It is also analogous to the situation in which an “individual places his effects upon premises where he has no legitimate expectation of privacy (for example, in an abandoned shack or as a trespasser upon another’s property)”; in such a case “he has no legitimate reasonable expectation that they will remain undisturbed upon these premises” and consequently has no standing or right to contest a search. Accordingly, when Jackson in this case placed the bag in an empty room n the vacant house in which he had concededly neither a proprietary nor a possessory interest, he had no more expectation of privacy than if he had placed the bag “in plain view in a public place,” to use Lisk’s phrase, and thus had no basis for objecting to the seizure. See, United States v. Galante, supra, at 739, n. 11 (547 F.2d). And this fact, apart from any question of standing on his part, would be dispositive of any right by him to suppress the fruit of the searches on the merits. United States v. Alewelt, supra (532 F.2d at 1168). The standing of the defendant McKenzie to contest the search may appear at first blush more reasonable than that of her co-defendant. She, of course, had not rented the house but the owner had given her a key and had given her permission to store some furniture in the house. So far as the record shows, however, the only article of furniture she had stored in the house was a stove. Specifically, she had stored nothing in the single room which the officers entered and from which they removed the contested bag. There is no suggestion in the testimony that she ever knew that Jackson had placed the bag in the room or that she had authorized him to put the bag in the room. In fact, it would seem that Jackson had impulsively placed the bag in that room only because Mrs. Pollard refused to permit him to bring the bag into her house. It is difficult to find in this situation any reasonable expectation of privacy of McKenzie which was invaded by the officers through their search of this single room in the vacant house. See, United States v. Abbarno (W.D.N.Y.1972), 342 F.Supp. 599, 604. But, even if McKenzie should be considered as having standing, her attack on the search must fail. This is so because the search was valid. The basic ground for invalidity of the search, as pressed by the defendants, is that the officers had to commit a trespass in order to look into the windows of the room and observe where Jackson had placed the bag. The decision of the Supreme Court in Katz v. United States, supra 389 U.S. at 351-352, 88 S.Ct. 507, seems clear to the point that the prohibition in the [Fourth] Amendment is against unreasonable searches and seizures, not trespasses, per se. A trespass is only relevant in this context if it represents an invasion of a defendant’s reasonable expectancy of privacy. This point was emphasized by Judge Leventhal recently in his concurring opinion in United States v. Johnson (1977), 182 U.S.App.D.C. 383, 396, 561 F.2d 832, 845: “The salient question is, was the trespasser in a place where he was encroaching on a reasonable expectation of privacy that comes within the fair intendment of the Fourth Amendment.” Because the Court concluded there was not such an expectation in that case, the Court sustained the search even though effected by a trespass. This is in accord with the language of Judge Wisdom in United States v. Polk (5th Cir. 1970), 433 F.2d 644, 647, n. 1, and the holdings in United States v. Alewelt, supra (532 F.2d at 1168); United States v. Conner (7th Cir. 1973), 478 F.2d 1320, 1323; United States v. Hanahan (7th Cir. 1971), 422 F.2d 649, 652-654; People v. Terry (1969), 70 Cal.2d 410, 77 Cal.Rptr. 460, 454 P.2d 36, 48, and People v. Krivda (1971), 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262, 1267. In Polk, the Court said: “The rationale that reasonable expectations of privacy rather than property rights are the interests protected by the fourth amendment should be allowed its full scope. A technical trespass should not necessarily be deemed a fourth amendment search when no expectations of privacy are disappointed.” In People v. Krivda, the Court said: “The fact that a search may or may not involve a trespass or other invasion of defendant’s property interests is not conclusive, for ‘The prohibition in the [Fourth] amendment is against unreasonable searches and seizures, not trespasses.’ ” In Atwell v. United States (5th Cir. 1969), 414 F.2d 136, 138, the Court said: “Moreover, even if the officers were trespassing on private property, a trespass does not of itself constitute an illegal search.” Of course, a search of one’s home or its curtilage, effected as a result of a trespass, is an encroachment on a person’s expectancy of privacy and is for that reason, but not because of the trespass, a violation of the Fourth Amendment if not based on probable cause or authorized by a search warrant. In this case, the search was not of the home of either Jackson or McKenzie but of an unoccupied house, placarded as “For Rent.” Premises noticed for rent are generally considered open to public view by anyone who might be interested. It would be expected that persons so interested would inspect the house, look in the windows and view the surrounding premises in order to determine what interest they might have in renting. To do so they would naturally intrude upon the lot about the house. And with an open window, with a chair conveniently propped up under it, there was in effect an invitation for public inspection particularly of the room with the open window. In effect, the open area about a vacant house and lot, placarded with “For Rent” signs, has no legal similarity to the curtilage around an occupied dwelling. United States v. Potts (6th Cir. 1961), 297 F.2d 68, 69, or to an “unlawful invasion” of one’s dwelling, United States v. Young (4th Cir. 1963), 322 F.2d 443, 445, cert. denied sub nom., O’Neal v. United States, 375 U.S. 952, 84 S.Ct. 443, 11 L.Ed.2d 313. McKenzie had no reasonable expectation of privacy in the vacant, open areas about the vacant house and without such an expectancy she had neither standing nor a right to complain of any intrusion upon the vacant lot by the officers, particularly as it concerned an article not placed in the house by her or with her knowledge or authority. Further, the action of the officers in going on the lot about the vacant house was perfectly reasonable. They had been told by Mrs. Pollard that she had seen Jackson with a bag with numbers slips and that she had seen him throw it through the open window into the vacant house. The officers had a right under those circumstances to go on the lot on which the vacant house was located and to stand on the chair in order to look through the open window into the room where Mrs. Pollard told them Jackson had thrown the bag. The Fourth Amendment only protects against unreasonable actions of the police officers. The action of the officers up to this point, manifestly did not represent any unreasonable encroachment upon any reasonable expectation of privacy by either McKenzie or Jackson. It did not therefore constitute any violation of the Fourth Amendment. See, United States v. Abbarno, supra (342 F.Supp. at 604). When, as a result of that justified look through the window, the officers observed in plain view the incriminating evidence, corroborative of the information given them by Mrs. Pollard, their subsequent warrantless search of the room and seizure of the incriminating bag were within the reasonable limits allowed under the Fourth Amendment. Coolidge v. New Hampshire (1971), 403 U.S. 443, at 465-466, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120; Harris v. United States (1968), 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067. The additional point that the officers acted without securing a search warrant is without merit. In United States v. Johnson, supra (561 F.2d 832), the Court was confronted with the same contention. Like the officers here, the officers in that case, after observing through a window the evidence of crime in the house, consulted their superiors who in turn sought the advice of an Assistant United States Attorney who advised them that under the circumstances they could proceed without a search warrant. They acted only after receiving such advice and that was precisely what the officers in this case did. The Court declared in that case that this action of the officers did “not seem to us to have been unreasonable” and concluded that, while “[t]he prosecutor’s advice in this instance is not, of course, conclusive,” it is “relevant to the question of whether the decision by the police to proceed without a warrant was reasonable. The trial judge so regarded it in making his ruling, and we think he was well within the bounds of his discretion in doing so.” That language is equally applicable to this case and disposes of the contention of the defendants that the search of 640 Twenty-First Street was invalid for failure of the officers to secure a search warrant. The second search by the officers was of 636 Twenty-First Street, which was contested not for any invalidity of the search warrant, under the authority of which the officers acted, but for impropriety in the manner of executing the search warrant. The alleged impropriety was the failure to observe the requirements of § 3109, 18 U.S.C. by delaying sufficiently between their knock and the actual intrusion by the officers into the house. There is, however no credible evidence establishing how long the officers did delay after knocking before they pushed their way into the house. A witness for the defendants at the suppression hearing, Workman, testified that the officers did not even knock before “crashing” into the house. The District Court gave no credence to Workman’s testimony, however, and we find no reversible error in its failure to accord any weight to his testimony. The evidence indicates rather strongly that Workman was one of the “look-outs” for the defendants and was engaged with them in their illegal activity. The officers themselves, on whose testimony both the defendants and the Government rely in this connection, stated that they knocked, identified themselves and their purpose, and “then forced the door open.” (Italics added) Whether “then” meant simultaneously or whether it was intended to suggest some interval of time was not developed in the record. The defendants urge that “then” should be construed as meaning “immediately” or “simultaneously.” We, however, find the term ambiguous. “Then,” when used as it was here as an adverb of time, is not a precise term and has been variously defined merely as “subsequent in time,” or “immediately,” or “soon afterwards;” ordinarily, however, it “denotes nothing more than an order of sequence.” See, 86 C.J.S. Then at 770-771; Winand v. Case (D.Md.1957), 154 F.Supp. 529, 536; Williams v. Taylor (1931), 276 Mass. 349, 177 N.E. 553, 556. It is thus not clear from the record what interval of time elapsed between the knock and the intrusion nor does § 3109 for that matter fix any inflexible or precise rule with respect to the time an officer must wait before using force to enter a house under a valid search warrant. Moreover, the Government asserts that it is immaterial what time interval there may have been between the knock and the intrusion, since there were “exigent circumstances” which would have justified an “immediate” intrusion. It is the rule that the time which must elapse after knocking and announcing their identity and purpose by the searching officers before breaking and entering varies with the exigencies of each case. United States v. Phelps (9th Cir. 1974), 490 F.2d 644, 647, cert. denied, 419 U.S. 836, 95 S.Ct. 64, 42 L.Ed.2d 63. In one case a delay of 10 seconds was found reasonable, United States v. Allende (9th Cir. 1973), 486 F.2d 1351, 1353, cert. denied sub nom., Montoya v. United States, 416 U.S. 958, 94 S.Ct. 1973, 40 L.Ed.2d 308 (1974); in another a delay of 30 seconds before entry was found permissible, United States v. West (2d Cir. 1964), 328 F.2d 16, 18; in another a delay of a minute was held to be reasonable, Martin v. United States (5th Cir. 1965), 341 F.2d 576, and in still others, it has been found that the entry was permissible even simultaneously with or immediately after announcement if there is a likelihood that the occupants will attempt to escape, resist or destroy evidence, United States v. Bustamante-Gamez (9th Cir. 1973), 488 F.2d 4, 12, cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974). Under the facts of this case, we are unable to find that the District Court committed error in finding that the defendants had not satisfied their burden of establishing a prima facie violation of § 3109. United States v. Gardner (5th Cir. 1977), 553 F.2d 946, 949, cert. denied, 434 U.S. 1011, 98 S.Ct. 722, 54 L.Ed.2d 753 (1978). On the other hand, the evidence of exigent circumstances as presented by the Government was sufficient to satisfy the Government’s burden of establishing a right to simultaneous entry if it were to be concluded that the term “then,” as used by the officers, was to be construed as “immediately” or “simultaneously.” What the officers were seeking by their search was the numbers slips, which were susceptible of easy destruction. Under those “exigent circumstances” “simultaneous” entry was permissible. We accordingly find no error in the District Court’s ruling denying suppression. By a second ground of appeal, the defendants complain of the refusal of the District Court to order a mistrial on account of an answer given by the witness Pollard during her cross-examination by counsel for the defendants. Though called at trial as a witness by the Government, Mrs. Pollard was not unfriendly to the defendants. She had earlier testified as a witness for the defendants at their suppression hearing. During that testimony she had declared herself a friend of the defendants particularly of Jackson for whom she had formerly cooked. It was also brought out during the direct examination of Mrs. Pollard by counsel for the defendants at this suppression hearing that such counsel had talked to her on two occasions before counsel called her as a witness. Both during her direct examination and cross-examination, counsel for the Government and counsel for the defendants established by Mrs. Pollard that the defendant Jackson was the individual who gave her the paper bag with the keys in it with instructions to give the bag “to Frances.” Thus she answered counsel for the defendants’ question, “[w]ho gave you those keys on December 17?”, with the positive statement, “David Jackson.” At the trial itself, Mrs. Pollard, called as a Government witness, testified on direct examination again that the defendant Jackson had given her the bag with the keys in it, one of which keys was later used to open the bag seized by the officers as a result of the search of a room at the house on 640 Twenty-First Street. For some reason, counsel for the defendants sought in his cross-examination to have Mrs. Pollard admit that, in one of her conversations with him (both of which occurred before the suppression hearing), she had said she “had been drinking that day” and did not know whether it was Jackson or his companion who had given her the bag with the keys. When she apparently denied this, he then asked her if she had not told him that one of the officers had told her that if she “changed [her] story at all he would convict her” (referring, it is to be assumed, to her testimony that Jackson had given her the bag). She denied any such statement. Counsel persisted in pressing her to admit she had made such statement. When counsel repeated the question, Mrs. Pollard stated: “You said to me, ‘You won’t get time for it,’ and I told you I wasn’t going to do that because I wasn’t going over there and lie.” It was that latter statement, blurted out after counsel had sought to suggest by his question that the witness had previously told him that she had been coerced by the threats from the officer in continuing to identify the defendant Jackson as the person who had given her the bag with the keys. In view of the persistence of counsel’s questioning about her conversations with him and the implication that she was testifying falsely because of fear of retaliation by the officers, it could be argued that counsel in a way may have invited the reply. See, United States v. Pentado (5th Cir. 1972), 463 F.2d 355, 361-362, cert. denied sub nom., Ochoa v. United States, 409 U.S. 1079, 93 S.Ct. 698, 34 L.Ed.2d 668. Even if it be assumed, however, that the answer was not at all responsive and was improper, nonetheless it does not follow that a mistrial was demanded. The test to be applied in such a situation is whether the improper evidence volunteered by a witness, “when considered in conjunction with the cautionary instructions given by the district judge, so prejudiced the jury against [the defendant] that the declaration of a mistrial was required.” United States v. Hall (4th Cir. 1965), 342 F.2d 849, 854, cert. denied, 382 U.S. 812, 86 S.Ct. 28, 15 L.Ed.2d 60; White v. United States (4th Cir. 1960), 279 F.2d 740, 749-750, cert. denied, 364 U.S. 850, 81 S.Ct. 96, 5 L.Ed.2d 74. And this determination is ordinarily committed to the sound discretion of the trial judge, United States v. Norris (4th Cir. 1963), 325 F.2d 209, 210, which is only to be reversed if clearly erroneous, United States v. Wade (8th Cir. 1972), 467 F.2d 1226, 1229, cert. denied sub nom., Houston v. United States, 410 U.S. 933, 93 S.Ct. 1384, 35 L.Ed.2d 596. The reason for such rule was stated in Schaefer v. United States (8th Cir. 1959), 265 F.2d 750, 753, cert. denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82: “A trial judge is always in the best position to determine whether such an incident as occurred in this case, which it was impossible to anticipate or guard against (compare, Cochran v. United States, 8 Cir., 41 F.2d 193, 206, and Reis-troffer v. United States, 8 Cir., 258 F.2d 379, 392-393), calls for a mistrial. Only a clear and obvious abuse of a trial court’s discretion in refusing a mistrial will justify a reversal of a case by an appellate court upon a cold record. As was said in Goldstein v. United States, 8 Cir., 63 F.2d 609, 613, ‘It is impossible to gather from the cold record * * * the atmosphere of the trial itself, the manner in which the words were spoken, or the probable effect, if any, which they had upon the merits of the controversy.’ . . . ” In our opinion, the District Court did not abuse its discretion in denying the motion for a mistrial in view of its cautionary instructions given at the time and repeated later in its general jury instructions, under the circumstances of the case. And such a ruling conforms with the result reached in other cases involving largely like circumstances. Thus, in United States v. Faulkenbery (9th Cir. 1973), 472 F.2d 879, 882, cert. denied, 411 U.S. 970, 93 S.Ct. 2161, 36 L.Ed.2d 692, counsel for the defendant had interviewed prior to trial a witness called by the Government. In cross-examination of the witness by defendant’s counsel, the witness blurted out that in the interview “the defense attorney had lied to her.” Defendant’s counsel moved for a mistrial. The trial judge refused the motion but gave prompt cautionary instructions. On appeal that ruling was found not to be an abuse of discretion and the conviction was sustained. United States v. Agueci (2d Cir. 1962), 310 F.2d 817, 836-838, cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963), is likewise similar factually to this case. In that case, the prosecutor insinuated during his summation “that the lawyer representing [the defendants] had been instrumental in suborning their false testimony.” Counsel for the defendant did not request any corrective instruction for this concededly “irregular and improper” remark of the prosecutor nor did the trial judge give one. The Court was “agreed that had a proper corrective charge been given, counsel would have no cause to complain here.” Despite the absence of a corrective charge, the Court concluded that, even though “the prosecutor’s remarks were improper, we do not think they were, so prejudicial as to require a new trial.” Unlike the Court in Agueci, and similar to the actions of the Court in Faulkenbery, the District Court did in this case give prompt cautionary instructions. In consideration of all the circumstances, including the possible prejudice to the defendants and its eradication if there was any prejudice, by1 the trial court’s cautionary instructions, we find no error in the District Court’s denial of a mistrial. Finally, the defendants complain of the admission in evidence of a conversation between an officer and the defendant Jackson in 1975 prior to the time covered in the indictment. However, the District Court, in admitting such evidence, very strictly limited it by cautionary instructions, given both at the time such evidence was admitted and later in its general instructions. In the light of these limiting instructions, we find no prejudicial error in the admission of such evidence. The convictions of David Carson Jackson and Margaret Frances McKenzie are accordingly AFFIRMED. . There was dispute in the testimony on the circumstances of the two searches. Much of it related to extraneous or peripheral matters. None of it arose out of the testimony of the defendants, since neither testified either at the suppression hearing or at trial. The District Court resolved these disputes in favor of the version as given by the officers. We are bound by such resolution unless it can be found to be clearly erroneous. Since we find that the District Court’s resolution was not only not clearly erroneous but entirely reasonable, we have adopted the facts as found by the District Court in determining the validity of the defendants’ challenge to the two searches. . In effect, he claimed that he qualified for standing to contest the search on two of the three grounds [i. e., (b) and (c)] stated in the negative in Brown v. United States (1973), 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 to constitute a basis for standing to contest a search and seizure, i. e., it denied standing to contest if the defendants “(a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or pos-sessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.” . 522 F.2d at 230. See, also, Gutterman, “A Person Aggrieved": Standing to Suppress Illegally Seized Evidence in Transition, 23 Emory L.J. Ill at 118 (1974): “The decisions involving the principle that ownership or right to possession in the property seized is sufficient to establish standing have been hopelessly confused because of the courts’ failure to distinguish between the defendant’s interest in the property seized and his interest in the premises searched.” . 522 F.2d at 230-231. This same view was expressed by the Court in United States v. Galante (2d Cir. 1976), 547 F.2d 733, 739, n. 11, cert. denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977): “Two other bases for establishing standing have been suggested. The first is that mere ‘possession’ of the seized goods, without more, is enough. Even if it were sufficient, it would give standing to contest only the seizure, and not the search.” . 522 F.2d at 230-231. In United States v. Potter (N.D.Ill.1976), 419 F.Supp. 1151, 1156, aff’d, 567 F.2d 392, the Court, relying on Lisk, said: “Nor can the defendants derive standing to object to the search because their property was seized by the government agents.”- This case, like the present one, arose in connection with a prosecution for conducting an illegal gambling business. The property seized in the search of the premises consisted of betting slips and worksheets. Only one of the defendants had any possessory interest in the premises searched. The other defendants had asserted standing to contest the search because they claimed an interest in the property seized. This is substantially the same position as that of the defendant in this case. See, also, Meade v. Cox (W.D.Va.1970), 310 F.Supp. 233, 236, affd, 438 F.2d 323, cert. denied, 404 U.S. 910, 92 S.Ct. 234, 30 L.Ed.2d 182 (1971). Any contention that this argument is supported by United States v. Jeffers (1951), 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 was dismissed by Judge Stevens in Lisk with the comment (522 F.2d at ■ 233, on Petition for Rehearing): “we are persuaded that it is not a correct reading of the Jeffers opinion itself.” To the same effect is United States v. Galante, supra (547 F.2d 733); cf., however, United States v. Alewelt (7th Cir. 1976), 532 F.2d 1165 at 1167, cert. denied, 429 U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109. . Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. . Gutterman, “A Person Aggrieved”: Standing to Suppress Illegally Seized Evidence in Transition, 23 Emory L.J. at 119; State v. Pokini (1961), 45 Hawaii 295, 315, 367 P.2d 499, 509. This conclusion is also implicit in the Court’s statement in Jones v. United States (1960), 362 U.S. 257 at 267, 80 S.Ct. 725 at 734, 4 L.Ed.2d 697: “No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.” (Italics added) This same idea was stated in White & Greenspan, Standing to Object to Search and Seizure, 118 U.Pa.L.Rev. 333, 346-347 (1970): “Under present tests for determining standing, the defendant must have been a ‘victim’ of the illegal search, in the sense that he suffered an invasion of privacy, before he will be afforded standing to exclude the illegally obtained evidence.” . 522 F.2d at 230. . Jackson has made no claim to standing as the one against whom the search was directed. There is language in Jones, 362 U.S. at 261, 80 S.Ct. 725 and United States v. Jeffers, 342 U.S. at 51, 52, 72 S.Ct. 93, which might suggest that this (j. e., person against whom search is directed) is a separate and independent ground for standing. There are a number of cases, including our own case of United States v. Cobb (4th Cir. 1970), 432 F.2d 716, 719-720, in which this language has been cited in finding standing. But, as the Court remarked in United States v. Baskes (N.D.Ill.1977), 433 F.Supp. 799, 803, “[i]n those cases where the defendants were found to be the objects of the search, and where standing was granted, there also appears to be a more traditional alternative basis for standing.” This is certainly true of Cobb, where “object of the search” was bracketed with conceded “possession of the vehicle to be searched” in a prosecution for possession. In United States v. Potter, supra (419 F.Supp. 1151), United States v. Baskes, supra (433 F.Supp. 799) and United States v. Payner (N.D. Ohio 1977), 434 F.Supp. 113 at 126, n. 61, appeal dismissed for want of jurisdiction 572 F.2d 144 (1978), all conclude that as Judge Stevens suggested that Jones might be read, that “target of the search” does not represent an independent ground for standing and that the words in Jones of “(1) ‘a victim of a search’ and (2) ‘one against whom the search was directed’ may be read as apposite.” See, also, United States v. Galante, supra (547 F.2d 733). And this seems justified in the light of the majority opinion in Alderman v. United States (1969), 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, which apparently refused to accept Justice Fortas’ argument in favor of such basis for standing as set forth in his dissenting opinion, 394 U.S. at 208, 89 S.Ct. 961, and of Brown, 411 U.S. 223, 93 S.Ct. 1565, in which Chief Justice Burger, in listing the several possible grounds for standing, omitted “object of the search” as one of such grounds. We conclude that, even had the contention been advanced, it would, standing alone, provide no basis for standing. Neither would it be possible to claim standing if it were found that his co-defendant had standing. United States v. Tortonello (2d Cir. 1976), 533 F.2d 809, 814, n. 5, cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177; United States v. Hunt (5th Cir. 1974), 505 F.2d 931, 939, cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466 (1975). . This case expresses some differences with Lisk on standing but it arrives at the same result as Lisk on the merits. . Cf, Ponce v. Craven (9th Cir. 1969), 409 F.2d 621, 624-625. . Katz v. United States, supra, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring); United States v. Hunt, supra (505 F.2d at 937 and 941) the Court said: “There may be a cognizable Fourth Amendment interest in the absence of a traditional property right, but it is almost certainly true that property rights cannot support a Fourth Amendment claim in the absence of a reasonable expectation of privacy in the property involved. * * * “* * * the constitutional right of protection against unreasonable searches and seizures attaches only when an individual’s reasonable expectation of privacy is shattered by illegal Governmental intrusion.” See, also, Ponce v. Craven, supra (409 F.2d at 624-625); United States v. Abbarno, supra (342 F.Supp. at 604). . See, United States v. Johnson, supra (561 F.2d at 840-841). . See, Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378, 388 (1964): “[The exclusionary] rule [in enforcement of the Fourth Amendment] is a needed, but [sic] grudingly taken, medicament; no more should be swallowed than is needed to combat the disease * * . 561 F.2d at 843. . There is some question in the record whether Workman was actually in a position where he could have observed the action of the officers in effecting their entry into the residence to be searched or to have heard what was said by the officers at the time. This, no doubt, was an additional fact considered by the District Court in its determination not to credit Workman’s testimony. . See Katz v. United States, supra (389 U.S. at 356, n. 16, 88 S.Ct. 507). 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_r_stid

26

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. ZICOS v. DICKMANN et al. No. 11084. Circuit Court of Appeals, Eighth Circuit. Aug. 18, 1938. Louis Hudson and Maurice J. Gordon, both of St. Louis, Mo., for appellant. Oliver Senti, of St. Louis, Mo. (E. H. Wayman, of St. Louis, Mo., on the brief), for appellees. Before GARDNER, SANBORN, and THOMAS, Circuit Judges. SANBORN, Circuit Judge. This is a suit in equity brought by the appellant to enjoin law enforcement officers of the City of St. Louis, Missouri, from seizing or confiscating mint vending machines belonging to him. From a decree dismissing the bill of complaint and the suit for want of equity, this appeal is taken. The bill of complaint alleges that the petitioner (appellant) is a resident and citizen of Illinois, and' that defendants (appellees) are “the duly appointed, qualified and acting members of the Board of Commissioners of the Police Department of the City of St. Louis, Missouri,” “the duly appointed, qualified and acting Chief of Police of the City of St. Louis, Missouri,” “the duly elected, qualified and acting Circuit Attorney of the City of St. Louis, Missouri,” and “the duly elected, qualified and acting Sheriff of the City of St, Louis. Missouri”; that petitioner is in the business of selling mints by means of vending machines and has been engaged in that business in St. Louis, Missouri; that his business consists of placing mint vending machines in restaurants and other places of business; that he is the owner of about fifty of such machines in locations in St. Louis, which machines are worth $100 each, that he has in St. Louis 100 cases of mints of the value of $1,000, and that his total investment in machines' and equipment in that City is about $6,000 or more; that in November, 1937, the Board of Commissioners of the Police Department, acting through its police officers, “without cause or justification and without warrant issued by a competent or judicial authority, unlawfully seized and confiscated” one of petitioner’s machines, arresting the proprietor of the place where it was installed, and that the defendants ordered the proprietors of two other places in which petitioner’s machines had bepn installed, to remove them under threat of arrest; that petitioner is informed and believes that the Police Board of the City of St. Louis ordered the seizure and removal of all of the petitioner’s machines and the arrest of the proprietors of the places where they were located; that after the seizure by police officers of “the mint vending machines aforesaid” petitioner withdrew the machines theretofore installed and has not since attempted to install any machines or to have any machines operated in St. Louis, “in orders to forestall the unlawful and unwarranted seizure and confiscation thereof by defendants.” The bill of complaint describes the nature and use of the vending machines and the contracts under which they are installed, all" of which the petitioner claims clearly indicate that they are not gambling devices and are not capable of being used for the purpose of gambling; and the petitioner alleges that there is no law of Missouri or of the United States, enacted to prevent gambling, which applies to the operation of the petitioner’s machines, but that, unless the defendants are restrained from so doing they will destroy any machines of petitioner which may be found in places of business, and arrest the proprietors of. such places and compel petitioner to withdraw his machines from use forever, and will prevent him from earning the profits which would otherwise accrue to him through the leasing of the machines and the selling of mints thereby. The bill contains this allegation: “Petitioner states that by reason of the seizure, confiscation, and destruction of th$ mint vending machines, now being held by defendant Police Board, aforesaid, and the continued seizure, confiscation and destruction of further machines as threatened by the defendants, and by reason of the loss-of the profits which lawfully accrued to him through the operation and leasing of the said mint vending machines, petitioner is unlawfully deprived of his property without due process of law, in violation of Section 30, Article II, of the Constitution of Missouri [Mo.St.Ann.Const. art. 2, § 30] and of Article V, of the Amendments to the Constitution of the United States [U. S.C.A.Const. Amend. 5]; that by reason of the seizure of said machines, petitioner and his property and effects are being subjected to unreasonable searches and seizures in violation of Section [Article] II, of the Constitution of Missouri [Mo.St.Ann. Const, art. 2, § 11], and of Amendment IV, (four) of the Amendments to the Constitution of the United States [U.S.C.A.Const. Amend. 4] ; that by reason of the seizure and confiscation and destruction of said machines, petitioner is deprived of the right to follow a lawful business and earn a livelihood, in violation of Section IV, of Article II, of the Constitution of Missouri [Mo.St.Ann.Const. art. 2, § 4]; guaranteeing all persons a natural right to the enjoyment of the gains of their own industry.” The first question to be determined is whether the court below acquired jurisdiction of this case. It is to be noted that the bill of complaint contains no allegation as to the value of the right of the petitioner to .conduct his business in the City of St. Louis, and states no facts from which the value of that right can be determined. Petitioner alleges merely that he had an investment of some $6,000 in his business in that City, and that, after the seizure of one of his machines and after threats had been made to confiscate two others, he withdrew his investment and ceased operations in St. Louis. That the value of his right to continue in business in St. Louis is worth more than $3,000 does not appear from the facts stated. Since his mint vending machines (with the exception of one which was seized) have been withdrawn, it appears that they are no longer in jeopardy and their value would certainly not measure the sum or value of the matter in controversy. In a suit of this nature, the jurisdiction of the District Court attaches only “where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under th? Constitution or laws of the United States, or 'treaties made, or which shall be made, under their authority, or (b) is between citizens of different States, or (c) is between citizens of a State and foreign States, citizens, or subjects.” Jud.Code, § 24(1), 28 U.S.C. § 41(1), 28 U.S.C.A. § 41(1). The Act of March 3, 1911, c. 231, § 37, 36 Stat. 1098, 28 U.S.C. § 80,28 U.S.C.A. § 80, makes it the duty of the District Court to enforce these jurisdictional limitations (McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 182, 56 S.Ct. 780, 782, 80 L.Ed. 1135; American United Life Ins. Co. v. Franklin, 8 Cir., 97 F.2d 76), and it is incumbent upon one who seeks the exercise of jurisdiction in his favor to allege in his pleading the facts essential to give jurisdiction, and throughout the litigation to carry the burden of showing that he is properly in court. McNutt v. General Motors Acceptance Corporation, supra, page 189, 56 S.Ct. page 785. It is the value of the right which the petitioner seeks to protect against interference which measures the amount in controversy in such a suit as this. Hunt v. New York Cotton Exchange, 205 U.S. 322, 336, 27 S.Ct. 529, 51 L.Ed. 821; Bitterman v. Louisville & Nashville R. Co., 207 U.S. 205, 225, 28 S.Ct. 91, 52 L.Ed. 171, 12 Ann. Cas. 693; Berryman v. Whitman College, 222 U.S. 334, 345, 346, 32 S.Ct. 147, 56 L.Ed. 225; Glenwood Light Co. v. Mutual Light Co., 239 U.S. 121, 125, 126, 36 S.Ct. 30, 60 L.Ed. 174; McNutt v. General Motors Acceptance Corporation, supra, page 181, 56 S.Ct. page 781. Suits between citizens of different states and suits arising under the Constitution and laws of the United States cannot be brought in the federal courts unless the value of the matter in controversy is more than $3,000. Holt v. Indiana Manufacturing Co., 176 U.S. 68, 72, 73, 20 S.Ct. 272, 44 L.Ed. 374; Healy v. Ratta, 292 U.S. 263, 269, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248. While it is unnecessary to consider other questions, we take the liberty of directing attention to the failure of appellant to allege .in his bill that the defendants are citizens of Missouri, and to the rule that jurisdictional facts may not be inferred argumentatively from the allegations of a pleading. Brown v. Keene, 8 Pet. 112, 115, 8 L.Ed. 885; Continental Ins. Co. v. Rhoads, 119 U.S. 237, 240, 7 S.Ct. 193, 30 L.Ed. 380; Anderson v. Watt, 138 U.S. 694, 702, 11 S.Ct. 449, 34 L.Ed. 1078; Timmons v. Elyton Land Co., 139 U.S. 378, 11 S.Ct. 585, 35 L.Ed. 195; Roberts v. Lewis, 144 U.S. 653, 656, 12 S.Ct. 781, 36 L.Ed. 579; Stuart v. Easton, 156 U.S. 46, 15 S.Ct. 268, 39 L.Ed. 341; Hanford v. Davies, 163 U. S. 273, 279, 280, 16 S.Ct 1051, 41 L.Ed. 157. The suit should have been dismissed for lack of jurisdiction, and not for want of equity. The case 'is remanded, with directions to set aside the decree appealed from, and .to enter a decree of dismissal for lack of jurisdiction. 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:

songer_genresp2

H

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

L

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. SMITH et al. v. FLORIDA No. 70-5055. Argued December 8, 1971 Decided February 24, 1972 Douglas, J., delivered the opinion of the Court, in which all Justices joined, except Powell and Rehnquist, JJ., who took no part in the consideration or decision of the case. Phillip A. Hubbart argued the cause and filed briefs for petitioners. Nelson E. Bailey, Assistant Attorney General of Florida, argued the cause for respondent pro hac vice. With him on the brief was Robert L. Shevin, Attorney General. Mr. Justice Douglas delivered the opinion of the Court. Florida’s vagrancy statute includes in the term “vagrants,” who can be criminally charged and convicted, “persons wandering or strolling around from place to place without any lawful purpose or object.” The defendants were so charged and pleaded not guilty, waived trial by jury, and were tried by a judge, who denied a motion to dismiss. The Florida Supreme Court affirmed, two judges dissenting. 239 So. 2d 250. The case is here on a petition for a writ of certiorari which we granted. 403 U. S. 917. We have this day decided Papachristou v. City of Jacksonville, ante, p. 156. We therefore vacate and remand the judgment in the instant case for reconsideration in light of Papachristou. So ordered. Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case. Fla. Stat. §856.02 (1965). See Papachristou v. City of Jacksonville, decided this day, ante, at 157 n. 2. § 856.02. 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: