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ricdomolm

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lawma-instructions_llama3_16k

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sc_adminaction_is

A

What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. SPANO v. NEW YORK. No. 582. Argued April 27, 1959. Decided June 22, 1959. Herbert S. Siegal argued the cause for petitioner. With him on the brief was Rita D. Schechter. Irving Anolik argued the cause for Respondent. With him on the brief were Daniel V. Sullivan and Walter E. Dillon. Mr. Chief Justice Warren delivered the -opinion of the Court. This is another in the long line of cases presenting the question whether a confession was properly admitted into evidence under the Fourteenth' Amendment. As in all such cases, we are forced to resolve a conflict between two fundamental interests of society; its interest in prompt and efficient law enforcement, and’its interest in preventing the rights of its individual members from being abridged by unconstitutional methods of law enforcement. Because of the delicate nature of the- constitutional determination which we must make, we cannot escape' the responsibility of making our own examination of the record. Norris v. Alabama, 294 U. S. 587. The State’s evidence reveals the following: Petitioner Vincent Joseph Spano is a derivative citizen of this country, having been born in Messina, Italy. He was 25 years old at the time of the shooting in question and had graduated from junior high school. He had a record of regular employment. The shooting took place on January 22,1957. On that day, petitioner was drinking in a bar. The decedent, a former professional boxer weighing almost 200 pounds who had fought in Madison Square Garden, took some of petitioner’s money from the bar. Petitioner followed him out of the bar to recover it. A fight ensued, with the decedent knocking petitioner down and then kicking him in the head three or four times. Shock from the force of these blows caused petitioner to vomit. After •the bartender applied some ice to his head, petitioner left the bar, walked to his apartment; secured a gun, and walked eight or nine blocks to a candy store where, the decedent was frequently to be found. He entered the store in which decedent, three friends of decedent, at least two of whom were ex-convicts, and a. boy who was supervising the store were present. He fired five shots, two of which entered the decedent’s body, causing his death. The boy was the only eyewitness; the three friends of decedent did not see the person who.fired the shot. Petitioner then disappeared for the next week or so. On February 1, 1957, the.Bronx County Grand Jury returned an indictment for first-degree murder against petitioner'. Accordingly, a bench warrant was issued for his arrest, commanding that he be forthwith brought beforé the court to answer the indictment, or, if the court had adjourned for the term, that he be delivered into the custody of the Sheriff of Bronx County. .See N. Y. Code. Crim. Proc. § 301. On February 3, 1957, petitioner called one Gaspar Bruno,.a close friend of 8 or 10 years’ standing who had attended school with him. Bruno was a fledgling police officer, having at that time not yet finished attending police academy. According to Bruno’s testimony, petitioner told;him “that he took a terrific beating, that the deceased hurt him real bad and he dropped him a couple of times and he was dazed; he didn’t, know what he was doing and that he went and shot at him.” Petitioner told Bruno.that he intended to get a lawyer and give himself up. Bruno relayed this information to his superiors. The following day, February 4, at 7:10 p. m., petitioner, accompanied by counsel, surrendered himself to the authorities in front of th& Bronx County Building, where both the office of the Assistant District Attorney who ultimately prosecuted, his case and the courtroom in which he was ultimately tried were located. His attorney had cautioned him to answer n» questions, and left him in the custody of the officers. He was promptly taken to the office of the Assistant District Attorney, and at 7:15 p. m. the questioning began, being conducted by Assistant District Attorney Goldsmith, Lt. Gannon, Detectives Farrell, Lehrer and Motta, and Sgt. Clarke. The record reveals that the questioning was both persistent and continuous. Petitioner, in accordance with his attorney’s instructions, steadfastly refused to answer. Detective Motta testified: “He refused to talk to me.”, “He just looked up to the ceiling and refused to talk to me.” Detective Farrell testified: “Q. And you started to interrogate him? “A. That is right. “Q.: What did he say? “A. He said 'you would have to see my attorney. I tell you nothing but my name.’ "Q. Did you continue to examine him? “A. Verbally, yes, sir.” He asked.one officer, Detective Ciccone, if he could speak to his attorney, but that request was denied. Detective Ciccone testified that he could not find the attorney’s name in the telephone book. He was given two sandwiches, coffee and cake at. 11 p. m. At 12:15 a. m. on the morning of February 5, after five hours of questioning in which it became evident that petitioner was following his attorney’s instructions, on the Assistant District Attorney’s orders petitioner was transferred to the 46th Squad, Ryer Avenue Police Station. The Assistant District Attorney also went to the police station and to some extent continued to participate in the interrogation.. Petitioner arrived at 12:30 and questioning was resumed at 12:40. The character of the questioning is revealed by the testimony of Detective Farrell:' “Q. Who did you leave him in the room with? “A. With Detective Lehrer and Sergeant Clarke came in and Mr. Goldsmith came in or Inspector Halk came in. It was back, and forth. People just came in, spoke a few words to the defendant or they listened a few minutes and they left.” But petitioner persisted in his refusal to answer, and again requested permission to see his attorney, this time from Detective Lehrer. His request was again denied. It was then that those in .charge of the investigation decided that petitioner’s close friend, Bruno, could be of use. He had been called out on the case around 10 or 11 p. m., although he was not connected with the 46th Squad or Precinct in any way. Although, in fact, his job was in no way threatened, Bruno was told tó tell petitioner that petitioner’s telephone'call had gotten him “in a lot of trouble,” and that he should seek to extract sympathy from petitioner for Bruno’s pregnant wife and three children. Bruno developed this theme with petitioner without success, and petitioner, also without success, again sought to see his attorney, a request which Bruno relayed unavailingly to his superiors. After this first session with petitioner, Bruno was again directed by Lt. Gannon to play on petitioner’s sympathies, but again no confession was forthcoming. But the Lieutenant a third time ordered Bruno falsely to importune his friend to confess, but again petitioner clung to his attorney’s advice. Inevitably, in the fourth such session directed by the Lieutenant, lasting a full hour, petitioner succumbed to his friend’s prevarications and agreed to make a statement. Accordingly, at 3:25 a. m. the Assistant District Attorney, a stenographer, and several other law enforcement officials entered the room where petitioner was being questioned, and took his statement in question and answer form with the Assistant District Attorney asking the questions. The statement was completed at 4:05 a. m. But this was not the end. At 4:30 a. m. three detectives took petitioner to Police Headquarters in Manhattan. On the way they attempted to find the bridge from which petitioner said he had thrown the murder weapon. They crossed • the Triborough Bridge into Manhattan, arriving at Police Headquarters at 5 a. m., a,nd left Manhattan for the Bronx at 5:40 a. m. via the Willis Avenue Bridge. When petitioner recognized neither bridge as the one from which he had thrown the weapon, they reentered Manhattan via the Third Avenue Bridge, which petitioner stated was the right one, and then returned to the Bronx well after 6 a. m. During that trip the officers also elicited a statement from petitioner that the deceased was'always “on [his] .brick,” “always pushing” him and that he was “not-sorry” he had shot the deceased. All three detectives testified to that, statement at the trial.. Court opened at 10 a. ,m. that morning, and. petitioner was arraigned at. 10:15.. At the trial, the confession was introduced in evidence over appropriate objections. The jury was instructed that it could rely pri it only if it was found to be voluntary. The jury-returned a guilty, verdict arid-petitioner was sentenced to death. The New York Court of Appeals affirmed the conviction over three dissents, 4 N. Y. 2d 256, 173 N Y. S. 2d 793, 150 N. E. 2d 226, and we granted certiorari td resolve the serious problem preserited under the Fourteenth Amendment. 358 U. S. 919. Petitioner’s, first contention is that his absolute right to counsel in a capital case, Powell v. Alabama, 287 U. S. 45, became operative on the return of an indictment against him, for at that time he was in every sense a defendant in a criminal case, the grand jury having found sufficient cause to believe that he had committed thé crime. He argues accordingly that following indictment no confession obtained in the absence of counsel can be used without violating the Fourteenth Amendment. He seeks to distinguish Crooker v. California, 357 U. S. 433, and Cicenia v. Lagay, 357 U. S. 504, on the ground that in those cases no indictment had been returned. We find it unnecessary to reach' that contention, for we find use of the- confession-obtained here inconsistent with the Forirteenth Amendment under traditional principles. The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted -feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be "as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. Accordingly, the actions of police in obtaining, confessions have come under scrutiny in a long series of cases. Those cases suggest that in recent years law enforcement' officials have become increasingly aware of the burden which they share, along with our courts, in protecting fundamental rights.of our citizenry, including, that portion of our citizenry suspected of crime. The facts of no case recently in this Court have quite approached the brutal beatings in Brown v. Mississippi, 297 U. S. 278 (1936), or the 36 consecutive hours of questioning present in Ashcraft v. Tennessee, 322 U. S. 143 (1944). But as law-enforcement officers become more responsible, and the methods used to extract confessions more sophisticated, our duty to enforce federal constitutional protections does not cease. It only becomes more difficult because of the more delicate judgments to be made. Our judgment here is that, on all the facts, this conviction cannot-stand. Petitioner was a foreign-born young man of 25 with no past history of law violation or of subjection to official interrogation, at least insofar as the record shows. He had progressed only one-half year into high , school and the record indicates that he had a history of emotional instability. He did not make a narrative statement, but was subject to the leading questions of 'a skillful prosecutor in a question and.answer confession. He was subjected to questioning not by a few men, but by many. They included Assistant District Attorney Goldsmith, one Hyland of the District Attorney’s Office, Deputy Inspector Halks, Lieutenant Gannon, Detective Ciccone, Detective Motta, Detective Lehrer, Detective Marshal, Detective- Farrell, Detective Leira, Detective Murphy, •Detective Murtha, Sergeant Clarke, Patrolman Bruno and Stenographer Baldwin. All played some part, and the effect of such massive official interrogation must have been felt. Petitioner was questioned for virtually eight straight hours before he confessed, with his only respite being a transfer to-an arena presumably considered more appropriate by the police for the task at hand. Nor was the questioning conducted during normal business hours, but began in early evening, continued into the night, and did not bear- fruition until the not-too-early morning. ■ The drama was not played out, with the final admissions obtained, until almost sunrise.' In such cir-. cumstances .slowly mounting fatigue does, and is calculated to, play its part. The questioners persisted in the face of his repeated refusals to answer on the advice of his attorney, and they ignored his reasonable requests to contact the local attorney whom he had already retained and who had personally delivered him into the custody of these officers in obedience to the bench warrant.' The use of Bruno, characterized-in this Court by counsel for the State as a “childhood, friend” of petitioner’s, is another factor which deserves mention in the totality of the situation. Bruno’s was the one face visible to • petitioner in which' he could put some trust. There was a bond of friendship between them going back a decade into adolescence. It was with this material that the officers felt that they could overcome petitioner’s will. They instructed Bruno falsely to state that petitioner’s telephone call had gotten him into trouble, that his job was in jeopardy, and that loss of his job would be disastrous to his three children, his wife and his unborn child. And Bruno played this part of a worried father, harried by his superiors, in not one, but four different acts', the final one lasting an hour. Cf. Leyra v. Denno, 347 U. S. 556. Petitioner was apparently unaware of John Gay’s famous couplet: “An open foe may prove a curse, But a pretended friend is worse,” and he yielded to his false friend’s entreaties. .We conclude that petitioner’s will was overborne by official pressure, fatigue and sympathy falsely aroused, after considering all the facts in their post-indictment setting. Here a grand jury had already found sufficient cause to require petitioner to face trial on a charge of first-degree murder, and the' police had an eyewitness to the shooting. The police were not therefore merely trying to solve a crime, or even to absolve a suspect. Compare Crooker v. California, supra, and Cicenia v. Lagay, supra. They were rather concerned primarily with securing a statement from defendant On which they coiild convict him. The undeviating intent of the officers to extract a confession from petitioner is therefore patent. .When such an intent is shown, this Court has held that the confession obtained must be examined with the most careful scrutiny, and has reversed a.conviction on facts less compelling than these. Malinski v. New York, 324 U. S. 401. Accordingly, we hold that petitioner’s conviction cannot stand under the Fourteenth Amendment. The State suggests, however, that we are not free to reverse this conviction, since there is sufficient other evidence in the record, from which the jury might have found guilt, relying on Stein v. New York, 346 U. S. 156. But Payne v. Arkansas, 356 U. S. 560, 568, authoritatively establishes that Stein did not hold that a conviction may be sustained on the basis of other evidence if a confession found to be involuntary by this Court was used, even though limiting instructions were given. Stein held only that when a confession is not found by this Court to be involuntary, this .Court will not reverse on the ground that the jury might have found it involuntary and might have relied on it. The judgment must be . Reversed. How this could be So when the attorney’s name, Tobias Russo, was concededly in the telephone book does not appear. The trial judge sustained objections by the Assistant District Attorney to questions.designed tó delve into this mystery. E. g., Cicenia v. Lagay, 357 U. S. 504; Crooker v. California, 357 U. S. 433; Ashdown v. Utah, 357 U. S. 426; Payne v. Arkansas, 356 U. S. 560; Thomas v. Arizona, 356 U. S. 390; Fikes v. Alabama, 352 U. S. 191; Leyra v. Denno, 347 U. S. 556; Stein v. New York, 346 U. S. 156; Brown v. Allen, 344 U. S. 443; Stroble v. California, 343 U. S. 181; Gallegos v. Nebraska, 342 U. S. 55; Johnson v. Pennsylvania, 340 U. S. 881; Harris v. South Carolina, 338 U. S. 68; Turner v. Pennsylvania, 338 U. S. 62; Watts v. Indiana, 338 U. S. 49; Lee v. Mississippi, 332 U. S. 742; Haley v. Ohio, 332 U. S. 596; Malinski v. New York, 324 U. S. 401; Lyons v. Oklahoma, 322 U. S. 596; Ashcraft v. Tennessee, 322 U. S. 143; Ward v. Texas, 316 U. S. 547; Lisenba v. California, 314 U. S. 219; Vernon v. Alabama, 313 U. S. 547; Lomax v. Texas, 313 U. S. 544; White v. Texas, 310 U. S. 530; Canty v. Alabama, 309 U. S. 629; Chambers v. Florida, 309 U. S. 227; Brown v. Mississippi, 297 U. S. 278. Medical reports from New York City’s Fordham Hospital introduced by defendant showed that he had suffered a cerebral concussion in 1955. He was described by a private physician in 1951 as “an extremely nervous tense individual who is emotionally unstable and maladjusted,” and was found’ unacceptable for military ’service in 1951, primarily because of “Psychiatric disorder.” He failed the Atmy’s AFQT-1 intelligence test’. His mother had been in mental hospitals on three separate occasions.' His mame'is sometimes spelled “Hawks.” Although each- is referred to separately in the record, it may be -that Detectives Lehrer and Leira are the same person. Lisenba v. California, 314 U. S. 219, is not to the contrary. There, while petitioner had already been arraigned on an incest charge, his later questioning .and confession concerned a murder. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:

sc_decisiondirection

A

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. SUNAL v. LARGE, SUPERINTENDENT, FEDERAL PRISON CAMP. NO. 535. Argued April 1, 1947. Decided June 23, 1947. No. 535. No. 840. Irving S. Shapiro argued the cause for petitioner in No. 840 and respondent in No. 535. With him on the briefs were Acting Solicitor General Washington and Robert S. Erdahl. Frederick Bernays Wiener was also on the brief in No. 840. Hayden C. Covington argued the cause and filed briefs for respondent in No. 840 and petitioner in No. 535. Mr. Justice Douglas delivered the opinion of the Court. Sunal and Kulick registered under the Selective Training and Service Act of 1940, 54 Stat. 885, 57 Stat. 597, 50 U. S. C. App. § 301, et seq. Each is a Jehovah’s Witness and each claimed the exemption granted by Congress to regular or duly ordained ministers of religion. § 5 (d). The local boards, after proceedings unnecessary to relate here, denied the claimed exemptions and classified these registrants as I-A. They exhausted their administrative remedies but were unable to effect a change in their classifications. Thereafter they were ordered to report for induction — Sunal on October 25, 1944, Kulick on November 9, 1944. Each reported but refused to submit to induction. Each was thereupon indicted, tried and convicted under § 11 of the Act for refusing to submit to induction. Sunal was sentenced on March 22, 1945, Kulick on May 7, 1945, each to imprisonment for a term of years. Neither appealed. At the trial each offered evidence to show that his selective service classification was invalid. The trial courts held, however, that such evidence was inadmissible, that the classification was final and not open to attack in the criminal trial. On February 4, 1946, we decided Estep v. United States and Smith v. United States, 327 U. S. 114. These cases held on comparable facts that a registrant, who had exhausted his administrative remedies and thus obviated the rule of Falbo v. United States, 320 U. S. 549, was entitled, when tried under § 11, to defend on the ground that his local board exceeded its jurisdiction in making the classification — for example, that it had no basis in fact. 327 U. S. pp. 122-123. It is plain, therefore, that the trial courts erred in denying Sunal and Kulick the defense which they tendered. Shortly after the Estep and Smith cases were decided, petitions for writs of habeas corpus were filed on behalf of Sunal and Kulick. In each case it was held that habeas corpus was an available remedy. In Sunal’s case the Circuit Court of Appeals for the Fourth Circuit held that there was a basis in fact for the classification and affirmed a judgment discharging the writ. 157 F. 2d 165. In Kulick’s case the Circuit Court of Appeals for the Second Circuit reversed a District Court holding that there was evidence to support the classification, 66 F. Supp. 183, and ruled, without examining the evidence, that since Kulick had been deprived of the defense he should be discharged from custody without prejudice to further prosecution. 157 F. 2d 811. The cases are here on petitions for writs of certiorari, which we granted because of the importance of the questions presented. The normal and customary method of correcting errors of the trial is by appeal. Appeals could have been taken in these cases, but they were not. It cannot be said that absence of counsel made the appeals unavailable as a practical matter. See Johnson v. Zerbst, 304 U. S. 458, 467. Defendants had counsel. Nor was there any other barrier to the perfection of their appeals. Cf. Cochran v. Kansas, 316 U. S. 255. Moreover, this is not a situation where the facts relied on were dehors the record and therefore not open to consideration and review on appeal. See Waley v. Johnston, 316 U. S. 101, 104; United States ex rel. McCann v. Adams, 320 U. S. 220, 221. And see Adams v. United States ex rel. McCann, 317 U. S. 269, 274-275. The error was of record in each case. It is said, however, that the failure to appeal was excusable, since under the decisions as they then stood — March 22, 1945, and May 7, 1945— the lower courts had consistently ruled that the selective service classification could not be attacked in a prosecution under § 11. See Estep v. United States, supra, p. 123, n. 15. It is also pointed out that on April 30, 1945, we had denied certiorari in a case which sought to raise the same point, and that Estep v. United States, supra, and Smith v. United States, supra, were brought here and decided after Sunal’s and Kulick’s time for appeal had passed. The argument is that since the state of the law made the appeals seem futile, it would be unfair to those registrants to conclude them by their failure to appeal. We put to one side comparable problems respecting the use of habeas corpus in the federal courts to challenge convictions obtained in the state courts. See New York v. Eno, 155 U. S. 89; Tinsley v. Anderson, 171 U. S. 101, 104-105; United States ex rel. Kennedy v. Tyler, 269 U. S. 13; Ex parte Hawk, 321 U. S. 114, 116-117. So far as convictions obtained in the federal courts are concerned, the general rule is that the writ of habeas corpus will not be allowed to do service for an appeal. Adams v. United States ex rel. McCann, supra, p. 274. There have been, however, some exceptions. That is to say, the writ has at times been entertained either without consideration of the adequacy of relief by the appellate route or where an appeal would have afforded an adequate remedy. Illustrative are those instances where the conviction was under a federal statute alleged to be unconstitutional, where there was a conviction by a federal court whose jurisdiction over the person or the offense was challenged, where the trial or sentence by a federal court violated specific constitutional guaranties. It is plain, however, that the writ is not designed for collateral review of errors of law committed by the trial court — the existence of any evidence to support the conviction, irregularities in the grand jury procedure, departure from a statutory grant of time in which to prepare for trial, and other errors in trial procedure which do not cross the jurisdictional line. Cf. Craig v. Hecht, 263 U. S. 255. Yet the latter rule is not an absolute one; and the situations in which habeas corpus has done service for an appeal are the exceptions. Thus where the jurisdiction of the federal court which tried the case is challenged or where the constitutionality of the federal statute under which conviction was had is attacked, habeas corpus is increasingly denied in case an appellate procedure was available for correction of the error. Yet, on the other hand, where the error was flagrant and there was no other remedy available for its correction, relief by habeas corpus has sometimes been granted. As stated by Chief Justice Hughes in Bowen v. Johnston, 306 U. S. 19, 27, the rule which requires resort to appellate procedure for the correction of errors “is not one defining power but one which relates to the appropriate exercise of power.” That rule is, therefore, “not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Id. p. 27. That case was deemed to involve “exceptional circumstances” by reason of the fact that it indicated “a conflict between state and federal authorities on a question of law involving concerns of large importance affecting their respective jurisdictions.” Id. p. 27. The Court accordingly entertained the writ to examine into the jurisdiction of the court to render the judgment of conviction. The same course was followed in Ex parte Hudgings, 249 U. S. 378, where petitioner was adjudged guilty of contempt for committing perjury. The Court did not require the petitioner to pursue any appellate route but issued an original writ and discharged him, holding that perjury without more was not punishable as a contempt. That situation was deemed exceptional in view of “the nature of the case, of the relation which the question which it involves bears generally to the power and duty of courts in the performance of their functions, of the dangerous effect on the liberty of the citizen when called upon as a witness in a court which might result if the erroneous doctrine upon which the order under review was based were not promptly corrected ....’’ Id. p. 384. Cf. Craig v. Hecht, supra. The Circuit Courts of Appeals thought that the facts of the present cases likewise presented exceptional circumstances which justified resort to habeas corpus though no appeals were taken. In their view the failure to appeal was excusable, since relief by that route seemed quite futile. But denial of certiorari by this Court in the earlier case imported no expression of opinion on the merits. House v. Mayo, 324 U. S. 42, 48, and cases cited. The same chief counsel represented the defendants in the present cases and those in the Estep and Smith cases. At the time these defendants were convicted the Estep and Smith cases were pending before the appellate courts. The petition in the Smith case was, indeed, filed here about two weeks before Kulick’s conviction and about a month after Sunal’s conviction. The same road was open to Sunal and Kulick as the one Smith and Estep took. Why the legal strategy counseled taking appeals in the Smith and Estep cases and not in these we do not know. Perhaps it was based on the facts of these two cases. For the question of law had not been decided by the Court; and counsel was pressing for a decision here. The case, therefore, is not one where the law was changed after the time for appeal had expired. Cf. Warring v. Colpoys, 122 F. 2d 642. It is rather a situation where at the time of the convictions the definitive ruling on the question of law had not crystallized. Of course, if Sunal and Kulick had pursued the appellate course and failed, their cases would be quite different. But since they chose not to pursue the remedy which they had, we do not think they should now be allowed to justify their failure by saying they deemed any appeal futile. We are dealing here with a problem which has radiations far beyond the present cases. The courts which tried the defendants had jurisdiction over their persons and over the offense. They committed an error of law in excluding the defense which was tendered. That error did not go to the jurisdiction of the trial court. Congress, moreover, has provided a regular, orderly method for correction of all such errors by granting an appeal to the Circuit Court of Appeals and by vesting us with certiorari jurisdiction. It is not uncommon after a trial is ended and the time for appeal has passed to discover that a shift in the law or the impact of a new decision has given increased relevance to a point made at the trial but not pursued on appeal. Cf. Warring v. Colpoys, supra. If in such circumstances, habeas corpus could be used to correct the error, the writ would become a delayed motion for a new trial, renewed from time to time as the legal climate changed. Error which was not deemed sufficiently adequate to warrant an appeal would acquire new implications. Every error is potentially reversible error; and many rulings of the trial court spell the difference between conviction and acquittal. If defendants who accept the judgment of conviction and do not appeal can later renew their attack on the judgment by habeas corpus, litigation in these criminal cases will be interminable. Wise judicial administration of the federal courts counsels against such course, at least where the error does not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court. An endeavor is made to magnify the error in these trials to constitutional proportions by asserting that the refusal of the proffered evidence robbed the trial of vitality by depriving defendants of their only real defense. But as much might be said of many rulings during a criminal trial. Defendants received throughout an opportunity to be heard and enjoyed all procedural guaranties granted by the Constitution. Error in ruling on the question of law did not infect the trial with lack of procedural due process. As stated by Mr. Justice Cardozo in Escoe v. Zerbst, 295 U. S. 490, 494, “When a hearing is allowed but there is error in conducting it or in limiting its scope, the remedy is by appeal. When an opportunity to be heard is denied altogether, the ensuing mandate of the court is void, and the prisoner confined thereunder may have recourse to habeas corpus to put an end to the restraint.” It is said that the contrary position was indicated by the following statement in Estep v. United States, supra, pp. 124-125, “But if we now hold that a registrant could not defend at his trial on the ground that the local board had no jurisdiction in the premises, it would seem that the way would then be open to him to challenge the jurisdiction of the local board after conviction by habeas corpus. The court would then be sending men to jail today when it was apparent that they would have to be released tomorrow.” We were there examining the alternative pressed on us— that the classification could not be attacked at the trial. If we denied the defense, we concluded that habeas corpus would lie the moment after conviction.' For one convicted of violating an illegal order of a selective service board, like one convicted of violating an unconstitutional statute, should be afforded an opportunity at some stage to establish the fact. And where no other opportunity existed, habeas corpus would be the appropriate remedy. But that was an additional reason for allowing the defense in the criminal trial, not a statement that defendants prosecuted under § 11 had an alternative of'defending at the trial on the basis of an illegal classification or resorting to habeas corpus after conviction. These registrants had available a method of obtaining the right to defend their prosecutions under § 11 on that ground. They did not use it. And since we find no exceptional circumstances which excuse their failure, habeas corpus may not now be used as a substitute. Accordingly Sunal v. Large will be affirmed and Alexander v. Kulick will be reversed. So ordered. Mr. Justice Burton concurs in the result. Sunal in 1942 was classified as a conscientious objector and ordered to report for work of national importance. On his failure to do so he was convicted under the Act and a fine and term of imprisonment were imposed. The events with which we are now concerned relate to his classification after his discharge from prison. The Smith case was decided by the Circuit Court of Appeals on April 4, 1945, 148 F. 2d 288; the petition for certiorari was filed April 25, 1945, and granted May 28, 1945. 325 U. S. 846. The Estep case was decided by the Circuit Court of Appeals on July 6, 1945, 150 F. 2d 768; the petition for certiorari was filed August 3, 1945, and granted October 8, 1945. 326 U. S. 703. We therefore lay to one side cases such as Bridges v. Wixon, 326 U. S. 135, Duncan v. Kahanamoku, 327 U. S. 304, and Eagles v. United States ex rel. Samuels, 329 U. S. 304, where the order of the agency under which petitioner was detained was not subject to judicial review. Rinko v. United States, 325 U. S. 851. We also denied certiorari in Flakowicz v. United States, 325 U. S. 851; but it, like Falbo v. United States, supra, was one where the administrative remedies had not been exhausted, there being an additional examination which the registrant had not taken. See Gibson v. United States, 329 U. S. 338. See note 2, supra. Ex parte Siebold, 100 U. S. 371; Ex parte Curtis, 106 U. S. 371; Ex parte Yarbrough, 110 U. S. 651; In re Coy, 127 U. S. 731; Matter of Heff, 197 U. S. 488; Matter of Gregory, 219 U. S. 210; Baender v. Barnett, 255 U. S. 224. Ex parte Watkins, 3 Pet. 193; Ex parte Parks, 93 U. S. 18; Bowen v. Johnston, 306 U. S. 19. Ex parte Lange, 18 Wall. 163 (double jeopardy); In re Snow, 120 U. S. 274 (same); In re Nielsen, 131 U. S. 176 (same); Counselman v. Hitchcock, 142 U. S. 547 (self-incrimination); Ex parte Wilson, 114 U. S. 417 (requirement of indictment); Ex parte Bain, 121 U. S. 1 (same); Callan v. Wilson, 127 U. S. 540 (jury trial); Johnson v. Zerbst, supra (right to counsel); Walker v. Johnston, 312 U. S. 275 (same); Waley v. Johnston, supra (coerced plea of guilty). Harlan v. McGourin, 218 U. S. 442. Ex parte Harding, 120 U. S. 782; Kaizo v. Henry, 211 U. S. 146. McMicking v. Schields, 238 U. S. 99. The rule is even more strict where habeas corpus is sought before trial. See Johnson v. Hoy, 227 U. S. 245. In re Lincoln, 202 U. S. 178; Toy Toy v. Hopkins, 212 U. S. 542; Glasgow v. Moyer, 225 U. S. 420. Tinsley v. Treat, 205 U. S. 20 (removal case). In removal cases habeas corpus is available not to weigh the evidence to support the accusation but to determine whether there is an entire lack of evidence to support it. Hyde v. Shine, 199 U. S. 62, 84. It is also available to determine whether removal to the district in question violates a constitutional right of the accused, Haas v. Henkel, 216 U. S. 462, or whether the court before which it is proposed to take and try the accused has jurisdiction over the offense. Salinger v. Loisel, 265 U. S. 224. But habeas corpus will not be entertained to pass on the question of jurisdiction where it involves consideration of many facts and seriously controverted questions of law. Rodman v. Pothier; 264 U. S. 399; Henry v. Henkel, 235 U. S. 219. The remedy of habeas corpus extends to a ease where a person “is in custody in violation of the Constitution or of a law ... of the United States ...” R. S. § 753,28 U. S. C. § 453. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspecifiable Answer:

sc_casedisposition

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. PARKLANE HOSIERY CO., INC., et al. v. SHORE No. 77-1305. Argued October 30, 1978 Decided January 9, 1979 Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, White, Marshall, BlackmuN, Powell, and SteveNS, JJ., joined. RehNquist, J., filed a dissenting opinion, post, p. 337. Jack B. Levitt argued the cause for petitioners. With him on the briefs were Irving Parker, Joseph N. Salomon, and Robert N. Cooperman. Samuel K. Rosen argued the cause and filed a brief for respondent. iSolicitor General McCree, Deputy Solicitor General Easterbrook, Stephen M. Shapiro, Harvey L. Pitt, Paul Gonson, and Michael K. Wolen- sky filed a brief for the United States et al. as amici curiae urging affirmance. Joel D. Joseph filed a brief for the Washington Legal Foundation as amicus curiae. Mr. Justice Stewart delivered the opinion of the Court. This case presents the question whether a party who has had issues of fact adjudicated adversely to it in an equitable action may be collaterally estopped from relitigating the same issues before a jury in a subsequent legal action brought against it by a new party. The respondent brought this stockholder’s class action against the petitioners in a Federal District Court. The complaint alleged that the petitioners, Parklane Hosiery Co., Inc. (Parklane), and 13 of its officers, directors, and stockholders, had issued a materially false and misleading proxy statement in connection with a merger. The proxy statement, according to the complaint, had violated §§ 14 (a), 10 (b), and 20 (a) of the Securities Exchange Act of 1934, 48 Stat. 895, 891, 899, as amended, 15 U. S. C.. §§ 78n (a), 78j (b), and 78t (a), as well as various rules and regulations promulgated by the Securities and Exchange Commission (SEC). The complaint sought damages, rescission of the merger, and recovery of costs. Before this action came to trial, the SEC filed suit against the same defendants in the Federal District Court, alleging that the proxy statement that had been issued by Parklane was materially false and misleading in essentially the same respects as those that had been alleged in the respondent’s complaint. Injunctive relief was requested. After a 4-day trial, the District Court found that the proxy statement was materially false and misleading in the respects alleged, and entered a declaratory judgment to that effect. SEC v. Parklane Hosiery Co., 422 F. Supp. 477. The Court of Appeals for the Second Circuit affirmed this judgment. 558 F. 2d 1083. The respondent in the present case then moved for partial summary judgment against the petitioners, asserting that the petitioners were collaterally estopped from relitigating the issues that had been resolved against them in the action brought by the SEC. The District Court denied the motion on the ground that such an application of collateral estoppel would deny the petitioners their Seventh Amendment right to a jury trial. The Court of Appeals for the Second Circuit reversed, holding that a party who has had issues of fact determined against him after a full and fair opportunity to litigate in a non jury trial is collaterally estopped from obtaining a subsequent jury trial of these same issues of fact. 565 F. 2d 815. The appellate court concluded that “the Seventh Amendment preserves the right to jury trial only with respect to issues of fact, [and] once those issues have been fully and fairly adjudicated in a prior proceeding, nothing remains for trial, either with or without a jury.” Id., at 8.19. Because of an intercircuit conflict, we granted certiorari. 435 U. S. 1006. I The threshold question to be considered is whether, quite apart from the right to a jury trial under the Seventh Amendment, the petitioners can be precluded from relitigating facts resolved adversely to them in a prior equitable proceeding with another party under the general law of collateral estop-pel. Specifically, we must determine whether a litigant who was not a party to a prior judgment may nevertheless use that judgment “offensively” to prevent a defendant from relitigat-ing issues resolved in the earlier proceeding. A Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 328-329. Until relatively recently, however, the scope of collateral estoppel was limited by the doctrine of mutuality of parties. Under this mutuality doctrine, neither party could use a prior judgment as an estoppel against the other unless both parties were bound by the judgment. Based on the premise that it is somehow unfair to allow a party to use a prior judgment when he himself would not be so bound, the mutuality requirement provided a party who had litigated and lost in a previous action an opportunity to relitigate identical issues with new parties. By failing to recognize the obvious difference in position between a party who has never litigated an issue and one who has fully litigated and lost, the mutuality requirement was criticized almost from its inception. Recognizing the validity of this criticism, the Court in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra, abandoned the mutuality requirement, at least in cases where a patentee seeks to relitigate the validity of a patent after a federal court in a previous lawsuit has already declared it invalid. The “broader question” before the Court, however, was “whether it is any longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue.” 402 U. S., at 328. The Court strongly suggested a negative answer to that question: “In any lawsuit where a defendant, because of the mutuality principle, is forced to present a complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior action, there is an arguable misallocation of resources. To the extent the defendant in the second suit may not win by asserting, without contradiction, that the plaintiff had fully and fairly, but unsuccessfully, litigated the same claim in the prior suit, the defendant’s time and money are diverted from alternative uses — productive or otherwise — to relitigation of a decided issue. And, still assuming that the issue was resolved correctly in the first suit, there is reason to be concerned about the plaintiff’s allocation of resources. Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or 'a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.’ Kerotest Mfg. Co. v. C-O-Two Co., 342 U. S. 180, 185 (1952). Although neither judges, the parties, nor the adversary system performs perfectly in all cases, the requirement of determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safeguard.” Id., at 329. B The Blonder-Tongue case involved defensive use of collateral estoppel — a plaintiff was estopped from asserting a claim that the plaintiff had previously litigated and lost against another defendant. The present case, by contrast, involves offensive use of collateral estoppel — a plaintiff is seeking to estop a defendant from relitigating the issues which the defendant previously litigated and lost against another plaintiff. In both the offensive and defensive use situations, the party against whom estoppel is asserted has litigated and lost in an earlier action. Nevertheless, several reasons have been advanced why the two situations should be treated differently. First, offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive use does. Defensive use of collateral estoppel precludes a plaintiff from relitigating identical issues by merely “switching adversaries.” Bernhard v. Bank of America Nat. Trust & Savings Assn., 19 Cal. 2d, at 813, 122 P. 2d, at 895. Thus defensive collateral estoppel gives a plaintiff a strong incentive to join all potential defendants in the first action if possible. Offensive use of collateral estoppel, on the other hand, creates precisely the opposite incentive. Since a plaintiff will be able to rely on a previous judgment against a defendant but will not be bound by that judgment if the defendant wins, the plaintiff has every incentive to adopt a “wait and see” attitude, in the hope that the first action by another plaintiff will result in a favorable judgment. E. g., Nevarov v. Caldwell, 161 Cal. App. 2d 762, 767-768, 327 P. 2d 111, 116; Reardon v. Allen, 88 N. J. Super. 560, 571-572, 213 A. 2d 26, 32. Thus offensive use of collateral estoppel will likely increase rather than decrease the total amount of litigation, since potential plaintiffs will have everything to gain and nothing to lose by not intervening in the first action. A second argument against offensive use of collateral estop-pel is that it may be unfair to a defendant. If a defendant in the first action is sued for small or nominal damages, he may have little incentive to defend vigorously, particularly if future suits are not foreseeable. The Evergreens v. Nunan, 141 F. 2d 927, 929 (CA2); cf. Berner v. British Commonwealth Pac. Airlines, 346 F. 2d 532 (CA2) (application of offensive collateral estoppel denied where defendant did not appeal an adverse judgment awarding damages of $35,000 and defendant was later sued for over $7 million). Allowing offensive collateral estoppel may also be unfair to a' defendant if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant. Still another situation where it might be unfair to apply offensive estoppel is where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result. C We have concluded that the preferable approach for dealing with these problems in the federal courts is not to preclude the use of offensive collateral estoppel, but to grant trial courts broad discretion to determine when it should be applied. The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel. In the present case, however, none of the circumstances that might justify reluctance to allow the offensive use of collateral estoppel is present. The application of offensive collateral estoppel will not here reward a private plaintiff who could have joined in the previous action, since the respondent probably could not have joined in the injunctive action brought by the SEC even had he so desired. Similarly, there is no unfairness to the petitioners in applying offensive collateral estoppel in this case. First, in light of the serious allegations made in the SEC’s complaint against the petitioners, as well as the foreseeability of subsequent private suits that typically follow a successful Government judgment, the petitioners had every incentive to litigate the SEC lawsuit fully and vigorously. Second, the judgment in the SEC action was not inconsistent with any previous decision. Finally, there will in the respondent’s action be no procedural opportunities available to the petitioners that were unavailable in the first action of a •kind that might be likely to cause a different result. We conclude, therefore, that none of the considerations that would justify a refusal to allow the use of offensive collateral estoppel is present in this case. Since the petitioners received a “full and fair” opportunity to litigate their claims in the SEC action, the contemporary law of collateral estoppel leads inescapably to the conclusion that the petitioners are collaterally estopped from relitigating the question of whether the proxy statement was materially false and misleading. II The question that remains is whether, notwithstanding the law of collateral estoppel, the use of offensive collateral estoppel in this case would violate the petitioners’ Seventh Amendment right to a jury trial. A “[T]he thrust of the [Seventh] Amendment was to preserve the right to jury trial as it existed in 1791.” Curtis v. Loether, 415 U. S. 189, 193. At common law, a litigant was not entitled to have a jury determine issues that had been previously adjudicated by a chancellor in equity. Hopkins v. Lee, 6 Wheat. 109; Smith v. Kernochen, 7 How. 198, 217-218; Brady v. Daly, 175 U. S. 148, 158-159; Shapiro & Coquillette, The Fetish of Jury Trial in Civil Cases: A Comment on Rachal v. Hill, 85 Harv. L. Rev. 442, 448-458 (1971). Recognition that an equitable determination could have collateral-estoppel effect in a subsequent legal action was the major premise of this Court’s decision in Beacon Theatres, Inc. v. Westover, 359 U. S. 500. In that case the plaintiff sought a declaratory judgment that certain arrangements between it and the defendant were not in violation of the antitrust laws, and asked for an injunction to prevent the defendant from instituting an antitrust action to challenge the arrangements. The defendant denied the allegations .and counterclaimed for treble damages under the antitrust laws, requesting a trial by jury of the issues common to both the legal and equitable claims. The Court of Appeals upheld denial of the request, but this Court reversed, stating: “[T]he effect of the action of the District Court could be, as the Court of Appeals believed, 'to limit the petitioner’s opportunity fully to try to a jury every issue which has a bearing upon its treble damage suit,’ for determination of the issue of clearances by the judge might ‘operate either by way of res judicata or collateral estoppel so as to conclude both parties with respect thereto at the subsequent trial of the treble damage claim.’ ” Id., at 504. It is thus clear that the Court in the Beacon Theatres case thought that if an issue common to both legal and equitable claims was first determined by a judge, relitigation of the issue before a jury might be foreclosed by res judicata or collateral estoppel. To avoid this result, the Court held, that when legal and equitable claims are joined in the same action, the trial judge has only limited discretion in determining the sequence of trial and “that discretion . . . must, wherever possible, be exercised to preserve jury trial.” Id., at 510. Both the premise of Beacon Theatres, and the fact that it enunciated no more than a general prudential rule were confirmed by this Court’s decision in Katchen v. Landy, 382 U. S. 323. In that case the Court held that a bankruptcy court, sitting as a statutory court of equity, is empowered to adjudicate equitable claims prior to legal claims, even though the factual issues decided in the equity action would have been triable by a jury under the Seventh Amendment if the legal claims had been adjudicated first. The Court stated: “Both Beacon Theatres and Dairy Queen recognize that there might be situations in which the Court could proceed to resolve the equitable claim first even though the results might be dispositive of the issues involved in the legal claim.” Id., at 339. Thus the Court in Katchen v. Landy recognized that an equitable determination can have collateral-estoppel effect in a subsequent legal action and that this estoppel does not violate the Seventh Amendment. B Despite the strong support to be found both in history and in the recent decisional law of this Court for the proposition that an equitable determination can have collateral-estoppel effect in a subsequent legal action, the petitioners argue that application of collateral estoppel in this case would nevertheless violate their Seventh Amendment right to a jury trial. The petitioners contend that since the scope of the Amendment must be determined by reference to the common law as it existed in 1791, and since the common law permitted collateral estoppel only where there was mutuality of parties, collateral estoppel cannot constitutionally be applied when such mutuality is absent. The petitioners have advanced no persuasive reason, however, why the meaning of the Seventh Amendment should depend on whether or not mutuality of parties is present. A litigant who has lost because of adverse factual findings in an equity action is equally deprived of a jury trial whether he is estopped from relitigating the factual issues against the same party or a new party. In either case, the party against whom estoppel is asserted has litigated questions of fact, and has had the facts determined against him in an earlier proceeding. In either case there is no further factfinding function for the jury to perform, since the common factual issues have been resolved in the previous action. Cf. Ex parte Peterson, 253 U. S. 300, 310 (“No one is entitled in a civil case to trial by jury unless and except so far as there are issues of fact to be determined”). The Seventh Amendment has never been interpreted in the rigid manner advocated by the petitioners. On the contrary, many procedural devices developed since 1791 that have diminished the civil jury’s historic domain have been found not to be inconsistent with the Seventh Amendment. See Galloway v. United States, 319 U. S. 372, 388-393 (directed verdict does not violate the Seventh Amendment); Gasoline Products Co. v. Champlin Refining Co., 283 U. S. 494, 497-498 (retrial limited to question of damages does not violate the Seventh Amendment even though there was no practice at common law for setting aside a verdict in part); Fidelity & Deposit Co. v. United States, 187 U. S. 315, 319-321 (summary judgment does not violate the Seventh Amendment). The Galloway case is particularly instructive. There the party against whom a directed verdict had been entered argued that the procedure was unconstitutional under the Seventh Amendment. In rejecting this claim, the Court said: “The Amendment did not bind the federal courts to the exact procedural incidents or details of jury trial according to the common law in 1791, any more than it tied them to the common-law system of pleading or the specific rules of evidence then prevailing. Nor were 'the rules of the common law’ then prevalent, including those relating to the procedure by which the judge regulated the jury’s role on questions of fact, crystallized in a fixed and immutable system. . . . “The more logical conclusion, we think, and the one which both history and the previous decisions here support, is that the Amendment was designed to preserve the basic institution of jury trial in only its most fundamental elements, not the great mass of procedural forms and details, varying even then so widely among common-law jurisdictions.” 319 U. S., at 390, 392 (footnote omitted). The law of collateral estoppel, like the law in other procedural areas defining the scope of the jury’s function, has evolved since 1791. Under the rationale of the Galloway case, these developments are not repugnant to the Seventh Amendment simply for the reason that they did not exist in 1791. Thus if, as we have held, the law of collateral estoppel forecloses the petitioners from relitigating the factual issues determined against them in the SEC action, nothing in the Seventh Amendment dictates a different result, even though because of lack of mutuality there would have been no collateral estoppel in 1791. The judgment of the Court of Appeals is Affirmed. The amended complaint alleged that the proxy statement that had been issued to the stockholders was false and misleading because it failed to disclose: (1) that the president of Parklane would financially benefit as a result of the company’s going private; (2) certain ongoing negotiations that could have resulted in financial benefit to Parklane; and (3) that the appraisal of the fair value of Parklane stock was based on insufficient information to be accurate. A private plaintiff in an action under the proxy rules is not entitled to relief simply by demonstrating that the proxy solicitation was materially false and misleading. The plaintiff must also show that he was injured and prove damages. Mills v. Electric Auto-Lite Co., 396 U. S. 376, 386-390. Since the SEC action was limited to a determination of whether the proxy statement contained materially false and misleading information, the respondent conceded that he would still have to prove these other elements of his prima facie case in the private action. The petitioners’ right to a jury trial on those remaining issues is not contested. The position of the Court of Appeals for the Second Circuit is in conflict with that taken by the Court of Appeals for the Fifth Circuit in Rachal v. Hill, 435 F. 2d 59. In this context, offensive use of collateral estoppel occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party. Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant. Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action. IB J. Moore, Federal Practice ¶ 0.405 [1], pp. 622-624 (2d ed. 1974); e. g., Lawlor v. National Screen Serv. Corp., 349 U. S. 322, 326; Commissioner v. Sunnen, 333 U. S. 591, 597; Cromwell v. County of Sac, 94 U. S. 351, 352-353. E. g., Bigelow v. Old Dominion Copper Co., 225 U. S, 111, 127 (“It is a principle of general elementary law that estoppel of a judgment must be mutual”); Buckeye Powder Co. v. E. I. DuPont de Nemours Powder Co., 248 U. S. 55, 63; Restatement of Judgments §93 (1942). It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 329; Hansberry v. Lee, 311 U. S. 32, 40. This criticism was summarized in the Court’s opinion in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra, at 332-327. The opinion of Justice Traynor for a unanimous California Supreme Court in Bernhard v. Bank of America Nat. Trust & Savings Assn., 19 Cal. 2d 807, 812, 122 P. 2d 892, 895, made the point succinctly: “No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend.” In Triplett v. Lowell, 297 U. S. 638, the Court had held that a determination of patent invalidity in a prior action did not bar a plaintiff from relitigating the validity of a patent in a subsequent action against a different defendant. This holding of the Triplett case was explicitly overruled in the Blonder-Tongue case. The Court also emphasized that relitigation of issues previously adjudicated is particularly wasteful in patent cases because of their staggering expense and typical length. 402 U. S., at 334, 348. Under the doctrine of mutuality of parties an alleged infringer might find it cheaper to pay royalties than to challenge a patent that had been declared invalid in a prior suit, since the holder of the patent is entitled to a statutory presumption of validity. Id., at 338. Various commentators have expressed reservations regarding the application of offensive collateral estoppel. Currie, Mutuality of Estoppel: Limits of the Bernhard Doctrine, 9 Stan. L. Rev. 281 (1957); Semmel, Collateral Estoppel, Mutuality and Joinder of Parties, 68 Colum. L. Rev. 1457 (1968); Note, The Impacts of Defensive and Offensive Assertion of Collateral Estoppel by a Nonparty, 35 Geo. Wash. L. Rev. 1010 (1967). Professor Currie later tempered his reservations. Civil Procedure: The Tempest Brews, 53 Calif. L. Rev. 25 (1965). Under the mutuality requirement, a plaintiff could accomplish this result since he would not have been bound by the judgment had the original defendant won. The Restatement (Second) of Judgments § 88 (3) (Tent. Draft No. 2, Apr. 15, 1975) provides that application of collateral estoppel may be denied if the party asserting it “could have effected joinder in the first action between himself and his present adversary.” In Professor Currie's familiar example, a railroad collision injures 50 passengers all of whom bring separate actions against the railroad. After the railroad wins the first 25 suits, a plaintiff wins in suit 26. Professor Currie argues that offensive use of collateral estoppel should not be applied so as to allow plaintiffs 27 through 50 automatically to recover. Currie, supra, 9 Stan. L. Rev., at 304. See Restatement (Second) of Judgments §88 (4), supra. If, for example, the defendant in the first action was forced to defend in an inconvenient forum and therefore was unable to engage in full scale discovery or call witnesses, application of offensive collateral estoppel may be unwarranted. Indeed, differences in available procedures may sometimes justify not allowing a prior judgment to have estoppel effect in a subsequent action even between the same parties, or where defensive estoppel is asserted against a plaintiff who has litigated and lost. The problem of unfairness is particularly acute in eases of offensive estoppel, however, because the defendant against whom estoppel is asserted typically will not have chosen the forum in the first action. See, id., § 88 (2) and Comment d. This is essentially the approach of id., § 88, which recognizes that “the distinct trend if not the clear weight of recent authority is to the effect that there is no intrinsic difference between 'offensive’ as distinct from 'defensive’ issue preclusion, although a stronger showing that the prior opportunity to litigate was adequate may be required in the former situation than the latter.” Id., Reporter’s Note, at 99. SEC v. Everest Management Corp., 475 F. 2d 1236, 1240 (CA2) (“[T]he complicating effect of the additional issues and the additional parties outweighs any advantage of a single disposition of the common issues”). Moreover, consolidation of a private action with one brought by the SEC without its consent is prohibited by statute. 15 U. S. C. § 78u (g). After a 4-day trial in which the petitioners had every opportunity to present evidence and call witnesses, the District Court held for the SEC. The petitioners then appealed to the Court of Appeals for the Second Circuit, which affirmed the judgment against them. Moreover, the petitioners were already aware of the action brought by the respondent, since it had commenced before the filing of the SEC action. It is true, of course, that the petitioners in the present action would be entitled to a jury trial of the issues bearing on whether the proxy statement was materially false and misleading had the SEC action never been brought — a matter to be discussed in Part II of this opinion. But the presence or absence of a jury as factfinder is basically neutral, quite unlike, for example, the necessity of defending the first lawsuit in an inconvenient forum. The Seventh Amendment provides: “In Suits at common law, where the value in controversy shaE exceed twenty doEars, the right to jury trial shall be preserved. . . The authors of this article conclude that the historical sources “indicates that in the late eighteenth and early nineteenth centuries, determinations in equity were thought to have as much force as determinations at law, and that the possible impact on jury trial rights was not viewed with concern. ... If coEateral estoppel is otherwise warranted, the jury trial question should not stand in the way.” 85 Harv. L. Rev., at 455-456. This common-law rule is adopted in the Restatement of Judgments § 68, Comment j (1942). Similarly, in both Dairy Queen, Inc. v. Wood, 369 U. S. 469, and Meeker v. Ambassador Oil Cory., 375 U. S. 160, the Court held that legal claims should ordinarily be tried before equitable claims to preserve the right to a jury trial. The petitioners’ reliance on Dimick v. Schiedt, 293 U. S. 474, is misplaced. In the Dimick case the Court held that an increase by the trial judge of the amount of money damages awarded by the jury violated the second clause of the Seventh Amendment, which provides that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” Collateral estoppel does not involve the “re-examination” of any fact decided by a jury. On the contrary, the whole premise of collateral estoppel is that once an issue has been resolved in a prior proceeding, there is no further factfinding function to be performed. In reaching this conclusion, the Court of Appeals went on to state: “Were there any doubt about the [question whether the petitioners were entitled to a jury redetermination of the issues otherwise subject to collateral estoppel] it should in any event be resolved against the defendants in this case for the reason that, although they were fully aware of the pendency of the present suit throughout the non-jury trial of the SEC case, they made no effort to protect their right to a jury trial of the damage claims asserted by plaintiffs, either by seeking to expedite trial of the present action or by requesting Judge Duffy, in the exercise of his discretion pursuant to Rule 39 (b), (c), F.R.Civ.P., to order that the issues in the SEC case be tried by a jury or before an advisory jury.” 565 F. 2d, at 821-822. (Footnote omitted.) The Court of Appeals was mistaken in these suggestions. The petitioners did not have a. right to a jury trial in the equitable injunctive action brought by the SEC. Moreover, an advisory jury, which might have only delayed and complicated that proceeding, would not in any event have been a Seventh Amendment jury. And the petitioners were not in a position to expedite the private action and stay the SEC action. The Securities Exchange Act of 1934 provides for prompt enforcement actions by the SEC unhindered by parallel private actions. 15 U. S. C. § 78u (g). Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:

songer_genresp1

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. 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. NORTH CENTRAL AIRLINES, INC., a Corporation, Appellant, v. The CITY OF ABERDEEN, SOUTH DAKOTA, a Municipal Corporation, Appellee. No. 18355. United States Court of Appeals Eighth Circuit. Dec. 7, 1966. J. B. Shultz, of Woods Fuller, Shultz & Smith, Sioux Falls, S. D., for appellant and filed printed brief. Chester A. Groseclose, Jr., of Voas, Richardson & Groseclose, Aberdeen, S. D., for appellee and filed printed brief. Before MATTHES and LAY, Circuit Judges and HARPER, District Judge. MATTHES, Circuit Judge. This controversy presents the question whether the City of Aberdeen, South Dakota (Aberdeen) is entitled to indemnity from North Central Airlines, Inc. (North Central) for the amount expended by Aberdeen as third-party defendant in connection with its defense of a personal injury law suit. The district court, Honorable Axel J. Beck presiding, found in favor of Aberdeen, Wiseman v. North Central Airlines, Inc., 246 F.Supp. 775 (S.D.S.D.1965), and North Central has appealed. The facts relating to the personal injury action are relevant to the issues presented by this appeal. Maxine Wiseman, as plaintiff, sued North Central for the recovery of damages resulting from injuries sustained in a fall in the entryway to the terminal building of the Aberdeen Airport, after she had alighted from one of appellant’s airplanes. While staunchly maintaining that it exercised no control over the passageway in question and that plaintiff’s injuries were caused wholly by.her own contributory negligence, North Central nevertheless impleaded Aberdeen, owner and lessor of the Aberdeen Airport, as third-party defendant under Rule 14(a), Fed. R.Civ.P., alleging that Aberdeen as lessor under the terms of its lease with North Central had the obligation of maintaining and keeping the terminal building in good repair, and that if there was any negligence that caused plaintiff’s injuries, it was the negligence of Aberdeen and not North Central. North Central in an amended third-party complaint sought indemnity for any sums of money which might be adjudged against it in favor of the plaintiff. The lease, which was attached as part of North Central’s third-party complaint, disclosed that North Central had exclusive use of certain designated portions of the terminal building and non-exclusive use of all public space in and around the same building. Other provisions of the lease, pertinent to this controversy, provided in part: “Article IX. Lessor [Aberdeen] agrees during the term of this agreement to maintain and keep the Terminal Building in good condition and repair, to provide and supply adequate heat, light, water and electricity for the public space and Lessee’s [North Central’s] exclusive space in the Terminal Building. The Lessee shall pay for all electricity used by Lessee. “Article X. Indemnity. The Lessee agrees to indemnify and hold the Lessor harmless from and against all liabilities, judgments, cost, damages and expense which may accrue against, be charged to or recovered from Lessor by reason or on account of damage to the property of the Lessor or the property of, injury to or the death of any person arising from the Lessee’s use and occupancy of and operations at the airport under any circumstances except when caused by the Lessor’s sole negligence or by the joint negligence of Lessor and any person other than the Lessee.” [Emphasis added]. Aberdeen’s answer was a general denial of the allegations of the third-party complaint. In addition it counterclaimed against North Central for attorney fees, costs and expenses under the indemnity agreement in the lease. The amount in controversy has been stipulated by the parties to be $1,973.06. North Central denied liability under the counterclaim, and contended that plaintiff’s injuries were “ * * * caused by the Lessor’s sole negligence or by the joint negligence of Lessor [Aberdeen] and any person other than the Lessee [North Central]”, thus bringing North Central within the exception to the indemnity agreement and exonerating it from any duty to indemnify Aberdeen under Article X of the lease. After the jury’s verdict and entry of judgment in favor of North Central and against Mrs. Wiseman, the court resolved the indemnity issue in favor of Aberdeen. More specifically, it found that Aberdeen was not negligent and that plaintiff’s own negligence was the sole proximate cause of the accident. The court also concluded that the liability of North Central to Aberdeen under the indemnity agreement arose from North Central’s “use and occupancy of and operations at the airport under any circumstances” and did not fall within the exception to the indemnity agreement. The principal issue to be resolved on this appeal is whether the district court’s determination that North Central must assume Aberdeen’s attorney fees, costs and expenses by virtue of the indemnity agreement is clearly erroneous within the meaning of Rule 52(a), Fed.R.Civ.P. We consider the district court’s allocation of these expenses under the circumstances to be entirely proper. The gist of Mrs. Wiseman’s complaint in the original action was that North Central was negligent in its design or maintenance of the entryway, as a consequence of which, she fell and sustained certain injuries. Specifically, her claim of negligence was predicated upon the alleged faulty design and maintenance of a recessed rubber composition mat in the entry way, which projected approximately one-eighth of an inch above the level of the surrounding tile floor. Mrs. Wiseman’s testimony was to the effect that after she had opened one of the outer double glass doors to the entryway and moved across the threshold, she must have struck her foot against the outer portion of the rubber composition mat, thus causing her to tumble headlong against one of the inner glass doors of the same entrance. In support of its non-liability under the indemnity agreement, North Central contends that the district court erred in finding as a fact no negligence on the part of Aberdeen in its design and maintenance of the entryway to the airport terminal. In short, North Central urges that a showing of an one-eighth inch difference between the level of the rubber composition mat and the adjoining tile floor constitutes as a matter of law negligence on the part of Aberdeen. We do not agree. We find North Central’s “slip and fall” cases inapposite in resolving the issues before us. In addition to presenting distinguishable factual patterns, they stand mainly for the proposition that testimony as to a variance in floor levels is sufficient only to deny a defendant’s motion for a directed verdict and present a jury question. North Central's case of Haverkost v. Sears, Roebuck & Co., 193 S.W.2d 357 (Mo.App.1946), for example, which it strongly urges in support of its contention, militates against rather than for the position that it takes on appeal. In that case the plaintiff caught her foot and tripped on a metal strip which projected about one-eighth of an inch at the head of the stairway in defendant’s store. The plaintiff there, unlike Mrs. Wiseman, testified unequivocally as to what caught her heel. The defendant contended the difference in level was so inconsequential that it could not constitute an actual defect. The Missouri Court of Appeals rejected this contention, stating: “We do not say that defendant was guilty of negligence as a matter of law in permitting the metal strip to project up above the surface of the step for as much as an eighth to a quarter of an inch, but merely hold that under all the facts, the question was one for the jury to determine. [Emphasis added]. “The case on the facts was one for the jury; and the defendant’s motion for a directed verdict was therefore properly overruled.” To the same effect is our case of Sears, Roebuck and Co. v. Daniels, 299 F.2d 154 (8th Cir. 1962), where plaintiff slipped on a similiar rubber composition mat in the entryway of defendant’s department store at Lincoln, Nebraska. Plaintiff’s testimony, uncontradicted by defendant, revealed that the edge of the mat was worn and curled up about two inches from the level of the floor. We stated there only that a fact issue was presented and that the trial court had reached a permissible conclusion upon the basis of Nebraska law in denying defendant’s motions for a directed verdict and for judgment n. o. v. Appellant’s other cases, we feel, present distinguishable factual characteristics and are therefore not controlling in this case. We are not prepared to say under the circumstances of this case that as a matter of law Aberdeen was negligent in its design and maintenance of the rubber composition mat in question, thus relieving North Central of any duty to indemnify under the lease. With the exception of plaintiff’s husband, and the plaintiff herself, who stated she did not see the mat, all the witnesses testified unequivocally that the mat was not in any fashion buckled or rumpled, and that they encountered no difficulty in passing over the mat. In the preceding three year period over 23,000 passengers had enplaned and deplaned at the Aberdeen Airport and had traversed over this same mat uneventfully. On the other hand, other evidence disclosed that plaintiff was in a hurry as she approached the entryway with two bags in hand. Cross examination of the plaintiff further revealed that she wore green tinted glasses at the time of the accident, which were trifocals, and that she had astigmatism in her eyes. She testified unequivocally that she did not look to see if there was any floor mat in the entryway but merely looked straight ahead, and she testified equivocally that she had slipped as a result of contact with the mat. On the basis of the record before us, we cannot fairly conclude that the trial court was clearly erroneous in finding that Aberdeen was not negligent in its maintenance of the mat in question and that plaintiff’s own negligence was the sole proximate cause of the accident. North Central also raises other subsidiary issues involving the construction of the indemnity agreement under Article X of the lease. It contends initially that the indemnity agreement is in essence one against “loss” or “damage” as opposed to one against “liability.” If the indemnity agreement protects solely against “loss”, South Dakota law concededly does not require payment by the indemnitor until the indemnitee sustains damage or loss by actual payment of money. North Central thus argues that inasmüch as Aberdeen has actually paid out no amounts whatever in defense of the litigation, it is in no position to demand indemnity under the lease agreement. The district court, however, construed the agreement as indemnifying also against liability, and held North Central responsible for the litigation expenses incurred by Aberdeen. In support of its position North Central cites a solitary case from South Dakota, Moriarty v. Tomlinson, 58 S.D. 431, 235 N.W. 363 (1931). In that case the initial part of the indemnity agreement provided as follows: “First. That we [the defendants] will at all times indemnify and keep indemnified the Company [the surety company], and hold and save it harmless from and against any and all demands, liabilities and expenses of whatsoever kind or nature, including counsel and attorney’s fees, which it may at any time sustain or incur by reason of or in consequence of having executed such bonds, undertaking or renewals, or in connection with the enforcement of this kind of indemnity * * * ” The receiver of the surety company contended that this language was conclusive in construing the contract as an agreement to indemnify against liability. Considering this limited portion of the indemnity agreement, the court agreed with the receiver and stated that “[t]he above provision, standing alone, would undoubtedly support appellant’s position, but when read with other language of the agreement a different intention is apparent.” The “other language” of the indemnity agreement provided in pertinent part that: “ * * * [the defendants] will pay over, reimburse and make good to the Company, its successors and assigns, all sums and amounts of money, which the Company or its representatives shall pay or cause to be paid or become liable to pay * * * such payment to be made to the Company as soon as it shall have paid out said sum or any part thereof.” In this case the indemnity agreement does not contain the “other language” which was decisive in the Moriarty casé, but rather bears a close resemblance to the first part of that indemnity agreement, as set forth above. While mindful of the fact that the decision in each case must rest upon the construction of the particular agreement under consideration, we have frequently reiterated that as to doubtful issues of local law, “we go no further than to determine that the trial court has reached a permissible conclusion upon the basis of the law of his state.” Sears, Roebuck and Co. v. Daniels, supra. Our research has not disclosed any later pronouncements of the South Dakota Supreme Court which are relevant to the resolution of this controversy, and consequently in light of the court’s language in Moriarty v. Tomlinson, supra, we believe the district court’s conclusion to be an entirely permissible one. In the alternative North Central argues that even if the indemnity agreement be interpreted as one against liability, Aberdeen still cannot recover inasmuch as it is under no obligation to pay attorney fees and expenses by reason of insurance coverage which it had obtained. The duty to indemnify, North Central contends, must be founded upon the specific liability or obligation of Aberdeen and not that of its insurance carrier. We reject North Central’s argument and hold that Aberdeen’s insurance coverage in no way affects the underlying obligation of North Central to indemnify. The fact that Aberdeen had contracted with an insurance carrier to protect itself from the same risk of loss as comprehended by North Central’s indemnity obligation should not exonerate North Central from its duty to indemnify according to agreement. Case law, we feel, squarely bears out this proposition. In Safway Rental & Sales Co. v. Albina Engine & Machine Works, Inc., 343 F.2d 129 (10th Cir. 1965), the Tenth Circuit similarly faced the question of recovery of attorney fees and other litigation expenses incurred by an insurer of the indemnitee (the Albina Company). The indemnitor, Safway, argued that the expenses and attorney fees were obligations of Albina’s insurer and not of Albina itself, and that therefore no right of subrogation to Albina’s right of indemnity against Safway existed in behalf of the insurance company. While realizing that Albina was only “technically liable” for defending the action or paying any judgment, the Tenth Circuit nevertheless concluded that a cause of action under the implied indemnity agreement existed in favor of Albina and held that Albina’s insurer was subrogated to Albina’s right to recover any expenses incurred in defense of the suit. As to Safway’s argument that Albina would never be individually liable for any expenses or any judgments rendered, the court merely reiterated the proposition that: “the fact the insured (Albina) carried a liability policy should not relieve the negligent party of its obligation to indemnify the insured for the judgment or for fees and expenses arising from the original claim.” 343 F.2d at 134. This same issue was also presented in Lesmark, Inc. v. Pryce, 118 U.S.App.D.C. 194, 334 F.2d 942 (D.C. Cir. 1964). There the contractor, Lesmark, Inc., agreed to “ ‘hold harmless and indemnify the Owner (Charrons) of and from all claims, suits, actions, costs, counsel fees, expenses, damages, judgments or decrees’ ” arising out of Lesmark’s performance of a construction contract. As the result of Lesmark’s faulty excavation, the party walls of plaintiffs’ adjoining buildings sank, causing extensive damage to the premises. Lesmark contended that the Charrons were not entitled to indemnification for counsel fees under the agreement since their insurance carrier furnished the counsel and assumed all obligation for attorney fees. The court stated, in response to this argument, that: “[t]he fact that the Charrons carried liability insurance which covered the claims of Pryce and Ash (the plaintiffs) did not relieve Lesmark of its obligation to indemnify the Charrons against such claims, and Lesmark does not contend otherwise. Similarly it was not relieved of its liability for litigation expenses arising from those claims, which were also covered by insurance.” 334 F.2d at 945. North Central places great reliance upon the case of Peterson v. Roberts County, 31 S.D. 439, 141 N.W. 368 (1913), as establishing a rule contrary to that set forth in Safway and Lesmark. The Peterson decision turned on an entirely different factual situation and presented wholly unrelated factual issues. Nowhere in the case was there an issue raised as to an indemnitor’s obligation under an indemnity agreement where the indemnitee has undertaken to procure insurance to avoid all risk of expense or liability. For these reasons we find it distinguishable from the case at hand and consequently not controlling. Finding no error, we therefore affirm. . Only the question of North Central’s negligence was submitted to the jury. By stipulation of the parties the issue of indemnity was reserved to the court for decision on the same evidence introduced in the orginal action. . Both North Central and Aberdeen proceeded in a joint defense against plaintiff’s claim and introduced evidence pertaining thereto. Aberdeen’s joinder in defending the original action is permissible under Buie 14(a), supra, which provides in pertinent part: "At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. * * * The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff’s claim as provided in Bule 12 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Bule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. * * * ” . Although North Central contended that under the terms of its lease Aberdeen alone had the duty of keeping the entryway in good repair, plaintiff apparently proceeded solely against North Central on the theory that the special relationship between a carrier and its passengers gave rise to a non delegable duty on the part of North Central to maintain its passageway with due care, and that North Central could not supercede this duty by a subsequent contractual arrangement with Aberdeen. . Plaintiff did not testify unequivocally that she fell as a result of contact with the composition mat. The printed record in narrative form revealed plaintiff’s testimony to be as follows: “As I entered the door, the passenger door, I was looking straight ahead. I stepped forward with my hand outstretched to take ahold of the handle of the next door I would have to open, and the foot that was supposed to go forward seemed to come in contact with something immovable and I pitched forward.” . See testimony, footnote 1, supra. . South Dakota Code, tit. 31, § 3107 (1939), provides in pertinent part: “In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears: (1) Upon an indemnity against liability, expressly, or in other equivalent terms, the person indemnified is entitled to recover upon becoming liable; (2) Upon an indemnity against claims or demands, or damages or costs, expressly, or in equivalent terms, the person indemnified is not entitled to recover without payment thereof; (3) An indemnity against claims or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good" faith, and in the exercise of reasonable discretion.” . The record discloses that an insurance company, Maryland Casualty Company, furnished Aberdeen with a liability insurance policy, whereby it would defend through its own counsel any suits brought against the City on a liability matter. Counsel further stipulated that the City of Aberdeen would not be obligated to make any payments relative to this litigation, but that the same would be paid by the Maryland Casualty Company. . After the execution of the indemnity agreement in Moriarty, the company, Inter-State Surety Company, became insolvent and went into receivership. The appointed receiver sued under the indemnity agreement in behalf of the indemnitee-company. 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_authoritydecision

B

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. LYNCH, MAYOR OF PAWTUCKET, et al. v. DONNELLY et al. No. 82-1256. Argued October 4, 1983 Decided March 5, 1984 Burger, C. J., delivered the opinion of the Court, in which White, Powell, Rehnquist, and O’Connor, JJ., joined. O’Connor, J., filed a concurring opinion, post, p. 687. Brennan, J., filed a dissenting opinion, in which Marshall, Blackmun, and Stevens, JJ., joined, post, p. 694. Blackmun, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 726. William F. McMahon argued the cause for petitioners. With him on the briefs were Richard P. McMahon and Spencer W. Viner. Solicitor General Lee argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General McGrath, Deputy Solicitor General Bator, Deputy Assistant Attorney General Kuhl, and Kathryn A. Oberly. Amato A. DeLuca argued the cause for respondents. With him on the brief were Sandra A. Blanding, Burt Neubome, E. Richard Larson, and Norman Dorsen. Briefs of amici curiae urging reversal were filed for the Coalition for Religious Liberty et al. by James J. Knicely and John W. Whitehead; for the Legal Foundation of America by David Crump; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calió. Briefs of amici curiae urging affirmance were filed for the American Jewish Committee et al. by Samuel Rabinove; and for the Anti-Defamation League of B’Nai B’rith et al. by Justin J. Finger, Alan Dershowitz, Meyer Eisenberg, Jeffrey P. Sinensky, Nathan Z. Dershowitz, and Marc Stem. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to decide whether the Establishment Clause of the First Amendment prohibits a municipality from including a créche, or Nativity scene, in its annual Christmas display. I Each year, in cooperation with the downtown retail merchants’ association, the city of Pawtucket, R. L, erects a Christmas display as part of its observance of the Christmas holiday season. The display is situated in a park owned by a nonprofit organization and located in the heart of the shopping district. The display is essentially like those to be found in hundreds of towns or cities across the Nation — often on public grounds — during the Christmas season. The Paw-tucket display comprises many of the figures and decorations traditionally associated with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that reads “SEASONS GREETINGS,” and the créche at issue here. All components of this display are owned by the city. The créche, which has been included in the display for 40 or more years, consists of the traditional figures, including the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals, all ranging in height from 5" to 5'. In 1973, when the present créche was acquired, it cost the city $1,365; it now is valued at $200. The erection and dismantling of the créche costs the city about $20 per year; nominal expenses are incurred in lighting the créche. No money has been expended on its maintenance for the past 10 years. Respondents, Pawtucket residents and individual members of the Rhode Island affiliate of the American Civil Liberties Union, and the affiliate itself, brought this action in the United States District Court for Rhode Island, challenging the city’s inclusion of the créche in the annual display. The District Court held that the city’s inclusion of the créche in the display violates the Establishment Clause, 525 F. Supp. 1150, 1178 (1981), which is binding on the states through the Fourteenth Amendment. The District Court found that, by including the créche in the Christmas display, the city has “tried to endorse and promulgate religious beliefs,” id., at 1173, and that “erection of the creche has the real and substantial effect of affiliating the City with the Christian beliefs that the creche represents.” Id., at 1177. This “appearance of official sponsorship,” it believed, “confers more than a remote and incidental benefit on Christianity.” Id., at 1178. Last, although the court acknowledged the absence of administrative entanglement, it found that excessive entanglement has been fostered as a result of the political divisiveness of including the créche in the celebration. Id., at 1179-1180. The city was permanently enjoined from including the créche in the display. A divided panel of the Court of Appeals for the First Circuit affirmed. 691 F. 2d 1029 (1982). We granted certiorari, 460 U. S. 1080 (1983), and we reverse. I — l i- A This Court has explained that the purpose of the Establishment and Free Exercise Clauses of the First Amendment is “to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other.” Lemon v. Kurtzman, 403 U. S. 602, 614 (1971). At the same time, however, the Court has recognized that “total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.” Ibid. In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible. The Court has sometimes described the Religion Clauses as erecting a “wall” betwéen church and state, see, e. g., Everson v. Board of Education, 330 U. S. 1, 18 (1947). The concept of a “wall” of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state. No significant segment of our society and no institution within it can exist in a vacuum or in total or absolute isolation from all the other parts, much less from government. “It has never been thought either possible or desirable to enforce a regime of total separation . . . .” Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 760 (1973). Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. See, e. g., Zorach v. Clauson, 343 U. S. 306, 314, 315 (1952); Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203, 211 (1948). Anything less would require the “callous indifference” we have said was never intended by the Establishment Clause. Zorach, swpra, at 314. Indeed, we have observed, such hostility would bring us into “war with our national tradition as embodied in the First Amendment’s guaranty of the free exercise of religion.” McCollum, supra, at 211-212. B The Court’s interpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees. A significant example of the contemporaneous understanding of that Clause is found in the events of the first week of the First Session of the First Congress in 1789. In the very week that Congress approved the Establishment Clause as part of the Bill of Rights for submission to the states, it enacted legislation providing for paid Chaplains for the House and Senate. In Marsh v. Chambers, 463 U. S. 783 (1983), we noted that 17 Members of that First Congress had been Delegates to the Constitutional Convention where freedom of speech, press, and religion and antagonism toward an established church were subjects of frequent discussion. We saw no conflict with the Establishment Clause when Nebraska employed members of the clergy as official legislative Chaplains to give opening prayers at sessions of the state legislature. Id., at 791. The interpretation of the Establishment Clause by Congress in 1789 takes on special significance in light of the Court’s emphasis that the First Congress “was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instument,” Myers v. United States, 272 U. S. 52, 174-175 (1926). It is clear that neither the 17 draftsmen of the Constitution who were Members of the First Congress, nor the Congress of 1789, saw any establishment problem in the employment of congressional Chaplains to offer daily prayers in the Congress, a practice that has continued for nearly two centuries. It would be difficult to identify a more striking example of the accommodation of religious belief intended by the Framers. C There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789. Seldom in our opinions was this more affirmatively expressed than in Justice Douglas’ opinion for the Court validating a program allowing release of public school students from classes to attend off-campus religious exercises. Rejecting a claim that the program violated the Establishment Clause, the Court asserted pointedly: “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, supra, at 313. See also Abington School District v. Schempp, 374 U. S. 203, 213 (1963). Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders. Beginning in the early colonial period long before Independence, a day of Thanksgiving was celebrated as a religious holiday to give thanks for the bounties of Nature as gifts from God. President Washington and his successors proclaimed Thanksgiving, with all its religious overtones, a day of national celebration and Congress made it a National Holiday more than a century ago. Ch. 167, 16 Stat. 168. That holiday has not lost its theme of expressing thanks for Divine aid any more than has Christmas lost its religious significance. Executive Orders and other official announcements of Presidents and of the Congress have proclaimed both Christmas and Thanksgiving National Holidays in religious terms. And, by Acts of Congress, it has long been the practice that federal employees are released from duties on these National Holidays, while being paid from the same public revenues that provide the compensation of the Chaplains of the Senate and the House and the military services. See J. Res. 5, 23 Stat. 516. Thus, it is clear that Government has long recognized — indeed it has subsidized — holidays with religious significance. Other examples of reference to our religious heritage are found in the statutorily prescribed national motto “In God We Trust,” 36 U. S. C. § 186, which Congress and the President mandated for our currency, see 31 U. S. C. § 5112(d)(1) (1982 ed.), and in the language “One nation under God,” as part of the Pledge of Allegiance to the American flag. That pledge is recited by many thousands of public school children — and adults — every year. Art galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly inspired by one religious faith. The National Gallery in Washington, maintained with Government support, for example, has long exhibited masterpieces with religious messages, notably the Last Supper, and paintings depicting the Birth of Christ, the Crucifixion, and the Resurrection, among many others with explicit Christian themes and messages. The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent — not seasonal — symbol of religion: Moses with the Ten Commandments. Congress has long provided chapels in the Capitol for religious worship and meditation. There are countless other illustrations of the Government’s acknowledgment of our religious heritage and governmental sponsorship of graphic manifestations of that heritage. Congress has directed the President to proclaim a National Day of Prayer each year “on which [day] the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.” 36 U. S. C. §169h. Our Presidents have repeatedly issued such Proclamations. Presidential Proclamations and messages have also issued to commemorate Jewish Heritage Week, Presidential Proclamation No. 4844, 3 CFR 30 (1982), and the Jewish High Holy Days, 17 Weekly Comp, of Pres. Doc. 1058 (1981). One cannot look at even this brief résumé without finding that our history is pervaded by expressions of religious beliefs such as are found in Zorach. Equally pervasive is the evidence of accommodation of all faiths and all forms of religious expression, and hostility toward none. Through this accommodation, as Justice Douglas observed, governmental action has “follow[ed] the best of our traditions” and “respect[ed] the religious nature of our people.” 343 U. S., at 314. Ill This history may help explain why the Court consistently has declined to take a rigid, absolutist view of the Establishment Clause. We have refused “to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history.” Walz v. Tax Comm’n, 397 U. S. 664, 671 (1970) (emphasis added). In our modern, complex society, whose traditions and constitutional underpinnings rest on and encourage diversity and pluralism in all areas, an absolutist approach in applying the Establishment Clause is simplistic and has been uniformly rejected by the Court. Rather than mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith—as an absolutist approach would dictate—the Court has scrutinized challenged legislation or official conduct to determine whether, in reality, it establishes a religion or religious faith, or tends to do so. See Walz, supra, at 669. Joseph Story wrote a century and a half ago: “The real object of the [First] Amendment was ... to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.” 3 J. Story, Commentaries on the Constitution of the United States 728 (1833). In each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed. The Establishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal code capable of ready application. The purpose of the Establishment Clause “was to state an objective, not to write a statute.” Walz, supra, at 668. The line between permissible relationships and those barred by the Clause can no more be straight and unwavering than due process can be defined in a single stroke or phrase or test. The Clause erects a “blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” Lemon, 403 U. S., at 614. In the line-drawing process we have often found it useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. Lemon, supra. But, we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area. See, e. g., Tilton v. Richardson, 403 U. S. 672, 677-678 (1971); Nyquist, 413 U. S., at 773. In two cases, the Court did not even apply the Lemon “test.” We did not, for example, consider that analysis relevant in Marsh v. Chambers, 463 U. S. 783 (1983). Nor did we find Lemon useful in Larson v. Valente, 456 U. S. 228 (1982), where there was substantial evidence of overt discrimination against a particular church. In this case, the focus of our inquiry must be on the créche in the context of the Christmas season. See, e. g., Stone v. Graham, 449 U. S. 39 (1980) (per curiam); Abington School District v. Schempp, 374 U. S. 203 (1963). In Stone, for example, we invalidated a state statute requiring the posting of a copy of the Ten Commandments on public classroom walls. But the Court carefully pointed out that the Commandments were posted purely as a religious admonition, not “integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.” 449 U. S., at 42. Similarly, in Abington, although the Court struck down the practices in two States requiring daily Bible readings in public schools, it specifically noted that nothing in the Court’s holding was intended to “indicate] that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.” 374 U. S., at 225. Focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause. The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no question that the statute or activity was motivated wholly by religious considerations. See, e. g., Stone v. Graham, supra, at 41; Epperson v. Arkansas, 393 U. S. 97, 107-109 (1968); Abington School District v. Schempp, supra, at 223-224; Engel v. Vitale, 370 U. S. 421, 424-425 (1962). Even where the benefits to religion were substantial, as in Everson v. Board of Education, 330 U. S. 1 (1947); Board of Education v. Allen, 392 U. S. 236 (1968); Walz, supra; and Tilton, supra, we saw a secular purpose and no conflict with the Establishment Clause. Cf. Larkin v. Grendel’s Den, Inc., 459 U. S. 116 (1982). The District Court inferred from the religious nature of the creche that the city has no secular purpose for the display. In so doing, it rejected the city’s claim that its reasons for including the créche are essentially the same as its reasons for sponsoring the display as a whole. The District Court plainly erred by focusing almost exclusively on the créche. When viewed in the proper context of the Christmas Holiday season, it is apparent that, on this record, there is insufficient evidence to establish that the inclusion of the créche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message. In a pluralistic society a variety of motives and purposes are implicated. The city, like the Congresses and Presidents, however, has principally taken note of a significant historical religious event long celebrated in the Western World. The créche in the display depicts the historical origins of this traditional event long recognized as a National Holiday. See Allen v. Hickel, 138 U. S. App. D. C. 31, 424 F. 2d 944 (1970); Citizens Concerned, for Separation of Church and State v. City and County of Denver, 526 F. Supp. 1310 (Colo. 1981). The narrow question is whether there is a secular purpose for Pawtucket’s display of the créche. The display is sponsored by the city to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes. The District Court’s inference, drawn from the religious nature of the creche, that the city has no secular purpose was, on this record, clearly erroneous. The District Court found that the primary effect of including the créche is to confer a substantial and impermissible benefit on religion in general and on the Christian faith in particular. Comparisons of the relative benefits to religion of different forms of governmental support are elusive and difficult to make. But to conclude that the primary effect of including the créche is to advance religion in violation of the Establishment Clause would require that we view it as more beneficial to and more an endorsement of religion, for example, than expenditure of large sums of public money for textbooks supplied throughout the country to students attending church-sponsored schools, Board of Education v. Allen, supra; expenditure of public funds for transportation of students to church-sponsored schools, Everson v. Board of Education, supra; federal grants for college buildings of church-sponsored institutions of higher education combining secular and religious education, Tilton v. Richardson, 403 U. S. 672 (1971); noncategorical grants to church-sponsored colleges and universities, Roemer v. Board of Public Works, 426 U. S. 736 (1976); and the tax exemptions for church properties sanctioned in Walz v. Tax Comm’n, 397 U. S. 664 (1970). It would also require that we view it as more of an endorsement of religion than the Sunday Closing Laws upheld in McGowan v. Maryland, 366 U. S. 420 (1961); the release time program for religious training in Zorach v. Clauson, 343 U. S. 306 (1952); and the legislative prayers upheld in Marsh v. Chambers, 463 U. S. 783 (1983). We are unable to discern a greater aid to religion deriving from inclusion of the creche than from these benefits and endorsements previously held not violative of the Establishment Clause. What was said about the legislative prayers in Marsh, supra, at 792, and implied about the Sunday Closing Laws in McGowan is true of the city’s inclusion of the créche: its “reason or effect merely happens to coincide or harmonize with the tenets of some . . . religions.” See McGowan, supra, at 442. This case differs significantly from Larkin v. Grendel’s Den, Inc., supra, and McCollum, where religion was substantially aided. In Grendel’s Den, important governmental power — a licensing veto authority — had been vested in churches. In McCollum, government had made religious instruction available in public school classrooms; the State had not only used the public school buildings for the teaching of religion, it had “afford[ed] sectarian groups an invaluable aid • • • [by] providing] pupils for their religious classes through use of the State’s compulsory public school machinery.” 333 U. S., at 212. No comparable benefit to religion is discernible here. The dissent asserts some observers may perceive that the city has aligned itself with the Christian faith by including a Christian symbol in its display and that this serves to advance religion. We can assume, arguendo, that the display advances religion in a sense; but our precedents plainly contemplate that on occasion some advancement of religion will result from governmental action. The Court has made it abundantly clear, however, that “not every law that confers an ‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon [religion] is, for that reason alone, constitutionally invalid.” Nyquist, 413 U. S., at 771; see also Widmar v. Vincent, 454 U. S. 263, 273 (1981). Here, whatever benefit there is to one faith or religion or to all religions, is indirect, remote, and incidental; display of the créche is no more an advancement or endorsement of religion than the Congressional and Executive recognition of the origins of the Holiday itself as “Christ’s Mass,” or the exhibition of literally hundreds of religious paintings in governmentally supported museums. The District Court found that there had been no administrative entanglement between religion and state resulting from the city’s ownership and use of the créche. 525 F. Supp., at 1179. But it went on to hold that some political divisiveness was engendered by this litigation. Coupled with its finding of an impermissible sectarian purpose and effect, this persuaded the court that there was “excessive entanglement.” The Court of Appeals expressly declined to accept the District Court’s finding that inclusion of the creche has caused political divisiveness along religious lines, and noted that this Court has never held that political divisiveness alone was sufficient to invalidate government conduct. Entanglement is a question of kind and degree. In this case, however, there is no reason to disturb the District Court’s finding on the absence of administrative entanglement. There is no evidence of contact with church authorities concerning the content or design of the exhibit prior to or since Pawtucket’s purchase of the créche. No expenditures for maintenance of the creche have been necessary; and since the city owns the creche, now valued at $200, the tangible material it contributes is de minimis. In many respects the display requires far less ongoing, day-to-day interaction between church and state than religious paintings in public galleries. There is nothing here, of course, like the “comprehensive, discriminating, and continuing state surveillance” or the “enduring entanglement” present in Lemon, 403 U. S., at 619-622. The Court of Appeals correctly observed that this Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct. And we decline to so hold today. This case does not involve a direct subsidy to church-sponsored schools or colleges, or other religious institutions, and hence no inquiry into potential political divisiveness is even called for, Mueller v. Allen, 463 U. S. 388, 403-404, n. 11 (1983). In any event, apart from this litigation there is no evidence of political friction or divisiveness over the créche in the 40-year history of Pawtucket’s Christmas celebration. The District Court stated that the inclusion of the créche for the 40 years has been “marked by no apparent dissension” and that the display has had a “calm history.” 525 F. Supp., at 1179. Curiously, it went on to hold that the political divisiveness engendered by this lawsuit was evidence of excessive entanglement. A litigant cannot, by the very act of commencing a lawsuit, however, create the appearance of divisiveness and then exploit it as evidence of entanglement. We are satisfied that the city has a secular purpose for including the créche, that the city has not impermissibly advanced religion, and that including the créche does not create excessive entanglement between religion and government. > HH Justice Brennan describes the creche as a “re-creation of an event that lies at the heart of Christian faith,” post, at 711. The créche, like a painting, is passive; admittedly it is a reminder of the origins of Christmas. Even the traditional, purely secular displays extant at Christmas, with or without a creche, would inevitably recall the religious nature of the Holiday. The display engenders a friendly community spirit of goodwill in keeping with the season. The créche may well have special meaning to those whose faith includes the celebration of religious Masses, but none who sense the origins of the Christmas celebration would fail to be aware of its religious implications. That the display brings people into the central city, and serves commercial interests and benefits merchants and their employees, does not, as the dissent points out, determine the character of the display. That a prayer invoking Divine guidance in Congress is preceded and followed by debate and partisan conflict over taxes, budgets, national defense, and myriad mundane subjects, for example, has never been thought to demean or taint the sacredness of the invocation. Of course the créche is identified with one religious faith but no more so than the examples we have set out from prior cases in which we found no conflict with the Establishment Clause. See, e. g., McGowan v. Maryland, 366 U. S. 420 (1961); Marsh v. Chambers, 463 U. S. 783 (1983). It would be ironic, however, if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for 2 centuries, would so “taint” the city’s exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol — the créche — at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and legislatures open sessions with prayers by paid chaplains, would be a stilted overreaction contrary to our history and to our holdings. If the presence of the créche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution. The Court has acknowledged that the “fears and political problems” that gave rise to the Religion Clauses in the 18th century are of far less concern today. Everson, 330 U. S., at 8. We are unable to perceive the Archbishop of Canterbury, the Bishop of Rome, or other powerful religious leaders behind every public acknowledgment of the religious heritage long officially recognized by the three constitutional branches of government. Any notion that these symbols pose a real danger of establishment of a state church is farfetched indeed. Y That this Court has been alert to the constitutionally expressed opposition to the establishment of religion is shown in numerous holdings striking down statutes or programs as violative of the Establishment Clause. See, e. g., Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 (1948); Epperson v. Arkansas, 393 U. S. 97 (1968); Lemon v. Kurtzman, supra; Levitt v. Committee for Public Education & Religious Liberty, 413 U. S. 472 (1973); Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 (1973); Meek v. Pittenger, 421 U. S. 349 (1975); and Stone v. Graham, 449 U. S. 39 (1980). The most recent example of this careful scrutiny is found in the case invalidating a municipal ordinance granting to a church a virtual veto power over the licensing of liquor establishments near the church. Larkin v. Grendel’s Den, Inc., 459 U. S. 116 (1982). Taken together these cases abundantly demonstrate the Court’s concern to protect the genuine objectives of the Establishment Clause. It is far too late in the day to impose a crabbed reading of the Clause on the country. VI We hold that, notwithstanding the religious significance of the creche, the city of Pawtucket has not violated the Establishment Clause of the First Amendment. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. See Reynolds v. United States, 98 U. S. 145, 164 (1879) (quoting reply from Thomas Jefferson to an address by a committee of the Danbury Baptist Association (January 1, 1802)). The day after the First Amendment was proposed, Congress urged President Washington to proclaim “a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God.” See A. Stokes & L. Pfeffer, Church and State in the United States 87 (rev. 1st ed. 1964). President Washington proclaimed November 26, 1789, a day of thanksgiving to “offe[r] our prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions . . . .” 1 J. Richardson, A Compilation of the Messages and Papers of the Presidents 1789-1897, p. 64 (1899). Presidents Adams and Madison also issued Thanksgiving Proclamations, as have almost all our Presidents, see 3 A. Stokes, Church and State in the United States 180-198 (1950), through the incumbent, see Presidential Proclamation No. 4883, 3 CFR 68 (1982). An example is found in President Roosevelt’s 1944 Proclamation of Thanksgiving: “[I]t is fitting that we give thanks with special fervor to our Heavenly Father for the mercies we have received individually and as a nation and for the blessings He has restored, through the victories of our arms and those of our Allies, to His children in other lands. “To the end that we may bear more earnest witness to our gratitude to Almighty God, I suggest a nationwide reading of the Holy Scriptures during the period from Thanksgiving Day to Christmas.” Presidential Proclamation No. 2629, 58 Stat. 1160. President Reagan and his immediate predecessors have issued similar Proclamations. See, e. g., Presidential Proclamation No. 5098, 3 CFR 94 (1984); Presidential Proclamation No. 4803, 3 CFR 117 (1981); Presidential Proclamation No. 4333, 3 CFR 419 (1971-1975 Comp.); Presidential Proclamation No. 4093, 3 CFR 89 (1971-1975 Comp.); Presidential Proclamation No. 3752, 3 CFR 75 (1966-1970 Comp.); Presidential Proclamation No. 3560, 3 CFR 312 (1959-1963 Comp.). The National Gallery regularly exhibits more than 200 similar religious paintings. See, e. g., Presidential Proclamation No. 5017, 3 CFR 8 (1984); Presidential Proclamation No. 4795, 3 CFR 109 (1981); Presidential Proclamation No. 4379, 3 CFR 486 (1971-1975 Comp.); Presidential Proclamation No. 4087, 3 CFR 81 (1971-1975 Comp.); Presidential Proclamation No. 3812, 3 CFR 155 (1966-1970 Comp.); Presidential Proclamation No. 3501, 3 CFR 228 (1959-1963 Comp.). The city contends that the purposes of the display are “exclusively secular.” We hold only that Pawtucket has a secular purpose for its display, which is all that Lemon v. Kurtzman, 403 U. S. 602 (1971), requires. Were the test that the government must have “exclusively secular” objectives, much of the conduct and legislation this Court has approved in the past would have been invalidated. Justice Brennan argues that the city’s objectives could have been achieved without including the créche in the display, post, at 699. True or not, that is irrelevant. The question is whether the display of the creche violates the Establishment Clause. The Allen Court noted that “[pjerhaps free books make it more likely that some children choose to attend a sectarian school. . . .” 392 U. S., at 244. In Everson, the Court acknowledged that “[i]t is undoubtedly true that children are helped to get to church schools,” and that “some of the children might not be sent to the church schools if the parents were compelled to pay their children’s bus fares out of their own pockets .. ..” 330 U. S., at 17. We recognized in Tilton that the construction grants “surely aid[ed]” the institutions that received them. 403 U. S., at 679. “In McGowan v. Maryland . . . Sunday Closing Laws were sustained even though one of their undeniable effects was to render it somewhat more likely that citizens would respect religious institutions and even attend religious services.” Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 775-776 (1973). Justice Brennan states that “by focusing on the holiday ‘context’ in which the nativity scene appear[s],” the Court “seeks to explain away the clear religious import of the créche,” post, at 705, and that it has equated the créche with a Santa’s house or reindeer, post, at 711-712. Of course this is not true. The Court of Appeals viewed Larson v. Valente, 456 U. S. 228 (1982), as commanding a “strict scrutiny” due to the city’s ownership of the $200 creche which it considers as a discrimination between Christian and other religions. It is correct that we require strict scrutiny of a statute or practice patently discriminatory on its face. But we are unable to see this display, or any part of it, as explicitly discriminatory in the sense contemplated in Larson. 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_initiate

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. UNITED STATES ex rel. EMANUEL v. JAEGER, U. S. Marshal. No. 175. Circuit Court of Appeals, Second Circuit Feb. 10, 1941. Max Shlivek, of New York City (Shlivek & Brin and Saul S. Brin, all of New York City, on the brief), for relator-appellant. Nathan Weidenbaum, of New York City (Benjamin F. Steinberg, of New York City, on the brief), for respondent-appellee. Before SWAN, CHASE, and CLARK, Circuit Judges. CLARK, Circuit Judge. The relator herein is the president and sole stockholder of Martin Clothes, Inc., which in the fall of 1937 filed a petition in the court below for reorganization under the then § 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. Proceedings in connection with that reorganization and involving one Frank Raskin have now led to the judgment of commitment for contempt against the relator, from which he seeks relief on this writ of habeas corpus. Raskin was not originally, and seemingly never formally, a party to the reorganization proceedings; his interest arises, initially at least, by virtue of a written agreement made November 24, 1937, between him and the relator, whereby he agreed to furnish the necessary cash to consummate the reorganization. Relator’s commitment was occasioned by his failure to comply with an order of the bankruptcy court that he refund to Raskin the money advanced by the latter and pay certain expenses in connection therewith. He attacks this order as beyond the jurisdiction of the court in bankruptcy. The agreement of November 24, 1937, provided that Raskin was to deposit $2,500 with the clerk of court to provide a 30 per cent cash payment to creditors as soon as a plan of reorganization to that effect should be accepted and confirmed; that relator’s stock, to be held in escrow until confirmation of the plan, should then be delivered to Raskin to hold until relator had reimbursed him, and thereafter to be returned to relator; and that until Raskin was paid, relator should work for the business at a fair and reasonable salary. After it was made, Raskin made the required deposit with the clerk, though only $1,500 was his own money, since $1,000 was supplied by relator’s father-in-law, Feldman. Thereafter the plan of reorganization was modified to substitute for the 30 per cent cash settlement with creditors a combined cash and note settlement of 20 and 10 per cent respectively, with notes of 5 per cent each of the debtor, endorsed by relator, relator’s wife, and Feldman, payable March 20 and April 20, 1938, respectively. The creditors accepted the amended plan and the court confirmed it on February 3, 1938. In its order of confirmation, the court directed the clerk to pay to the debtor the money theretofore deposited “for the purpose of debtor making distribution and payments to creditors under said Amended Plan of Reorganization and under this order.” Relator asserts, and it is not challenged, that debtor, upon receipt of the deposit, distributed it to the creditors as ordered, delivered the notes as required and paid them when they came due, and paid priority claims, as well as administration expenses, in full in accordance with the plan. On February 15, 1938, Raskin applied to the district court for a resettlement of the confirmation order, on the grounds that he had not been served with a copy of the proposed order, and that the changes in the plan, described above, had been made without his consent. The court referred his application to a special master to hear and report. After extensive hearings the master reported, and the court on December 6, 1938, made an order, which went quite beyond a mere resettlement of the confirmation order. In this order the debtor was directed to pay to Raskin $1,500, representing the sum advanced by him, $125 representing an additional loan, and $115 for a copy of the stenographic record obtained for the special master, and to the special master, court reporters, and Raskin’s attorney fees in the amount of $1,302.50, or a total of $3,042.50. The quite inadequate record before us does not explain why this order was passed at a time when the creditors had apparently received the full 30 per cent payment for which Raskin had stipulated. Thereafter Raskin moved for a resettlement of this order so that it might include a direction to require not only the debtor, but also the relator individually, to make the stated payments. Relator asserts that this step was taken only after an attempt to have him adjudged in- contempt for failure to make the payments had failed because the court held that the original order applied only to the debtor corporation. The new application was granted on April 17, 1939, in a resettled order wherein relator individually and the debtor corporation were severally and jointly directed to make the said payments, and were further directed to deliver to Raskin “the property, books, and papers of the Debtor herein.” A motion to punish them for contempt, originally returnable on July 12, 1939, eventually resulted in an order on September 26, 1939, which found them both in contempt, and provided that as punishment they “were jointly and severally fined the sum of $3,042.50,” relator, however, to be permitted to purge himself by paying the amount of the fine at the rate of not less than $40 a month. Relator made payments amounting to only $140. On August 10, 1940, the court passed its order directing the United States marshal to apprehend relator and to confine him in the Federal House of Detention until he paid the balance of his fine and the marshal’s expenses, or “until the further orders of this court.” Between the entry of the contempt order and the commitment order there were further proceedings in the way of motions by relator for modification of the order, for reargument, and for the taking of testimony on the subject of the delivery of the books, records, and papers. These motions were all denied. Whether the books, records, and papers remained undelivered is not clear; the commitment order, while reciting the earlier order which included them, is in terms based upon relator’s failure to purge himself of contempt by paying his fine. Again on June 5, 1940, just after the court had ruled that it would order commitment unless the arrears were paid within two weeks, relator moved for a reargument of all the applications by Raskin and all the prior orders. This motion the court denied, as relator alleges, “in a memorandum decision, holding that he did have jurisdiction over the proceedings instituted by Frank Raskin.” No appeal was taken from any of these orders of the bankruptcy court. The petition for this writ came before another district judge, who expressed doubt as to the jurisdiction of the bankruptcy court over payments of money required by the agreement, but thought that the provision to turn over the stock and papers was sufficient to give the court jurisdiction over the whole subject matter. From the brief record herein, limited in substance to the facts set forth in relator’s petition and an affidavit filed by Raskin in the earlier proceedings, somewhat supplemented by the recitals of the commitment order, we are left in the dark as to the legal basis for the orders of the bankruptcy court. It is unfortunate that an appeal involving personal liberty should be presented on so scanty a record. The facts before us indicate error in the action taken against the relator; our real problem is to determine whether or not this amounts to a jurisdictional defect open to collateral attack. We address ourselves first to the resettled order of April 17, 1939, for that is the first command directed against the relator personally. We have not before us either the application for that order or the complete order itself. Since the question of jurisdiction had previously been raised, it would appear that the court passed upon it; at any rate it did so upon the application for reargument in 1940 and found in favor of its jurisdiction. Just the grounds upon which it went are not clear. The arguments and allegations of the parties seem to suggest one or both of two grounds: (1) enforcement of the original agreement with Raskin, and (2) identity of relator with the debtor corporation of which he was president and sole stockholder. We do not believe either ground singly^ or both together are adequate to support the order so far as it required relator to make refund of the loan to Raskin and to pay the expenses in connection therewith. There would be also requisite a finding that relator himself had had possession of the funds in question. The -finding said to have been made that the debtor corporation “was only a medium or a conduit used by” relator seems to be nothing more than a conclusion as to this form of legal and business device which in itself discloses nothing sinister. Corporations at best are only mediums or conduits whereby individuals carry on their affairs. And a violation of the agreement, so far as relator is concerned, is only a contractual breach on a matter collateral to the bankruptcy and hence not within its authority. Nixon v. Michaels, 8 Cir., 38 F.2d 420; In re Railroad Supply Co., 7 Cir., 78 F.2d 530; Smith v. Chase National Bank, 8 Cir., 84 F.2d 608. *It is said that the plan of reorganization, while not referring to Raskin by name, did, however, recognize the obligation to him incurred by the debtor and his rights in the stock, the books, and the papers of debtor. That might well justify an order for a refund on non-consummation of the plan or for delivery of physical things, and the bankruptcy court surely retained jurisdiction under former § 77B, sub. a, to revoke its confirmation of the original plan twelve days after it had been had. True, it is not clear why the essential features of the agreed-upon plan had not been carried out, nor how the lender could get back both his money and the security for it; but that would appear to be at most error, not a defect of jurisdiction. And since it is natural to expect the president and sole stockholder of a corporation to be able to turn over its physical assets, an order as to them might go against thp president ; at least we held in Re Arctic Leather Garment Co., 2 Cir., 89 F.2d 871, that lack of finding of the officer’s possession of corporate bonds and his own stock was only formal and did not vitiate a turnover order. See also In re Byrd Coal Co., 2 Cir., 83 F.2d 190, 192. But even if this part of the order is justified, it is not the part upon which the actual commitment was based; and in any event, where an order is partly within and partly without the court’s jurisdiction, the part without is void. In re Bonner, 151 U.S. 242, 257, 14 S.Ct. 323, 38 L. Ed. 149. The remainder of the order, as we view it, must assume that relator had possession of the deposit received from the court. That appears to be contrary to the statement that debtor received it and distributed it to the creditors, presumably long before this hearing, which came a year and a half after the original confirmation order. It involves in substance a holding that relator had taken trust funds in violation of the court’s order. If still open, we should certainly be loath so to hold on the basis of anything appearing in this record. True, Raskin does make charges that debtor’s store was closed, and all the merchandise and fixtures removed, while the hearings were proceeding before the master, and again that relator at some time misappropriated more than $1,100 over a period of six weeks after the trustee had been removed. These apparently unconnected allegations are tied together in respondent’s brief to show that they referred to the physical assets of the corporation and had no connection with the fund for the cash payment to creditors. We have already referred to the “conduit” theory; we see nothing else affording any justification for such a conclusion. Nevertheless it appears on the authorities that, however harsh may be the result as to the relator herein, that issue is not open to collateral attack. What we have said indicates that in an appropriate case the bankruptcy court could have made the order in question. It is now well settled that on contempt proceedings no attack can lie made on the regularity, correctness, or validity of the original order. Oriel v. Russell, 278 U.S. 358, 49 S.Ct. 173, 73 L.Ed. 419, affirming In re Oriel, 2 Cir., 23 F.2d 409, 413; In re Siegler, 2 Cir., 31 F.2d 972; In re Arctic Leather Garment Co., supra; Id., 2 Cir., 106 F.2d 99; cases collected 3 Moore’s Collier on Bankruptcy, 14th Ed., 535-537. A like rule applies to habeas corpus proceedings; they cannot be used to review, as on appeal, the court action which has led to the commitment order. Craig v. Hecht, 263 U.S. 255, 44 S.Ct. 103, 68 L.Ed. 293, affirming Ex parte Craig, 2 Cir., 282 F. 138; Ex parte Kearney, 7 Wheat. 38, 20 U.S. 38, 5 L.Ed. 391; United States ex rel. Paleais v. Moore, 2 Cir., 294 F. 852. Relator has appealed from neither the commitment nor the contempt order; he therefore can raise here the issue of jurisdiction only. Yet he had opportunity to and did raise that issue in the prior proceedings, and the court found against him. Even if we assume that the court was acting upon erroneous grounds as indicated above, yet Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104, makes it clear that the matter is settled against collateral attack. There the issue whether or not the bankruptcy court could release a guarantor in reorganization from his guaranty was decided by the Court in favor of its jurisdiction. Yet the Supreme, Court holds that, even if that ruling be erroneous, and the matter without the power of a bankruptcy court (In re Diversey Bldg. Corp., 7 Cir., 86 F.2d 456; In re Nine North Church Street, Inc., 2 Cir., 82 F.2d 186), the issue cannot be raised collaterally. The situation seems the same as that here presented. Later decisions of the Court reiterate and reinforce this conclusion. Jackson v. Irving Trust Co., Jan. 6, 1941, 61 S.Ct. 326, 85 L.Ed. —; Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 84 L.Ed. 329; cf. 40 Col.L.Rev. 1006, 1008; 53 Harv.L. Rev. 652, 659; 49 Yale L.J. 959; and see also Ripperger v. A. C. Allyn & Co., 2 Cir., 113 F.2d 332, certiorari denied 61 S. Ct. 136, 85 L.Ed. -; Commercial Cable Staffs’ Ass’n v. Lehman, 2 Cir., 107 F.2d 917, 921. Hence we conclude that the commitment order was authority, not subject to attack herein, for the marshal to hold the relator in his custody. The dismissal of this writ must therefore be affirmed. It would seem, however, that the relator is not wholly without remedy. The recitals herein indicate that the bankruptcy court retained jurisdiction' of all proceedings in connection with the reorganization after it had assumed to pass upon the plan. It may be that jurisdiction once more to resettle the original turnover order exists. Since, so far as the record shows, the issue of relator’s possession of the money. has never been tried out, as his various objections were apparently based on a misapprehension of his legal rights, it would seem appropriate for the court to reconsider that issue if it still retains jurisdiction so to do. In any event the original contempt order was of a continuing nature and the order of commitment was expressly made subject to further orders of the court. It would seem, therefore, that the bankruptcy court may properly be appealed to for action in the light of the considerations we have herein set forth. Present inability to perform has been considered an appropriate defense to a contempt proceeding. Oriel v. Russell, supra; In re Byrd Coal Co., 2 Cir., 83 F.2d 256; 3 Gerdes on Corporate Reorganizations § 1274; cf. United States ex rel. Paleais v. Moore, supra; In re Roxy Liquor Corp., 7 Cir., 107 F.2d 533. Under the circumstances it seems appropriate that no costs be taxed on this appeal, and we so direct. Affirmed. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

songer_usc1

0

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. LOCAL NO. 370, BAKERY, CONFECTIONERY AND TOBACCO WORKERS INTERNATIONAL UNION OF AMERICA, AFL-CIO and James E. Ray, Sr., Plaintiffs-Appellees, v. COTTON BROS. BAKING CO., INC., Defendant-Appellant. No. 81-3188. United States Court of Appeals, Fifth Circuit. April 9, 1982. Ernest R. Malone, Jr., New Orleans, La., for defendant-appellant. Daniel E. Broussard, Jr., Alexandria, La., for plaintiffs-appellees. Before BROWN, GEE and GARWOOD, Circuit Judges. PER CURIAM: This suit originated with a grievance filed by James E. Ray, a member of Local No. 370, Bakery, Confectionery and Tobacco Workers International Union of America, AFL-CIO (Union), against his employer, Cotton Brothers Baking Co., Inc. (Cotton Brothers). Mr. Ray, who had a history of tardiness and absenteeism, experienced automobile problems on the morning of March 4, 1979, which made it difficult to get to work. Later that day, Ray was fired, and subsequently he filed a grievance. The collective bargaining agreement between the Union and Cotton Brothers provided for arbitration of such disputes, and, after a hearing, the arbitrator found (i) that Cotton Brothers had not properly and objectively investigated the incident, and (ii) that Ray’s failure to report to work after his car broke down did not constitute just cause to fire him. On the basis of these findings, Ray’s reinstatement with back pay was ordered. Cotton Brothers refused to comply with the order, and this action was brought by the Union and Ray to enforce the arbitrator’s decision. Finding no errors in the arbitration proceedings or award, the District Court granted a summary judgment in favor of Ray and the Union. We affirm. Summary judgment is appropriate when, viewing the case in a light most favorable to the opposing party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. U. S. v. R & D One Stop Records, Inc., 661 F.2d 433, 435-36 (5th Cir. 1981). In its order dated July 28,1980, the District Court found no dispute as to the labor agreement providing for arbitration, the arbitrator’s reinstatement of Ray, and Cotton Brothers’ refusal to comply with the award. Citing the Steelworkers trilogy, the District Court held that an arbitrator’s decision under a labor agreement must be enforced except under unusual circumstances. Because it was unable to substitute its judgment for that of the arbitrator, the District Court granted summary judgment to the Union and Ray. We are in full agreement that summary judgment was proper in this instance. “The courts .. . have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim.” United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403, 1407 (1960). In an earlier ruling, dated April 29, 1980, the District Court granted the Union’s motion to strike Cotton Brothers’ affirmative defenses and counterclaim on the basis of Louisiana’s three month statute of limitations. La.Rev.Stat. 9:4213. We need not reach this issue in light of the District Court’s later ruling, on the merits, that the bargained-for arbitrator’s decision was supportable and binding. The trial judge’s approach to and analysis of this case, when he finally ruled on the merits and granted a summary judgment, was not based upon the earlier order striking the defenses and counterclaim. Finally, Cotton Brothers urges on appeal that the District Court should not have awarded attorney fees to the Union and Ray. “The District Court has authority to award attorney’s fees where it determines that a party has without justification refused to abide by the award of an arbitrator.” United Steelworkers v. U. S. Gypsum Co., 492 F.2d 713, 734 (5th Cir.), cert. denied, 419 U.S. 998, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974). Cotton Brothers failed to present a genuine issue of material fact in opposing the motion to enforce the award, and under all the circumstances we cannot say that the District Court abused its discretion in the award of attorneys’ fees. AFFIRMED. . United Steelworkers v. American Manufacturing 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 Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

songer_two_issues

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Eduard VON DER HEYDT, Libertas, S. A., and Ratio, S. A., Appellants, v. William P. ROGERS, Attorney General of the United States, and Ivy Baker Priest, Treasurer of the United States, Appellees. No. 13855. United States Court of Appeals District of Columbia Circuit. Argued Oct. 31, 1957. Decided Jan. 2, 1958. Mr. Isadore G. Aik, Washington, D. C., with whom Mr. Sidney S. Sachs, Washington, D. C., was on the brief, for appellant. Mr. Myron C. Baum, Attorney, Department of Justice, with whom Mr. George B. Sear Is, Attorney, Department of Justice, was on the brief, for appellees. Mr. Irwin A. Seibel, Attorney, Department of Justice, also entered an appearance for appellees. Before Edgeeton, Chief Judge, and Bastían and Burger, Circuit Judges. PER CURIAM. The District Court granted appellee’s motion to dismiss appellant’s complaint for failure to produce documents and records for which an order to produce had been made. Before ruling on the motion, the District Court heard testimony for nine days and received numerous exhibits, all presumably bearing on the issues of materiality of the records sought, the possession and control of these records by appellant, appellant’s actions constituting refusal to produce, and so forth. The District Court made no findings other than its order of dismissal which it characterized as containing findings. However, on the record before us, consisting of a Joint Appendix of 942 pages digesting pertinent parts of a record of over 1500 pages, all covering substantial issues, we are unable to afford an adequate appellate review without specific findings in relation to the several issues of the case in order that we may know the basis of the District Court’s decision. Appellant also urges that the statement of the trial judge shows error in assigning the burden of proof. The ¡burden of showing materiality of the .information and ability to produce it rests on the one seeking discovery. At .a point the burden of going forward with the evidence may shift to the party asserted to be in possession or control. Absent specific findings to be reviewed in the light of the evidence, we cannot •make an adequate assessment of this issue and our disposition of this appeal will afford opportunity for dealing with this. As to the claim that the District Court -erred in denying appellant’s cross motion for discovery, we find no abuse of discretion. Remanded with instructions. . “All documents which were called for by the Court’s order not having been produced, and the plaintiffs not having satisfactorily shown to the Court that such documents do not exist, and the plaintiffs not having satisfactorily explained to the Court why they have not been produced; and the pattern of the conduct of the plaintiffs’ duly authorized representatives, but not including present counsel, clearly showing an unwillingness on their part to make a full disclosure to the defendants; and the plaintiffs’ answers to the defendants’ interrogatory No. 23 being too vague and wholly insufficient since the ■answers furnish no details as to any specific documents, I find that the discovery order of this Court of February '9, 1956, has not, in good faith been complied with.” Question: Are there two issues in the case? A. no B. yes Answer:

songer_typeiss

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. NEAL v. UNITED STATES No. 11177. Circuit Court of Appeals, Eighth Circuit. April 3, 1939. WOODROUGH, Circuit Judge, dissenting. Harry S. Swensen, of Minneapolis, Minn. (Eugene A. Rerat and John Ott, both of Minneapolis, Minn., on the brief), for appellant. Victor E. Anderson, U. S. Atty., of St. Paul, Minn. (Linus J. Hammond, Asst. U. S. Atty., of St. Paul, Minn., on the brief), for the United States. Before STONE, WOODROUGH, and THOMAS, Circuit Judges. THOMAS, Circuit Judge. The appellant William Squire Neal, hereinafter called defendant, was indicted, tried and convicted in the court below upon both counts of an indictment containing two counts, and he appeals. The first count of the indictment charged defendant with being an accessory after the fact to a felony committed by John L. Neal; and the second count charged misprision of the same felony committed by John L. Neal. The defendant was sentenced to serve in a penitentiary for two years on each count, the sentences to run concurrently and not consecutively. Before trial the defendant interposed a demurrer to count one of the indictment, which was overruled. At the close of.the evidence he moved for a directed verdict upon both counts on the ground of insufficiency of evidence to support a verdict of guilty, which motion was overruled. On this appeal the defendant urges that the trial court erred (1) in overruling his demurrer to count one of the indictment, (2) in overruling his motion for a directed verdict on both counts, (3) in the admission of certain evidence over his objection, (4) in permitting misconduct of the prosecuting attorney in his argument to the jury, and (5) in giving certain instructions to the jury. Since the sentences run concurrently,.if the defendant was properly convicted upon either count of the indictment, there can not be a reversal even if there were reversible error on the trial of one of the counts. The defendant in that situation is not prejudiced by the sentence on the count in which the conviction is tainted with error. Roberts v. United States, 8 Cir., 96 F.2d 39, 40; Little v. United States, 8 Cir., 93 F.2d 401, 409; Taran v. United States, 8 Cir., 88 F.2d 54, 59; Mad-delin v. United States, 7 Cir., 46 F.2d 266; United States v. Trenton Potteries Co., 273 U.S. 392. 47 S.Ct. 377, 71 L.Ed. 700, 50 A.L.R. 989. The alleged error most seriously pressed upon our attention, and the one involving the greatest difficulty, relates to the sufficiency of the evidence to support a conviction upon cither count. If this assignment of error be sustained the court erred in overruling defendant’s motion for a directed verdict and the judgment must be reversed. In that event it will be unnecessary to consider the other alleged errors. This question requires a consideration of the indictment and a review of the government’s evidence. The defendant and John Neal are brothers. At all times material to this case they lived in Minneapolis, Minnesota. The defendant was married and operated an undertaking establishment. His brother John was a bachelor and lived in defendant’s home. John had been employed as a clerk or messenger in the office of the treasurer of the Soo Line railroad at Minneapolis for 32 years prior to December 28, 1937. In February, 1938, John was indicted in the United States District Court of Minnesota and charged in ten counts with stealing and carrying away various sums of money from the First National Bank and Trust Company of Minneapolis. Pie pleaded guilty on five counts and was sentenced to 15 years in a peniten-' tiary. The indictment was predicated upon the amendment of August 24, 1937, to section 2(a) of the Act of May 18, 1934, 48 Stat. 783, 12 U.S.C. § 588b, 12 U.S.C. A. § 588b. The original statute made bank robbery a crime. The pertinent part of the amendment added: “whoever shall take and carry away, with intent to steal or purloin, any property or money or any other tiling of value exceeding $50 belonging to, or in the care, custody, control, management, or possession of any bank, shall be fined not more than $5,000 or imprisoned not more than ten years, or both.” The counts of the indictment to which John Neal pleaded guilty and on which he was sentenced charged him with stealing and carrying away from the bank $97.-50. on December 27, 1937; $97.50 on December 24, 1937; $97.50 on December 23, 1937; $95 on December 22, 1937; and $97.50 on December 21, 1937. The crimes of accessory after the fact and misprision of felony being dependent or subsidiary offenses the indictment upon which the defendant was tried alleged two crimes in each count. John L. Neal is referred to as principal, or the one who committed the primary felony, and the defendant is charged with the dependent offenses. In each count the felony attributed to John L. Neal is that between August 24, 1937 (the date of the amendment to the bank robbery statute supra), and December 28, 1937, he stole and carried away from the possession of the First National Bank and Trust Company of Minneapolis many thousands of dollars. In the first count the crime of which the defendant is accused is that he knowing that the principal had committed and completed the felony above described became on January 7, 1938, an accessory after the fact thereto in that he aided and assisted the principal in secreting the fruits and proceeds of the felony by clandestinely placing $5,903 of the stolen money in a golf bag in his living quarters, thus suppressing important evidence, to the end that the principal might escape punishment. In the second count it is alleged that on or about January 7, 1938, the defendant committed the crime of misprision of felony in that with full knowledge of the felony committed by John L. Neal he concealed and failed to disclose and make known such felony as soon as might be to some one of the judges of the United States District Court of Minnesota or to the Attorney General of the United States or to the United States Attorney or to other persons in civil authority. It is further charged that the defendant took two affirmative steps to conceal the crime committed by his brother J ohn: first, he concealed $5,903 of the stolen money in a golf bag at his living quarters; and, second, he altered and expunged from the account books of the Neal Funeral Home operated by him entries showing the investment therein by John L. Neal of the stolen moneys. To warrant a conviction by the jury on the first count of the indictment the burden was upon the government to establish beyond a reasonable doubt: (1) That John L. Neal, the principal, had committed and completed the felony charged, that is, that between August 24 and December 28, 1937, he had unlawfully taken and carried away from the First National Bank and Trust Company of Minneapolis many thousands of dollars; (2) that the defendant had knowledge that the principal had committed the felony; and (3) that having such knowledge, defendant aided and assisted the principal to escape punishment by suppressing important evidence against him in that he concealed $5,903 which constituted a large part of tfie fruits and proceeds of the offense. To sustain a conviction on count two for misprision of felony it was incumbent upon the government to prove beyond a reasonable doubt (1) that John L. Neal, the principal, had committed and completed the felony alleged prior to January 7, 1938; (2) that the defendant had full knowledge of that fact; (3) that he failed to notify the authorities; and (4) that he took two affirmative steps to conceal the crime of the principal, viz., (a) he concealed $5903 of the stolen money in a golf bag, and (b) he knowingly altered and expunged from the books of account of the Neal Funeral Home entries showing the investment of John L. Neal therein, which, money so invested was a part of the stolen money. In brief the evidence introduced by the government to prove the crime of the principal John L. Neal tended to establish the following facts: John L. Neal, as a clerk or messenger in the office of the Treasurer of the Soo Line railroad company, received a salary of $140 a month. Under its system of doing business the railroad company had its station agents send their daily collections directly to the bank for deposit to the credit of the company, with the exception of rent money which they were instructed to send directly to the treasurer of the company at Minneapolis. The agent before sending the money made a deposit slip in quadruplicate one of which he retained. The money, the original and one copy of the deposit slip were sent directly to the bank and one copy was sent to the auditor of the railroad company. The envelopes containing the deposits were delivered every morning to the teller in the "railroad cage” at the bank. John L. Neal called at the teller’s cage about 10:30 in the morning and obtained the extra copy of the deposit slip and took it to the office of the treasurer of the railroad company where he made a record of receipt by the bank of the deposit after which he turned the deposit slip over to the auditor as notice that the money had been received by the bank. The auditor then returned one copy of the slip to the agent to serve as a receipt to him for the deposit. In many instances the agents sent rent collections with the deposit to the bank instead of sending such items directly to the treasurer of the company. The rent item was separately enclosed and had an identifying mark on it indicating that it was not for deposit but was for the treasurer of the company. The railroad teller at the bank would turn over the rent items to John L. Neal for delivery to the treasurer when John called at the bank in the morning. For a period of approximately seven years immediately preceding December 27, 1937, John L. Neal made a practice of telling the bank teller when he made his usual call that of the general deposit received from a particular agent a part thereof, for instance $97.50, was rent money and that it should be turned over to him for delivery to the treasurer. The statement was false, but the teller relying on it would turn over the amount demanded. The money turned over was not taken from the funds remitted by the particular agent "designated, but from money generally on deposit at the cage. The original deposit slip held by the bank would then be changed accordingly but not the copy which Neal took to the treasurer’s office. The money so received by him he kept. He kept an account of the items thus abstracted and covered up his offense by false entries and forged deposit slips. Neal’s record showed that the amount of money thus taken by him over the seven year period amounted to $118,280. The bank’s record showed the amount to be $82,872.50. During the entire year 1937 the amount taken was about $53,000, and after August 24, 1937, approximately $18,000 or $19,000. John L. Neal had no express authority to withdraw money from the bank, and the teller at the bank had no instructions to turn the money over to him. The defendant claims that both John L. Neal and the bank teller had implied authority to handle the moneys the way they did, but the evidence was not such as to require the jury so to find. The evidence on the trial of the defendant tended to show that he lived with his family upstairs over his funeral parlor in Minneapolis. His brother John lived with him. In 1935 he had his business incorporated under the name Neal Funeral Home, Inc. He was president, his wife vice president, John L. Neal treasurer, and an employee, Otis Allen, secretary. The defendant treated the business as his own. He paid no salaries to the officers and he handled the money himself. The obligations of the business were in his name, and he owned the home. His income in 1935 was $2,385.46, and in 1936, $2,739.15. Yet he had property in excess of the amount usually owned by one of such moderate income. John furnished the groceries for the family amounting to $75 to $80 a week. He also made investments in the business. During 1935, 1936, and 1937 he contributed to the business the sum of $12,970.71 in various amounts and at various times, and he withdrew during the same period the sum of $3,150, leaving a net balance of $9,820.71. John L. Neal disappeared on the night of December 27, 1937. About 2:00 a. m. on the morning of December 28, 1937, the defendant found - on the premises $5,903 in paper currency in an old iron box. He removed the money and placed it in an old laundry bag which he placed in his closet. When questioned by officers he admitted finding only $15 of John’s money. On the evening of December 29, 1937, the defendant called the bookkeeper for the funeral home and employed him to delete John L. Neal’s name from the books. The bookkeeper rewrote about 30 sheets having John L. Neal’s name thereon, omitting the name and substituting other explanations for the items. The rewritten sheets and the originals were turned over to defendant’s secretary Allen on January 31, 1938, but the bookkeeper then took the originals and kept them until February 17, 1938. The evidence discloses that the defendant knew where John L. Neal was in hiding following December 27, 1937, but although examined frequently by federal investigators denied all knowledge of his whereabouts until in January, 1938. On January 5, 1938, he directed an officer to John’s hiding place, and John was arrested. On January 6, the defendant told thé officers that he had found $5,903 in an old iron box in John’s room and had placed it in a golf bag upstairs in his room. As applicable to both counts we think there was substantial evidence to support the conclusion of the jury that John L. Neal, the principal, was guilty of the felony charged against him, and that the defendant had knowledge of that fact as alleged in the indictment. There is no claim that the defendant believed or was informed that his brother John earned or had by any honest means obtained the large sums of money which he contributed to the funeral home or from which he paid the family grocery bills. The close relationship between the two brothers precluded ignorance of each others’ resources. His conduct on and after December 28, 1937, and his concealing information of John’s whereabouts were proper subjects for the consideration of the jury, and all the circumstances taken together virtually compelled a finding of guilty knowledge. Kcliher v. United States, 1 Cir., 193 F. 8, 9; McDonald v. United States, 8 Cir., 89 F.2d 128. The serious question under count one of the indictment is whether there is substantial evidence to support the charge that the defendant aided and assisted the principal to escape punishment by suppressing evidence against him by concealing the $5,903 found in the old iron box in a golf bag. The charge in the indictment is that the defendant concealed $5,903 which constituted a large part of the fruits and proceeds of the offense of the principal and was important evidence against him. The proof does not show when the $5,903 was placed in the old iron box by John. John’s salary was only $140 a month. Over a period of seven years he stole approximately $118,000. During 1937 he stole $53,000 of this sum, and after August 24th of that year he had taken approximately $18,000 of the amount. The money stolen prior to August 24, 1937, did not constitute a federal offense, and the stealing of money prior to that date is not charged to be a crime in the indictment. The defendant’s testimony is that when he opened the iron box on December 28, 1937, the paper money contained in it appeared to be old and was covered with a thick layer of dust. Early in January, 1938, the money was turned over to the officers, and they do not deny defendant’s testimony with reference to its condition. The money consisted of 813 one-dollar bills and $5,090 of five, ten, twenty and fifty dollar bills. The proof clearly does not tend to show that the $5,903 was a part of the “fruits or' proceeds of the offense” of the principal, that is, that it was money stolen by John after rather than before August 24, 1937. Evidence which is consistent with each of two "hypotheses proves neither, Prudential Insurance Company v. King, 8 Cir., 101 F.2d 990, decided February 25, 1939; and when all of the substantial evidence is as consistent with innocence as it is with guilt, it is the duty of the appellate court to reverse a conviction, Shama v. United States, 8 Cir., 94 F.2d 1, 4; Fulbright v. United States, 8 Cir., 91 F.2d 210; Planing v. United States, 8 Cir., 21 F.2d 508; Wright v. United States, 8 Cir., 227 F. 855. Nor is there any presumption in the absence of proof that the $5,903 was a part of the money stolen after August 24, 1937, rather than that it was a part of the money stolen before that date. United States F. & G. Co. v. Des Moines Nat. Bank, 8 Cir., 145 F. 273, 279. The government does not deny that the allegations and the proof upon this point do not correspond, but counsel say the variance is not material. Berger v. United States, 295 U.S. 78, 82, 55 S.Ct 629, 630, 79 L.Ed. 1314, is relied upon. The test of a material variance is there stated to be “(1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.” We are of the opinion that the variance in this instance is material and prejudicial. The indictment informed the defendant that the government would prove that the $5,903 was a part of that stolen after August 24, 1937, and not that it might be a part of that taken sometime during the preceding seven years. The defense, had it been alleged that the $5,903 was a part of the money taken before that date, would be altogether different from the defense if it were alleged that it was taken afterwards. Even though the description were unnecessary in the indictment it devolved upon the government to prove it as laid. Potter v. United States, 155 U.S. 438, 445, 15 S.Ct. 144, 39 L.Ed. 214. It is insisted further that the indictment charges that the $5,903 found in John’s room after his disappearance on December 28, 1937, constituted evidence admissible against the principal, had he been tried for the felony charged against him, and that it is therefore admissible against the defendant. This theory would regard the allegation that the money was the fruit of the offense as surplusage. It fails also to distinguish between admissibility of evidence against the principal and evidence which constitutes substantial proof of the dependent offense. This argument is sufficiently plausible and important, however, to make it expedient to examine the question of whether or not, were the record on the trial of the principal the same as the record in this case, the $5,903 found in the iron box would be relevant evidence against him. The general rule in favor of the admission of such evidence is stated thus in 36 C.J. 894: “When money has been stolen and the evidence against the accused is largely circumstantial, it has been held proper to admit in evidence * * * as showing a possible motive for the crime. * * * The possession by accused of money immediately or shortly after the theft * * * and for stronger reason is such evidence admissible when there is proof both of the impecuniosity of accused before the larceny and the possession by him of considerable money for a person in his circumstances immediately afterward, as such a sudden accession of wealth by defendant, contemporaneous with the larceny of money, tends strongly to connect him with the crime. To contradict this evidence accused may show that he had money just prior to the theft. sf! Jjs C» In short the evidence of possession of a large sum of money by the defendant immediately after a theft raises a presumption of fact that the money found is a part of the stolen money and that the defendant was connected with the theft. Under this general rule the foundation for the introduction of such evidence includes proof of (1) the “impecuniosity” of the defendant just before the theft, (2) and the “sudden accession” of wealth (3) contemporaneous with the theft. O’Shea v. United States, 6 Cir., 93 F.2d 169; People v. Connolly, 253 N.Y. 330, 171 N.E. 393; Davis v. Commonwealth, 154 Ky. 774, 159 S.W. 607; Perrin v. State, 81 Wis. 135, 50 N.W. 516; 17 R.C.L. p. 68. down by the Supreme ther burden upon the government ing some necessary or natural connection between the sums in defendant’s possession and those he is charged with taking. Williams v. United States, 168 U.S. 382, 396, 397, 18 S.Ct. 92, 97, 42 L.Ed. 509. In the cited case the defendant was convicted under an indictment charging extortion. Evidence was introduced under the general rule stated above showing that during the period of about three months when the extortions were taking place the defendant deposited in the bank $4750 although his salary was only $140 a month. In reversing the judgment of conviction, in connection with the statement of the rule quoted above, the court observed that “no sum so deposited corresponded in amount with the sums which he was charged with having extorted.” This case is criticized by Prof. Wigmore in 1 Evidence § 154, where he states the rule thus: “Another mode, however, of making the fact of money-possession relevant is to show its sudden possession i.e. to show that before the time of taking the person was without money, while immediately after that time he had a great deal; this reduces the hypothesis to such as involve sudden acquisition, and a dishonest acquisition thus becomes a natural and prominent hypothesis. On such conditions the possession of unidentified money becomes relevant.” The rule laid Court adds the fur-of show- Upon the trial the government introduced facts in evidence in this case which destroy the presumption of fact and render the finding of the $5,903 irrelevant. While it was shown that the principal, John L. Neal, was receiving a salary of only $140 a month it was also shown that during the preceding seven years he had in addition to his salary received approximately $100,000, and that during the 9 months preceding August 24, 1937, his income had been approximately $200 a day. Here was no sudden acquisition of wealth after August 24th. It is true his large income prior to that date was the result of stealing, but such stealing was not a federal crime; and his possession of $5,903 after August 24th, without proof of acquisition after that date, would not raise a presumption that its acquisition was unlawful, or that it was a part of the fruits of his federal offense. As the record stood at the close of the evidence there was no relevant evidence to support a verdict of guilty on count one of the indictment. The defendant’s motion as to this count should have been sustained. The second count of the indictment charges an offense under Title 18 U.S.C.A. § 251 (Cr.Code § 146), which provides that: “Whoever, having knowledge of the actual commission of the crime of murder, or other felony cognizable by the courts of the United States, conceals and does not as soon as may be disclose and make known the same to some one of the judges of other persons in civil or military authority under the United States, shall be fined not more than $500, or imprisoned not more than three years, or both.” The elements of the offense under the statute are two: There must be (1) a concealment of something such as suppression of the evidence or other positive act and (2) a failure to disclose. Proof of one of the elements only, and not of both, is not sufficient to support a conviction. Bratton v. United States, 10 Cir., 73 F.2d 795, 797; United States v. Farrar, D.C.Mass., 38 F.2d 515, 517. The sufficiency of the charge is not assailed, but it is claimed that defendant did not fail to disclose “as soon as may be”; that he did in fact as shown by the government’s evidence disclose all that he knew on the fourth, fifth and sixth of January, 1938. The evidence also shows that he made no disclosures until after he had been frightened into doing so by the federal officers who were investigating the crime. He might have given them such information on the 28th of December, 1937, but instead of doing so he “threw dust in their eyes” when they interviewed him and gave them misleading information. Under the evidence it was a question for the jury to determine whether he made the disclosure “as soon as may be” to satisfy the requirements of the law. We next consider the charge in the indictment that the defendant did two affirmative acts to “conceal” the crime of the principal. The first act charged was that he concealed $5,903 in a golf bag, “which moneys unlawfully and feloniously had been taken and carried away by the said John L. Neal, with intent to steal the same, from the possession of” the bank; and, second, that he knowingly altered and expunged from the books of account of the Neal Funeral Home entries showing the investment of moneys by John L. Neal, which moneys had unlawfully been taken and carried away from the possession of the bank by John with intent to steal the same. The first alleged act, that the defendant concealed $5,903 of the money stolen by John L. Neal between August 24 and December 28, 1937, is not, as shown above, supported by the evidence. Neither is the second alleged affirmative act of the defendant to conceal the crime of John L. Neal supported by substantial evidence. That charge is that the defendant expunged from the books of the funeral home the entries showing John L. Neal’s investment of the stolen moneys in that business. There are only two entries in the books showing investments of John L. Neal in the funeral business after August 24, 1937. One of these shows that on October 15, 1937, he “advanced” $125 and the other that on October 19th he “advanced” the further sum of $100. There is. no evidence whatever connecting these sums with the money unlawfully taken and carried away from the bank; and the amount is not sufficient to raise a presumption of fact that they were not honest savings from- his salary. The basis in the evidence upon which the charge is founded is that the defendant did on December 29, 1937, instruct the bookkeeper to delete John L. Neal’s name from the entries in the books. His name or his initials appeared in connection with certain entries on about 30 different sheets of the books. The bookkeeper took these sheets home with him and copied them substituting for the name or initials of John L. Neal other explanations such as “administration fees” or “W. Squire Neal.” He returned them to the office of the funeral home on December 31, 1937, and delivered them to Otis Allen. He then took the original sheets home with him without the defendant’s knowledge and made a second copy for himself. The originals were returned to the office on February 17, 1938, and placed in the books, where they remained and were produced at the trial unaltered. The defendant did not direct that the original sheets be destroyed, although the bookkeeper suggested that they be burned. An intent to conceal from the government, i'f such intent existed, that is not carried out is not an offense under the statute. The government argues that for a few days after December 27, 1937, the defendant aided in concealing John L. Neal, and that he is therefore guilty of misprision of felony. The evidence shows that he did know where John was in hiding and may have advised with him about escaping; but failure to inform the officers is not sufficient alone to constitute a crime under the statute. Bratton v. United States, supra. The government having failed to produce any competent evidence to sustain one of the essential elements of the offense charged in count two of the indictment the motion for a directed verdict should have been sustained as to that count also. Because the evidence fails to support the charges in each count of the indictment the 'judgment is reversed and the case remanded with instructions to grant a new trial. 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_treat

C

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. Nannie Carr HARRIS, Incompetent, and Robert A. Eubanks, Guardian, Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Appellant. No. 72-1343. United States Court of Appeals, Fourth Circuit. Argued Oct. 5, 1972. Decided May 4, 1973. William L. Goldman, Atty., Tax Div., Dept. of Justice (Scott P. Crampton, Asst. Atty. Gen., Mayer Rothwacks and William A. Friedlander, Attys., Tax Div., Dept. of Justice, on brief), for appellant. James H. Johnson, III, Chapel Hill, N. C. (Haywood, Denny & Miller, Chapel Hill, N. C., on brief), for appellee. Before BOREMAN, Senior Circuit Judge, and WINTER and RUSSELL, Circuit Judges. BOREMAN, Senior Circuit Judge: This is an appeal by the Commissioner of Internal Revenue from a decision of the United States Tax Court, 56 T.C. 1165. In the spring of 1962, Robert A. Eu-banks, the duly qualified guardian of taxpayer, Nannie Carr Harris, an incompetent, negotiated with one Robert I. Lipton for the sale of certain improved real estate owned by taxpayer in Chapel Hill, North Carolina. On May 18, 1962, Eubanks, as such guardian, and Lipton executed a contract providing for the sale of the property, subject to the required approval of the Superior Court of Orange County, North Carolina. One Thousand Dollars was to be paid upon securing the necessary judicial approval and the balance on or before August 1, 1962. Pursuant to the contract and the pertinent North Carolina statutes, Eubanks filed a petition with the Clerk of the Superior Court of Orange County on May 21, 1962, seeking authority to sell the property for $156,500, alleging as grounds therefor the low net income from the property, the insufficiency of the income to provide the support needed by taxpayer and to satisfy certain debts owed by her. On the same day, the Superior Court ordered (1) that Eu-banks offer the property to Lipton for $156,500, (2) that Eubanks file a report of the offer, and (3) that the sale be confirmed after ten days if no objections or upset bids were filed. Also on May 21, 1962, Eubanks made the offer and filed the report as ordered, and Lipton made the $1,000 down payment called for in the contract. The petition, court order and report filed May 21 did not deal with the disposition of sale proceeds. It appears that sometime between May 21, 1962, and June 1, 1962, during the 10-day period before the sale could be confirmed, Eubanks was advised that a reduction in income tax could be effected if the purchase price were payable in installments. On June 1, 1962, he filed a supplemental petition, seeking approval of an arrangement whereby Lipton would pay $46,500 upon delivery of the deed and would deposit the balance of $110,000 with First Federal Savings and Loan Association of Durham, North Carolina, as escrow agent, with instructions to the agent to pay $27,500 plus interest to the guardian on January 2 of each of the following four years. In addition to this supplemental petition, Eubanks’ attorney sent a letter to the Clerk in which he approximated the tax savings if the receipts from the sale of the property were reported over a period of five years. By order entered June 1, 1962, the Superior Court confirmed and approved the sale and authorized the plan of payment as requested in the supplemental petition. Subsequently, the closing date of the contemplated transaction was extended and Lipton assigned all his rights in the property to W. J. Darnell, George S. Goodyear, and George F. Lattimore, Jr. .(hereinafter referred to as the assignees). The property was ultimately deeded to the assignees on or about August 31, 1963, pursuant to an order entered by the Superior Court on August 23, 1963. Under the agreement between Eu-banks and the assignees, payment of the purchase price was to be substantially as set forth in the confirmation order of June 1, 1962, with only the payment dates changed to reflect the passage of time. Ultimately, the sum of $6,000 was paid during or before 1963, the sum of $40,500 was paid on or about January 17, 1964, and, also on January 17, 1964, the sum of $110,000 was paid to First Federal Savings and Loan Association of Durham pursuant to an escrow agreement of that date. In her tax return for 1964, taxpayer included in her taxable income $40,500, representing that portion of the sale price actually received by her on January 17, 1964. The Commissioner determined a deficiency of $30,757.32, ruling that (1) the $110,000 paid to First Federal Savings and Loan Association, as escrow agent, and (2) $4,070.04 interest credited to the escrow account in 1964, were constructively received by taxpayer in 1964. The Tax Court recognized the established rule that where payment is made by the purchaser to a third party at the seller’s behest the seller has constructively received the payment for tax purposes but held that the rule did not apply here because the $110,000 was paid to First Federal Savings and Loan Association at the direction of the Superior Court rather than by direction of taxpayer or her guardian. The Tax Court determined a deficiency of only $226.67. We reverse as to the $110,000 deposited in the escrow account. The Commissioner does not appeal the Tax Court’s holding as to the interest credited to the escrow account during 1964. Section 451(a) of the Internal Revenue Code of 1954, 26 U.S.C., provides: The amount of any item of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under the method of accounting used in computing taxable income, such amount is to be properly accounted for as of a different period. Treasury Regulations Section 1.451-2(a), 26 C.F.R., sets forth the general rule with respect to constructive receipt of income: Income although not actually reduced to a taxpayer’s possession is constructively received by him in the taxable year during which it is credited to his account, set apart for him, or otherwise made available so that he may draw upon it at any time, or so that he could have drawn upon it during the taxable year if notice of intention to withdraw had been given. It is clear that if taxpayer had not been incompetent and had made the same escrow agreement acting for herself, or if the escrow arrangement had been entered into solely by Eubanks acting on behalf of taxpayer as her guardian without the supervision of the local court, the $110,000 payment to the escrow agent would be treated as constructively received by her in 1964. Williams v. United States, 219 F.2d 523 (5 Cir. 1955); Rhodes v. United States, 243 F.Supp. 894 (W.D. S.C.1965); Pozzi v. Commissioner, 49 T.C. 119 (1967). Lipton had signed on May 18, 1962, a contract of sale calling for payment in cash on or before the date set for closing the transaction. Further, on January 17, 1964, Lipton’s assignees, the ultimate purchasers, were ready, willing and able to pay the entire remainder of the purchase price, $150,500, and in fact did irrevocably part with the full amount thereof on that date. Sale proceeds, or other income, are constructively received when available without restriction at the taxpayer’s command; the fact that the taxpayer has arranged to have the sale proceeds paid to a third party and that the third party is, with taxpayer’s agreement, not legally obligated to pay them to taxpayer until a later date, is immaterial. See Griffiths v. Commissioner, 308 U.S. 355, 60 S.Ct. 277, 84 L.Ed. 319 (1939); Hicks v. United States, 314 F.2d 180 (4 Cir. 1963). The sole question presented, therefore, is whether this rule is inapplicable for the reason that, where the property of an incompetent is being sold, the terms of the sale and the disposition of the sale proceeds must be approved by the local court under North Carolina law. In his brief filed with the Tax Court, the Commissioner argued as follows: Respondent’s [Commissioner’s] position is that the entire consideration was constructively received in 1964 since it was within the power and control of the petitioner to have received the funds at that time. * * * * * * It is the respondent’s position that the circumstances of this case are such that, when the purchase price was paid into the escrow account for the benefit of the petitioner, there was constructive receipt of the full amount. When negotiations were completed and the contract entered into on May 18, 1962, it was the intention of both parties that the sale would be a cash transaction. On that date petitioner was ready, willing and able to close the transaction for a cash payment of $156,500. On the day the sale was approved by the Court, petitioner became equitably entitled to the full purchase price. This contractual right was an asset which he could sell or otherwise transfer. It was within petitioner’s power and control to receive the purchase in cash, but instead he elected to have it delivered to the bank under an escrow agreement. The Tax Court noted that implicit in this argument is the assumption that taxpayer at one time had an enforceable right to receive the total sale proceeds in cash but that she then decided to voluntarily put herself under some legal disability with respect to payment, i. e., the escrow arrangement. The Court reviewed the applicable North Carolina statutory and ease law and determined that, in North Carolina, when a guardian of an incompetent sells real property under order of the court, the guardian is merely an “agent” of the court, and the sale is not consummated until it is confirmed by the resident judge, which confirmation represents the consent of the court to the sale. Pike v. Wachovia Bank and Trust Company, 274 N.C. 1, 161 S.E.2d 453 (1968). The Tax Court then concluded that Eubanks was merely acting for the Superior Court of Orange County in contracting for the sale of taxpayer’s property and that the May 18, 1962, contract of sale created no rights in any of the parties unless and until the sale was confirmed by the resident judge. Since the confirmation was contained in the order of June 1, 1962, which order also authorized and directed the use of the escrow arrangement, the court held that Eu-banks, on behalf of taxpayer, never had the power to receive the full purchase price in 1964, and thus did not constructively receive that amount in 1964. We find no error in the Tax Court’s analysis of the respective powers of Eubanks, as guardian, and the Superior Court of Orange County. We agree that, under North Carolina law, Eu-banks could not enter a binding agreement for the sale of taxpayer’s real property without the confirmation of the resident judge. The error of the Tax Court was in regarding the state court’s role in the proceedings as representing an interest adverse to, or independent of, the interests of the incompetent taxpayer, and in regarding the state court’s order to place the funds in escrow as a denial to the taxpayer and her guardian of dominion over the payment. North Carolina Gen. Stat. § 33-31, which requires judicial supervision of the sale of an incompetent’s property, actually supplements the guardianship protection afforded the incompetent. The resident judge must ensure that any sale is made “on such terms as may be most advantageous to the interest of the ward.” In City Bank Co. v. McGowan, 323 U.S. 594, 65 S.Ct. 496, 89 L.Ed. 483 (1945), the Supreme Court rejected the distinction between the acts of an incompetent and those of a court acting in her behalf. The question there was whether a transfer of the decedent’s property, made pursuant to court order because the decedent was incompetent, was in contemplation of the decedent’s death, which fact would make the property includible in the decedent’s estate for federal estate tax purposes. The Court stated, 323 U.S. at 598-599, 65 S.Ct. at 498: The issue is a narrow one. Literally Mrs. Vail neither made the transfers nor did she have any motive with respect to them. But a court stood in her place and unquestionably had the function of effectuating a transfer of her property and of determining what motive or purpose would have actuated her had she been competent to act. It seems to us that it is sticking in the bark to say that, in the circumstances, the transfers are not within the section because Congress did not add a phrase to the effect that where a court made the transfer, acting in lieu of the incompetent owner, such a transfer should be governed by the statute. We hold, therefore, that where, as in New York, the court is to substitute itself as nearly as may be for the incompetent, and to act upon the same motives and considerations as would have moved her, the transfer is, in legal effect, her act and the motive is hers. The act of the Superior Court of Orange County in directing, upon the request of Eubanks, that the $110,000 be placed in escrow was “in legal effect” the act of the taxpayer. We hold that the escrow deposit was constructively received, for income tax purposes, in 1964. Reversed. . N.C.Gen.Stat. § 33-31 (1966 Repl.Vol.): Special proceedings to sell; judge’s approval required. — On application of the guardian ... by petition, verified upon oath, to the superior court, showing that the interest of the ward would be materially promoted by the sale . . . of any part of his estate, real or personal, ... a decree may thereupon be made that a sale ... be had by such person, in such way and on such terms as may be most advantageous to the interest of the ward; all petitions filed under the authority of this section wherein an order is sought for the sale ... of the ward’s real estate . . . shall be filed in the superior court of the county in which all or any part of the real estate is situated ; . . . no . . . conveyance of the title [shall be] made, unless confirmed and directed by the judge, and the proceeds of the sale . . . shall be exclusively applied and secured to such purposes and on such trusts as the judge shall specify. . . . In the ease of a private sale, such as the one here, the sale may be confirmed if no upset bids are submitted within ten days after the report of sale is filed. N.C.Gen. Stat. § 1-339.37 (1969 Repl.Vol.). . The Superior Court summarized the proceedings, and concluded: This cause again coming on to be heard and being heard and it appearing to the court that under a prior order entered in this matter Robert A. Eubanks, guardian of Nannie Carr Harris, incompetent, reported to the court that he had an offer for the property described in the pleadings from Robert I. Lipton, Trustee, through Foushee-Olsen Realty Company for $156,500.00, of which sum $6,-500.00 is due and payable to FousheeOlsen Realty Company as commissions; the said report has remained on file in this office for more than ten days as required by law; no objections or upset bids have been filed and Robert A. Eu-banks, guardian for Nannie Carr Harris, incompetent, has filed a supplementary petition in which he prays that he be permitted to accept a down payment of $46,500.00 and that the remainder of the purchase price be deposited by Robert I. Lipton, Trustee, or his assigns with First Federal Savings and Loan Association of Durham, N. C., as escrow agent, with irrevocable authorization to the escrow agent to pay to Robert A. Eubanks, guardian of Nannie Carr Harris, incompetent, on the 2nd day of January 1963, the sum of $27,500.00, plus accumulated interest and on the 2nd day of January, 1964, 1965, and 1966, each, the sum of $27,500.00 plus accumulated interest so that the taxable income from the sale of this property can be reported by the guardian on an installment sale basis and over a period of five years; and it appearing to the court that it would be to the best interest of the estate of Nannie Carr Harris, incompetent, that this method of payment for the said property would be advantageous to the estate and should be approved by the court. NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED, that the sale of the-property described in the pleadings by Robert A. Eubanks, guardian of Nannie Carr Harris, incompetent, to Robert I. Lipton, Trustee, or his assigns, for the full sum of $156,500.00 be and the same is hereby in all respects confirmed and fully approved. IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the said Robert A. Eubanks, guardian of Nannie Carr Harris, incompetent, be and he is hereby authorized and permitted to accept the sum of $46,500.00 in cash and Robert I. Lipton, Trustee, or his assigns, is authorized to deposit with First Federal Savings and Loan Association of Durham, N. C., as escrow agent, under an irrevocable escrow agreement the remaining sum of $110,000.00 which escrow agreement shall authorize First Federal Savings and Loan Association of Durham, N. C., as escrow agent, to pay to Robert A. Eubanks, guardian of Nannie Carr Harris, incompetent, on the 2nd day of January, 1963, from the said funds $27,500.00 plus accumulated interest and on the 2nd day of January of the years 1964, 1965, and 1966, each, the sum of $27,500.00 plus accumulated interest to each date until transfer of the said funds to Robert A. Eu-banks, guardian of Nannie Carr Harris, incompetent, has been completed, or to the duly qualified representative of Nannie Carr Harris should she die before the escrow agreement terminates. IT IS FURTHER ORDERED AND DECREED, that Robert A. Eubanks, guardian of Nannie Carr Harris, incompetent, shall and he is hereby authorized, empowered and directed to execute and deliver to Robert I. Lipton, Trustee, or his assigns, a good and sufficient deed in fee simple, with taxes, insurance and rents adjusted as of the date of the closing of this matter and upon payment of $46,500.00 and delivery to him of a copy of the above mentioned escrow agreement between Robert I. Lipton, Trustee, or his assigns, and First Federal Savings and Loan Association of Durham, N. C., relative to the balance of $110,000.00. . In a second supplemental petition to the Superior Court filed on August 23, 1963, Eubanks reported that: (1) he had been unable to complete the sale of the property to Lipton; (2) Lipton had assigned his rights in the matter to Goodyear, Lattimore and Darnell; (3) the assignees had arranged through Goodyear Mortgage Corporation to finance the purchase of the property and the erection of a multiple unit motel and business building on the property for $850,000; and (4) the assignees would authorize one Lee W. Settle, Trustee in the deed of trust securing the indebtedness to Goodyear Mortgage Corporation, and the Goodyear Mortgage Corporation, to pay the first funds disbursed by the mortgagee in payment of the purchase price in the amount of $46,500, and that the Goodyear Mortgage Corporation would deposit the balance of $110,000 under the escrow agreement earlier contemplated. The Superior Court’s Order of August 23, 1963, provided in pertinent part: ORDERED, ADJUDGED AND DECREED that Robert A. Eubanks, Guardian of Nannie Carr Harris, incompetent be and he is hereby authorized, empowered and directed to execute a fee simple deed to the property described in the pleadings to George S. Goodyear, George F. Lattimore, Jr. and W. J. Darnell and is further authorized, empowered and directed to enter into a contract with the said parties, their spouses, and Lee W. Settle, Trustee, and Goodyear Mortgage Corporation to the effect that the first monies disbursed by Goodyear Mortgage Corporation on the . . . [demand] note of $850,-000.00 [executed by the assignees payable to the Goodyear Mortgage Corporation] shall be paid to Robert A. Eu-banks, guardian of Nannie Carr Harris, incompetent, and on or before December 15, 1963 and he may provide in that contract for the payment of $46,500.00 on or before the said date and for the payment of the remainder through an escrow agreement over a period of four (4) years as set out in an order of this Court dated June 1, 1962, and he is further authorized and directed to see that his deed to George S. Goodyear, George F. Lattimore, Jr. and W. J. Darnell, the deed of trust securing an indebtedness to Goodyear Mortgage Corporation, and an agreement relative to payments are filed for registration simultaneously in the Office of the Reister of Deeds of Orange County and to see that there are no intervening liens against the said property. . The escrow agreement between Lee W. Settle, Trustee, and the First Federal Savings and Loan Association, provided in part: Whereas, the order of the Clerk of the Superior Court of Orange County and approval by the Resident Judge of the Fifteenth Judicial District of the Superior Courts of North Carolina, authorized and permitted the party of the first part [Settle] to deposit the balance of the purchase price and in the sum of $110,000.00 with the party of the second part, as Escrow Agent, and under the following irrevocable terms and conditions, .... . Taxpayer reported the receipt of $5,000 of the proceeds of the sale on her 1963 individual income tax return and made an election to report the sale on the installment basis. On her 1964 return, she reported the receipt of $40,500 as a long-term capital gain installment on the 1963 installment sale. The issue here is whether the amount of the 1964 installment was understated and whether the amount deposited in escrow should have been included in the 1964 tax return. . This deficiency of $226.67 was apparently due to the fact that taxpayer originally claimed $10,000 as the basis of the property sold, the Commissioner used a basis of $1,000 in determining the deficiency, and the parties ultimately stipulated a basis of $6,000. . See footnote 1. 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_dissent

2

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. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 16175. United States Court of Appeals Seventh Circuit. March 26, 1969. Lee C. Shaw, Walter P. Loomis, Jr., Chicago, 111., George G. Gallantz, New York City, for petitioner. Marcel Mallet-Prevost, Asst. Gen. Counsel, Richard S. Rodin, Warren M. Davison, Attys., N.L.R.B., Washington, D. C., for respondent. Before CASTLE, Chief Judge, MAJOR and HASTINGS, Senior Circuit Judges, and KILEY, SWYGERT, FAIRCHILD, CUMMINGS and KERNER, Circuit Judges, KILEY, Circuit Judge. The National Labor Relations Board found that State Farm Mutual Automobile Insurance Company violated Sections 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Insurance Workers International Union, AFL-CIO, which had been certified to represent a unit of employees. The Board ordered the Company to bargain with the Union. The Company petitioned this court to review and set aside the Board’s order, and the Board cross-petitioned for enforcement of its order. A panel of this court, in an opinion (one judge dissenting) issued August 8, 1968, set aside the Board’s order. Subsequently, this court granted the Board’s petition for rehearing en banc. We now enforce the Board’s order. Petitioner is a multi-state insurance company. All of its business decisions, such as job benefits, holidays, overtime, sick leave, recruitment and salary ranges are made at its home office in Blooming-ton, Illinois. Petitioner is divided into twenty-one regions across the country. The Northeastern Region, pertinent to this ease, comprises New York, New Jersey, and the New England states, and its headquarters is at Wayne, New Jersey. It is headed by a regional vice-president assisted by two deputy regional vice-presidents. The vice-president directs all operations in the region, including recruitment, interviewing job applicants, promotions, and salaries. The Northeastern Region is divided into four divisions, including two automobile insurance divisions, one covering New York and the other New Jersey and New England. A division manager, who is responsible for overseeing the claim processing operations of the company, heads each division. He also makes salary and employment recommendations to the regional vice-president. The New York automobile division is divided into four districts, each headed by a division claims superintendent, who is in charge of about five offices and supervises about thirty-five adjusters. The responsibilities of a divisional claims superintendent include: supervising the instruction of claims personnel under his jurisdiction; training the claims supervisory personnel; examining claims files; recommending company action concerning promotion, salary changes, hiring, and disciplinary action; interviewing and initially screening applicants for claims agent jobs; administering the over-all day to day claims handling within his jurisdiction; and visiting the claims field offices. The proceedings before us began with a representation petition filed by the Union. The Company moved to dismiss the petition on the ground of inappropriateness of the unit. The Board rejected both the Union’s contention that the smallest appropriate unit was a single claims office, and the Company’s contention that the smallest appropriate unit was the Northeastern Region, or, alternatively, the New York State unit. The Board designated “the divisional unit of employees supervised by a divisional superintendent” as the smallest appropriate unit. Thereafter the Board conducted representational elections in two claims districts in New York. In the unit before us, the Union won the election and was certified as the bargaining representative. The Union then requested the Company to bargain. The Company refused on the ground that the unit found by the Board was inappropriate. The Union filed an unfair labor practice charge alleging an unlawful refusal to bargain. The General Counsel issued a complaint, and the Company’s response admitted the refusal to bargain, reasserting the inappropriateness of the unit. The Board granted the General Counsel’s “Motion for Summary Judgment and Judgment on the Pleadings,” over the Company’s objection that it was entitled to a further hearing on the appropriate unit and issued the order which is now before this court. The Company contends that the order should be set aside because the unit determination is unreasonable and the Board’s refusal to hold the further hearing requested by the Company violated Section 10(b) of the National Labor Relations Act. The Board has a wide discretion in designating appropriate units. It is not required by the Act to choose the most appropriate unit, but only to choose an appropriate unit within the range of several appropriate units in a given factual situation. The Board may look to various factors to determine what units are appropriate. The company organization, the numerical size of the unit, the geographical distribution of the employees in the unit, the type of work done by the employees in the unit, the responsibilities of the unit supervisor, the organizability of the unit, and the extent to which the unit has already been organized, are all revelant considerations and no one factor is determinative. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). Section 9(b) itself states that the unit shall be chosen “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act.” Where the facts underlying a Board determination of an appropriate unit are not contested, the Board’s determination will not be overturned unless it is arbitrary or unreasonable. May Dept. Stores Co. v. NLRB, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945); NLRB v. Krieger-Ragsdale & Co., 379 F.2d 517 (7th Cir. 1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968). The unit chosen by the Board in this case contains about thirty-five employees who do similar work under similar conditions; geographically the unit, on the average, covers one-fourth of New York State; the Union has successfully organized one of the units; the leader of the unit chosen is the Company official who directly controls and supervises the day to day work of the employees; under the Company’s organization the next larger unit would, on the average, cover a multi-state area; the smallest unit under the Company’s organization which has a leader, the regional vice-president, with any formal control over employee policy would cover all of New York, New Jersey, and New England; and the smallest unit where there is substantial control over employee policy, the Bloomington Home Office, is nation-wide. Under these circumstances, the reasonableness of the Board’s determination is clear. The fact that the next largest unit available under the Company’s organizational structure covers a multi-state area is of particular significance. In 1944 the Board adopted a policy of refusing to authorize an appropriate unit in the insurance industry which was less than state-wide, on the theory that this would promote the organization of employees by unions. Metropolitan Life Ins. Co., 56 N.L.R.B. 1635 (1944). The Board, however, subsequently abandoned this rule because As a practical matter * * * such state-wide or company-wide organization has not materialized, and the result of the rule has been to arrest the organizational development of insurance agents to an extent certainly never contemplated by the Act, or for that matter by the Board that decided the Metropolitan Life case. Quaker City Life Ins. Co., 134 N.L.R.B. 960, 962 (1961). Adoption of the Company’s position here would prevent the Board from choosing a less than state-wide unit for bargaining and would therefore “arrest the organizational development of insurance agents” in highly centralized insurance companies and would prevent the employees from enjoying “the fullest freedom in exercising the rights guaranteed by” the National Labor Relations Act, 29 U.S.C. 159(b). The Quaker City rationale also refutes the Company’s alternative contention that the most appropriate unit covers all of New York State. Finally, the Board’s decision is consistent with other Board decisions that the courts have previously approved. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963); Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 12 A.L.R.3d 775 (4th Cir. 1964). In Quaker City the duties of the head of the unit chosen as appropriate by the Board were described by the court as follows: The District Manager generally supervises the day to day operations of the office, operating under general rules set by the home office. He recommends the hiring, firing, and disciplining of the office employees and he may, under certain conditions, fire summarily. He trains the local employees, and, within limits set out by the company, makes recommendations as to promotions, increases and allowances. That authority does not significantly differ from the authority of the divisional claims superintendent in the case before us, and in Quaker City the Board’s choice of an appropriate bargaining unit was approved. Moreover, in Quaker City the district manager had only six employees under him, while the supervisor in this case has approximately five times that number. The head of the unit in Singer also had substantially the same power as the divisional claims superintendent here, and in that case the Board’s unit determination was also approved. The Company relies mainly on NLRB v. Frisch’s Big Boy Ill-Mar. Inc., 356 F.2d 895 (7th Cir. 1966), and on NLRB v. Purity Food Stores, Inc., 376 F.2d 497 (1st Cir.), cert. denied, 389 U.S. 959, 88 S.Ct. 337, 19 L.Ed.2d 368 (1967). In Frisch this court rejected the Board’s determination that a single retail store was an appropriate unit, where the Company had ten stores in Indianapolis, Indiana. The store managers there had considerably less authority than the district managers here. Yet the court recognized that an eleventh store located sixty miles away in Muncie, Indiana, might constitute, a separate bargaining unit. In Purity the First Circuit rejected the Board’s determination that a single retail outlet constituted an appropriate unit where the Company operated a chain of seven outlets, all located within thirty miles of the Company’s central office. The court stated that Purity was “a small, compact, homogeneous, centralized and integrated operation” and that “the ‘independence’ of the stores * * * amounts to no more than a few miles of physical separation.” Neither of these cases is controlling or persuasive on the facts here. The Board states that in each similar case since Quaker City it has relied primarily upon the “autonomous” character of the “single district office” and the “over-all immediate supervision” exercised by the district office manager. In each ease, on different facts, the district office head may possess varying degrees of autonomy depending upon the degree to which he may exercise significant managerial power over the employees he superintends. We think the Board could find sufficient autonomy and supervisory authority here to justify its choice of an appropriate unit. The Board did not abuse its discretion in entering the order before us, and the order does not offend the Act’s limitation that designation of an appropriate unit must not be controlled by the extent to which the unit has already been organized. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963). We conclude that we should not set aside the Board’s order on the ground that the unit chosen was inappropriate. In opposing the General Counsel’s motion for summary judgment, the Company moved for an order transferring the ease to a Trial Examiner for further hearing on the unit issue. The Board denied the motion, finding that no issue had been presented requiring a hearing. In the Board’s view, the factual issues concerning the appropriateness of the unit were resolved in the representation proceeding, and absent newly discovered or previously unavailable evidence, the issues need not be relitigated. The Company insisted that since the Board, in the representation proceeding, chose as appropriate a unit advocated by neither party, the Company did not present evidence in its possession with respect to that unit. The Company claimed it was entitled to an opportunity to present this evidence in the unfair labor practice proceedings. The Board denied the further hearing on two grounds: It stated that the evidence sought to be introduced was available at the representation proceeding, and the Company’s failure to produce it at that time precluded introduction of the evidence on the same issue in the unfair labor practice proceeding. The Board also concluded that the proffered evidence was merely cumulative to evidence heard in the representation proceeding. We agree with the Board. NLRB v. International Die Sinker’s Conference, 402 F.2d 407, 411 (7th Cir. 1968). A representation proceeding is not adversary in the usual sense, but is designed primarily to enable the Board to fulfill its statutory function with respect to the certification of bargaining representatives. Part of the function is, of course, determination of an appropriate bargaining unit. When that determination is an issue in a lepresentation proceeding, all persons concerned have the duty to produce all information relevant to the issue. The Board’s determination is not confined to the units suggested by the parties, but it may choose any unit which it reasonably deems appropriate. Local 620, Allied Industrial Workers of America v. NLRB, 375 F.2d 707, 710-11 (6th Cir. 1967); S. D. Warren Co. v. NLRB, 353 F.2d 494, 499 (1st Cir. 1965). The issue of an appropriate unit was the subject of an extensive hearing in the representation proceeding. There was substantial evidence introduced of the entire organizational structure of the Company. Having failed to produce relevant evidence it possessed in that proceeding, the Company had no right to another opportunity to present evidence at the expense of the exercise of the employees’ collective bargaining rights. Rockwell Mfg. Co., Kearney Div., v. NLRB, 330 F.2d 795, 797-798 (7th Cir. 1964). The evidence proffered in the unfair labor practice hearing was intended to show that the unit chosen in the representation hearing was subject to change in the geographical area supervised by divisional claims superintendents. But in the representation proceeding it was specifically found that “The number of these superintendents in each division is subject to change according to the volume of business and geographic distribution of field claims offices in the division; * * * ” The Board, therefore, did not abuse its discretion in denying the motion for a further hearing, as no useful purpose would have been served by receiving the Company’s evidence. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 157-158, 61 S.Ct. 908, 85 L.Ed. 1251 (1940). Having concluded that none of the grounds urged by the Company for setting aside the order is valid, the Board’s order will be enforced. MAJOR, Senior Circuit Judge, dissents, with which HASTINGS, Senior Circuit Judge, concurs. I feel obliged to dissent from the majority opinion rendered on the Board’s petition for rehearing en banc which allows the Board’s petition for enforcement, thereby nullifying the August 8, 1968 panel decision of this court. This dissent is directed squarely at the decision under review, with the findings and conclusions contained therein. I am not concerned with the many cases which stand for the well recognized proposition that our scope of review is limited and that the Board has a wide discretion in determining an appropriate bargaining unit. Such cases are not controlling here because the Board’s order, in my view, is based upon a fallacious premise and its decision is clearly erroneous, arbitrary and capricious. Furthermore, I am not impressed with the Board’s two-fold argument in support of its unit determination, apparently embraced by the majority, (1) that it is in accordance with its policy, and (2) that owing to the circumstances of the case it would have great difficulty in determining a more appropriate unit. I realize the Board’s policy is entitled to serious consideration but I disagree with the idea that it can be utilized as a substitute for facts, which it appears the Board would have us do. Likewise, the fact that the Board might have difficulty in determining some other unit as appropriate furnishes no justification for its determination that the unit under consideration is appropriate. In the beginning it is well to keep in mind what the Board characterizes as the descending supervisory chain: (1) the company’s home office at Blooming-ton, Illinois; (2) its regional office at Wayne, N. J.; (3) its division managers; (4) its divisional claims superintendents, and (5) its claims superintendents. The functions of each link of this chain are described in the Board’s decision as follows: “National personnel policies are determined at the home office in Bloom-ington ; sick leave, group medical, life, and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, and similar conditions and benefits of employment. These policies are effectively construed and implemented by the several regional offices. Against the background of policies and practices established by the home office, decisions as to the applicability of these policies and procedures to claim representatives are made by the regional supervisory authorities. Ultimately, most of the final decision-making authority in each Region is vested in the office of the Regional Vice-President. For instance, the Region makes annual reviews of the performance of each employee, for the purpose of determining whether he should be granted a salary increase (within a range predetermined by the home office). The Claim Superintendent will fill out a form to initiate such reviews, giving its comments and recommendations. The Divisional Superintendent will then make his recommendation in the portion of the form designed for his entry. Finally, the Division manager will add his recommendation, and the form will then be submitted to the office of the Regional Vice-President, where this official or his deputy will approve or disapprove the increase.” (Italics supplied.) It states: “Looking primarily to the autonomous character of the single district office petitioned for in Quaker City [134 N.L.R.B. 960], and the overall immediate supervision exercised by the district office manager, we concluded that a unit consisting of the employees in the district office was an appropriate bargaining unit. Since that case, we have found appropriate other single-office units which exhibited a similar degree of autonomy, and have also authorized groupings of single offices where considerations of geography or the employer’s administrative structure lent coherence to such multiple-office units.” (Italics supplied.) Then follows the heart of the decision: “The evidence of record in the case before us presents a significantly different picture of field operating procedure from that developed in the insurance agents cases cited above. It seems clear that the smallest component of the Employer’s business structure which may be said to be relatively autonomous in its operation is not the field claims office, but rather the divisional unit of employees supervised by a Divisional Superintendent. By virtue of the managerial authority reposed in the three Divisional Superintendents, who represent a supervisory focal point for their respective groups of 39, 32, and 29 claim representatives, these functionaries appear to exercise powers most closely analogous to those possessed by the district office managers in the earlier cases. A finding, therefore, that bargaining units could properly be demarcated by the supervisory jurisdiction of each Divisional Superintendent would be wholly in keeping with the principles applied in the insurance agents cases.” (Italics supplied.) Thus, the Board concedes that the operating procedure in this case “presents a significantly different picture” from that of the insurance agents cases upon which it relies, but nevertheless concludes that its unit determination “would be wholly in keeping with the principles” applied in such cases. Neither on brief nor in oral argument before this court did the Board criticize or take issue with a statement contained in our panel decision: “The Board’s reasoning rests upon two premises: (1) the unit determination was ‘relatively autonomous in its operation,’ and (2) ‘the managerial authority reposed in the three Divisional Superintendents.’ It is significant to note that the Board did not find that the unit was autonomous but only that it was ‘relatively’ so, without explanation as to why the qualifying word. Perhaps the explanation can be found in the dictionary, which defines ‘autonomous’ as ‘having the right or power of self-government; undertaken or carried on without outside control; existing or capable of existing independently.’ Webster’s Seventh New Collegiate Dictionary.” In my judgment, the record is devoid of any proof that the unit determined by the Board possessed autonomy, “relative autonomy” as found in its decision, or “substantial autonomy” as stated in its brief. On the contrary, the record clearly demonstrates that the unit determined was non-autonomous. The Board in its decision states that “sick leave, group medical, life and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, similar conditions and benefits of employment” are established in the home office and “are effectively construed and implemented by the several regional offices.” The Board further found that “decisions as to the applicability of these policies and procedures” are “vested in the office of the Regional Vice President.” Further support for the view that the divisional claim superintendents were without managerial authority to resolve issues subject to collective bargaining is shown by a statement in the Board’s original brief: “Most of the final decision-making authority in each Region ultimately resides in the office of the regional vice president. Thus, for example, the Region annually reviews each claims representative’s performance for the purpose of determining whether he should be granted a salary increase (within a range established by the home office in Bloomington). The claim superintendent initiates such reviews by filling out a prescribed form, in which he includes comments and recommendations. In turn, the divisional claim superintendent will add his recommendation in the portion of the form designated for such use. Finally, the division manager will add his recommendation, and the form will then be submitted to the office of the regional vice president or his deputy will make the final decision.” (Italics supplied.) In short, the divisional claim superintendents were without authority to make any decisions on matters which might be involved in collective bargaining. On such matters they accepted recommendations from those below (claim superintendents) ; approved or disapproved and passed them on to those above (division managers), and received orders and directions from those above which they executed in an administrative but not in a managerial capacity. There are numerous court decisions which support the view that the autonomous nature of the unit determined and the managerial authority of the divisional claim superintendents, admittedly the basis for the Board’s decision, should be rejected. In N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895, this court refused to enforce the Board’s order concerned with a single restaurant in an integrated chain because the unit designated was inappropriate. The main issue in the case was whether the unit determined was autonomous, as found by the Board. Relative to this issue we stated (page 896): “The only factual contention made by petitioner [the Board] which requires notice is that each restaurant has ‘autonomy’ because each restaurant manager has certain powers. However, the undisputed facts appearing in the record show that a common labor policy affecting all employees is formulated and administered by the president, as chief executive, and certain other officers of the corporations. Reporting to him are three area supervisors each of whom has a share of the Indianapolis restaurants to cover. These area supervisors visit the restaurants frequently.” (Italics supplied.) In deciding this issue we stated (page 897): “It is evident to us that the decisions left to the managers do not involve any significant element of judgment as to employment relations. * * * “It is obvious to us that none of the store managers will be deciding questions affecting the employees in the context of collective bargaining.” (Italics supplied.) The majority opinion, in the attempt to distinguish this case on its facts, states, “The store managers there had considerably less authority than the district managers here.” With this statement I disagree but, in any event, the pertinent point is the court’s reasoning and conclusion, which read as though written for this case. In N.L.R.B. v. Purity Food Stores, Inc., 376 F.2d 497, 501, the First Circuit cited with approval our opinion in Frisch’s and refused to enforce the Board’s order on the ground that its unit determination was inappropriate. The Board found a single supermarket to be an appropriate bargaining unit, based on the authority of the manager and the autonomy of the store. In rejecting the Board’s determination the court stated (page 500): “The Board rested its conclusion basically on lack of store-wide bargaining history and on its view that the Peabody store was so economically independent of the other retail stores and possessed such ‘significant autonomy’ within the respondent’s over-all operation that separation of that store from the others for purposes of collective bargaining would not obstruct centralized control and effective operation of the chain. We cannot agree.” (Italics supplied.) The Board in its brief, in support of the instant petition, states: “ * * * individual cases in which the courts of appeals have set aside such determinations as arbitrary or capricious may be regarded either as proper reversals of administrative action, under all the circumstances, or as aberrational abuses of judicial power.” In a footnote the Board states: “For purposes of the instant petition for rehearing, it is irrelevant whether the Court’s decision in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895 (1966) is regarded as the former or the latter.” While the Board does not state in which category it places this court, the implication is plain. Even so, our feelings are soothed by the opinion of the Fifth Circuit in N.L.R.B. v. Davis Cafeteria, Inc., 396 F.2d 18. In that case the court refused to enforce the Board’s order on the ground that the bargaining unit selected was inappropriate. Referring to Frisch’s and Purity, the court stated (page 20): “In view of the elucidating opinions in the Purity Foods case, in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., supra, * * * it would serve no precedental value for us to repeat what we have previously said, or what the First and Seventh Circuits have already so well said. In the circumstances of this case, labor policy is centrally determined, and where local managers do not have authority to decide questions which would be subjects of collective bargaining, the two respondent cafeterias do not constitute an appropriate bargaining unit.” (Italics supplied.) Called to our attention subsequent to the instant hearing en banc is a decision of the Second Circuit in N.L.R.B. v. Solis Theatre Corp., and Interboro Circuit, Inc., 403 F.2d 381, decided November 14, 1968. In that case the court refused enforcement of the Board’s order on the ground that the Board improperly determined the bargaining unit. Concluding its statement of the facts, the court stated (page 383): “It appears, therefore, that instead of being in a decision making position, the ‘manager’ has little or no authority on labor policy but is subject to detailed instructions from the central office. “The Courts of Appeals have been reluctant to sanction bargaining units whose managers lack the authority to resolve issues which would be the subject of collective bargaining.” Following this statement, the court cites with approval our opinion in Frisch’s, the First Circuit opinion in Purity, and the Fifth Circuit opinion in Dams. I would deny enforcement of the Board’s order for reasons so clearly revealed in its decision. . 29 U.S.C. §160 sjí $ 5}C 8}í }¡í The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. * * * * * . In Singer the Board’s order was denied enforcement on other grounds. Question: What is the number of judges who dissented from the majority? Answer:

songer_applfrom

F

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). Arlene B. SINGER, et al., Appellants, v. SHANNON & LUCHS COMPANY, et al. No. 87-7053. United States Court of Appeals, District of Columbia Circuit. March 3, 1989. Before ROBINSON and WILLIAMS, Circuit Judges, and GORDON, Senior District Judge. Of the United States District Court for the Eastern District of Wisconsin, sitting by designation pursuant to 28 U.S.C. § 294(d). Opinion PER CURIAM. ORDER Upon consideration of appellants’ Petition for Rehearing it is ORDERED, by the court, that the petition is denied, as is more fully set forth in the opinion of the Court filed herein this date. PER CURIAM: Plaintiff-appellants, Arlene B. Singer and Joel D. Joseph, have petitioned for rehearing of our order granting Shannon & Luchs’s motion for attorneys’ fees. Their objection is that Shannon & Luchs’s motion was filed nearly a year after our unpublished judgment in its favor and was therefore in violation of Fed.R.App.P. 39’s requirement that a bill of costs thereunder be filed within 14 days of entry of judgment. We write briefly to explain that our order was based upon Fed.R.App.P. 38 and that, under its terms and in the absence of any rule of this court to the contrary, there is no time limit for motions under Rule 38 other than the principles of laches. Rule 38 states in its entirety: If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee. Plainly its language imposes no time limit on the filing of a bill of costs. Indeed, some courts regard the interest in discouraging frivolous appeals as so compelling that no motion is necessary, and they award Rule 38 costs sua sponte. See, e.g., Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1200-03 (7th Cir.1987). Other circuit courts have held that while the term “costs” in Rule 39 excludes attorneys’ fees, the reference in Rule 38 to “just damages and single or double costs” comprises them. See, e.g., Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59, 64 (3rd Cir.1986); District No. 8, Int’l Ass’n of Machinists & Aerospace Workers v. Clearing, 807 F.2d 618, 623 (7th Cir.1986); Nagy v. Jostens, Inc., 787 F.2d 446, 447 (8th Cir.1986); Hewitt v. City of Stanton, 798 F.2d 1230, 1233 (9th Cir.1986); Triola v. Department of Transportation, 769 F.2d 760, 762 (Fed.Cir.1985) (citing Moir v. Department of Treasury, 754 F.2d 341 (Fed.Cir.1985), a Rule 38 case). There is a dictum to the contrary in Montgomery & Associates, Inc. v. CFTC, 816 F.2d 783, 784 (D.C.Cir.1987), but it provides no basis for rejecting the views of our sister circuits. The case concerned a fees motion under 7 U.S.C. § 18(e) and simply held that the time limit of Rule 39(d) should be applied to a fees motion filed thereunder. The dictum as to Rule 38 was part of a general argument as to the unwisdom of allowing claims for attorneys’ fees without fixed time limits (i.e., an argument that laches is an inadequate limit in any circumstance). Its sole authority for the idea that Rule 38 costs do not encompass attorneys’ fees was Seyler v. Seyler, 678 F.2d 29, 31 (5th Cir.1982). In fact that decision is quite the opposite. In awarding attorneys’ fees it rejected the losing party’s claim that Rule 39’s 14-day time applied. The court explained that Rule 39 did not encompass attorneys’ fees, but that Rule 38 “provide[d] penalties for [frivolous] appeals,” 678 F.2d at 31, and did encompass them. The outcome made clear that the court did not consider Rule 39(d)’s time limitation applicable by osmosis to Rule 38 applications, and did not speak to any other possible limits. Montgomery & Associates cannot be said to establish a general rule of the circuit that it is impermissible to allow fee requests limited (in time of application) only by laches. Such a notion would be inconsistent with prior circuit law. See Alabama Power Co. v. Gorsuch, 672 F.2d 1, 5-6 (D.C.Cir.1982) (per curiam) (a motion for attorneys’ fees under 42 U.S.C. § 7607(f) (1982), which defines “costs” as including attorneys’ fees, is not subject to the 14-day limit of Rule 39(d)); Environmental Defense Fund v. EPA, 672 F.2d 42, 61 (D.C.Cir.1982) (because 15 U.S.C. § 2618(d) expressly distinguishes attorneys’ fees from costs, equity supplies only time limitation for attorneys’ fees). The allowance of an application under Rule 38 long after the time will have expired for a bill of costs under Rule 39 is justified by the special purpose of the former rule. It seeks to deter and punish frivolous appeals. The social interest in so doing, and the standard of egregiously objectionable conduct that triggers its application, justify imposing fewer technical restrictions. The appeal in this case was frivolous. Whatever the limit implicit in laches, the delay in this case does not reach it. We conclude with the following dictum of our own, offered in the hopes of forestalling further litigation: in light of the brevity of our previous order, and the relative length of this opinion, the latest petition for rehearing was not itself frivolous. REHEARING DENIED. 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:

songer_casetyp1_2-3-2

G

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "civil rights - voting rights, race discrimination, sex discrimination". 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 specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"? A. voting rights - reapportionment & districting B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot C. voting rights - other (includes race discrimination in voting) D. desegregation of schools E. other desegregation F. employment race discrimination - alleged by minority G. other race discrimination - alleged by minority H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority) I. other reverse race discrimination claims J. employment: sex discrimination - alleged by woman K. pregnancy discrimination L. other sex discrimination - alleged by woman M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women) N. other sex discrimination - alleged by man O. suits raising 42 USC 1983 claims based on race or sex discrimination Answer:

songer_fedlaw

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Plaintiff-Appellee, v. Pierluigi MANCINI, Defendant-Appellant. No. 85-8838. United States Court of Appeals, Eleventh Circuit. Oct. 20, 1986. Mary S. Donovan, Atlanta, Ga., for defendant-appellant. William L. McKinnon, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee. Before JOHNSON and ANDERSON, Circuit Judges, and GARZA , Senior Circuit Judge. Honorable Reynaldo G. Garza, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation. ANDERSON, Circuit Judge: Following the denial of his motion to suppress evidence, appellant Pierluigi Mancini pled guilty to possession of cocaine with intent to distribute. Mancini conditioned his plea by preserving the right to appeal from the denial of the motion to suppress. We affirm the judgment of the district court. I. FACTS On April 23, 1985, Mancini arrived at the Atlanta, Georgia airport on a flight from Miami, Florida. Agent Lynn Collier, working with the Drug Enforcement Administration (“DEA”), observed Mancini deplane and heard him ask the gate agent for directions to continue his flight to Pittsburgh, Pennsylvania. Agent Collier noted that Mancini had no baggage checks attached to his airline ticket and that the two pieces of hand luggage which he carried were nearly empty. Because she had overheard which flight Mancini was connecting with, Agent Collier did not maintain surveillance of the defendant but subsequently relocated him in the gate area next to the departure gate for his flight to Pittsburgh. Mancini was nervously looking around the gate area. After a while, Mancini left his seat and went to the public restroom, where Agent Bruce Pickett, who was also working with the DEA, followed him. Although it was not crowded, Mancini walked into the restroom, looked around, and came right back out, not using the facilities. Mancini then went into a bar near the restroom, sat down, and ordered a drink. He looked over his shoulder several times. At this point, approximately 9:30 a.m., Agent Collier and Agent Pickett approached Mancini in the bar. Both agents were dressed in civilian clothes and displayed neither weapons nor badges. After identifying themselves to Mancini and showing him their identification, the agents asked whether they could examine his airline ticket. Mancini agreed and handed the ticket to Agent Collier. Agent Collier determined that Mancini was traveling from Miami and had no checked baggage. She noted that the ticket was in the name of Joseph George. Agent Collier handed the ticket back to Mancini and, referring to him as “Mr. George,” asked him whether he had any additional identification. Mancini stated that he was traveling for Mr. George and produced a temporary Florida driver’s license in his own name and an employment identification card with his name and photograph on it. Agent Collier examined these items and then returned them to the defendant. When the police officers first identified themselves, Mancini appeared nervous. As he handed over his ticket, his hands were visibly shaking. As the interview continued, his breathing became affected and he became extremely nervous. During the whole interview, however, the agents maintained a conversational tone of voice. Agent Collier explained to Mancini that she and Pickett were narcotics officers looking for drugs moving through the airport. She asked Mancini whether he would allow them to search his person and the bags he had with him. Mancini responded, “What happens if I do have drugs?” Agent Collier told Mancini that she was unable to determine the answer to that question and asked him if he would allow the search to be conducted in the bar or in an airline office across the hall. Mancini picked up his bags, paid his bar bill, and followed the agents to the airline office. At no time during the walk from the bar to the airline office did either agent (or a third plainclothed agent in the corridor) touch the defendant. In the airline office, Agent Collier advised Mancini of his right to refuse to permit a search of his person or luggage. Mancini indicated that he did not want his bags searched, but did not object to a “pat-down” search of his person. Agent Pickett searched Mancini and found nothing. Agent Collier told Mancini that he was free to leave, but that she was going to seize his luggage and have it subjected to a “drug dog sniff.” She told him that she would obtain a search warrant for the luggage if the drug dog indicated the presence of drugs in Mancini’s luggage. Collier requested that Mancini give her an address in Pittsburgh to deliver the luggage, but Mancini replied that he would return to Miami rather than go on to Pittsburgh if his bags were being seized. He furnished Collier with an address in Miami where his bags could be returned. Mancini then left the airline office. Agent Collier took the hand luggage to the DEA office and requested a U.S. Customs agent to bring a drug detector dog. Mancini’s two bags were placed in a line with five other pieces of luggage. The Customs dog positively alerted to the presence of drugs in the baggage of Mancini. This alert occurred fifteen minutes after the seizure of the bags from the defendant. Agent Collier then obtained a search warrant for the bags and seized approximately half a pound of cocaine from the defendant’s bags. Mancini was arrested before he left the Atlanta airport. The cocaine seized as a result of the search conducted pursuant to the search warrant was the focus of the motion to suppress which is the subject of the instant appeal. Mancini challenges the denial of his motion to suppress on several grounds: (1) that his detention in the airport bar constituted a seizure which was not based on reasonable suspicion; (2) that the agents effectively placed him under arrest in the bar and forced him to accompany them to the airline office without probable cause; (3) that his carry-on luggage was subject to an unreasonable seizure; and (4) that the search of his luggage was conducted without probable cause. II. DISCUSSION The en banc court has prescribed specific rules for airport stops. United States v. Berry, 670 F.2d 583 (5th Cir.Unit B 1982) (en banc). In Berry, the court described three levels of police-citizen encounters: “communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, brief ‘seizures’ that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause.” Berry, 670 F.2d at 591. Accord United States v. Puglisi, 723 F.2d 779, 783 (11th Cir.1984); United States v. Jensen, 689 F.2d 1361, 1363 n. 2 (11th Cir.1982); United States v. Elsoffer, 671 F.2d 1294, 1297 (11th Cir. 1982). A seizure has occurred “if ‘in view of all the circumstances surrounding the incident, a reasonable person would believe that he was not free to leave.’ ” Berry, 670 F.2d at 595 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (plurality opinion)). The factors which the Supreme Court in Mendenhall identified as demonstrating a lack of coercion are also present in this case — the interview took place in a public area; the officers wore no uniforms and displayed no weapons; the agents did not summon Mancini to them, but instead approached him and identified themselves; and the agents requested, but did not demand, to see Mancini’s ticket and identification. See Mendenhall, 446 U.S. at 555,100 S.Ct. at 1877. Moreover, the interview between the agents and Mancini in the bar contained none of the indicia of a seizure identified in Berry or any other indicia of a seizure. See Berry, 670 F.2d at 597. The agents did not retain Mancini’s ticket or identification; they returned each promptly. They did not block Mancini’s path or otherwise intercept him. The agents maintained a conversational tone of voice. Collier never accused Mancini of carrying drugs and did not state that she suspected Mancini of possessing drugs. The agents’ conduct did not involve coercion or detention — under the totality of the circumstances, a reasonable person would have known that he was free to leave or terminate questioning. Thus, the questioning of Mancini in the bar did not constitute a seizure. The encounter between Mancini and the DEA continued to be of the first type described in Berry at least through the time that Agent Collier requested that Mancini consent to a search of his person and luggage. The case of United States v. Jensen, 689 F.2d 1361 (11th Cir.1982), is directly on point. The court found that there had not been a seizure when DEA officers asked a passenger whether he would consent to a search of his person and luggage after an interview which proceeded in a manner very similar to Mancini’s. See Jensen, 689 F.2d at 1363-64. Immediately after Agent Collier asked Mancini whether he would consent to a search of his person and luggage, Mancini asked, “What happens if I do have drugs?” As discussed below, Agent Collier could reasonably infer from that statement that Mancini was carrying drugs, and as of that time Agent Collier had probable cause. Thus Agent Collier had probable cause before there was even a seizure of Mancini. We consider the last three issues together. Because we hold that the agents had probable cause to arrest Mancini in the bar, we need not separately consider whether or not his accompanying them to the airline office constituted an arrest, whether they had reasonable suspicion to detain his luggage, or whether they had probable cause to search his luggage since probable cause would justify an arrest and a search of the luggage. “[T]he Constitution permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing an offense.” Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343 (1979) (citations omitted). “ ‘[Pjrobable cause’ to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Id. at 37, 99 S.Ct. at 2632 (citations omitted). The record includes the following factors which, considered together, constitute probable cause for arrest: Mancini was coming from a source city, Miami; he had no checked luggage and his hand luggage was apparently empty; he had purchased his ticket in cash; he was traveling under a false name and had only a temporary driver’s license; he was acting strangely when observed in the gate area and in the men’s room; he was visibly nervous in the bar — his hands were shaking and he was hyperventilating; and, in response to Agent Collier’s request that he consent to a search of his person and carry-on luggage, Mancini made a statement from which Agent Collier could reasonably infer that he was carrying some drugs. Thus, the circumstances of Mancini’s travel, his extreme nervousness during the interview, and, most importantly, his implicit admission that he was carrying a controlled substance, provided the agents probable cause to believe that the Mancini was carrying illegal narcotics. In conclusion, assuming arguendo, but expressly not deciding, that Mancini did not consent to accompany the agents to the airline office but that he was then under arrest, the agents had probable cause to arrest Mancini, and to detain his luggage in order to obtain the search warrant. It follows necessarily that there was probable cause to support the issuance of the search warrant. III. CONCLUSION The judgment of the district court is AFFIRMED. . In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982), this court adopted as binding precedent all of the post-September 30, 1981, decisions of Unit B of the former Fifth Circuit. Id. at 34. Cf. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981). . "[T]he fact that the officers ... proceeded on a consensual or Terry-stop rationale would not foreclose the [government] from justifying ... custody by proving probable cause.” Florida v. Royer, 460 U.S. 491, 507, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983) (plurality opinion) (citations omitted). Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_crossapp

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case. Raymond George MILLER, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee. No. 87-5342 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. Nov. 1, 1988. Robert A. Butterworth, Atty. Gen., Dept, of Legal Affairs, Tallahassee, Fla., Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee. Before TJOFLAT, HILL and EDMONDSON, Circuit Judges. HILL, Circuit Judge: Raymond George Miller petitions this court for the writ of habeas corpus. A Florida state court convicted Miller of solicitation to commit murder in the first degree. In response to an ad in Soldier of Fortune magazine, Miller wrote and then called a California man named Jerry Baker, explaining that he was obligated to pay his former wife 40% of his military retirement pay, and that he sought a “solution” to his problem. Baker, acting as a government informant, recorded the phone call as a California police officer watched. Baker and Miller met in a Florida motel room, and their conversation again was taped. Miller was arrested on his way out of the motel room. After his conviction, Miller appealed on the grounds that the tapes of his conversations with Baker should have been suppressed. His conviction was affirmed by a Florida appellate court. Miller then filed a collateral state habeas petition, arguing that his appellate counsel had been ineffective in failing to raise four issues: (1) the vagueness of the Florida solicitation statute under which Miller was convicted; (2) the failure of the trial court to strictly construe the Florida statute so that it would not apply to Miller; (3) the affront to the confrontation clause caused when Miller was denied certain testimony from three witnesses; and (4) the vindictiveness of the court in sentencing Miller. A Florida appellate court examined Miller’s claim of ineffective assistance of appellate counsel, and ruled Miller’s counsel had been effective because on the merits none of the four proposed claims would have been successful. Miller then filed a federal habeas petition. In his petition, however, Miller raised the four issues directly, rather than through a claim of ineffective assistance of appellate counsel. The federal court dismissed the petition for failure to exhaust state remedies, noting that the four claims had been dealt with only indirectly by a state court. Miller again filed in state court, this time alleging the four claims as direct grounds for habeas relief. A state court summarily denied the claims. Miller returned to federal court with the four claims, but again was denied relief because he had failed to exhaust the claims in a Fla.R.Crim.P. 3.850 proceeding in state court. When Miller filed under Rule 3.850, a state court held Miller had defaulted on the four claims when he failed to raise them in his initial appeal. Miller again sought federal relief, but the federal court dismissed his claim, citing the state procedural default holding. Finally Miller brought this federal habe-as petition, turning again to his allegation that he was denied effective assistance of appellate counsel since his attorney failed to raise the four claims on Miller’s initial appeal. The district court denied the petition after reviewing the nature of the underlying claims. The court cited the original state habeas decision which also had denied the petition after review of the merits of various claims, including the four advanced here. See Miller v. State, 430 So.2d 611 (Fla.App. 4 Dist.1983). Although this petition represents Miller’s fourth attempt to obtain federal habeas relief, at this point no federal appellate court has examined the merits of Miller’s ineffective assistance claim. Consequently, we will not dismiss the petition for abuse of the writ. Appellate counsel may be effective and yet not raise claims “reasonably considered to be without merit.” Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.1984), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984). “The most direct way to approach this question ... is to examine the alleged trial errors ... to see if they contain sufficient merit — actual or arguable — that his appellate counsel can be faulted for not having raised them.” Hooks v. Roberts, 480 F.2d 1196, 1197 (5th Cir.1973), cert. denied, 414 U.S. 1163, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974). Miller first maintains that his appellate counsel should have argued that the statute under which Florida convicted Miller, Fla.Stat. § 777.04(2) (1981), was unconstitutionally vague. The statute prohibits solicitation of “another to commit an offense prohibited by law_” Fla.Stat. § 777.04(2) (1981). Section 777.04(2) limits itself to offenses enumerated under section 777.04(4), or for which the law expressly prohibits solicitation. Section 777.04(4) lists only felonies. We treat petitioner’s void-for-vagueness argument as a fact-specific due process claim that his indictment should have been dismissed because no statute gave him adequate notice that what he did was criminal: The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). Because section 777.04(4) delineates the offenses intended by section 777.04(2), and because petitioner’s action fits within section 777.04(4)(b), petitioner ought to have been fully aware that his solicitation was criminal . We conclude that petitioner was not denied due process. Next petitioner contends that he should have been afforded the protection of Fla. Stat. § 775.021(1) (1981). Under that section, Florida provides that criminal statutes are to be construed in favor of the accused. Petitioner argues that since the statute might be read as vague, section 775.021(1) entitles him to have the statute read and voided as too vague. The claim is frivolous. Thirdly, Miller contends he was denied the benefit of specific testimony by three witnesses. The testimony sought, however, was merely cumulative as to petitioner’s trial theory that: “Baker’s lifestyle caused him to be in dire need of police leniency and this accounted for his periodic efforts to urge others to commit crimes [so that Baker could] assist police in their conviction.” Petitioner’s brief at 26. Finally, petitioner maintains that the trial judge improperly sentenced him to thirty years after pre-trial negotiations had been headed toward a probationary term. Petitioner has not demonstrated a “realistic likelihood of ‘vindictiveness,’” Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974), on the part of the sentencing judge. “We have no reason to attribute [the petitioner’s] increased sentence to anything other than the trial judge’s more accurate appraisal of the circumstances after hearing the full disclosure of the facts at trial.” Frank v. Blackburn, 646 F.2d 873, 885 (5th Cir.1980) (en banc), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981). “[I]t stretches our credulity to think that one who declines to plead guilty with a recommended sentence acceptable to the Court should nevertheless be given the benefits of a bargain available to, but rejected by, him.” United States v. Resnick, 483 F.2d 354, 358 (5th Cir.1973), cert. denied, 414 U.S. 1008, 94 S.Ct. 370, 38 L.Ed.2d 246 (1973). Finding no merit in the contentions underlying the ineffective assistance claim, we cannot grant the writ. The decision of the district court is AFFIRMED. . Because the crime of murder is illegal in both Texas and Florida, we need not address the situation in which the solicitation is in Florida for an act to be committed in Texas, the act itself being legal in Texas but illegal in Florida. "[VJagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). See also United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319, 46 L.Ed.2d 228 (1975). Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case? A. No B. Yes C. Not ascertained Answer:

songer_genresp2

I

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. Ralph D. SMITH and Thelma Smith, Appellants, v. ARBAUGH’S RESTAURANT, INC., a body corporate. No. 23748. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 14, 1971. Decided June 30, 1972. Rehearing Denied Jan. 5, 1973. Mr. Harry W. Goldberg, Washington, D. C., with whom Messrs. Max M. Goldberg and Morris Altman, Washington, D. C., were on the brief, for appellants. Mr. Edward C. Donahue, Rockville, Md., with whom Mr. E. Gwinn Miller, Rockville, Md., was on the brief, for ap-pellee. Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges. BAZELON, Chief Judge: This is an appeal from a jury verdict for the appellee after trial on appellant Smith’s claim that Arbaugh’s negligently maintained a set of greasy metal stairs on which he fell and was injured. The relevant facts are not in dispute. On March 4, 1966, the appellant Ralph Smith, a Health Inspector in the employment of the District of Columbia, was directed by his supervisor to inspect the barbecue kitchen in appellee’s restaurant. A grease fire had occurred in one of the barbecue pits several weeks previously, and the purpose of the inspection was to determine whether kitchen repairs had been completed. The barbecue kitchen was located in the basement of a building adjacent to the premises of the actual restaurant. Large quantities of spareribs were barbecued in two pits in the basement, transported up approximately twenty metal steps and carried into the kitchen of the restaurant building to be stored before serving to patrons. On his tour of inspection, appellant Smith descended these metal stairs to examine the barbecue pits. Just before reaching the bottom, his left foot skidded out from under him and he fell backwards, losing his grip on the handrail. Smith landed on his back and bounced to the bottom of the stairs. As a result of this fall, Smith was hospitalized, lost substantial amounts of time from work, incurred large medical expenses, and eventually retired on disability from his employment. Smith and his wife commenced this action in the District Court seeking $65,000.00 in damages for personal injury and loss of consortium resulting from the negligence of the defendant corporation in creating, and failing to correct or warn the plaintiff of, a hazardous condition on its premises — namely, worn, wet and slippery metal steps with accumulated grease thereon. Trial was held in May of 1969. Both Smith and his supervisor testified that they had observed grease on the steps, which were also smooth and rounded from continuous wear. James Lane, the barbecue cook, testified for the defendant and substantiated the story of Smith’s fall. He also stated that cartons of uncooked spareribs were delivered to the barbecue kitchen twice a day. At the close of the trial, the jury returned a verdict in favor of the defendant. Smith moved for a new trial on the grounds that the trial court erred in instructing the jury to determine for itself whether Smith was a “business invitee” or merely a “licensee” on Arbaugh’s premises, and thus whether Arbaugh’s owed him the duty of care to keep the premises reasonably safe or merely the duty of warning him of any known but concealed dangers. This motion was denied. Smith maintained on appeal that the undisputed facts reveal the business purpose of his visit to Arbaugh’s, and that therefore the trial court should have ruled as a matter of law that he was a “business invitee” toward whom Ar-baugh’s owed a duty of reasonable care. He contends that the verdict in favor of the defendant could have been based on the jury’s erroneous decision that Smith was instead a “licensee” toward whom a lesser duty is owed, and that he is therefore entitled to a new trial with proper jury instructions. I. In examining this contention, we are once again struck by the awkwardness of fitting the circumstances of modern life into the rigid common law classifications of trespassers, licensees, and invitees. More importantly, we do not believe the rules of liability imposed by courts in the eighteenth century are today the proper tools with which to allocate the costs and risk of loss for human injury. Ordinarily, liability for negligence is based on the failure to exercise reasonable care in the conduct of one’s personal activities. However, the landowner/oecupier’s duty of care— the actions he should take by reason of dangerous conditions on his property— depends solely on the circumstances of the injured party’s entry onto his property. To the trespasser, the landowner owes a duty only to refrain from intentional, wanton or willful conduct and from maintaining a “hidden engine of destruction.” Toward a licensee, the landowner must refrain from active negligence, which includes failure to warn of known but hidden perils. Only for the invitee must the landowner exercise ordinary care and prudence to render his premises reasonably safe for the visit. These distinctions are crucial for a plaintiff’s case, since whether Ar-baugh’s will be held liable for maintaining its greasy stairs will depend not on the jury’s evaluation of this conduct, but largely on whether the injured party happened to be an employee, a Health Inspector, a fireman, a patron invited to the kitchen or simply a curious child. Rather than continue to predicate liability on the status of the entrant, we have decided to join the modern trend and to apply ordinary princi-pies of negligence to govern a landowner’s conduct: A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. II. Almost fifteen years ago, the United States Supreme Court commented on the decreasing viability of the common law approach to landowner liability in a ease dealing with a shipowner’s duty to those aboard his vessel. In deciding whether to import into admiralty law the distinction between the duty owed an invitee and a licensee, Mr. Justice Stewart wrote for the Court: The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. ****** For the admiralty law at this late date to import such conceptual distinctions would be foreign to its traditions of simplicity and practicality. [Such] appears particularly . . [Such] appears particularly unwarranted when it is remembered that they originated under a legal system in which status depended almost entirely upon the nature of the individual’s estate with respect to real property, a legal system in that respect entirely alien to the law of the sea. We believe that the common law classifications are now equally alien to modern tort law, primarily because they establish immunities from liability which no longer comport with accepted values and common experience. Perhaps the protection afforded to landowners by these rules was once perceived as necessary in view of the sparseness of land settlements, and the inability of owners to inspect or maintain distant holdings. The prestige and dominance of the landowning class in the nineteenth century contributed to the common law’s emphasis on the economic and social importance of free use and exploitation of land over and above the personal safety of those who qualified as trespassers or licensees. Today, the preeminence of land over life is no longer accepted. Human safety may be more important than a landowner’s unrestricted freedom. “A man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose.” This realignment of values is being recognized in all of tort law. There is a general trend away from immunities conferred on certain classes by reason of their technical status. The law of products’ liability has become a field of strict liability, and there is continual movement away from fault as the governing principle for allocation of losses, in favor of enterprise liability or the distribution of losses over a larger segment of society through insurance. There is no sound reason to immunize landowners from the community’s perception of values. We do not believe, as the concurrence suggests, that the problem of allocating the costs and risks of human injury is a simple one. Nor do we believe that one value — human safety — should be advanced above all others. We recognize that the allocation of costs requires the resolution of a complex equation, one for which society has not as yet provided a computer. Rather, for centuries the costs of personal negligence have been allocated by a jury according to the standard of reasonable care under all the circumstances. This court has frequently recognized that questions which involve moral and empirical judgments are best handled by representatives of the community as a whole, specifically in cases involving landowner responsibilities to children of tender years. Therefore, in the absence of legislative action to the contrary, we believe that the most effective way to achieve an allocation of the costs of human injury which is acceptable to the community is to allow the jury to function under the standard of “reasonable care under all the circumstances.” If immunities from liability are to exist, they should be based on eonsideration of factors which are relevant in modern society and unrelated to classifications of trespassers, licensees and invitees. In the words of the California Supreme Court, the jury should consider “the closeness of the connection between the injury and the defendant’s conduct, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the prevalence and availability of insurance.” Beyond establishing immunities, the common law labels and the varying duties of care attached to them may have once provided relevant standards of foreseeability of presence to guide the jury in determining what was reasonable conduct for the landowner. The realities of modern life teach us that these labels are today irrelevant to the jury’s task. Personal status no longer depends on one’s relation to real property. With urbanized society comes closer living conditions and a more gregarious population. The trespasser who steps from a public sidewalk onto a private parking lot today is not the “outlaw” or “poacher” whose entry was both unanticipated and resented in the nineteenth century. It is contrary to reason to accept as a settled principle of law that a parking lot owner actually varies his conduct according to the status of those who walk across his boundaries. III. A further indication that the classifications have become increasingly difficult to apply is that the current trend in modern tort law is a process of erosion of the once sharply defined categories into “increasingly subtle verbal refinements, . . . subclassifieations among traditional common-law categories, . . [and] fine graduations in the standards of care which the landowner owes to each.” There are two reasons for this: first, the harsh results produced by rigid classification cause courts to broaden certain classifications and expand the duties owed; and second, this expansion has produced even further confusion and conflict and a toleration of exceptions which apply only to individual cases. We are concerned to avoid continued harshness and inequity, and to reduce current confusion in the law of the District of Columbia. The result we reach today is that to which the process of erosion will eventually lead. An examination of the law in the District reveals the difficulties which confront the courts. Harshness results because the essential task of judging a landowner’s conduct under prevailing community standards is removed from the province of the jury. Through motions for dismissal, for directed verdicts, and for judgment notwithstanding the verdict, courts resolve the issue of liability solely on the facts which establish the status of the person injured. Mechanical legal decisions made by judges eliminate jury scrutiny of the actual conduct of the visitor and the landowner. An unwillingness to tolerate harsh results has led courts to expand certain categories of visitors and to create overlap between them. We have drawn a distinction between “bare licensee” and “licensee by invitation” in order to extend the duty of reasonable care to injured parties who could not qualify as “invitees” under District of Columbia law. This reliance on semantic complexity must be compared with the Supreme Court of Hawaii’s abolishing the distinction and holding that the standard of reasonable care applied in every case. This court has also placed trespassers who diverge from public highways into the category of licensees because of the obvious absurdity of treating them as unforeseeable “wrongdoers” in the context of modern urban life. In Gould v. DeBeve, in order to uphold the obviously equitable verdict which the jury had returned in favor of a two-year old “trespasser” who fell out of a loosely screened window, this court recognized that “types” of trespassers exist and must be differentiated. The opinion indicated that the foreseeability of the child’s presence might justify the imposition of a higher standard of care on the landowner than is usually owed to trespassers, but left the test of liability essentially unchanged. To our way of thinking, this approach will only generate further confusion over the duty owed to various “types” of trespassers. Some doubt already exists over the duty owed social guests and other licensees. IV. It is the genius of the common law that it recognizes changes in our social, economic, and moral life. Legal classifications such as trespasser and licensee are judicial creations which should be cast aside when they are no longer useful as controlling tools for the jury. The principle of stare decisis was not meant to keep a stranglehold on developments which are responsive to new values, experiences, and circumstances. In our opinion, the time has come to put an end to our total reliance on these common law labels and to allow the finder of fact to focus on whether the landowner has exercised “reasonable care under all the circumstances.” That standard contains the flexibility necessary to allow the jury to take account of the infinite variety of fact situations which affect the foreseeability of presence and injury, and the balance of values which determines the allocation of the costs and risks of human injury. Eliminating reliance on the common law classifications does not leave the jury awash, without standards to guide its determination of reasonable conduct. The principles which are now to be applied are those which have always governed personal negligence under our jurisprudence. The factors to be weighed in the determination of the degree of care demanded in a specific situation are “the likelihood that [the landowner’s] conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which [the landowner] must sacrifice to avoid the risk,” and the jury should be so instructed. Thus, we do not hold that landowners are now insurers of their property, or that they must endure unreasonable burdens to maintain it. We do hold that the status of an entrant onto the property is not solely determinative of the duty of care owed him. Of course, the circumstances of the visitor’s entry have some relation to the question of landowner liability. Foreseeability of the visitor’s presence determines in part the likelihood of injury to him, and the extent of the interest which must be sacrificed to avoid the risk of injury. Nor do we think that the status of the landowner should exclusively define the duty of care he owes to those who enter his property. The concurring opinion suggests that we apply the standard of “reasonable care under all the circumstances” to owners of business establishments but retain the common law classifications and duties for owners of residential property. Beyond creating new problems of drawing lines .between these “types” of property-owners, such a distinction would also prolong the squabbles over the duty owed by homeowners to firemen vs. building inspectors, to door-to-door salesmen vs. habitual trespassers, to social guests who help with the housekeeping vs. those who don’t — all of which seem exceedingly awkward attempts to fit the circumstances of modern life into common law categories. Furthermore, the harsh results which the concurrence predicts upon application of the standard of reasonable care to homeowners of limited means and apartment dwellers need never occur. There is sufficient flexibility retained in the determination of what is reasonable “under all the circumstances” for the jury to avoid undue harshness. In certain cases there may well be, as Judge Leventhal would hold, “rough common sense” to the notion that a host should take no greater care of his social guests than of his own family. If so, the jury can find the host’s conduct “reasonable.” On the other hand, the jury might consider that a host must be more careful towards those who have no notice of any dangers or defects. Also, what might be a “reasonable” maintenance burden for one homeowner may require unreasonable sacrifices for another. We cannot set these standards in the abstract. All these considerations are crucial to the jury’s evaluation of the degree of care demanded “under all the circumstances” of a specific situation. All three factors to be balanced by the jury — the likelihood and seriousness of injury, and the sacrifice required to avoid the risk — “are practically not susceptible of any quantitative estimate, and the second two are generally not so, even theoretically. For this reason a solution always involves some preference, or choice between incommensurables, and it is consigned to a jury because their decision is thought most likely to accord with commonly accepted standards, real or fancied.” Since we see our task in this field as being the promotion of the resolution of negligence disputes according to community standards of acceptable behavior, it is no more proper for us to dictate to the jury what standards govern owners of residential property than what governs owners of business property. The reasoning of our decision today admits of no distinctions between landowners, since what is “reasonable” for any landowner, of necessity, varies with the circumstances of each and every case. Accordingly, appellant Smith is entitled to a new trial at which the jury is instructed that Arbaugh’s owed him the duty of maintaining its property in a condition reasonably safe under all the circumstances. Whether or not Arbaugh’s breached this duty is for the jury to resolve. Reversed and remanded. . At trial, Smith made a timely objection to the court’s instruction. The trial court had first ruled that Smith was a business invitee, since he went upon the property for the benefit of Arbaugh’s. Appendix at 13. Then the judge instructed the jury that “the invitee . has a right to assume that the premises that he is invited to enter are reasonably safe for the purpose for which the invitation is extended.” Without a pause, the court instructed the jury as to the duty of care owed to a licensee, “a person on the property of another not by invitation or permission but rather by perserver-anee.” The judge stated: “The Court, ladies and gentlemen, would like to clarify for you one point that it has made to you. The Court, a few moments ago, instructed you that the plaintiff in this case was an invitee. The question of whether he is an invitee or a licensee is entirely within your discretion. So that, the Court will retract the statement made to you that the Court by law states that the plaintiff is an invitee. It is for you to determine under all of the facts and all of the circumstances whether he is an invitee or a licensee.” Appendix at 14-15. Smith contends that his status was a matter of law for the judge himself to determine. . Smith also objects to the judge’s instruction that if the jury found that there was a foreign substance on the staircase, that it must also find that someone in charge “had sufficient time to ascertain that condition.” This instruction is in full accord with our decisions in Seganish v. District of Columbia Safeway Stores, Inc., 132 U.S.App.D.C. 117, 120, 406 F.2d 653, 656 (1968); Safeway Stores, Inc. v. Preston, 106 U.S.App.D.C. 114, 269 F.2d 781 (1959) ; Brodsky v. Safeway Stores, Inc., 80 U.S.App.D.C. 301, 152 F.2d 677 (1945). . It is generally held that if the undisputed facts establish the stauts of an entrant, the court should rule as a matter of law as to what duty of care is owed to the injured party. Arthur v. Standard Engineering Co., 89 U.S.App.D.C. 399, 402, 193 F.2d 903, 906, cert, denied, 343 U.S. 964, 72 S.Ct. 1057, 96 L.Ed. 1361 (1952) . This causes many cases to be decided prior to their submission to the jury. See notes 34 and 35, infra. In Smith’s ease, although the precise question does not seem to have been decided in the District of Columbia, of. Dashields v. W. B. Moses & Sons, 35 App.D.C. 583 (1910), it is generally the rule that health inspectors are business invitees. See 2 F. Harper and F. James, The Law of Torts, § 27.12 at 1482 (1956) [hereinafter Harper & James]. . See, e. g., Restatement, Torts 2d §§ 282, 283 (1965) ; 2 Harper & James, § 27.1 at 1430. . Formulations of the rules of liability use the terms “landowner” and “land-occupier” interchangeably. Generally it is the party in possession of real estate to whom the special rules apply. Restatement, Torts 2d § 328E. The occupier may or may not be the owner of the property but for the sake of clarity we consistently use the term “landowner” in this opinion to refer to the party in possession. See 2 Harper & James, § 27.2 at 1433; Comment, Land Occupant’s Liability to Invitees, Licensees, and Trespassers, 31 Tenn.L.Rev. 485 (1964). . 2 Harper & James, § 27.1 at 1430; Restatement, Torts 2d §§ 333-350; and see, e. g., Firfer v. United States, 93 U.S.App.D.C. 216, 219, 208 F.2d 524, 527 (1953) . . Daisey v. Colonial Parking, Inc., 118 U.S.App.D.C. 31, 32, 331 F.2d 777, 778 (1963) ; Firfer v. United States, supra note 6, 93 U.S.App.D.C. at 219, 208 F.2d at 528; Arthur v. Standard Engineering Co., supra note 3, 89 U.S.App. D.C. at 401, 193 F.2d at 905. . Firfer v. United States, supra note 6, 93 U.S.App.D.C. at 219, 208 F.2d at 528; Gleason v. Academy of Holy Cross, 83 U.S.App.D.C. 253, 254, 168 F.2d 561, 562 (1948). . Arthur v. Standard Engineering Co., supra note 3, 89 U.S.App.D.C. at 401, 193 F.2d at 905; Schwartzman v. Lloyd, 65 App.D.C. 216, 82 F.2d 822 (1936). . The need to fit diverse fact situations into neat categories produces both complex reasoning and harsh results. See, e. g., District of Columbia v. Thomas, 130 U.S.App.D.C. 365, 401 F.2d 430 (1908), cert. denied 393 U.S. 1088, 89 S.Ct. 877, 21 L.Ed.2d 781 (1969), [lifeguard electrocuted saving child who was also killed by an electric current passing through swimming pool caused by defective wiring. Court held that as employee of Government Services, Inc., lifeguard could not rely on District of Columbia to take due care for his safety] ; Kinney v. Sun Oil Co., 437 Pa. 80, 262 A.2d 128 (1970), [fireman injured by defective gas tank explosion while fighting fire on premises could not recover, whereas passerby might] ; West v. Shizuko Tan, 322 F.2d 924 (9th Cir. 1963), [restaurant patron, “invitee” as to dining room, was “mere licensee” as to band platform on which piano she was permitted to play was located and from which she fell]. Wandering children, however, are treated with special consideration. McGettigan v. National Bank of Washington, 115 U.S.App.D.C. 384, 320 F.2d 703, cert. denied 375 U.S. 943, 84 S.Ct. 348, 11 L.Ed.2d 273 (1963). . In Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 631, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959), the Supreme Court noted that the common law was moving toward “imposing on owners and occupiers a single duty of reasonable care in all the circumstances.” At the vanguard of this movement are the Supreme Courts of California, Hawaii and Colorado which have decisively abolished the differences between common law categories. See Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968); Pickard v. City and County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969); Mile High Fence Co. v. Radovich, 489 P.2d 308 (Colo.S.Ct. 1971). In England, the distinction between licensees and invitees has long been abolished. Occupiers’ Liability Act, 5 & 6 Eliz. 2, c. 31 (1957). . See Daisey v. Colonial Parking, Inc., supra note 7, 118 U.S.App.D.C. at 33, 331 F.2d at 779, and p. 18 infra. . Kermarec v. Compagnie Generale Transatlantique, supra note 11, 358 U.S. at 630-632, 79 S.Ct. at 410 (emphasis added). . Accord, Rowland v. Christian, supra note 11, 70 Cal.Rptr. at 103, 443 P.2d at 567. . This is the generally accepted explanation for the development of the common law classifications. 2 Harper & James, § 27.2 at 1432 n. 13; Kermarec v. Com-pagnie Generale Transatlantique, supra note 11, 358 U.S. at 630-632, 79 S.Ct. 406, 3 L.Ed.2d 550. . Rowland v. Christian, supra note 11, 70 Cal.Rptr. at 104, 443 P.2d at 568. See generally W. Prosser, Torts § 58 at 368 (3d ed. 1964) ; Comment, supra note 5, at 486. . 32 A.L.R.3d 508, 513 n. 4, 5 & 6. Gf. Elgin v. District of Columbia, 119 U.S. App.D.C. 116, 337 F.2d 152 (1964). . Restatement, Torts 2d § 402A; 2 Harper & James §§ 28.15-.28. . For a general discussion of this movement see Prosser, supra note 16, § 3; 2 Harper & James §§ 13.1-.7. . Whether these values point towards mandatory, no-fault, or self-insurance principles is beyond the scope of our decision at this time. Our primary concern is to abolish the rigid, court-imposed immunities which are out of keeping with current common law trends. “[T]he traditional rule confers on an occupier of land a special privilege to be careless which is quite out of keeping with the development of accident law generally and is no more justifiable here than it would be in the case of any other useful enterprise or activity.” 2 Harper & James, § 27.3 at 1440. . Cf. Robinson v. Diamond Housing Corp., 150 U.S.App.D.C. 17, 463 F.2d 853 (1972) ; of. United States v. Bennett, 148 U.S.App.D.C. 364, 460 F.2d 872 (1972). . McGettigan v. National Bank of Washington, supra note 10, 115 U.S.App.D.C. at 388-389, 320 F.2d at 707-708. An early statement of the values involved was made in Eastburn v. Levin, 72 App. D.C. 190, 192, 113 F.2d 176, 178 (1940) : The underlying question is whether it is better to let occupants arrange their . premises in total disregard of neighboring children, or to require them to take such precautions as a normal person would when their premises are attractive and insidiously dangerous to children too young to look out for themselves and when the intrusion of such children is likely. On the one side is the occupant’s interest, and the general interest, in the profitable use of land. On the other is the child’s interest, and the interest of his parents and of society, in life and limb and in compensation for their injury. Imposing responsibility is more apt to make occupants careful than denying responsibility is to make children careful; occupants may know little about law, but children know nothing about it, and children will play where they can. And the liability in question is less exceptional than is sometimes supposed. Rather, the immunity of occupants of land, so far as immunity persists, from responsibility for unreasonably dangerous conditions is one of the exceptions to the growing and healthy tendency of the law to require all social conduct to conform to social standards. See also 2 Harper & James, § 27.5 at 1450-51. . Rowland v. Christian, supra note 11, 70 Cal.Rptr. at 103, 443 P.2d at 567. . “The kinds of wealth dispensed by government consist almost entirely of those forms which are in the ascendancy today. To the individual, these new forms, such as a profession, job, or right to receive income, are the basis of his various statuses in society, and may therefore be the most meaningful and distinctive wealth he possesses.” Reich, The New Property, 73 Yale L.J. 731, 739 (1964). . Rowland v. Christian, supra note 11, 70 Cal.Rptr. at 104, 443 P.2d at 568. . Kermarec v. Compagnie Generale Transatlantique, supra note 11, 358 U.S. at 630, 79 S.Ct. at 410. . Most noticeably, public guests have been moved gradually into the category of “invitee” in many jurisdictions. See, e. g., Lunney v. Post, 248 So.2d 504 (D.Ct.App.Fla.1971) ; 2 Harper & James § 27.12 at 1480. . Thus the concept of “active” negligence toward licensees has expanded to include what might otherwise be called a “condition” of the premises. See examples cited in Rowland v. Christian, supra note 11, 70 Cal.Rptr. at 101, 443 P.2d at 565, and 2 Harper & James § 27.6. Conditions of concealed danger have been fitted within the theory of a “concealed trap,” and “highly dangerous” has been diluted to “unreasonably dangerous.” Id. § 27.3 at 1443-44. . What results is a “patchwork” of confusion (1969). Note, 44 N.Y.U.L.Rev. 426, 427. See examples cited in Mile High Fence Co. v. Radovich, supra note 11, 489 P.2d at 311-312. Special exceptions still apply to conditions of “extreme” danger, Ward v. Thompson, 57 Wash.2d 655, 359 P.2d 143 (1961), and to cases involving children, Gould v. DeBeve, 117 U.S.App.D.C. 360, 330 F.2d 826 (1964); Louisville Trust Co. v. Nutting, 437 S.W.2d 484 (S.Ct.Ky. 1968). . This court has frequently noted that the current trend has aimed toward a single standard of care. See, e. g., Hecht Co. v. Jacobsen, 86 U.S.App.D.C. 81, 180 F.2d 13 (1950) ; Daisey v. Colonial Parking, Inc., supra note 7, 118 U.S.App. D.C. at 33-34, 331 F.2d at 779-780; Elgin v. District of Columbia, supra note 17, 119 U.S.App.D.C. at 121, 337 F.2d at 157; John B. Kelly, Inc. v. Dunnett, 130 U.S.App.D.C. 150, 151, 397 F.2d 711, 712 (1988); Levine v. Katz, 132 U.S. App.D.C. 173, 175, 407 F.2d 303, 305 (1968). We cannot predict with accuracy the effect this trend has had, or will have, on the frequency of litigation or the incentives to self-insure. Our primary concern is to provide the jury with relevant and useful standards under which to resolve today’s litigation. . Such was also the reasoning of the Colorado Supreme Court: “Commentators have suggested numerous reasons to abandon the system; however, those which now compel this court to act are (1) that the system creates confusion and judicial waste, and (2) that by preventing the jury from applying changing community standards to a landowner’s duties, a harshness which is inappropriate to a modern legal system has been preserved.” Mile High Fence Co. v. Radovich, supra note 11, 489 P.2d at 311-312. . Even when the case does reach the jury, it is “often for consideration of the plaintiff’s status rather than for the more fundamental question of whether the defendant has acted carelessly. Thus the jury is deprived of the flexibility necessary to allow it to assess the burden of liability on the facts of each case in accord with community standards.” Note, supra note 29, at 430. The case before us presents a clear example of this principle, since the jury’s primary task was to determine whether Smith was an invitee or licensee. . See, e. g., Rowland v. Christian, supra note 11, 70 Cal.Rptr. 97, 443 P.2d 561 (summary judgment); Firfer v. United States, supra note 6, 93 U.S.App.D.C. 216, 208 F.2d 524 (complaint dismissed); Arthur v. Standard Engineering Co., supra note 3, 89 U.S.App.D.C. 399, 193 F.2d 903 (directed verdict). . By affirming dismissal of the complaint on its own interpretation of the facts, this court deprived the jury of the opportunity to determine for itself whether Firfer had exceeded the scope of his invitation in trying to leave the Jefferson Memorial from the back. Firfer v. United States, supra note 6, 93 U.S.App. D.C. at 220-221, 208 F.2d at 528-529. . In Nimetz v. Shell Oil Co., 74 F.Supp. 1 (D.D.C.1947), the court, in denying a motion for a new trial, insisted on classifying as a trespasser a party who fell into an open grease pit in defendant’s gas station after xiarking on the station grounds, although private cars had on prior occasions been parked there by persons attending the Uline Arena. . See Gleason v. Academy of Holy Cross, supra note 8, 83 U.S.App.D.C. 253, 168 F.2d 561; Newman v. United States, 248 F.Supp. 669 (D.D.C.1965). . Pickard v. City and County of Honolulu, supra note 11, 51 Haw. 134, 452 P.2d 445, dealt with a man off the street who used the restroom in a public courthouse with the permission of the officer on guard. As he entered, the lightswitch did not work and he fell into a hole in the floor. Reversing the trial court’s instruction that the plaintiff was a licensee as a matter of law, the Supreme Court held: “Common law distinctions between classes of persons have no logical relationship to the exercise of reasonable care for the safety of others .... [The] occupier of land has a duty to use reasonable care for the safety of all persons reasonably anticipated to he on the premises, regardless of the legal status of the individual.” Id. at 446. . See Daisey v. Colonial Parking, Inc., supra note 7, 118 U.S.App.D.C. 31, 331 F.2d 777; Muldrow v. Daly, 117 U.S. App.D.C. 318, 329 F.2d 886 (1964). . Supra note 29, 117 U.S.App.D.C. 360, 330 F.2d 826. . Id. at 364, 330 F.2d at 830. . Accord, Rowland v. Christian, supra, note 11, 70 Cal.Rptr. at 105, 443 P.2d at 569. . Compare Benedict v. Podwats, 57 N.J. 219, 271 A.2d 417 (S.Ct.N.J.1970), with Solon Service, Inc. v. Cook, 96 U.S.App. D.C. 25, 223 F.2d 317 (1955) ; Kinney v. Sun Oil Co., supra note 10, 437 Pa. 80, 262 A.2d 128, with Scottish Rite Supreme Council v. Jacobs, 105 U.S.App. D.C. 271, 266 F.2d 675 (1959). . See, e. g., Selected Writings of Benjamin Nathan Cardozo 148, 170-72 (Hall Ed. 1947); Note, 44 N.Y.U.L.Rev. 426 (1969) ; Bowles v. Mahoney, 91 U.S. App.D.C. 155, 161-163, 202 F.2d 320, 326-328 (1952), cert. denied, 344 U.S. 935, 73 S.Ct. 505, 97 L.Ed. 719 (1953) (dissenting opinion of Judge Bazelon). . Cf. Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071 (1970). Compare Note, 41 U.Colo. L.Rev. 167 (1969), with the Colorado Supreme Court’s decision in Mile High Fence Co. v. Radovich, supra note 11, 489 P.2d 308. . Cf. Hecht Co. v. Jacobsen, 86 U.S.App. D.C. 81, 83, 180 F.2d 13, 15 (1950). . Commentators agree that such standards should be applied. See Hughes, Duties to Trespassers: A Comparative Survey and Revaluation, 68 Yale L.J. 631 (1959) ; Note, supra note 29, 44 N.Y. U.L.Rev. 426; Note, supra note 44, 41 U.Colo.L.Rev. 167. “[The] likelihood of presence, with its consequent probability of harm, is . the proper basis of liability . . . .” 2 Harper & James | 27.9 at 1471. Courts which have considered California’s adoption of these principles have cited no compelling reasons for rejecting them. A Florida lower appellate court stated only that it could “foresee difficulties” in the “case by case approach.” Lunney v. Post, supra note 27, 248 So.2d at 507. One dissenter in New Jersey queried if the status of the injured party is an “element bearing on the question of liability,” how this was to be explained to the jury without practically returning to the status concept? Benedict v. Podwats, supra note 42, 271 A.2d at 418 n. 1 (dissenting opinion of Hall, J.) This problem is handled by formulating the relevancy of the circumstances of a plaintiff’s entry strictly in terms of the foreseeability of his presence. See p. 106 infra. A few judges have cited the California decision with approval: Ives v. Swift & Co., 183 N.W.2d 172, 178 (S.Ct.Iowa 1971) (concurring opinion of Becker, J.) ; Di Cíildo v. Caponi, 18 Ohio St. 2d 125, 247 N.E.2d 732, 736 n. 2 (1969) (Schneider, J.). . Conway v. O’Brien, 111 F.2d 611, 612 (2d Cir. 1940) (L. Hand, X). . This seems to the consistent fear of grocery store owners. This court lias repeatedly stated that the elements of negligence must be established before a plaintiff will be entitled to recover. Thus what we stated in Seganish v. District of Columbia Safeway Stores, Inc., supra note 2, 132 U.S.App.D.C. at 119-120, 406 F.2d at 655-656, fully defines the duty of a landowner and is one model of an instruction for a jury: A [landowner] is not an insurer of the condition of bis [property]. His duty is to exercise reasonable care to keep [his property] safe [in view of the foreseeability of the presence of others on his land]. He is responsible, of course, for injuries resulting from risks created personally or by his employees. Moreover, his obligation of due care extends to reasonable supervision and inspection of the premises to identify and protect against potential perils [in view of the probability of injury to others]. For this reason, liability may also spring from a negligent failure to safeguard against dangers born of the activities of [others]. But negligence can be found in relation to a [visitor]-created hazard only if it is known, or because of its duration should have been discovered, in time to afford a fair opportunity to remove it. (Footnotes omitted). And, of course, the defense of contributory negligence is always available to the landowner. . The jury should also be charged that landowners are not expected to “assume burdens of care which are unreasonable in the light of the relative expense and difficulty to them as weighed against the probability and seriousness of the foreseeable harm to others.” Daisey v. Colonial Parking, Inc., supra note 7, 118 ” U.S.App.D.C. at 34, 331 F.2d at 780. . See, e. g., Lunney v. Post, supra note 27, 248 So.2d 504, (member of Garden Club injured during tour of private home opened gratuitously to Club by homeowner) . . See Benedict v. Podwats, supra note 42, 271 A.2d 417. . Conway v. O’Brien, supra note 47, 111 F.2d at 612. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_appnonp

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. HOERNER WALDORF PAN AMERICAN BAG CO., INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION, Respondent, Ray Marshall, Secretary of Labor, Co-Respondent. No. 79-1527. United States Court of Appeals, First Circuit. Submitted Dec. 17, 1979. Decided Jan. 15, 1980. Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol., Washington, D.C., for Occupational Safety and Health. Allen H. Feldman, Washington, D.C., for Appellate Litigation, and John Bradley, Atty., U. S. Dept, of Labor, Washington, D. C., on motion to dismiss, for respondent, Secretary of Labor, Ray Marshall. Kenneth L. Sovereign, on memorandum in opposition thereto for petitioner. Before COFFIN, Chief Judge, and CAMPBELL, Circuit Judge. PER CURIAM. Respondent Secretary of Labor has moved to dismiss as untimely Hoerner Waldorf’s petition for review of an order of the Occupational Safety & Health Review Commission (OSHRC). Hoerner Waldorf was cited in 1978 for a safety violation and had a hearing before an administrative law judge (ALJ). On June 26, 1979, the ALJ formally notified the company of his decision upholding the citation. His notice recited that it “will become the final order of the Commission pursuant to 29 U.S.C. § 661(i) on July 26, 1979 unless a member of the Commission directs that it be reviewed.” (Emphasis in original). On July 31, 1979 the OSHRC Executive Secretary notified Hoerner Waldorf that the company’s petition for discretionary review was received by the Commission on July 20, and “The petition having come on to be considered by the individual Commission Members and no Commission Member having directed review, the petition is deemed to be denied and the decision of the [ALJ] is a final order of the Commission. Hoerner Waldorf filed its petition for review with this court on October 17, 1979. Under 29 U.S.C. § 660(a), a party “aggrieved by an order of the Commission issued under [29 U.S.C. § 659(c)] may obtain review of such order in [an appropriate court of appeals] by filing in such court within sixty days following the issuance of such order a written petition praying that the order be modified or set aside.” According to Hoerner Waldorf, the Commission’s order in this case was the July 31 notification and this “order” did not become “final” for 30 days following its issuance, see 29 U.S.C. § 659(c). The company would then calculate the sixty day period for petitioning for judicial review from August 30, making the October 17 petition timely. This argument proves too much. The report of the ALJ became the “final order of the Commission” on July 26. 29 U.S.C. § 661(i). July 26 was therefore the latest possible date of the “issuance of such order,” 29 U.S.C. § 660(a), from which the sixty day period for petitioning for review is calculated. September 24 being the last day for petitioning under § 660(a), the October 17 petition in this case was too late. The petition is dismissed for lack of jurisdiction. The relevant statutory provision might possibly be read as beginning the time for petitioning for judicial review at the issuance of the ALJ’s report, here June 26. See 29 U.S.C. §§ 661(i), 660(a), 659(c). Such an interpretation would be anomalous, however, permitting petitioning for review of a non-final administrative order. The Secretary in this case and the Fifth Circuit, United States v. Fornea Road Boring Co., 565 F.2d 1314, 1316 & n. 3 (1978), take the view that the time for petitioning begins at the point where the ALJ’s order becomes the final order of the Commission. See 29 U.S.C. § 661(i). Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number. Answer:

songer_usc1sect

933

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". JONES v. COMMISSIONER OF INTERNAL REVENUE. No. 9863. Circuit Court of Appeals, Eighth Circuit. July 5, 1934. Frank T. Gladney, of St. Louis, Mo. (Jones, Hocker, Sullivan, Gladney & Reeder, of St. Louis, Mo., on tbe brief), for petitioner. John MaeC. Hudson, Sp. Asst, to Atty. Gen. (Frank J. Wideman, Asst. Atlv. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for respondent. Before SANBORN and WOODRQUGH, Circuit Judges, and DEWEY, District Judge. Rehearing denied Oct. 15, 1934. SANBORN, Circuit Judge. This is a petition to review an order of the United States Board of Tax Appeals redetermining a deficiency in income taxes of the petitioner for the year 1926. The sole question involved is the amount of taxable income received by the taxpayer from the sale in 1926 of a piece of improved real estate in the city of St. Louis, Mo. The controlling facts, which are undisputed, are briefly as follows: The petitioner, as trasteo under a declaration of trust, on September 10, 1020, purchased the real estate in question for $76,000', and held it until 1936, when it was sold for $100,000. For the years 1920, 1921, and 1922, no deduction from the gross income of the petitioner for depreciation was claimed or allowed. For the years 1923, .1021, and 1925 the petitioner claimed deductions from gross income because of depreciation, but these claims were disallowed by the Commissioner. At the time the property was sold, the total accumulated allowable depreciation was $13,22.7.50'. In determining the taxable gain from the sale, the peiitioner took the difference between the pnrcha.se price and the sale price of the property; while the Commissioner of Interna) Revenue deducted the amount of depreciation from the purchase priee, which increased the taxable gain by the amount of the depreciation, and this xasulted in the deficiency complained of. The petitioner appealed to the Board, which affirmed the Commissioner. The question is whether the Commissioner had the right, in determining the taxable gain resulting from the sale, to deduct the allowable but unallowed depreciation of $13,-227.50 from the purchase price of the property. The Revenue Act of .1926 provides [section 204 (a), c. 27, 44 Stat. 9, 14, 26 USCA § 935 (a)] that “the basis for determining the gain or loss from the sale 0 c of property acquired after February 28, .1013, shall be the cost of such property”; and [section 202 (b), (2), c. 27, 44 Stat. 13, 26 USCA § 933 (b) (21)] that “the basis shall be diminished by the amount of the deductions for exhaustion, wear and tear, obsolescence, amortization, and depletion which have since the acquisition of the property been allowable in respect of such property under this title or prior income tax laws. * * t Article 1561, Treasury Regulations 69', provides, among- other things: “ * * In computing the amount of gain or loss, however, the cost or other basis of the property must be increased by the cost of capita! improvements and betterments made to the property since the basic date, and by carrying charges, such as taxes on unproductive property. fc “ * The cost or other basis of the property must then be decreased by the amount of the deductions for exhaustion, wear and tear, obsolescence, amortization, and depletion which have since the acquisition of the property been allowable in respect of such property, whether or not such deductions were claimed by the taxpayer or formally allowed. M * * ” That the method pursued by the Commissioner in determining the taxable gain from the sale of the property here in question is justified by the law and the regulations appears long since to have been settled. Appeal of Even Realty Co., 1 B. T. A. 355; Hardwick Realty Co. v. Commissioner, 7 B. T. A. 1108, affirmed (C. C. A. 2) 29 F.(2d) 498, certiorari denied 279 U. S. 876, 49 S. Ct. 349, 73 L. Ed. 1010; Kalb v. Commissioner, 15 B. T. A. 865; Franklin Lumber & Power Co. v. Commissioner, 18 B. T. A. 1207; United States v. Ludey, 274 U. S. 295, 47 S. Ct. 608, 71 L. Ed. 1054; Hardwick Realty Co. v. Commissioner (C. C. A. 2) 29 F.(2d) 498; Ricek v. Heiner (C. C. A. 3) 25 F.(2d) 453, certiorari denied 277 U. S. 608, 48 S. Ct. 603, 72 L. Ed. 1013; Fidelity-Philadelphia Trust Co. v. Commissioner (C. C. A. 3) 47 F.(2d) 36; Koepfli v. Commissioner (C. C. A. 9) 41 F.(2d) 606. The petitioner, however, argues that to increase the taxable gain from the sale of this property by reducing the original cost to the extent of depreciation which was allowable but not allowed, is in effect adding to income that which is not income, but a loss, and results in the imposition of a tax upon something which is not taxable under the Sixteenth Amendment to the Constitution. It is true, as the petitioner says, that the constitutionality of the method used for ascertaining the gain from a sale was not directly involved or specifically passed upon in the case of United States v. Ludey, 274 U. S. 295, 47 S. Ct. 608, 71 L. Ed. 1054, supra. It appears from the opinion in that case that the power of Congress to provide for the deduction of depreciation from original cost was conceded. However, it is not conceivable that the Supreme Court would have approved the method held to be proper in that ease merely because of this concession, if, in fact, in violation of the Constitution, particularly since the contention in that ease was that Congress, at the time of the sale there in question, had not in terms required the deduction of depreciation from the cost price in determining taxable gain. The court said (pages 300, 301 of 274 U. S., 47 S. Ct. 603, 610): “The depreciation charge permitted as a deduction from the gross income in determining the taxable income of a business for any year represents the reduction, during the year, of the capital assets through wear and tear of the plant used. The amount of the allowance for depreciation is the sum which should be set aside for the taxable year, in order that, at the end of the useful life of the plant in the business, the aggregate of the sums set aside will (with the salvage value) suffice to provide an amount equal to the original cost. The theory underlying this allowance for depreciation is that by using up the plant a gradual sale is made of it. The depreciation charged is the measure of the cost of the part which has been sold. When the plant is disposed of after years of use, the thing then sold is not the whole thing originally acquired. The amount of the depreciation must be deducted from the original cost of the whole in order to determine the cost of that disposed of in the final sale of properties. Any other construction would permit a double deduction for the loss of the same capital assets.” And, on pages 303, 304 of 274 TJ. S., 47 S. Ct. 608, 611: “The aggregate for depreciation and depletion claimed by Ludey in the income tax returns for the years 1913, 1914, 1915, and 1916, and allowed, was only $5',156. He insists that more cannot be deducted from the original cost in making the return for 1917. The contention is unsound. The amount of the gain on the sale is not dependent on the amount claimed in earlier years. If in any year he has failed to claim, or has been denied, the amount to which he was entitled, rectification of the error must be sought through a review of the action of the bureau for that year. He cannot choose the year in whieh he will take a reduction. On the other hand, we cannot accept the government’s contention that the full amount of depreciation and depletion sustained, whether allowable by law as a deduction from gross income in past years or not, must be deducted from cost in ascertaining gain or loss. Congress doubtless intended that the deduction to be made from the original cost should be the aggregate amount which the taxpayer was entitled to deduct in the several years.” As we read Burnet v. Thompson Oil & Gas Co., 283 U. S. 301, 51 S. Ct. 418, 75 L Ed. 1049, it does not detract in any way from what was said in the Ludey Case. While the petitioner’s contentions are. not without force, it seems plain to us that the Supreme Court of the United States has approved the method provided by law and used by the Commissioner in determining the amount of taxable gain received by the petitioner in the year 1926. This court would not now be justified in holding the method so approved to be violative of the Sixteenth Amendment. The order of the Board of Tax Appeals is affirmed. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number. Answer:

songer_casetyp1_1-3-2

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 - state offense". William Archie MAYFIELD, Jr., Appellee, v. Bill STEED, Acting Commissioner of the Department of Corrections, Appellant. No. 72-1568. United States Court of Appeals, Eighth Circuit. Feb. 6, 1973. Oliver L. Adams, Rogers, Ark., on brief for appellant. John W. Murphy, Fayetteville, Ark., for appellee. Before HEANEY, BRIGHT and ROSS, Circuit Judges. PER CURIAM. This is an appeal from the judgment of the District Court granting a writ of habeas corpus to William Archie May-field, Jr. (Mayfield). We affirm. Mayfield was convicted of second degree murder in Arkansas state court by a jury from which all women were admittedly systematically excluded. His conviction was affirmed by the Arkansas Supreme Court. Judge Eisele, in a soundly reasoned memorandum opinion, held that the systematic exclusion of .women is impermissible under the rationale of Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), and Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946). Pursuant to the provisions of Rule 8 of the rules of this Court, we affirm the judgment of the trial court on the basis of its memorandum opinion. Mayfield v. Steed, 345 F.Supp. 806 (E.D.Ark.1972) Question: What is the specific issue in the case within the general category of "criminal - state offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other state crimes R. state offense, but specific crime not ascertained Answer:

songer_typeiss

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Hortex Manufacturing Company, Inc., Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HORTEX MANUFACTURING COMPANY, Inc., Respondent. Nos. 18839, 18877. United States Court of Appeals District of Columbia Circuit. Argued Jan. 26, 1965. Decided Feb. 18, 1965. Mr. James Graham, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, for petitioner in No. 18,839. Mr. Jacob Sheinkman, New York City, was on the brief for petitioner in No. 18,839. Mr. Richard P. Lawlor, Atty., N. L. R. B., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Arnold Ord-man, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Warren M. Davidson, Atty., N. L. R. B., were on the brief, for respondent in No. 18,839. Mr. Richard P. Lawlor, Atty., N. L. R. B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Pre-vost, Asst. Gen. Counsel, and Warren M. Davison, Atty., N. L. R. B., were on the brief for petitioner in No. 18,877, submitted on the brief. Mr. John E. Price, Ft. Worth, filed a brief on behalf of intervenor-respondent, Hortex Mfg. Co., Inc., and the cases for Hortex Mfg. Co., were treated as submitted on the brief. Before Danahee, Bastían and McGowan, Circuit Judges. McGOWAN, Circuit Judge. In one of these two appeals, Amalgamated Clothing Workers of America, AFL-CIO (the “Union”) complains in two respects of an order of the National Labor Relations Board. In the other, the Board seeks enforcement of its order as against the objections of the respondent employer, Hortex Manufacturing Company (“Hortex”). The order itself, entered in a proceeding initiated by the filing of unfair labor practice charges by the Union, adopted an Examiner’s report which found Hortex in violation of Section 8(a) (1) by reason of discriminatory discharges of three employees, and of Section 8(a) (3) by reason of such conduct as well as surveillance of union activities and various announcements and threats designed to discourage union affiliation. The order entered by the Board directs Hortex to (i) cease and desist from the anti-union activities found to be forbidden by Sections 8(a) (1) and (3), (ii) reinstate the three discharged employees with back pay, and (iii) post the usual notices. The Union says the Board did not go far enough in that it failed to find that (1) a refusal to arbitrate a grievance was a violation of Section 8(a) (5), necessitating enlargement of the order to require Hortex to cease and desist from refusing to bargain with the Union; and (2) speeches to employees by an attorney for Hortex constituted an additional violation of Section 8(a) (1). We leave the Board’s order undisturbed and direct its enforcement as requested by the Board. We see no occasion to discuss in detail either Hortex’s objections to the Board’s findings, or the Union’s claim as to the additional 8(a) (1) violation. Our examination of the record discloses substantial evidence to support the Board’s findings on these issues, and there is no claim that the terms of the order are inappropriate to the violations found. Disruptive intervention by us into these determinations would, thus, take us outside the perimeter of proper judicial review as drawn by Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The 8(a) (5) contention advanced by the Union depends to a somewhat lesser degree on the resolution of disputes of fact, and warrants fuller discussion of why we withhold our hand in this respect as well. Some depiction of the setting of the dispute is essential to that discussion. I Hortex operates a clothing manufacturing plant in El Paso, Texas. For many years prior to the expiration on December 31,1962 of the latest collective bargaining agreement, the Union had been recognized as the exclusive representative of the production and shipping employees. Some indications of apathetic interest by the employees in the Union apparently caused Hortex to permit the contract to terminate and to seek a representation election. This election was held in May of 1963, and resulted in a substantial plurality against the Union. As indicated above, however, the Board found that, beginning in the autumn of 1962, Hortex was engaged in a campaign to discourage union membership which was characterized by certain actual violations of 8(a) (1) and 8(a) (3). One of the employees found to have been discrimina-torily discharged was Maria Tornero. This occurred on December 12, 1962. Under the grievance procedure provided in the then existing collective bargaining agreement, a timely grievance was filed by Tornero, and, after review and rejection at the specified management levels, the Union informed Hortex on February 8,1963 of its desire to have the grievance submitted to arbitration, which was the final step of the grievance machinery contained in the contract. Since the Tor-nero discharge was the subject of an unfair labor practice charge filed with the Board by the Union on December 27, 1962, Hortex, through its legal counsel, took the position that it would either submit to arbitration under the contract, or defend against the charge in the Board proceeding, but that it was not required to incur the trouble and expense of doing both at the same time. It asked the Union to elect one course or the other; and, upon the Union’s failure to do so, Hortex refused to arbitrate. That refusal was then made the subject of the filing of an 8(a) (5) charge by the Union. The Examiner recommended dismissal of the charge. In his view, Hortex was on unsound legal ground in thinking it could require an election by the Union; and this error had the effect of placing Hortex in default under the contract. However, the Examiner noted what he conceived to be the Board’s position that not every breach of a collective bargaining agreement is per se an unfair labor practice and required to be treated as such. He also remarked the circumstances that Tornero was otherwise being restored to her job with back pay. In the light of these considerations, he recommended dismissal of the 8(a) (5) charge. The Board adopted this recommendation without discussion. II The Union does not challenge the existence of a general rule to the effect that breaches of collective bargaining agreements are not to be invariably equated with unfair labor practices. Indeed, it could not in this Circuit, at least in the face of what we said in International Union, UMW v. NLRB, 103 U.S.App.D.C. 207, 257 F.2d 211 (1958). There, in setting aside a Board order finding a union guilty of an unfair labor practice for striking rather than arbitrating under the contract, we said (103 U.S.App.D.C. at 210-211, 257 F.2d at 214-215): “the Board was of the opinion that the unions committed a breach of contract when the employees struck * * *. Assuming that they did, that is not the end of the inquiry, because a breach of an employer-union contract is not, per se, an unfair labor practice. The legislative history of the Taft-Hartley Act shows that. * * * ****** “In the face of the legislative history just recited, it would seem that the Board has a heavy burden of persuasion that it does have authority to treat a violation of a term of a collective bargaining contract, even a term providing for the settlement of grievances by arbitration, as an unfair labor practice, and, in effect, decree its specific performance. * * ’ * » The Union, rather, urges upon us that the refusal to arbitrate in this instance was an exercise in bad faith by Hortex; and that this bad faith supplies the incremental element which compels the Board to treat a contract breach as an unfair labor practice. The bad faith here is said to reside in the circumstances that (1) the discharge of Tornero was itself an 8(a) (3) violation, (2) Hortex has been found guilty of other 8(a) (3) and (1) violations, and (3) Hortex did not rest its refusal to arbitrate upon a good faith claim that the dispute was not arbi-trable under the contract. At the time of the refusal to arbitrate, however, Hortex was preparing to defend itself, in a bona fide and non-frivolous fashion, against the alleged 8(a) (1) and (3) violations, including that relating to the discharge of Tornero. It did not refuse to arbitrate that discharge under any and all circumstances ; indeed, it signified its readiness to proceed promptly to arbitration on condition that the Union not press simultaneously the administrative litigation with respect to the Tornero discharge. Its professed concern was not that it be relieved altogether of the burden of meeting the Tornero charge in any forum but only that it not be put to the difficulty and expense of meeting it concurrently in two separate forums. We agree with the Board’s conclusion that Hortex fell into legal error in its effort to put the Union to an election, and that this error had the consequence of converting Hortex into a contract violator. We have no basis for disagreeing, however, with what appears to us to have been the Board’s further conclusion that this breach was due more to mistaken legal advice than to a deliberate, purpose to subvert the terms of a collective bargaining agreement. Compare Local 833, UAW etc. v. NLRB, 112 U.S.App.D.C. 107, 300 F.2d 699, cert. denied, Kohler v. Local 833, etc., 370 U.S. 911, 82 S.Ct. 1258, 8 L.Ed.2d 405 (1962). We do not see much difference, insofar as implications of bad faith are concerned, between a legal mistake of the kind here involved, and one concerning the scope or applicability of the contract. In either case the Board seems to us to have some latitude to draw inferences from the facts before it and to decide that the contract violation is not to be treated as an unfair labor practice. And a court should deny that latitude in a particular case only if it is convinced that the Board’s action is arbitrary or that the Board’s appraisal of the facts has no support in the record before it. This approach seems to us necessarily to accord with the strong emanations from Congress to the effect that breaches of labor contracts are not normally the business of the Board. Such expressions were most in evidence in connection with the passage of the Labor Management Relations Act of 1947, and they manifested themselves in two ways. One was the inclusion in the Senate-passed bill of a provision that made an unfair labor practice of contract violations, including expressly refusals to arbitrate, and the subsequent elimination of this provision in conference for the reasons set forth in the conference report as follows: “The Senate amendment contained a provision which does not appear in Section 8 of the existing law. This provision would have made it an unfair labor practice to violate the terms of a collective bargaining agreement or an agreement to submit a labor dispute to arbitration. The conference agreement omits this provision of the Senate amendment. Once parties have made a collective bargaining contract the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board.” 1 Legislative History of the Labor Management Relations Act 545-46 (1948). The second straw in the wind of legislative policy on this point is the inclusion in this statute, as finally enacted, of Section 301, providing judicial remedies for enforcement of labor contracts, which extend to specific performance of undertakings to arbitrate. See Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), and United Steelworkers of America AFL-CIO v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). The availability of this alternative .argues potently for a high degree of circumspection on the part of the Board in treating of claims of contract violation. That cautionary discretion was exercised here, in the light of the testimony given, against equating the refusal to arbitrate with the refusal to bargain banned by 8(a) (5). We cannot say that the Board erred, either in its weighing of the relevant facts or in its disposition of the Union’s claim with respect to them. The Board’s petition to enforce its order is granted; and the Union’s petition for review is denied. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:

sc_casesourcestate

10

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. WHALEN v. UNITED STATES No. 78-5471. Argued November 27, 28, 1979 Decided April 16, 1980 Stewart, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. White, J., filed an opinion concurring in part and concurring in the judgment, post, p. 695. BlacKmun, J., filed an opinion concurring in the judgment, post, p. 696. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 699. Silas J. Wasserstrom argued the cause for petitioner. With him on the briefs were William J. Mertens and W. Gary Kohlman. Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Allan A. Ryan, Jr., Jerome M. Feit, and Elliott Schulder. Mr. Justice Stewart delivered the opinion of the Court. After a jury trial, the petitioner was convicted in the Superior Court of the District of Columbia of rape, and of killing the same victim in the perpetration of rape. He was sentenced to consecutive terms of imprisonment of 20 years to life for first-degree murder, and of 15 years to fife for rape. The District of Columbia Court of Appeals affirmed the convictions and the sentences. 379 A. 2d 1152. We brought the case here to consider the contention that the imposition of cumulative punishments for the two offenses was contrary to federal statutory and constitutional law. 441 U. S. 904. I Under the laws enacted by Congress for the governance of the District of Columbia, rape and killing a human being in the course of any of six specified felonies, including rape, are separate statutory offenses. The latter is a species of first-degree murder, but, as is typical of such “felony murder” offenses, the statute does not require proof of an intent to kill. D. C. Code § 22-2401 (1973). It does require proof of a killing and of the commission or attempted commission of rape or of one of five other specified felonies, in the course of which the killing occurred. Ibid. A conviction of first-degree murder is punishable in the District of Columbia by imprisonment for a term of 20 years to life. § 22-2404. Forcible rape of a female is punishable by imprisonment for any term of years or for life. § 22-2801. It is the petitioner’s position that his sentence for the offense of rape must be vacated because that offense merged for purposes of punishment with the felony-murder offense, just as, for example, simple assault is ordinarily held to merge into the offense of assault with a dangerous weapon. See Waller v. United States, 389 A. 2d 801, 808 (D. C. 1978). The District of Columbia Court of Appeals disagreed, finding that “the societal interests which Congress sought to protect by enactment [of the two statutes] are separate and distinct,” and that “nothing in th[e] legislation . . . suggests] that Congress intended” the two offenses to merge. 379 A. 2d, at 1159. That construction of the legislation, the petitioner argues, is mistaken, and he further argues that, so construed, the pertinent statutes impose on him multiple punishments for the same offense in violation of the Double Jeopardy-Clause of the Fifth Amendment. Cf. North Carolina v. Pearce, 395 U.S. 711. If this case had come here from a United States court of appeals, we would as a matter of course first decide the petitioner’s statutory claim, and, only if that claim were rejected, would we reach the constitutional issue. See Simpson v. United States, 435 U. S. 6, 11-12. But this case comes from the District of Columbia Court of Appeals, and the statutes in controversy are Acts of Congress applicable only within the District of Columbia. In such cases it has been the practice of the Court to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern. See Pernell v. Southall Realty, 416 U. S. 363, 366; see also Griffin v. United States, 336 U. S. 704, 717-718; Fisher v. United States, 328 U. S. 463, 476. This practice has stemmed from the fact that Congress, in creating the courts of the District of Columbia and prescribing their jurisdiction, “contemplate [d] that the decisions of the District of Columbia Court of Appeals on matters of local law — both common law and statutory law — will be treated by this Court in a manner similar to the way in which we treat decisions of the highest court of a State on questions of state law.” Pernell v. Southall Realty, 416 U. S., at 368 (footnote omitted). But it is clear that the approach described in the Pernell opinion is a matter of judicial policy, not a matter of judicial power. Acts of Congress affecting only the District, like other federal laws, certainly come within this Court’s Art. Ill jurisdiction, and thus we are not prevented from reviewing the decisions of the District of Columbia Court of Appeals interpreting those Acts in the same jurisdictional sense that we are barred from reviewing a state court’s interpretation of a state statute. Ibid. Cf. Mullaney v. Wilbur, 421 U. S. 684, 691; Scripto, Inc. v. Carson, 362 U. S. 207, 210; Murdock v. Memphis, 20 Wall. 590, 632-633. In this case we have concluded that the customary deference to the District of Columbia Court of Appeals’ construction of local federal legislation is inappropriate with respect to the statutes involved, for the reason that the petitioner’s claim under the Double Jeopardy Clause cannot be separated entirely from a resolution of the question of statutory construction. The Fifth Amendment guarantee against double jeopardy protects not only against a second trial for the same offense, but also “against multiple punishments for the same offense,” North Carolina v. Pearce, supra, at 717 (footnote omitted). But the question whether punishments imposed by a court after a defendant’s conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized. See Gore v. United States, 357 U. S. 386, 390; id., at 394 (Warren, C. J., dissenting on statutory grounds); Bell v. United States, 349 U. S. 81, 82; Ex parte Lange, 18 Wall. 163, 176; see also Brown v. Ohio, 432 U. S. 161, 165; United States v. Universal C. I. T. Credit Corp., 344 U. S. 218; Blockburger v. United States, 284 U. S. 299; Ebeling v. Morgan, 237 U. S. 625. It is not at all uncommon, for example, for Congress or a state legislature to provide that a single criminal offense may be punished both by a monetary fine and by a term of imprisonment. In that situation, it could not be seriously argued that the imposition of both a fine and a prison sentence in accordance with such a provision constituted an impermissible punishment. But if a penal statute instead provided for a fine or a term of imprisonment upon conviction, a court could not impose both punishments without running afoul of the double jeopardy guarantee of the Constitution. See Ex parte Lange, supra, at 176. Cf. Bozza v. United States, 330 U. S. 160, 167. In the present case, therefore, if Congress has not authorized cumulative punishments for rape and for an unintentional killing committed in the course of the rape, contrary to what the Court of Appeals believed, the petitioner has been imper-missibly sentenced. The dispositive question, therefore, is whether Congress did so provide. The Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so. The Fifth Amendment guarantee against double jeopardy embodies in this respect simply one aspect of the basic principle that within our federal constitutional framework the legislative power, including the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly with the Congress. See United States v. Wiltberger, 5 Wheat. 76, 95; United States v. Hudson & Goodwin, 7 Cranch 32, 34. If a federal court exceeds its own authority by imposing multiple punishments not authorized by Congress, it violates not only the specific guarantee against double jeopardy, but also the constitutional principle of separation of powers in a manner that trenches particularly harshly on individual liberty. Because we have concluded that the District of Columbia Court of Appeals was mistaken in believing that Congress authorized consecutive sentences in the circumstances of this case,, and because that error denied the petitioner his constitutional right to be deprived of liberty as punishment for criminal conduct only to the extent authorized by Congress, we reverse the judgment of the Court of Appeals. II As has already been noted, rape and the killing of a person in the course of rape in the District of Columbia are separate statutory offenses for which punishments are separately provided. Neither statute, however, indicates whether Congress authorized consecutive sentences where both statutes have been offended in a single criminal episode. Moreover, the legislative history of those specific penal provisions sheds no light on that question. The issue is resolved, however, by another statute, enacted iii 1970. That statute is § 23-112 of the District of Columbia Code (1973), and it provides as follows: “A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence expressly provides otherwise, run' consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not.” (Emphasis added.) Although the phrasing of the statute is less than felicitous, the message of the italicized clause, we think, is that multiple punishments cannot be imposed for two offenses arising out of the same criminal transaction unless each offense “requires proof of a fact which the other does not.” The clause refers, of course, to a rüle of statutory construction stated by this Court in Blockburger v. United States, 284 U. S. 299, and consistently relied on ever since to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively. The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the “same offense,” they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent. In the Blockburger case the .Court held that “[t]he applicable rule is .that where the same act or transaction constitutes a violation of two distinct statutory provisions,, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id., at 304. See also Brown v. Ohio, 432 U. S., at 166; Iannelli v. United States, 420 U. S. 770; Gore v. United States, 357 U. S. 386. The legislative history rather clearly confirms that Congress intended the federal courts to adhere strictly to the Block-burger test when construing the penal provisions of the District of Columbia Code. The House Committee Report expressly disapproved several decisions of the United States Court of Appeals for the District of Columbia Circuit that had not allowed consecutive sentences notwithstanding the fact that the offenses were different under the Blockburger test. See H. R. Rep. No. 91-907, p. 114 (1970). The Report restated the general principle that “whether or not consecutive sentences may be imposed depends on the intent of Congress.” Ibid. But “[s]ince Congress in enacting legislation rarely specifies its intent on this matter, the courts have long adhered to the rule that Congress did intend to permit consecutive sentences . . . when each offense “ 'requires proof of a fact which the other does not,'” ibid., citing Blockburger v. United States, supra, and Gore v. United States, supra. The Committee Report observed that the United States Court of Appeals had “retreated from this settled principle of law” by requiring specific evidence of congressional intent to allow cumulative punishments, H. R. Rep. No. 91-907, at 114, and the Report concluded as follows: “To obviate the need for the courts to search for legislative intent, section 23-112 clearly states the rule for sentencing on offenses arising from the same transaction. For example, a person Convicted of entering a house with intent to steal and stealing therefrom shall be sentenced consecutively on the crimes of burglary and larceny unless the judge provides to the contrary.” We think that the only correct way to read § 23-112, in the light of its history and its evident purpose, is to read it as embodying the Blockburger rule for construing the penal provisions of the District of Columbia Code. Accordingly, where two statutory offenses are not the same under the Blockburger test, the sentences imposed “shall, unless the court expressly provides otherwise, run consecutively.” And where the offenses are the same under that test, cumulative sentences are not permitted, unless elsewhere specially authorized by Congress. In this case, resort to the Blockburger rule leads to the conclusion that Congress did not authorize consecutive sentences for rape and for a killing committed in the course of the rape, since it is plainly not the case that “each provision requires proof of a fact which the other does not.” A conviction for killing in the course of a rape cannot be had without proving all the elements of the offense of rape. See United States v. Greene, 160 U. S. App. D. C. 21, 34, 489 F. 2d 1145, 1158 (1973). Cf. Harris v. Oklahoma, 433 U. S. 682, 682-683. The Government contends that felony murder and rápe are not the “same” offense under Blockburger, since the former offense does not in all cases require proof of a rape; that is, D. C. Code § 22-2401 (1973) proscribes the killing of another person in the course of committing rape or robbery or kidnap-ing or arson, etc. Where the offense to be proved does not include proof of a rape — for example, where the offense is a killing in the perpetration of a robbery — the offense is of course different from the offense of rape, and the Government is correct in believing that cumulative punishments for the felony murder and for a rape would be permitted under Blockburger. In the present case, however, proof of rape is a necessary element of proof of the felony murder, and we are unpersuaded that this case should be treated differently from other cases in which one criminal offense requires proof of every element of another offense. There would be no question in this regard if Congress, instead of listing the six lesser included offenses in the alternative, had separately proscribed the six different species of felony murder under six statutory provisions. It is doubtful that Congress could have imagined that so formal a difference in drafting had any practical significance, and we ascribe none to it. To the extent that the Government’s argument persuades us that the matter is not entirely free of doubt, the doubt must be resolved in favor of lenity. See Simpson v. United States, 435 U. S. 6, 14-15; see also n. 10, infra. Congress is clearly free to fashion exceptions to the rule it chose to enact in § 23-112. A court, just as clearly, is not. Accordingly, notwithstanding the arguments advanced by the Government in favor of imposing consecutive sentences for felony murder and for the underlying felony, we do not speculate about whether Congress, had it considered the matter, might have agreed. It is sufficient for present purposes to observe that a congressional intention to change the general rule of § 23-112 for the circumstances here presented nowhere clearly appears. It would seriously offend the principle of the separation of governmental powers embodied in the Double Jeopardy Clause of the Fifth Amendment if this Court were to fashion a contrary rule with no more to go on than this case provides. For the foregoing reasons, the judgment of. the District of Columbia. Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. The jury also convicted the petitioner of other felonies, but these convictions were set aside by the District of Columbia Court of Appeals, except for a second-degree murder conviction upon which the petitioner had received a concurrent sentence. The sentence itself was vacated by the appellate court. The statute also provides for a sentence of death upon conviction for first-degree murder, but that provision has been held to be unconstitutional. See United States v. Stokes, 365 A. 2d 615, 616, n. 4 (D. C. 1976); United States v. Lee, 160 U. S. App. D. C. 118, 123, 489 F. 2d 1242, 1247 (1973). This is not to say that there are not constitutional limitations upon this power. See, e. g., Coker v. Georgia, 433 U. S. 584; Roe v. Wade, 410 U. S. 113, 164; Stanley v. Georgia, 394 U. S. 557, 568; Loving v. Virginia, 388 U. S. 1, 12; Robinson v. California, 370 U. S. 660, 666-667. Although the courts of the District of Columbia were created by Congress pursuant to its plenary Art. I power to legislate for the District, see Art. I, § 8, cl. 17; D. C. Code § 11-101 (2) (1973), and are not affected by the salary and tenure provisions of Art. III, those courts, no less than other federal courts, may constitutionally impose only such punishments as Congress has seen fit to authorize. The Court has held that the doctrine of separation of powers embodied in the Federal Constitution is not mandatory on the States. Dreyer v. Illinois, 187 U. S. 71, 84. See Mayor of Philadelphia v. Educational Equality League, 415 U. S. 605, 615, and n. 13; Sweezy v. New Hampshire, 354 U. S. 234, 255; id., at 255, 256-257 (Frankfurter, J., concurring in result). It is possible, therefore, that the Double Jeopardy Clause does not, through the Fourteenth Amendment, circumscribe the penal authority of state courts in the same manner that it limits the power of federal courts. The Due Process Clause of the Fourteenth Amendment, however, would presumably prohibit state courts from depriving persons of liberty or property as punishment for criminal conduct except to the extent authorized by state law. Before 1962, conviction of first-degree murder in the District of Columbia led to a mandatory sentence of death by hanging. See Act of Mar. 3, 1901, § 801, 31 Stat. 1321. Accordingly, the question did not arise whether the sentence for another felony could run consecutively to that for first-degree murder. In 1962 Congress replaced the mandatory death penalty with the present language of D. C. Code § 22-2404 (1973), which allows, as an alternative to a penalty of death, a sentence of 20 years to life imprisonment. Pub. L. 87-423, 76 Stat. 46. Congress did not, however, address the matter of consecutive sentences in this amendatory legislation. The parties in the present case are in agreement that Congress intended a person convicted of felony murder to be subject to the same penalty as a person convicted of premeditated murder, see, e. g., 108 Cong. Rec. 4128-4129 (1962) (remarks of Sen. Hartke), and subject to more severe punishment than persons convicted of second-degree murder, see S. Rep. No. 373, 87th Cong., 1st Sess., 2 (1961); H. R. Rep. No. 677, 87th Cong., 1st Sess., 2 (1961). The parties disagree as to whether the consecutive sentences in this case are in accord with that congressional intent. The petitioner argues that if a consecutive sentence for rape were permitted, he would be punished more severely than if he had committed premeditated murder. The Government counters that the relevant comparison is with the sentences permitted for premeditated murder plus rape, which can be consecutive. Likewise, the Government argues that since consecutive sentences would be permissible for second-degree murder and rape, such sentences should be permitted here to avoid punishing felony murder and rape less harshly. In our view of this case, this controversy need not now be resolved. The Government would read D. C. Code § 23-112 to mean that courts may ignore the Blockburger rule and freely impose consecutive sentences “whether or not” the statutory offenses are different under the rule. While this may be a permissible literal reading of the statute, it would lead to holding that the statute authorizes consecutive sentences for all greater and lesser included offenses — an extraordinary view that the Government itself disavows. Such an improbable construction of the statute would, moreover, be at odds with the evident congressional intention of requiring federal courts to adhere to the Blockburger rule in construing the penal provisions of the District of Columbia Code. See infra, this page and 693. There may be instances in which Congress has not intended cumulative punishments even for offenses that are different under the general provision contained in § 23-112. For example, in this case the District of Columbia Court of Appeals vacated the petitioner’s sentence for second-degree murder, for the reason that, in the court’s view, second-degree murder is a lesser included offense of first-degree felony murder, notwithstanding the fact that each .offense requires proof of an element that the other does not. The correctness of the Court of Appeals’ ruling in this regard is not an issue in this case. Contrary to the view of the dissenting opinion, we do not in this case apply the Blockburger rule to the facts alleged in a particular indictment. Post, at 708-712. We have simply concluded that, for purposes of imposing cumulative sentences under D. C. Code § 23-112, Congress intended rape to be considered a lesser offense included within the offense of a killing in the course of rape. See n. 5, supra. This view is consistent with the settled rule that “ ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,’ ” United States v. Bass, 404 U. S. 336, 347, quoting Rewis v. United States, 401 U. S. 808, 812. See Simpson v. United States, 435 U. S. 6; Ladner v. United States, 358 U. S. 169; Bell v. United States, 349 U. S. 81. As the Court said in the Ladner opinion: “This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” 358 U. S., at 178. 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_genapel1

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 is to determine the nature of the first listed appellant. VIRGIN ISLANDS HOTEL ASSOCIATION (U.S.), INC., a corporation, Appellant, v. VIRGIN ISLANDS WATER & POWER AUTHORITY. No. 72-1996. United States Court of Appeals, Third Circuit. Argued Jan. 19, 1973. Decided April 12, 1973. Evelyn N. Cooper, Isherwood & Colianni, Christiansted, St. Croix, V. I., for appellant. Ronald H. Tonkin, Atty. Gen. of the Virgin Islands, Sidney H. McKenzie, III, Asst. Atty. Gen., St. Thomas, V. I., Wallace L. Duncan, Duncan & Brown, Washington, D. C., for appellee. Before VAN DUSEN and ADAMS, Circuit Judges, and BARLOW, District Judge. OPINION OF THE COURT VAN DUSEN, Circuit Judge. This is the second time that these parties, the Virgin Islands Hotel Association (the Hotel Association) and the Virgin Islands Water and Power Authority (the Authority), are before this court. On the first occasion, in Virgin Islands Hotel Ass’n v. Virgin Islands Water & Power Authority, 465 F.2d 1272 (3d Cir. 1972), this court upheld with modification an injunction the district court had issued against the Authority. By order of October 3, 1972, the district court vacated that injunction, and the Hotel Association appeals. We affirm the October 1972 order of the district court. I. BACKGROUND It is necessary only to summarize the facts stated in our earlier opinion and in the first opinion of the district court, reported at 54 F.R.D. 377 (D.V.I.1972). In the late fall of 1971, the Authority became worried that its revenues would soon fail to provide the coverage over interest required by its outstanding debt instruments, with devastating impact on its ability to procure additional needed financing. On November 10, 1971, it issued a press release indicating its intention to raise electric rates by from about 19% for residential users to about 25% for large power users. Public hearings were held one week later, and on December 3 the Authority put the proposed increases into effect. The Hotel Association was understandably upset, since its members are classified as “large power” users. It immediately sought an injunction against the rate increase. The district court ruled that the Authority had violated 30 V.I.C. § 105(a) (12) in two ways. First, because the Authority did not have at its disposal information on the cost of providing electricity to its various classes of customers, the Authority had failed “to determine . . . reasonable rates.” Second, the public hearings held pursuant to this section 105(a) (12) were altogether inadequate. Among other defects, notice to the public was too short to allow adequate preparation time and the reports the Authority relied on were not made available publicly until the first public hearing. The district court, on February 4, 1972, ordered the Authority to rescind the increases, to have made an appropriate study of costs (called a “rate” study), and to hold proper public hearings on the proposed increases. However, to avoid possible disruption, the court stayed this injunction for ten months. By decision of June 28, 1972, this court, although ruling that the Authority’s determination of rates is not subject to judicial review, held that review is available when the Authority has “ignored a plain statutory duty, exceeded its jurisdiction, or committed constitutional error.” 465 F.2d at 1275. “The rate fixing procedure created by 30 V.I. C. § 105(a) (12) contemplates a meaningful public hearing at which interested persons can present their views and present evidence in support thereof. Concomitant with such a hearing are the essential requirements of adequate notice, dissemination to the public of the facts and figures on which the Authority relies, and an opportunity afforded to those attending the hearing to rebut such facts and figures.” Id. at 1276. This court agreed with the district court that the Authority’s hearings did not comply with these requirements. This court did not, however, agree that § 105(a) (12) imposed any duty “to make rate studies as such,” id. at 1276, and modified the district court injunction accordingly. To comply with this court’s mandate, the Authority commissioned new reports from R. W. Beck & Associates and from D.S.S. Engineering, Inc. (hereinafter D.S.S.); it also had Jackson & Moreland prepare an update of the report they had prepared earlier. On July 5, 1972, the Authority issued a press release stating, inter alia, that new hearings would be held and that the earlier Jackson &. Moreland study was available to the public. Beginning on August 12, 1972, the Authority had published in the local newspapers notices that new public hearings would be held on September 11, 12 and 13. The Authority made the Beck and the Jackson & Moreland reports available to the public on August 8, the D.S.S. report on August 28. The Authority held these hearings as scheduled. At each hearing various officials of the Authority commented on the proposed rate increases, and representatives from the three engineering firms summarized and discussed the contents of their reports. In accordance with the procedure announced at the beginning of each meeting, all persons could submit written questions, which would be answered by either an official of the Authority or a representative from one of the firms. In addition, all persons could submit written statements or, at the conclusion of the Authority’s presentation, deliver oral statements. According to an affidavit of the Authority’s Executive Director, “All questions which were asked were responded to. In addition, any person desiring to make a statement with regard to the proposed subject rate increases were [sic] permitted to do so.” The Secretary of the Hotel Association’s St. Thomas-St. John Chapter testified at the September 12 hearing held on St. Thomas. In addition, counsel for the Hotel Association and an expert the Association had hired, Constance W. Bary, attended the September 13 hearing held at Christiansted on St. Croix. Counsel objected to the testimony not being sworn and not being subject to oral cross-examination. Counsel had no written questions to submit, but was allowed to give orally an “offer of proof” of what the Hotel Association would have established if an opportunity for cross-examination had been granted. Admitting that Mr. Bary had not been contacted until September 7, such counsel also requested that the hearing be adjourned until November 9. This adjournment would give the Authority time to prepare, and for Mr. Bary to review, data which counsel said were necessary to examine the reasonability of rates. Counsel and Mr. Bary then stated that without such data the Hotel Association was unable to demonstrate the unreasonableness of the proposed rates. Following the hearings, the Authority determined that the rates it had proposed the previous December were reasonable. The Authority then filed a motion in the district court to vacate the injunction. The district court, after considering the Hotel Association’s allegations of substantive and procedural infirmities, vacated the injunction by its October 1972 order. II. PROCEDURAL ISSUES The Hotel Association argues either that the September 1972 hearings did not comply with 30 V.I.C. § 105(a)(12) as interpreted by this court in deciding the previous appeal or that, assuming compliance, the statute itself fails to provide the due process of law required by 48 U.S.C. § 1561 (1970). Specifically, the Hotel Association urges that the notice of the hearings and the prior dissemination of the engineering studies were inadequate; that these deficiencies were perpetuated by the denial of the adjournment it requested; that the hearings themselves should have been trial-type, rather than legislative-type; that they should have been conducted by an impartial hearing officer; and that in making its final decision the Authority improperly relied on evidence not in the record. “Whether [due process] requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (1960). Accord, Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Marine Space Enclosures, Inc. v. Federal Maritime Commission, 137 U.S.App.D.C. 9, 420 F.2d 577, 589-590 (1969). While this court, in its prior opinion, did not state precisely how many days in advance the schedule of the new hearings had to be announced or the reports disseminated, it stressed the importance of notice and dissemination adequate under the circumstances. To be considered, for example, was the complex nature of the data. The Hotel Association now complains that notice of about one month was too short. What the Hotel Association in effect asks us to ignore is the district court’s injunction which had been stayed for only ten months. As of June 28, when this court handed down its affirmance of that injunction, it was clear to all concerned that the Authority would have to hold new hearings. Moreover, the July 5th press release was sufficient to warn the Hotel Association of the need to retain its expert. Thus, the Hotel Association has only itself to blame for waiting until the end of August before seeking an expert qualified to present its case. Similarly, the question whether or not the public had enough time to evaluate the three engineering studies should be considered in light of the ability of the public under these circumstances to have been ready for the reports. We are not prepared to reverse the decision of the district court and rule as a matter of law that notice and dissemination were inadequate. The Hotel Association’s request for a two-month adjournment was properly denied, particularly since the Hotel Association did not' make the request sooner, for example, when the schedule of meetings was announced, but at the last meeting held. Moreover, the argument the Authority presented to the district court, that any additional delay would seriously hamper the sale of new bonds, is a persuasive factor. The Hotel Association’s most telling argument is that the hearings should have been conducted not as legislative hearings but as adversary proceedings. The chief difference between the two modes as regards this case is that a trial-type hearing typically permits oral cross-examination of witnesses. Our earlier opinion did not decide this question. The Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1970), is instructive. Rule-making proceedings are controlled by § 553, which requires only that interested parties be given adequate notice of the proposed rule, see § 553(b), and “an opportunity to participate in the rule making through submission of written data, views or arguments with or without opportunity for oral presentation,” § 553(c). The procedure for adjudication is set out in §§ 554 and 556, under which “[a] party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts,” § 556(d). If the Administrative Procedure Act governed the Authority’s rate-making, the appropriate proceeding would be rule-making, because the rates in question have only prospective application. § 551(4); Law Motor Freight, Inc. v. CAB, 364 F.2d 139, 143-144 (1st Cir. 1966); see Jones v. District of Columbia, 116 U.S.App.D.C. 301, 323 F.2d 306, 308-309 (1963). A second distinction which has been relied on by the federal courts is whether the proposed agency action affects a small or a large number of persons. Compare Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), with Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908). The two rationales underlying this distinction are that decisions affecting large numbers of persons are likely to be more concerned with general policies than with specific facts and that permitting many persons to cross-examine each witness would make proceedings totally unmanageable. See United States v. Florida East Coast Railway Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). In the present case, of course, the proposed increases affected every person in the Virgin Islands. We do not know, however, that there would have been a multitude of cross-examiners at the September hearings if cross-examination had been available. A third factor, somewhat overlapping the second, is whether the facts in question are “legislative” or “adjudicative.” See 1 K. C. Davis, Administrative Law Treatise, § 702 (1958). That is, will the agency decision depend chiefly on policy considerations or on specific, especially historical facts which are provable or disprovable? The Authority’s decision here appears to have been made, as 30 V.I.C. § 105(a) provides, in reliance on both types of facts — for example, the costs of providing electric service to its various classes of customers and “making the benefits [of water and electric power systems] available to the inhabitants of the Virgin Islands in the widest economic manner consistent with sound fiscal management, and by this means to promote the general welfare and increase commerce and prosperity. ...” § 105(a). While Professor Davis would thus suggest that cross-examination would be appropriate at least as to the adjudicative facts, a number of courts have held in cases which, like the one before us, involved complex and technical factual controversies, that written submissions, possibly supplemented by oral argument, suffice. United States v. Florida East Coast Railway Co., supra; Phillips Petroleum Co. v. F. P. C., 475 F.2d 842 (10th Cir. 1973); National Air Carriers Association v. CAB, 141 U.S.App.D.C. 31, 436 F.2d 185, 191-194 (1970); American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624 (1966); cases cited note 10. One recent case countenances the restriction that questions be submitted in writing. International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C.Cir., 1973), at p. 18-23. On the other hand, the absence here of any specific statutory procedures such as the Administrative Procedure Act necessitates greater leeway than those courts had. The present case does not compel us to hold that cross-examination will never be required in hearings under 30 V.I.C. § 105(a) (12). Instead, we rely on the failure of the Hotel Association to have demonstrated the inadequacy of written questions, which were permitted. The Hotel Association could easily have informed itself of this aspect of the Authority’s procedures by attending the September 11 meeting. In fact, a representative of the Hotel Association did attend the September 12 meeting on St. Thomas and no doubt could have told counsel in time to prepare for the September 13 hearing that questions had to be in writing. We have carefully examined the Hotel Association’s “offer of proof” at the September 13 hearing, and no reason appears to us that the points there raised could not have been formulated in written questions. Consequently, we hold that the Hotel Association has not shown that it was prejudiced, and on this basis we decline to reverse the district' court. See Woodbury v. McKinnon, 447 F.2d 839, 844 (5th Cir. 1971); Citizens for Allegan County, Inc. v. FPC, 134 U.S.App.D.C. 229, 414 F.2d 1125, 1134 (D.C.Cir. 1969). The Hotel Association’s other two procedural claims can be quickly disposed of. First, it did not appear that the officials who conducted the hearings in any way intimidated counsel for the Hotel Association or otherwise deprived it of privileges available to other participants. Moreover, because the Board of the Authority had the responsibility for the final decision on the rate increases, it is not at all evident how having a trial examiner take testimony would have altered that decision in any way. Second, in claiming that the Authority went beyond what was in the record at the hearings, the Hotel Association relies on certain language in the resolution in which the Authority adopted the increases. We find that the Hotel Association’s interpretation of this language is contrary to its obvious meaning. III. SUBSTANTIVE ISSUES The Hotel Association contends that the Authority did not have adequate information on which to determine whether or not the rates were reasonable. The essence of this argument is that the Authority does not know how to allocate various expenses between water and power distribution and does not know, how much it costs it to supply power to the various types of power users. However, the three engineering studies introduced at the hearings seem to provide just this type of information. The Hotel Association has clearly failed to demonstrate the type of statutory violation subject to review by this court. See V. I. Hotel Association v. V. I. Water & Power Authority, supra, 465 F.2d at 1274. Finally, we note that the Hotel Association did not attempt to establish in the Authority’s September 1972 hearings or in the subsequent district court proceeding, and does not now urge, that the increase in electric rates is confiscatory. At the district court proceeding held on December 21, 1971, where the Hotel Association challenged the first set of hearings held by the Authority, there was uneontradicted testimony by various witnesses that the electric power bills of Virgin Islands hotels accounted for between four and eight percent of all operating costs (including debt service). See N.T. 136, 143, 145-146, 153. With the proposed increase in mind, the district court at that time computed that the rate increases would increase overall operating costs by about two percent, an amount which it concluded was not going to put the hotels out of business. N.T. 175-176. The October 3, 1972, order of the district court will be affirmed. . This affidavit was submitted with the Authority’s Motion to Vacate Injunction. The Hotel Association neither filed a counter-affidavit nor disputed these assertions at the September 1972 hearings held on the motion. . Transcript of September 13 hearing at Christiansted, at 74-75; September 29 bearing on Motion to Vacate Injunction, at 7-9. . Transcript of September 13 hearing at Christiansted, at 7-12. . Id. at 51-57. . Id. at 59. . Id. at 63, 67-71. . We note that the Authority’s decision as to rates concerns rates which the members of the Hotel Association must pay. That factor distinguishes this case from cases such as Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936), where an arm of the Government fixed prices that regulated persons could charge to customers. The distinction is that the latter situation is much more fraught with the potential for taking without just compensation and, consequently, places heavier demands on procedural due process. We recognize, however, that there could be such a taking in the present situation. . September 29, 1972, hearing on Motion to Vacate Injunction, at 9. Counsel for the Authority reiterated the desirability of a prompt resolution in oral argument before this court. Apparently one practical, and perhaps legal, requirement of selling these municipal bonds is an opinion letter from counsel that there is no litigation in progress which would materially affect the bonds. . The Hotel Association also is dissatisifed with the failure of the testimony to be sworn. Because the persons who testified did so in their professional capacities, it does not seem particularly significant that they were not under oath. . Law Motor Freight also holds that, as regards setting agency policy for the future, 5 U.S.C. § 553 provides due process of law. Accord, NLRB v. Delaware Valley Armaments, Inc., 431 F.2d 494, 499 (3d Cir. 1970); California Citizens Band Association, Inc. v. United States, 375 F. 2d 43, 50 (9th Cir. 1967). . This court is reluctant to hold that cross-examination is never needed, since the Authority has such broad discretion not subject to judicial review, see 465 F. 2d at 1274, and since, in the view of several commentators, cross-examination of experts on technical matters can contribute significantly to the decision-making process. Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Reform, 118 U.Pa.L.Rev. 485, 521-524 (1970); Spritzer, Uses of the Summary Power to Suspend Rates: An Examination of Federal Regulatory Agency Practices, 120 U.Pa.L.Rev. 39, 95-97 (1971); Comment, Public Participation in Federal Administrative Proceedings, 120 U.Pa.L.Rev. 702, 743-744 (1972). However, as noted at page 1269 above, several federal cases have held that cross-examination is not mandated in such a situation. . The Hotel Association made no attempt to offer similar data at the September 1972 district court hearing. 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

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

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 "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. CAPITOL BUS COMPANY, t/a Trailways of Pennsylvania v. BLUE BIRD COACH LINES, INC., et al. Appeal of BLUE BIRD COACH LINES, INC. and Aetna Casualty and Surety Company, 71-2005. Appeal of AMERICAN FIDELITY FIRE INSURANCE COMPANY, 71-2006. Nos. 71-2005, 71-2006. United States Court of Appeals, Third Circuit. Argued Dec. 1, 1972. Decided May 14, 1973. James K. Thomas, Joseph P. Hafer, Metzger, Hafer, Keefer, Thomas & Wood, Harrisburg, Pa., for appellants in No. 71-2005 and cross-appellees in No. 71-2006. Frederick W. Andrews, Pannebaker, Andrews & Yost, Harrisburg, Pa., for cross-appellant in No. 71-2006 and as appellee in No. 71-2005. Clyde W. McIntyre, McNees, Wallace & Nuriek, Harrisburg, Pa., for appellee in both cases. OPINION OF THE COURT Before KALODNER, ADAMS and HUNTER, Circuit Judges. KALODNER, Circuit Judge. In this diversity action, tried to the District Court upon stipulated facts, the appellant insurance companies were held liable to the appellee Capitol Bus Company, t/a Trailways of Pennsylvania (“Trailways”), for $13,700 damages to one of its buses on November 8, 1969, while it was being operated in the franchise area of the appellant Blue Bird Coach Lines. (“Blue Bird”), under an “Equipment Lease Agreement” (“Agreement”), designed to provide for the continuous carriage of passengers, without change of buses, over the franchise areas of the five bus lines party to the Agreement. The appellant American Fidelity Fire Insurance Company (“American”) was the property damage insurance carrier for Trailways and the appellant Aetna Casualty and Surety Company (“Aetna”) was Blue Bird’s property damage insurance carrier. The bus lines party to the Agreement participated in operating a scheduled run from Washington, D.C. to Erie, Pennsylvania through their franchise areas. Trailways’ franchise area extends from Washington, D.C. to Elmira, New York. Blue Bird’s franchise area extends from Corning, New York to Jamestown, New York. Two drivers, working in eight-hour shifts, were employed in the run; one from Washington, D.C. to Olean, New York, and the other from Olean to Erie, Pennsylvania, and return to Olean. Trailways furnished the driver on the Washington to Olean shift. Blue Bird furnished the driver on the Olean to Erie, and return to Olean, shift. Trailways paid its driver his mileage pay rate on his Washington to Olean shift. It also paid incidental Social Security taxes, federal and Pennsylvania unemployment and Workmen’s Compensation. Blue Bird reimbursed Trailways for use of Trailways’ driver on a nonprofit basis at the rate of 13 cents per mile from the driver’s entry into Blue Bird franchise area at Corning until the end of his shift at Olean. Blue Bird received all the revenue benefits from the operation of the bus by the Trailways driver between Corning and Olean. It paid Trailways 18 cents per mile for use of the bus after it entered its franchise area at Corning, in consonance with Paragraph 11 of the Agreement which provided that “[e]ach operating carrier agrees to pay the owning carrier of buses leased hereunder a rental of eighteen cents (180) for each mile that such leased buses are operated by such operating carrier.” (emphasis supplied.) The bus was damaged when it ran off the road while being driven by the Trailways driver at Andover, New York. Andover lies between Corning and Olean, Blue Bird franchise area. The question here presented is whether American, Trailways’ property damage insurance carrier, or Aetna, Blue Bird’s property damage insurance carrier, is liable for payment of the damages sustained by the bus. American contends it is not liable since in its view Blue Bird was the “operating carrier” of the bus when it was damaged, and American’s policy provides that its coverage “shall cease while owned buses are being operated by other bus companies under . . . interchange agreements.” Aetna contends “Blue Bird, Aetna’s insured, was not an operating carrier within the meaning of the Equipment Lease Agreement,” and that the coverage of its policy specifically extends “only with respect to the terms and conditions of the equipment lease agreement.” Aetna further contends that “[t]he principles of agency and re-spondeat superior also indicate that the Trailways operator remained in the employ of its [sic] original master and Blue Bird is not responsible for the damage to the bus.” As earlier stated, the District Court ruled that both American and Aetna were liable under their policies for payment of the damage to the bus. It based its ruling on its holding that the Trailways driver was the “servant” of both Trailways and Blue Bird when the bus was damaged and thus the two bus lines were “operating carriers” under the Agreement which made an “operating carrier” liable for damage to a bus. The District Court resorted to general agency principles in ruling that the Trailways driver was the “servant” of the two bus lines, citing Dickerson v. American Sugar Refining Co., 211 F.2d 200 (3 Cir. 1954); Restatement (Second) Agency §§ 226, 227 (1957); Annot., 17 A.L.R.2d 1388 (1951). The District Court erred when it resorted to general agency principles and it compounded its error when it premised its holding that both bus lines were “operating carriers” on its common servant finding. We are here concerned solely with rights and liabilities of parties spelled out and fixed by the terms of a contract to which they are party. Where a contract relating to leasing of equipment spells out and fixes the liabilities of the lessor and lessee with respect to damages sustained by the leased equipment the contract alone must be looked to, and general agency principles are inapplicable. The fact that general agency principles would be applicable in determining the liability of the lessor and lessee with respect to damages suffered by a third party in the use of the equipment is irrelevant to the determination of the rights and liabilities of the contracting parties inter se. What has been said brings us to the Agreement which was executed May 15, 1969, some six months prior to the happening of the bus accident. The Agreement provides in relevant part: “1. PURPOSE “The purpose of this agreement is to provide for the interchange of motor vehicle equipment between the parties hereto for operation in through service without change of buses, over the authorized operating routes of the respective parties. “2. DEFINITIONS “(a) ‘Owning Carrier’ as used herein means the status assumed by any party hereto when it permits any bus owned by it to be used and operated by any of the other parties hereto under and by virtue of this agreement. “(b) ‘Operating Carrier’ as used herein means the status assumed by any party hereto when such party takes, uses and operates the bus of another party hereto under and by virtue of this agreement. “(c) Operation of lease equipment shall be deemed to have begun when delivery of a bus leased hereunder is accepted by the driver, operator or other authorized representative of any operating carrier, and shall be deemed to continue until delivery of said leased bus is accepted by the driver, operator or other authorized representative of another party hereto. “4. EQUIPMENT AND USE “Each of said parties hereto shall furnish for use and operation by all of the parties hereto the number of buses of late model and of uniform make and design shown opposite its name in Schedule A attached. . . . Each of the said parties agrees to take, use and operate said equipment on its respective portion of said through routings in order to maintain the through schedule described in Schedule B attached. All expense for operating said buses shall be borne by the owning carrier, except for the compensation of operators or drivers; public liability insurance; highway, mileage, use and franchise taxes and highway, bridge, ferry, tunnel and terminal tolls and charges, which shall be borne by the operating carriers. . “5. DRIVERS “Each operating carrier shall furnish competent operators or drivers to operate buses leased by it hereunder. “7. DAMAGES TO LEASED BUSES “Whenever any leased bus is damaged by accident or collision, except loss or damage occasioned by fire, all costs of repairs shall be borne by the operating party in whose possession said bus was held or by whom such bus was being operated at the time of such damage. . . . “9. PUBLIC LIABILITY INSURANCE “Each operating carrier shall be solely and fully responsible for the op eration by it of leased buses and to that end agrees to indemnify and save harmless each of the other parties hereto from and against any and all claims, suits, or judgments for personal injuries, including death, and damage to or loss or destruction of property resulting from operation by such operating carrier. . “11. RENTAL “Each operating carrier agrees to pay to the owning carrier of buses leased hereunder a rental of eighteen cents (18^) for each mile that such leased buses are operated by such operating carrier. . “12. RETENTION OF INDIVIDUAL RESPONSIBILITY AND RIGHTS “Each operating carrier retains full responsibility and authority for the conduct of its common carrier service over its respective portion of the through routings. No party shall have any liability or expense due to the action of or operation by any other party except as specifically provided herein and in no way shall any party hereto be considered to have surrendered or transferred any of its rights to any other party.” (emphasis supplied). In construing the Agreement we must give effect to these well-settled principles: A contract is to be considered as a whole, and, if possible, all its provisions should be given effect; while a contract’s provisions must be interpreted with reference to the whole the specific controls the general; and a contract should be construed so as to give effect to its general purpose. A contract must be interpreted in light of the meaning which the parties have accorded to it as evidenced by their conduct in its performance. Applying the principles stated to the instant case, we are of the opinion that (1) standing alone, and independently so, the Agreement, by its terms, constituted Blue Bird the “operating carrier” of the bus when it was damaged while being operated in Blue Bird’s franchise area; and (2) Blue Bird’s course of conduct in the performance of the Agreement demonstrated that it interpreted the Agreement as constituting it the “operating carrier” of the bus when it was damaged. On the score of the latter holding we need only point out that it is undisputed that Blue Bird paid Trailways 18 cents per mile rental for the bus from its entry into Blue Bird’s franchise area in consonance with Paragraph 11 of the Agreement which provided “[e]ach operating carrier agrees to pay to the owning carrier of buses leased hereunder a rental of eighteen cents (180) for each mile that such leased buses are operated by such operating carrier,” and that Blue Bird also paid Trailways 13 cents per mile for the driver’s wages while the bus was being operated in Blue Bird’s franchise area in consonance with Paragraph 4 of the Agreement which requires the “operating carrier” to pay “the compensation of operators or drivers.” Our view that the Agreement, standing alone, must be construed as constituting Blue Bird the “operating carrier” of the bus when it was damaged while being operated in Blue Bird’s franchise area is premised on these considerations : The Agreement, considered as a whole, was designed, as earlier stated, to provide for the continuous carriage of passengers, without change of bus, over the franchise areas of the five signatory parties. In implementation of its design, the Agreement defines an “operating carrier” as one which “takes, uses and operates the bus of another party” in its franchise area, and spells out the scope of authority and liabilities of the “operating carrier” with respect to use of the leased bus and the terms and conditions of the rental. Critical to the issue whether Blue Bird was an “operating carrier” when the bus was damaged in its franchise area is the provision of the Agreement that “\_e\ach of the said parties agrees to take, use and operate said equipment on its respective portion of said through routings in order to maintain the through schedule. . . . ” (emphasis supplied). The force of this provision is that the bus was delivered to, and accepted by, Blue Bird when it entered its franchise area. Further critical to the issue of Blue Bird’s liability for payment of the damages to the bus in its franchise area are the provisions that (1) “[w]henever any leased bus is damaged by accident or collision . . .all cost of repairs shall be borne by the operating party in whose possession said bus was held or by whom such bus was being operated at the time of such damage. . . . ”; (2) “[e]ach operating carrier shall be solely and fully responsible for the operation by it of leased buses. . . . ”; (3) “[e]ach operating carrier retains full responsibility and authority for the conduct of its common carrier service over its respective portion of the through routings.” (emphasis supplied). It may be noted that the District Court held that the Agreement, by its terms, constituted Blue Bird an “operating carrier” at the time the bus was damaged. There is no basis in the Agreement for the District Court’s finding that Trailways was also an “operating carrier,” inasmuch as the bus was not operating in Trailways’ franchise area when it was damaged. It made that finding on its theory that the bus driver at the time of the accident was the “common servant” of both Trailways and Blue Bird under general agency principles, which as we earlier stated, was erroneous. In accordance with what has been said the Order of the District Court will be vacated and the cause remanded with directions to proceed in accordance with this Opinion. . Cf., McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438, 442 (1957). . J. E. Faltin Motor Transportation, Inc. v. Eazor Express, Inc., 273 F.2d 444, 445 (3 Cir. 1959) ; Empire Properties Corporation v. Manufacturers Trust Co., 288 N.Y. 242, 43 N.E.2d 25 (1942) ; Pritch-ard v. Wick, 406 Pa. 598, 178 A.2d 725 (1962) ; Restatement, Contracts §§ 235 (c), 236(b) and (c) (1932) ; Williston on Contracts, Third Edition §§ 618, 619 (1961). . Philips Electronics & Pharmaceutical Industries Corp. v. Leavens, 421 F.2d 39, 45 (3 Cir. 1970) ; American Cyanamid Company v. Ellis-Foster Company, 298 F.2d 244, 246 (3 Cir. 1962) ; Pittsburgh Railways Company v. Equitable Life Assurance Society of the United States, 288 F.2d 640, 642 (3 Cir. 1961) ; Maloney v. Glosser, 427 Pa. 548, 552, 235 A.2d 607, 609 (1967) ; Heilwood Fuel Co., Inc. v. Manor Real Estate Company, 405 Pa. 319, 328, 175 A.2d 880, 884 (1961) ; Restatement, Contracts § 235(e) (1932). “An important aid in the interpretation of contracts is the practical construction placed on the agreement by the parties themselves.” Williston on Contracts, supra note 2, § 623, at 789. . Paragraph 12 of the “Recommendations of Findings of Facts,” submitted to the District Court and signed by counsel for Blue Bird, Aetna and American, states: “At the time of this accident, Blue Bird paid Trailways at the rate of $.18 a mile for the bus under paragraph 11 of the Agreement attached hereto and $.13 a mile for the driver’s wages under a supplemental understanding while the bus was being operated under Blue Bird franchise. The wages of the driver were paid by Trailways.” . Agreement, Paragraph 1. . Id., Paragraph 2(b). . Id., Paragraph 4. . This cited provision is dispositive of Blue Bird’s contention that “Blue Bird had not accepted delivery of the bus” within Paragraph 2(c) of the Agreement which provides that “[o]peration of lease equipment shall be deemed to have begun when delivery of a bus leased hereunder is accepted by the driver, operator or other authorized representative of any operating carrier. . . . ” To hold otherwise would be in disregard of the settled rule that provisions of a contract must be construed in light of the totality of the contract’s provisions and stated purpose. Further, the fact that Blue Bird collected revenues derived from operation of the bus from the point it entered its franchise area and paid mileage rental to Trailways from that point and recompensed Trailways for the driver’s use establishes that Blue Bird considered it had accepted delivery of the bus. . Id., Paragrapli 7. . Id., Paragraph 9. . Id., Paragraph 12. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:

songer_const1

3

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. UNITED STATES v. GALLAGHER. No. 9990. United States Court of Appeals, Third Circuit. Submitted Oct. 3, 1949. Resubmitted April 20, 1950. Decided June 21, 1950. Harry B. Gallagher, pro se. Alfred E. Modarelli, U. S. Attorney, Newark, N. J.; Grover C. Richman, Jr., Asst. U. S. Attorney, Camden, N. J.; Stuart B. Rounds, Asst. U. S. Attorney, Trenton, N. J., for appellee. Before BIGGS, Chief Judge, and MARIS, Goodrich, McLaughlin, kaLODNER and HASTIE, Circuit Judges. MARIS, Circuit Judge. The appellant was indicted on May 16, 1941 in the United States District Court for the Eastern District of Missouri on two counts. The first count charged him with transporting in interstate commerce a motor vehicle which he then knew to be stolen. The second count alleged that he received the same automobile moving as interstate commerce, knowing it to have been stolen. On June 25, 1946 appellant, being arrested in the District of New Jersey, stated in writing that he had received a copy of the indictment, that he desired to plead guilty to the charges of the indictment, that he waived trial in the district in which the charges were pending and that he consented to the disposition of the case in the District of New Jersey, subject to the approval of the United States Attorney for each district. The appellant was represented by counsel of his choice and the statement was signed by him and subscribed by his attorney as a witness. The whole procedure was in accordance with Criminal Procedure Rule 20, 18 U.S.C.A. On July 12, 1946 the appellant pleaded guilty to the indictment in question in the District Court for the District of New Jersey and at the same time pleaded guilty to another indictment involving another crime. He was sentenced on the indictment in question for a term of five years, the execution of the sentence being suspended and the appellant being placed on probation for five years. On May 5, 1947 the appellant was brought before the District Court for the District of New Jersey for violation of his probation. The court terminated the probation and resentenced him to a term of five years which he is presently serving in the federal penitentiary at Atlanta, Georgia. On March 31, 1949 the appellant filed in the District Court for the District of New Jersey a paper entitled “Motion in Arrest of Judgment”. The motion was intended by him to be made under Section 2255 of Title 28, United States Code Annotated. As grounds for his motion he asserted that the district court did not have jurisdiction to accept his plea of guilty and to sentence him upon the indictment because the automobile in question .had not in fact been stolen but rather had been obtained by false pretenses in that it had been obtained by a purchase involving the delivery of a worthless check. The district court denied the motion. From its action in so doing the appellant took the appeal now before us. Relief under Section 2255 may be granted only where it appears that “the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” Motions under this section may not be used to review the proceedings of the trial as upon appeal but merely to test their validity, when judged upon the face of the record or by constitutional standards. The purpose of the section was not to confer a broader right of attack upon a judgment and sentence than might be made by habeas corpus but rather to provide that the attack which theretofore might have been made in some other court through resort to habeas corpus must now be made in the court where the sentence was imposed unless it should appear that this remedy was inadequate. Here the appellant, with the advice of counsel, pleaded guilty to the indictment. That plea constituted an admission of his guilt, a waiver of all fionjurisdictional defects and defenses, and admitted all the facts averred in the indictment. The appellant, therefore, could not be heard to challenge those facts in a habeas, corpus proceeding. Nor can he do so upon a motion under Section 2255 to set aside the judgment of conviction. The basic difficulty with the appellant’s contention is that he misapprehends the nature and extent of the jurisdiction of the district court. He appears to think that even though he pleaded guilty to the charge against him the court was without jurisdiction to enter a judgment of conviction because, as he now asserts, he was not in fact guilty of the offense ■charged. But his plea of guilty was itself a conviction and the court had merely to give judgment and sentence thereon. This the court unquestionably had power to do. For even if the action of the court ■could be considered as a determination that the facts justified the conviction and this was erroneous, the error would not have been jurisdictional in the sense that it would have deprived the court of the power to hear and determine the case. "“Jurisdiction to decide,’.’ as Chief Justice Stone said in Pope v. United States, 1944, 323 U.S. 1, 14, 65 S.Ct. 16, 23, 89 L.Ed. 3, “is jurisdiction to make a wrong as well as a right decision.” Moreover a wrong decision upon the merits does not constitute a denial of due process of law if the opportunity of a full hearing is afforded. Such a decision, therefore, does not involve a denial of constitutional rights which may be made the basis of a motion under Section 2255. A further question is presented by the record and we, therefore, consider it although the appellant has not raised it. This is whether the District Court for the District of New Jersey had venue jurisdiction of the defendant. Criminal Procedure Rule 20 expressly conferred such jurisdiction upon the district court under the circumstances of this case. Since the rule was adopted by the Supreme Court pursuant to authority granted by Congress the question comes down to whether the rule violates the Constitution. In United States v. Bink, 1947, 74 F.Supp. 603, the District Court for the District of Oregon has held it to be unconstitutional. We do not agree. Section 3231 of Title 18 United States Code, confers general jurisdiction upon all the district courts of all offenses against the laws of the United States. The district court accordingly was vested with jurisdiction of the subject matter involved in the present case. But Section 3231 does not specify the particular district court in which a given offense is to be prosecuted. Venue for this purpose is prescribed by the Constitution and by the Criminal Procedure Rules. The basic provisions are in Article III, Section 2, Clause 3, of the Constitution and in the Sixth Amendment. These provide that the trial of persons accused of crime shall be held in the State and district wherein the crime shall have been committed. In accord with these constitutional provisions Criminal Procedure Rule 18 provides that the prosecution shall be had in the district in which the offense was committed except as otherwise permitted by statute or rule. As we have seen, it is otherwise permitted by Rule 20, but only upon the express written waiver by the accused person, who desires to plead guilty or nolo contendere, of his right to trial in the district in which the prosecution is pending against him and his express written consent to the disposition of the case in the district in which he has been arrested. Since the rule operates only when the accused has expressly waived the venue fixed by the Constitution and Rule 18 the basic question is whether the Constitutional right to trial in the district in which the offense has been committed is a right which may be waived by the accused. In considering this question we assume, without deciding, that the proceedings had in the district court upon the appellant’s consent and plea of guilty amounted to a “trial” in the constitutional sense. The district courts are national courts. Their powers are not necessarily limited by the boundaries of the states in which they sit. There is no constitutional bar which prevents Congress from conferring nation-wide jurisdiction upon them. Indeed in a number of fields it has already done so. Accordingly there is no constitutional barrier to the operation of Rule 20 unless it be the venue provisions of Article III, Section 2, clause 3, and of the Sixth Amendment. But we think that the venue specified by these provisions, like other venue provisions, is a procedural right, which, while in a broad sense for the protection of the public generally, is in a very special sense a privilege accorded to the individual member of the public who has been accused of crime. Accordingly, as in the case of the other procedural privileges conferred upon accused persons by these particular clauses of the Constitution, the venue privilege may be waived by an individual defendant. We conclude that Criminal Procedure Rule 20 is not in conflict with the Constitution and that it conferred venue jurisdiction upon the district court in the present case. The court, therefore, had full power to dispose of the appellant’s case. No other question having been raised which would support the appellant’s motion under Section 2255 to set aside the • judgment of conviction, the district court rightly denied the motion. The order of the district court will be affirmed. . “§ 2255. Federal custody; remedies on motion attacking sentence “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence, “A motion for such relief may be made at any time. “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respeet thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not-authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. “A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner. “An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus. “An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears 'that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the-remedy by motion is inadequate or ineffective to test the legality of his detention. As amended May 24, 1949, c. 139, § 114, 63 Stat. 105.” . Birtch v. United States, 4 Cir., 1949, 173 F.2d 316; Carvell v. United States, 4 Cir., 1949, 173 F.2d 348; Taylor v. United States, 4 Cir., 1949, 177 F.2d 194; Pulliam v. United States, 10 Cir., 1949, 178 F.2d 777; Davilman v. United States, 6 Cir., 1950, 180 F.2d 284. . Rice v. United States, 5 Cir., 1929, 30 F.2d 681; Weir v. United States, 7 Cir., 1937, 92 F.2d 634, 635, 114 A.L.R. 481, certiorari denied 302 U.S. 761, 58 S.Ct. 368, 82 L.Ed. 590; Weatherby v United States, 10 Cir., 1945, 150 F.2d 465, 466. . Lindsay v. United States, 10 Cir., 1943, 134 F.2d 960, 962, certiorari denied 319 U.S. 763, 63 S.Ct. 1316, 87 L.Ed. 1714; Hood v. United States, 8 Cir., 1946, 152 F.2d 431, 433; Maye v. Pescor, 8 Cir., 1947, 162 F.2d 641, 643; Thornburg v. United States, 10 Cir., 1947, 164 F.2d 37, 39. . Birtch v. Hunter, 10 Cir., 1946, 158 F.2d 134, 136, certiorari denied 331 U.S. 825, 67 S.Ct. 1314, 91 L.Ed. 1841. . United States v. Sturm, 7 Cir., 1950, 180 F.2d 413. . Kercheval v. United States, 1927, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009. . Central Land Company of West Virginia v. Laidley, 1895, 159 U.S. 103, 112, 16 S.Ct. 80, 40 L.Ed. 91; Jones v. Buffalo Creek Coal Co., 1917, 245 U.S. 328, 329, 38 S.Ct. 121, 62 L.Ed. 325; Corrigan v. Buckley, 1926, 271 U.S. 323, 332, 46 S.Ct. 521, 70 L.Ed. 969. . “Rule 20. Transfer From the District for Plea and Sentence “A defendant arrested in a district other than that in which the indictment or information is pending against him may state in writing, after receiving a copy of the indictment or information, that he wishes to plead guilty or nolo contendere, to waive trial in the district in which the indictment or information is pending and to consent to disposition of the case in the district in which he was arrested, subject to the approval of the United States attorney for each district. Upon receipt of the defendant’s statement and of the written approval of the United States attorneys, the clerk of the court in which the indictment or information is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court for the district in which the defendant is held and the prosecution shall continue in that district. If after the proceeding has been transferred the defendant pleads not . guilty, the clerk shall return the papers to the court in which the prosecution was commenced and the proceeding shall be restored to the docket of that court. The defendant’s statement shall not be used against him unless he was represented by counsel when it was made.” . “§3231. District courts “The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. * * * ” . Article III, Section 2, clause 3 of the Constitution: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” . The Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.” . “Rule 18. District and Division “Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed, but if the district consists of two or more divisions the trial shall be had in a division in which the offense was committed.” . See, for example, § 5 of the Sherman Act and § 12 of the Clayton Act, which authorize extraterritorial service upon a defendant corporation, 15 U.S.C.A. §§ 5, 22; Chapter X of the Bankruptcy Act, which confers upon the bankruptcy court exclusive jurisdiction of the debtor and its property wherever located, 11 U.S. C. A. § 511; and the Federal Interpleader Act, which authorizes extraterritorial service upon claimants in interpleader, 28 U.S.C.A. § 2361. . Panama R. Co. v. Johnson, 1924, 264 U.S. 375, 385, 44 S.Ct. 391, 68 L.Ed. 748; 28 U.S.C.A. § 1406(b). . See United States v. Sorrentino, 3 Cir., 1949, 175 F.2d 721, certiorari denied 338 U.S. 868, 70 S.Ct. 143, and cases therein cited. . Hagner v. United States, 1931, 60 App.D.C. 335, 54 F.2d 446; Mahaffey v. Hudspeth, 10 Cir., 1942, 128 F.2d 940, certiorari denied 317 U.S. 666, 63 S.Ct. 76, 87 L.Ed. 535; United States v. Jones, 2 Cir., 1947, 162 F.2d 72. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:

songer_typeiss

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. HOUSEHOLD GOODS FORWARDERS TARIFF BUREAU, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. No. 91-1350. United States Court of Appeals, District of Columbia Circuit. Argued April 23, 1992. Decided June 30, 1992. Alan F. Wohlstetter, with whom Stanley I. Goldman was on the brief, for petitioner. Michael L. Martin, Atty., I.C.C., with whom James F. Rill, Asst. Atty. Gen., Robert B. Nicholson, John P. Fonte, and John C. Filippini, Attys., Dept, of Justice, and Robert S. Burk, General Counsel and Craig M. Keats, Associate General Counsel, I.C.C., were on the brief, for respondents. Ellen D. Hanson, Atty., I.C.C., also entered an appearance, for respondents. Before RUTH BADER GINSBURG, HENDERSON and RANDOLPH, Circuit Judges. Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON. KAREN LeCRAFT HENDERSON, Circuit Judge: The Household Goods Forwarders Tariff Bureau (HGFTB) appeals the decision of the Interstate Commerce Commission (ICC or Commission) to revoke its antitrust immunity. Because the Commission applied the correct standard in evaluating the need for an antitrust exemption and because the Commission adequately articulated its reasons for revoking the immunity, we deny HGFTB’s petition for review. I. The Household Goods Forwarders Tariff Bureau (HGFTB) is a rate bureau for household goods freight forwarders. A domestic freight forwarder is a common carrier that assembles and consolidates smaller shipments at origin, sorts them for delivery at destination and arranges for a motor or rail carrier to perform the line-haul transportation between the assembly and distribution points. 49 U.S.C. § 10102(9). The forwarder “assumes responsibility for the transportation from the place of receipt to the place of destination.” Id. This case concerns “household goods” (HHG) freight forwarders. HHG freight forwarders handle used household goods, unaccompanied baggage and used automobiles. Id. § 10102(12). As common carriers subject to the ICC’s jurisdiction, HHG freight forwarders must file tariffs with the ICC setting forth their rates and charges. During the nineteen year period preceding the Commission action leading to this appeal, i.e. from 1972-1991, the rates for HHG freight forwarders were set collectively by HGFTB. HGFTB was exempted from the antitrust laws for this purpose. See Household Goods Forwarders Tariff Bureau-Agreement, Section 5a Application No. 106 (ICC Apr. 25, 1972) (1972 Decision). Another transporter is the “household goods motor carrier.” An HHG motor carrier transports HHGs from place to place. HHG motor carriers have their own authorized rate bureau, the Household Goods Carriers’ Bureau (HGCB), which collectively sets rates. HHG freight forwarders, in conducting their business, utilize the services of HHG motor carriers. The cost of motor carrier service is a major component of HHG forwarder rates. See Household Goods Forwarders Tariff Bureau, Section 5a Application No. 106 at 6 (ICC June 5, 1991) (1991 Decision). The controversy in this case involves the legislative and regulatory history of common carrier antitrust exemptions. In the 1940s, Congress passed the Reed-Bulwinkle Act, Pub.L. No. 80-662, 62 Stat. 472 (1948) (current version at 49 U.S.C. § 10706), which gave the ICC the authority to grant antitrust immunity to common carriers’ collective ratemaking to the extent the Commission determined such arrangements to be in the public interest. According to the Act, in order to receive antitrust immunity, a group of carriers must submit its collective ratemaking agreement to the Commission for approval and must demonstrate that the agreement will further the national transportation policy (NTP). 49 U.S.C. § 10706(a)(2)(A). As part of its deregulation trend, however, Congress has directly limited the ability of many types of carriers to engage in collective conduct. See generally Central & S. Motor Freight Tariff Ass ’n v. United States, 757 F.2d 301, 309-12 (D.C.Cir.), cert. denied, 474 U.S. 1019, 106 S.Ct. 568, 88 L.Ed.2d 553 (1985). The Motor Carrier Act of 1980, Pub.L. No. 96-296, 94 Stat. 793 (codified in scattered sections of 49 U.S.C.) (MCA 80), limited the degree to which HHG motor carriers could engage in collective ratemaking. Under the MCA 80, HHG motor carriers may no longer engage in most activities involving collective rate-making for single-line transportation. See 49 U.S.C. § 10706(b)(3)(D). Pertinent exceptions to this prohibition allow the HGCB to consider general rate increases and decreases as well as changes in commodity classifications and tariff structures. See id. § 10706(b)(3)(D)(i)-(iv). In addition, the legislation includes a presumption that any motor carrier rate bureau agreement falling within these exceptions will be granted antitrust immunity, unless the Commission finds that the agreement is inconsistent with the NTP. Id. § 10706(b)(2). At the request of the freight forwarder industry, Congress passed the Surface Freight Forwarder Deregulation Act of 1986 (SFFDA), Pub.L. No. 99-521,100 Stat. 2993 (codified in scattered sections of 49 U.S.C.), which withdrew antitrust immunity for freight forwarders of general commodities. However, Congress acceded to the request of the HHG freight forwarders that their antitrust immunity remain intact. Because the antitrust immunity for HHG freight forwarders was unaltered by the 1986 legislation, they remain subject to the original prerequisite that they demonstrate that their agreements will further the NTP before they can receive antitrust immunity. See 49 U.S.C. § 10706(c). Meanwhile, in January 1978, the Commission issued a decision reopening all previously approved non-rail collective ratemak-ing agreements to reevaluate whether those agreements continued to merit antitrust exemption. Reopening of Section 5a Application Proceedings to Take Additional Evidence, Ex Parte No. 297 (Sub-No. 4) (ICC Jan. 26, 1978) (Reopening Decision). Twelve years later, after reviewing the application submitted by the HHG freight forwarders in response to the Reopening Decision, the Commission issued a decision calling into question the HHG forwarders’ antitrust immunity. Household Goods Forwarders Tariff Bureau, Section 5a Application No. 106 (ICC Nov. 28, 1989) (1989 Decision). In conformance with a three-part test set forth in the Reopening Decision, the 1989 Decision directed HGFTB to establish (1) that its agreements would further the NTP and (2) that either (a) its agreements would not have anticom-petitive effects, or (b) if anti-competitive effects were found, the benefits to the public interest would outweigh those effects. Id. at 2; Reopening Decision at 3. The Commission proposed to apply the test using the standards it applied to HGCB agreements under MCA 80. The Commission explained: Thus, in addition to the provisions of 49 U.S.C. 10706(b)(3)(D), generally prohibiting the voting on and discussion of single-line rates, we propose to examine the agreement with a view to, for example, protecting the right of independent action and guaranteeing that meetings and procedures be open and fair (see 49 U.S.C. 10706(b)(3)(B)(ii) and 49 U.S.C. 10706(b)(3)(B)(iv)-(vii)). 1989 Decision at 2-3. Although the Commission acknowledged that it was not required by statute to apply the additional standards to HHG forwarders, the Commission expressed the belief that because “freight forwarders exhibit many characteristics of motor carriers, ... the goals of the NTP, particularly those favoring increased competition, support application of comparable conditions and prohibitions.” Id. at 2. HGFTB, in response, emphasized that it did not seek the blanket antitrust immunity conferred in 1972. Rather, the Bureau simply sought immunity for the same types of collective activity engaged in, with MCA 80 permission, by the HHG motor carriers. 1991 Decision at 3-4. HGFTB claimed that this protection was necessary to enable HHG freight forwarders to compete on a fair basis with HHG motor carriers. Id. HGFTB also claimed that allowing it to retain its antitrust immunity would further the NTP. Id. at 4. In a 3-2 decision, the ICC concluded that HGFTB failed to meet its burden of establishing that its agreement would further the goals of the NTP. Id. at 6-7. The Commission therefore revoked the Bureau’s antitrust immunity. Id. at 7. The Commission found that HGFTB had not provided concrete evidence as to why its members required collective action to remain competitive, had failed to show that its collective activities would not be anti-competitive and had not demonstrated that the anticompetitive aspects of its collective activities would be outweighed by public benefits. Id. at 6-7. In arriving at its conclusions, the Commission relied on comments submitted by the Department of Defense (DOD) describing DOD’s experience employing HHG freight forwarders unaffiliated with the Tariff Bureau. The Commission reasoned that DOD’s experience showed that HHG freight forwarders can thrive without antitrust immunity. Id. at 6. II. HGFTB claims that the Commission’s decision to revoke its antitrust immunity was arbitrary and capricious in several respects. The Bureau first claims that because the Commission had previously granted it immunity and because the law has not changed since that time, there was no basis for the Commission’s reversal. It is undisputed that although the codification of the relevant statutes has changed over time, the substantive law concerning antitrust exemptions for HHG freight forwarders has not changed since HGFTB’s antitrust exemption was granted twenty years ago. The unchanged nature of the law, however, does not prohibit the Commission from reexamining whether an antitrust exemption continues to be justified. An agency may change its position as long as it provides a reasoned basis for its decision. See National Classification Comm. v. United States, 779 F.2d 687, 696 (D.C.Cir.1985). In this case, the Commission’s decision is well supported. The Commission adequately explained why HGFTB’s arguments failed to establish that the HHG freight forwarders’ agreement would further the goals of the NTP and why the agreement’s anticompetitive effects were not outweighed by benefits to the public. HGFTB next claims that the test applied by the ICC is itself arbitrary and capricious. HGFTB claims that the Commission relied on these factors in revoking the exemption: (1) “no single-line collective activity would be approved for the HGFTB,” 1991 Decision at 2; (2) “household goods forwarder costs, dominated by the cost of underlying motor carrier transportation, is (sic) almost entirely variable in nature,” id. at 6; and (3) rate bureau rates are collectively set and are therefore anticompeti-tive, id. The Bureau claims that this test is arbitrary and capricious because it can never be met by an HHG forwarder. This argument misconstrues the nature of the ICC inquiry. As was noted above, the test applied by the Commission sought to determine whether HGFTB’s collective activities would further the NTP and whether these activities were either competitive or otherwise justifiable. Thus, rather than constituting the test itself, the three factors described earlier in this paragraph represent either non-decisional factors or the Corn-mission’s conclusions as to why HGFTB failed to meet the test’s requirements. Looking at HGFTB’s objections separately, we note that although the Commission’s 1989 Decision stated that “no single-line collective activity would be approved for the HGFTB,” its 1991 Decision indicates that the Commission seriously considered HGFTB’s assertion that its limited activities should fall within an exception to the prohibition against single-line collective ratemaking. 1991 Decision at 2-3. The fact that HHG forwarders use only single-line rates was therefore not dispositive. The Commission’s decision to rescind HGFTB’s antitrust immunity was based instead on its conclusion that the Bureau’s collective activity did not “enhance the goals of the NTP”. 1991 Decision at 6. HGFTB also complains that it was arbitrary and capricious for the Commission to deny it antitrust immunity on the ground that HHG forwarder costs are variable. It reasons that because HHG freight forwarder costs are in fact largely variable, the Bureau can never meet this aspect of the test. As was noted above, the Bureau confuses the ICC’s test with its particular application. The test requirement that the collective activity further the NTP can be met. The fact that HHG forwarder costs are largely variable led the Commission to the reasonable conclusion that destructive competition would be unlikely among household goods forwarders in the absence of antitrust immunity, and thus immunity would not further the NTP in that respect. 1991 Decision at 6-7. In addition, the Commission’s finding that HGFTB’s collective activity is inherently anticompetitive does not automatically foreclose the possibility of an exemption. HGFTB was entitled to demonstrate that the public benefits of its anticompetitive activity justified an exemption. It failed to make this showing. Finally, HGFTB claims that because the Commission applied the motor carrier standard in determining whether an antitrust exemption was warranted, it should have applied the motor carriers’ statutory presumption as well. This argument is without merit. The statute granting the Commission the authority to decide whether to shelter HHG forwarders’ collective action from the reach of antitrust laws allows the Commission to exercise its discretion in deciding whether an agreement furthers the NTP. See 49 U.S.C. § 10706(c). Thus, the Commission may properly choose to apply to HHG forwarders the same standard that Congress mandated it apply to motor carriers. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This is not true with respect to the burden the statute places on the Bureau. The law grants motor carriers a favorable presumption in that, if their agreement meets certain criteria and is not inconsistent with the NTP, an exemption will be granted. On the other hand, section 10706(c) commands that an exemption be granted to HHG forwarders only upon an affirmative showing that the HHG forwarders’ agreement will further the NTP. We therefore conclude that the Commission correctly refused to apply the motor carriers’ presumption to the proposed HGFTB agreement. III. For the foregoing reasons, the petition for review is Denied. . The NTP is defined at 49 U.S.C. § 10101(a). . Single line rates are rates that involve only one carrier. 49 U.S.C. § 10706(a)(1)(B), (b)(1). . Apparently, the Reopening proceeding was held in abeyance pending the disposition of several relevant legislative proposals. . Specifically, HGFTB wants to be able to consider general rate increases and decreases, changes in commodity classifications and tariff structures. In addition to these collective activities, MCA 80 allows the HGCB to publish member rates and perform other support services. HGFTB also wants to perform these support functions. The ICC, however, maintains that these types of support activities may be legally performed by the Bureau without an antitrust exemption. See 1991 Decision at 5. . Although HHG forwarders utilize the services of motor carriers, because consumers may choose to transport their goods solely by motor carrier or to employ the full services of a forwarder, the two can be in some instances competitors. . These reasons included the fact that when the Department of Defense refused to accept collectively set rates from freight forwarders, it reported a decrease in rates and an increase in efficiency. This evidence is sufficient to justify the agency's action. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)) (agency’s conclusions will be upheld if supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion"). . HGFTB argues that because Congress specifically allowed the HHG freight forwarders to keep their exemption when it enacted the SFFDA, the Commission must grant them an exemption. This misreads the SFFDA, in which Congress merely agreed to refrain from directly eliminating the exemption by statute. HGFTB also argues that the Commission violated section 558(c) of the APA, 5 U.S.C. § 558(c), which conditions an agency’s power to revoke a license, by revoking the exemption "on the basis of new criteria under which it is impossible for any forwarder rate bureau to be approved” and failing to "apply the motor carrier standard which it announced would govern the HGFTB agreement.” HGFTB Brief at 43. This argument is without merit because, as we noted above, the Commission did not apply impossible criteria but did permissibly apply the motor carrier standard while refusing to apply the motor carrier presumption. 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_capric

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" 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". UNITED STATES of America, Appellee, v. Donald Bruce MacDOUGALL, Appellant. UNITED STATES of America, Appellee, v. Kenneth Wayne GUNN, Appellant. UNITED STATES of America, Appellee, v. Cleveland SANDERS, Appellant. UNITED STATES of America, Appellee, v. Michael Lee HARVEY, Appellant. UNITED STATES of America, Appellee, v. Cleveland SANDERS, Appellant. UNITED STATES of America, Appellee, v. Kenneth Wayne GUNN, Appellant. UNITED STATES of America, Appellee, v. Donald Bruce MacDOUGALL, Appellant. UNITED STATES of America, Appellee, v. Michael Lee HARVEY, Appellant. Nos. 83-5249(L), 83-5250, 83-5251, 83-5255, 84-5048, 84-5065, 84-5066 and 84-5070. United States Court of Appeals, Fourth Circuit. Argued Oct. 9, 1985. Decided May 22, 1986. John K. Zwerling (J. Flowers Mark, Michael S. Lieberman, Zwerling, Mark, Ginsberg and Lieberman, P.C., Alexandria, Va. on brief), J. Edward Bell, Sumter, S.C., William B. Moffitt (Thomas Rawles Jones, Jr., Leora Kusher; Moffitt & Jones, Alexandria, Va., on brief); Larry G. Turner (Thomas W. Kurrus; Turner, Kurrus & Griscti, P.A., Gainesville, Fla., on brief), for appellants. John F. DePue, Dept, of Justice, Washington, D.C. (Robert C. Jendron, Asst. U.S. Atty., Henry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellee. Before WINTER, Chief Judge, SPROUSE, Circuit Judge, and BOYLE, United States District Judge for the Eastern District of North Carolina, sitting by designation. SPROUSE, Circuit Judge: Donald Bruce MacDougall, Kenneth Wayne Gunn, Cleveland Sanders and Michael Harvey appeal their convictions resulting from their involvement in a major drug smuggling and distribution conspiracy which operated along the east coast of the United States for several years. Appellants belonged to one of the three major organizations whose activities are relevant to this appeal. The appellants’ organization separately and, on occasion, jointly with one or both of the other organizations imported and distributed large quantities of marijuana and hashish. The three conspiracies cumulatively grossed in excess of one hundred million dollars and involved more than one hundred persons. All four appellants assert that the double jeopardy clause of the federal Constitution bars their prosecution in this case. In addition, they challenge the procedure by which the district court handled their double jeopardy claims and the sufficiency of the evidence supporting several of their convictions. We affirm the convictions of MacDougall and Sanders; we remand the case of Michael Harvey for further proceedings; and, we reverse one of Gunn’s convictions. The appellants’ convictions arose from an indictment in the United States District Court for the District of South Carolina. That indictment is South Carolina indictment number 166 and charged appellants and nineteen co-defendants with conspiracy and substantive controlled substances offenses. The appellants also raise points about several other indictments, principally South Carolina indictment number 165 and indictments number 31-A and 151 from the Eastern District of Virginia. (The indictments are referred to hereinafter by number.) All four appellants were convicted under indictment number 166 of conspiracy to import marijuana and hashish in violation of 21 U.S.C. § 963 (Count One of the indictment). In addition, MacDougall was convicted of conspiracy to distribute the substances in violation of 21 U.S.C. § 846 (Count Two), possession of marijuana with intent to distribute (Count Eight), and importation and possession of hashish with intent to distribute (Counts Thirteen and Fourteen). Sanders was convicted of conspiracy to distribute (Count Two) and importation and possession of hashish with intent to distribute (Counts Twenty-three and Twenty-four). Gunn was convicted of conspiracy to distribute (Count Two), and Harvey of importation of hashish (Count Thirteen). MacDougall, Sanders and Gunn were also indicted in the District of South Carolina on conspiracy and substantive counts in connection with the prosecution of the participants in another major drug conspiracy. In that indictment, number 165, the charges were either dismissed or disposed of by not guilty verdicts prior to trial in the instant case. The disposition of the 165 indictment charges forms the basis of MacDougall’s, Gunn’s, and Sanders’ challenges to their present convictions on grounds that the prosecution in the instant case violated the constitutional prohibition against double jeopardy. In addition to his double jeopardy challenge, MacDougall attacks the sufficiency of the evidence underlying the convictions of conspiracy to import (Count One), importation of marijuana (Count Thirteen), and possession of marijuana with intent to distribute (Count Eight). Gunn contends that his indictment was the product of prosecutorial vindictiveness, and that there was insufficient evidence to convict him of Count Two, conspiracy to possess marijuana and hashish with intent to distribute. Sanders asserts that there was also insufficient evidence to convict him of conspiracy to import (Count One) and importation of hashish (Count Twenty-three). Harvey’s double jeopardy claim has a different basis. Prior to his indictment in this case, Harvey, pursuant to a plea agreement in a drug conspiracy prosecution in the Eastern District of Virginia, indictment number 31-A, pled guilty to a single substantive count and served six months in the penitentiary. In return for his plea, the United States Attorney for the Eastern District of Virginia agreed not to prosecute Harvey on other drug related charges pending in the Eastern District of Virginia. He contends that the prosecution in the Eastern District of Virginia barred his prosecution in this case on double jeopardy grounds. All four defendants assert that the district court erred in not allowing the jury to determine the validity of their double jeopardy claims and in denying them a bill of particulars of the charges against them. Thus, in this appeal we must determine whether: 1) the trial in this case violated the defendants’ double jeopardy rights, including whether the trial court correctly ruled that the court and not the jury was to determine the issue of double jeopardy; 2) the district court committed error in the manner in which it caused Michael Harvey’s double jeopardy claim to be framed and tried; 3) there was sufficient evidence to sustain all the convictions; and, 4) it erred in denying Gunn’s assertion of prosecutorial vindictiveness and appellants’ request for a bill of particulars. The facts underlying the appellants’ claims form a complicated pattern because of the size, and duration of and extensive personnel involvement in the drug smuggling and distribution operations and because of the level of cooperation among the organizations. One conspiracy to smuggle and distribute marijuana originated around the campus of the University of South Carolina in 1974. The scheme involved a number of fraternity brothers, their families and friends. Major figures in the drug smuggling operations who attended the University of South Carolina during the period 1970-74, included Leslie Riley, Michael Harvey’s brother, Leon (Lee) Harvey, Barry Foy, and Thomas Rhoad. Rhoad and Foy became the leaders of a major east coast drug smuggling conspiracy which generated the charges handed down against MacDougall, Sanders and Gunn in indictment number 165, the other South Carolina prosecution. Leslie Riley and Leon Harvey teamed together in 1977 to form the conspiracy for which the defendants were convicted in this case under indictment 166. The third organization involved in this appeal began when Julian Pernell and Barry Toombs entered into a smuggling and distribution partnership in 1973 in northern Virginia. Pernell testified at the trial in this case that his and Toombs’ organization was the largest marijuana and hashish distribution network on the east coast. Working independently and, on occasion, with each other and with the Pernell-Toombs organization, the Rhoad-Foy and Riley-Harvey organizations expanded to undertake dozens of multi-million dollar importation and distribution ventures. By 1983, when the government concluded the investigation of these illegal activities, the participants had created at least three major illicit drug operations involving smuggling and distribution activities from Florida to New England. Many of the smugglers and distributors had worked in more than one organization and the organizations themselves cooperated in numerous joint ventures. The appellants contend that the level of cooperation demonstrates that there was, in fact, merely a single giant conspiracy for which they have been placed in jeopardy twice. Because we find that the evidence established the existence of separate conspiracies, we reject appellants’ double jeopardy claims. We further hold that the district court was correct in deciding that double jeopardy claims are to be resolved by the court. We feel, however, that the district court committed reversible error in the manner in which it allowed the jury to be informed of Michael Harvey’s double jeopardy defense before the court had decided the issue. Because we remand Harvey’s case due to this error, we do not decide the question of whether Harvey’s South Carolina prosecution was barred on double jeopardy grounds. We vacate his convictions and remand so that the district court may review its findings with respect to Harvey’s double jeopardy claims and consider any motions regarding Harvey’s plea agreement referred to it from the Eastern District of Virginia pursuant to the disposition of the pending appeal, No. 83-5256. Should the district court determine that the South Carolina prosecution of Harvey is not barred either on double jeopardy grounds or by the Virginia plea agreement, the government may proceed to retry him. A proper understanding of our decision requires a chronological review of the events leading up to the appellants’ convictions. Again, the four appellants here were convicted in one trial in the district court of South Carolina on indictment number 166. The disposition of the appellants’ double jeopardy claims, however, requires us to review not only the facts underlying the offenses for which they were convicted, but also the facts underlying other indictments in both South Carolina (number 165) and the Eastern District of Virginia (numbers 31-A and 151). In 1974, Leslie Riley, lead defendant in number 166, joined with Barry Foy and Thomas Rhoad, lead defendants in number 165, to smuggle a large quantity of marijuana into the United States at Coconut Grove, Florida. Between the summer of 1974 and 1977, Riley was sporadically employed by both the Rhoad-Foy and Pernell-Toombs organizations as a boat captain. For example, in the fall of 1974, Pernell employed Riley as captain of the “Banana Quit,” a boat bringing 900 pounds of marijuana from Jamaica to Marathon Key, Florida. In late 1975, Riley participated with Pernell and Toombs in the importation of 6,000 pounds of Columbian marijuana into Florida. In 1977, Riley and Leon Harvey formed their organization for the purpose of smuggling marijuana. In its initial venture, the partnership joined with Pernell and Toombs to fly 3,600 pounds of marijuana into the United States. The venture ended unsuccessfully in March 1978 with the arrest of the participants in Georgia. The two organizations joined forces again in June 1978 to import marijuana from Columbia to Falmouth, Massachusetts. Toombs agreed to handle the loading, transportation and sale of marijuana; Leon Harvey undertook to arrange a boat, crew and offloading site. Toombs testified that MacDougall helped arrange for the off-load site and escorted Leon Harvey and Toombs to the site where they unloaded approximately 7,000 pounds of marijuana for resale in Virginia. The Riley-Harvey organization expanded operations in the months which followed its initial ventures with the Pernell-Toombs organization. In the fall of 1978, Leon Harvey and Riley arranged for Christopher Campbell to captain a boat carrying 6,000 pounds of marijuana from Columbia to Buzzards Bay, Massachusetts. Campbell hired Gunn as a crew member for the venture. In September 1978, Leon Harvey, Riley and Foy imported 9,500 pounds of marijuana from Columbia into the United States in the vicinity of McClellanville, South Carolina. The government concedes that this incident, involving the vessel “Straightaway,” was a joint venture and charged it as an overt act (number 20) in indictment number 165, although not in number 166. In another venture sponsored by the Riley-Harvey organization later that year, Gunn served as a crew member on the “Love Affair,” a vessel carrying 7,700 pounds of Columbian marijuana. On November 8, 1978, the Coast Guard intercepted the “Love Affair” in the Bahamas, seized the cargo and arrested the crew, including Gunn and Campbell. In January 1979, Leon Harvey and the Pernell-Toombs organization cooperated in the importation of 28,000 pounds of marijuana from the Bahamas into South Carolina. In early 1979, the Riley-Harvey organization offloaded 8,000 pounds of marijuana at Hilton Head, South Carolina. A participant in that operation, George Strickland, identified MacDougall as having participated in the offloading. That summer Riley and Leon Harvey, again using Christopher Campbell’s services, imported 7,000 pounds of marijuana from South America to Buzzards Bay, Massachusetts. In June 1979, Leon Harvey and Riley engaged in another joint venture with Pernell-Toombs to import 22,000 pounds of marijuana from Samana Cay in the Bahamas to Virginia. The Riley-Harvey organization in the summer of 1980 imported 7,000 pounds of marijuana at Hilton Head. Later that summer or early that fall, the Riley-Harvey organization, using a boat captained by Pinckney Greene, a member of the Rhoad-Foy organization, imported 10,000 pounds of Columbian marijuana into the United States near Charleston, South Carolina. It also imported two loads of marijuana totaling approximately 16,000 pounds at Hilton Head in October 1980. In early 1980, the Riley-Harvey organization began planning the importation of large quantities of hashish in a joint venture with the Pernell-Toombs organization. Riley-Harvey arranged for the purchase of the hashish; Pernell-Toombs its distribution. The Rhoad-Foy organization also paid $700,000 in return for a share of the hashish. As part of this operation, Michael Harvey travelled to Lebanon with money to pay for the hashish. Riley and Leon Harvey hired Campbell to captain a vessel named the “Second Life.” Campbell, whom Pernell testified worked for Riley and Leon Harvey, recruited Gunn as a crew member. In June 1980, the 30,000 pound hashish cargo was unloaded at Hilton Head Island. Both MacDougall and Michael Harvey participated in the offloading. In late 1980, the organization imported a 25,000 pound quantity of hashish at Hilton Head aboard the vessel, “LaCativa.” Around this time, Riley, Leon Harvey, Pernell and Toombs began planning a joint operation to import up to 100,000 tons of hashish from Lebanon. The operation subsequently involved several vessels, including one captained by Campbell with Gunn as a crew member. The vessels were offloaded at various points along the east coast. One of the vessels, the “Anonymous of RORC,” did not reach the east coast until October or November 1981. Its 9,000 pound cargo of hashish was offloaded onto two other boats which subsequently offloaded the hashish at a farm on Edisto Island, South Carolina, belonging to the family of appellant Sanders. Sanders had provided security for the operation. This last venture resulted in the arrest of many of the participants and the effective termination of the large scale smuggling activities of the Riley-Harvey organization. Appellants’ Double Jeopardy Claims Against the background of overlapping acts and personnel, we first consider the contention of MacDougall, Sanders, Gunn and Michael Harvey that their prosecution in this case violated their fifth amendment double jeopardy rights. To reiterate briefly, the basis of their claim is that the earlier prosecution in South Carolina had placed MacDougall, Gunn and Sanders in jeopardy and that Michael Harvey’s prosecution ending in his guilty plea in the Eastern District of Virginia barred his prosecution in this case. Before reaching the merits of those claims, however, we address their contention that the district court erred in refusing to allow the jury to consider the affirmative defense of double jeopardy. This contention is incorrect, and we affirm the district court’s determination that it was for the court to decide the double jeopardy issue. The appellants’ double jeopardy claims did not implicate the issue of appellants’ guilt or innocence, which a jury must decide, but rather the right of the government to bring the action itself. Guilt or innocence is immaterial to the disposition of double jeopardy claims. The only question is whether the defendant has been previously placed in jeopardy for the offense alleged in the instant indictment. United States v. H.E. Koontz Creamery, Inc,, 232 F.Supp. 312, 315-16 (D.Md.1964). See United States v. Stricklin, 591 F.2d 1112, 1119 (5th Cir.) (determination of double jeopardy claims best made by court and not by jury; court may vacate pretrial ruling of no prior jeopardy if evidence developed at trial shows there was former jeopardy), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979); United States v. Berrigan, 482 F.2d 171, 175 (3d Cir.1973) (distinction between the determination of guilt or innocence which a jury must make and preliminary matters concerning right of the court to conduct the trial which the court alone may decide); 1 Wright Federal Practice and Procedure, Criminal 2d, § 194, at 715 (1982) (little case law on this issue; “what there is distinguishes between the issue of guilt and innocence, for which a jury is required, and issues affecting the government’s right to prosecute, for which no jury is needed”). Since the determination of the constitutional barrier of former jeopardy precludes trial and thus removes from the jury the issue of guilt or innocence, we feel that the defendants’ argument here is without constitutional merit. Appellants argue that the case of Short v. United States, 91 F.2d 614 (4th Cir.1937), is controlling. This court in Short indicated that the jury was to decide the issue of double jeopardy. Short, however, was decided before the enactment of Fed.R.Crim.P. 12. Fed.R.Crim.P. 12(b) requires that defenses and objections based on defects in the institution of the prosecution, including former jeopardy, be raised prior to trial. These issues, not involving the issue of the defendant’s guilt or innocence which constitutionally a jury must decide, may be resolved by the court. We also find inapposite the cases on which appellants rely for the proposition that the determination of whether there is one conspiracy or multiple conspiracies in a given case is a jury question. Many of those cases involved a challenge to a jury verdict of guilty of the single conspiracy charged. The defendants in those cases alleged that the evidence at trial had shown the existence of two or more conspiracies and, thus, the proof of guilt of the single conspiracy charged was inadequate. United States v. Orozco-Prada, 732 F.2d 1076, 1086 (2d Cir.), cert. denied, — U.S. -, 105 S.Ct. 154, 83 L.Ed.2d 92 (1984); United States v. Winship, 724 F.2d 1116, 1122 (5th Cir.1984), United States v. Thomas, 586 F.2d 123, 131-32 (9th Cir.1978); United States v. Heath, 580 F.2d 1011, 1022 (10th Cir.1978), cert. denied, 439 U.S. 1075, 99 S.Ct. 850, 59 L.Ed.2d 42 (1979). Another case cited involved a challenge to a jury finding of guilt on two conspiracy counts where the defendant argued that the evidence could support conviction only as to a single conspiracy, United States v. Alberti, 727 F.2d 1055,1059 (11th Cir.), cert. denied, — U.S. -, 105 S.Ct. 199, 83 L.Ed.2d 131 (1984). Those cases did not involve jury resolution of prior jeopardy claims. Rather, they involved challenges to jury findings on the fundamental issue of guilt or innocence of the offenses charged. In sum, we hold that the district court correctly determined that the court, and not the jury, was to decide the issue of former jeopardy. Having decided that the district court exercised proper authority in determining the validity of the appellants’ double jeopardy claims, we next decide whether the district court correctly applied the law of double jeopardy. We treat first the double jeopardy claims of MacDougall, Sanders and Gunn. Again, these appellants were either acquitted of the indictment number 165 charges against them, or the 165 charges were dismissed as to them. MacDougall, Sanders, and Gunn now challenge their conspiracy convictions on the grounds that the conspiracies charged in indictment number 166 were part of the same conspiracies charged in indictment number 165, and thus, the prosecution in number 166 violated their fifth amendment rights. We compare the offenses underlying the two South Carolina indictments. MacDougall was charged in indictment number 165 with conspiracy to import marijuana and hashish in violation of 21 U.S.C. § 963, conspiracy to possess with intent to distribute the substances in violation of 21 U.S.C. § 846 and various substantive controlled substances offenses. Prior to trial on the number 165 charges, the government dismissed with prejudice the charges against MacDougall. MacDougall was then tried in indictment number 166 on charges of violating the same conspiracy statutes charged in indictment number 165, as well as substantive counts alleging importation of marijuana in violation of 21 U.S.C. §§ 952(a) and 960 (Counts Seven, Nineteen), possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Counts Eight, Twenty), importation of hashish in violation of 21 U.S.C. §§ 952(a) and 960 (Count Thirteen), and possession of hashish with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count Fourteen). Prior to trial on indictment number 166, MacDougall moved for dismissal of Counts One and Two, the conspiracy counts, on the grounds that the dismissal with prejudice of the number 165 charges barred prosecution in this case on double jeopardy grounds. The district court denied MacDougall’s motions. At the close of the evidence, however, the district court entered findings of not guilty on Counts Seven, Nineteen, and Twenty charging MacDougall with importation and possession of marijuana. The jury convicted MacDougall on the five remaining counts — the two conspiracy counts, possession of marijuana with intent to distribute, Count Eight, and importation and possession of hashish, Counts Thirteen and Fourteen. Gunn was charged in indictment number 165 with conspiracy to import marijuana and hashish and conspiracy to possess the substances with intent to distribute as well as substantive offenses. Indictment number 165 was dismissed with prejudice as to Gunn during trial on those charges. He was then tried and convicted under indictment number 166 of conspiracy to import hashish and marijuana and conspiracy to possess with intent to distribute the substances. Sanders was charged on the two conspiracy counts and substantive counts in indictment number 165. At trial on the 165 charges, the jury found Sanders not guilty. In indictment number 166 he was charged and convicted of the two conspiracy counts and with importation and possession of hashish in violation of 21 U.S.C. §§ 952(a) and 960 and 28 U.S.C. § 841(a)(1), (b)(6) (Counts Twenty-three and Twenty-four). The essence of our inquiry is whether the government has impermissibly divided a single conspiracy into two conspiracies by charging a violation of the conspiracy statute in two separate indictments. The double jeopardy clause clearly prohibits the division of a single criminal conspiracy into multiple violations of a conspiracy statute. Braverman v. United States, 317 U.S. 49, 52-53, 63 S.Ct. 99, 101-02, 87 L.Ed. 23 (1942); United States v. Lurz, 666 F.2d 69, 74 (4th Cir.1981), cert denied, 459 U.S. 843, 103 S.Ct. 95, 74 L.Ed.2d 87 (1982); United States v. Thomas, 759 F.2d 659, 661 (8th Cir.), cert. denied, — U.S. -, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985). The traditional test used to determine whether separate indictments charge the same offense is the Blockburger “same evidence” test. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir.1983) (under Blockburger, offenses deemed identical for the purposes of the double jeopardy clause where the evidence required to support conviction in one of the prosecutions sufficient to support conviction in the other prosecution), cert. denied, — U.S. -, 105 S.Ct. 86, 83 L.Ed.2d 33 (1984). The same evidence test, however, is of limited value in deciding double jeopardy claims raised with respect to successive conspiracy prosecutions. If the “same evidence” test was the sole standard for determining whether multiple conspiracies exist, then prosecutors could carefully draw two indictments by choosing different sets of overt acts and make one conspiracy appear to be two. Thomas, 759 F.2d at 662; United States v. Bendis, 681 F.2d 561, 564-65 (9th Cir.1981), cert. denied, 459 U.S. 973, 103 S.Ct. 306, 74 L.Ed.2d 286 (1982). Simply limiting our inquiry in the instant case to a comparison of the two indictments would quickly lead to a finding of separate conspiracies. Of the fifty-two overt acts alleged in indictment number 166 and the forty-three acts listed in number 165, only two acts are common to both indictments. Our inquiry is not so limited, but extends beyond a facial comparison of the indictments provided by the “same evidence” test. Many courts have recognized that in conspiracy cases involving double jeopardy claims a “totality of the circumstances” or “full study of the indictments and evidence” test provides a more accurate analysis than the “same evidence” test. Thomas, 759 F.2d at 662; United States v. Arbelaez, 719 F.2d 1453, 1458 (9th Cir.1983), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984); see Lurz, 666 F.2d at 74 (recognizing validity of “totality of the circumstances” approach). In developing this test, courts have identified five factors to consider in evaluating double jeopardy claims: 1) time periods in which the alleged activities of the conspiracy occurred; 2) the statutory offenses charged in the indictments; 3) the places where the alleged activities occurred; 4) the persons acting as co-conspirators; and 5) the overt acts or any other descriptions of the offenses charged which indicate the nature and scope of the activities to be prosecuted. Thomas, 759 F.2d at 662; Sinito, 723 F.2d at 1256. We agree that the five-factor “totality of the circumstances” test is a correct approach. In our view, however, a flexible application of the test rather than rigid adherence is a more useful policy in making the ultimate determination. See Lurz, 666 F.2d at 74-75 (recognizing totality of the circumstances test, but not undertaking complete five-part analysis, where finding of separate conspiracies sufficiently supported by differences in geographic locations and personnel involved). Here, we must determine whether the separate organizations perpetrated separate conspiracies or whether the organizations — despite their distinct internal structures — formed a single conspiracy. We conclude that the conspiracies charged in indictment 165 and in indictment 166 are separate conspiracies, and thus, appellants’ prosecution in this case was not barred by the double jeopardy clause. Before applying the five-factor test to the facts of this case, we briefly review the district court’s disposition of the double jeopardy claims. The district court determined that the Riley-Harvey and the Rhoad-Foy organizations were engaged in separate conspiracies. It reasoned, therefore, that the prosecution of MacDougall, Gunn and Sanders in indictment number 165 charging the Rhoad-Foy conspiracies did not bar their prosecution for activities as members of the Riley-Harvey organization. In reaching its decision, the district court rejected the appellants’ contention that the two organizations were part of one major smuggling and distribution conspiracy. In Lurz, this court, applying the “clearly erroneous” standard, upheld a district court’s determination of the existence of two independent conspiracies. 666 F.2d at 74. The district court in Lurz gave careful and repeated consideration at two pretrial hearings and at the end of government’s case to the question of whether there were one or two conspiracies. The district court allowed the defendant to develop the record and to present arguments for his position. Id. Similarly, the district court, in the instant case, provided the appellants hearings on the double jeopardy issue before and during the trial and allowed them full opportunity to develop the record and present arguments for their position. Applying the totality of the circumstances test in the flexible manner which we think is appropriate, we are persuaded that two factors are most significant in this appeal: the identity of the persons acting as co-conspirators and the relationship between the activities of the conspiracies charged in the several indictments. The final versions of indictments 166 and 165 charged eight of the same defendants, out of a total of twenty-three named in 166 and twenty-four named in 165. At one time or another, from the original indictments up to the second superceding indictment in 166, twelve defendants were named in both 165 and 166, including Gunn, Sanders and MacDougall. In indictment 151, the major Eastern District of Virginia prosecution of the Pernell-Toombs organization, which also charged Leon Harvey with engaging in a continuing criminal enterprise, the government submitted a list of over 120 unindicted participants, including eleven individuals indicted in either 165 or 166. That list included Gunn, MacDougall, Michael Harvey, Leslie Riley and Barry Foy. The suggested link between the 151 conspiracy and the 166 conspiracy, however, was undercut by testimony at trial in the instant case of the vast number of ventures undertaken independently by each organization and by testimony that the four appellants were not members of Pernell’s organization. Finally, we note that neither MacDougall, Gunn nor Sanders was placed in jeopardy by the Eastern District of Virginia prosecution. In view of the enormity of the conspiracies involved and the size of the individual ventures, we are not persuaded that the level of overlap of defendants indicates the existence of a single conspiracy. There is no rigid formula for determining at what level of overlap two conspiracies become one. Rather, the issue is whether the evidence of overlapping personnel establishes a single conspiratorial scheme. We find that here it does not. See United States v. DeFillipo, 590 F.2d 1228, 1234 n. 7 (2d Cir.) (no double jeopardy violation where one indictment named seven persons, the other six, and four overlapped), cert. denied, 442 U.S. 920, 99 S.Ct. 2844, 61 L.Ed.2d 288 (1979); United States v. Booth, 673 F.2d 27, 29 (1st Cir.) (substantially different personnel where ten defendants were common to indictments alleging twenty-four and nineteen defendants, respectively), cert. denied, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982). The most complex of the factors in our analysis is the significance of the extensive joint ventures involving the three organizations — in other words, whether the individuals were working together to further one conspiracy or multiple conspiracies. An obvious pattern of mutual cooperation continued throughout most of the period in which the Riley-Harvey and Rhoad-Foy organizations were active. In addition, the Riley-Harvey organization cooperated in many ventures with the Pernell-Toombs organization. Clearly, the Rhoad-Foy and the Riley-Harvey organizations participated in at least three joint ventures: 1) the importation of 9,500 pounds of marijuana in September 1978 involving the vessel “Straightaway,” 2) the hashish operation in June 1980 involving the vessel “Second Life,” and 3) the final drug smuggling venture ending in late 1981. Riley also participated with the Rhoad-Foy organization in the Coconut Grove, Florida expedition in 1974, which, of course, occurred prior to the establishment of the Riley-Harvey organization. The appellants, however, assert that the overlap between the Riley-Harvey and Rhoad-Foy operations extended beyond the four ventures described above, and that a number of other ventures were in fact joint ventures. Their theory is that the degree of overlap and the number of joint ventures link the two organizations into one conspiracy, and thus, having been tried once for their involvement in the conspiracy, they cannot be tried again on charges resulting from the same conspiracy. The record, however, does not support their contentions. For example, appellants assert a link between the Riley-Harvey organization and a November 1979 venture of the Rhoad-Foy and the Pernell-Toombs organizations involving the importation of approximately 8,000 pounds of marijuana from Samana Cay into the United States at Edisto Island, South Carolina. The evidence cited by appellants to link this venture to Riley-Harvey was the grand jury testimony of Stephen Ravenal, one of the unindicted co-conspirators in the Eastern District of Virginia prosecution, that Leon Harvey was involved in the preparation of the venture. Ravenal, however, subsequently testified before the grand jury that Harvey may not have been involved in the venture. The appellants also attempt to link another Riley-Harvey venture, the importation of 10,000 pounds of marijuana onboard the vessel “Omega” in late summer or early fall of 1980, to the Rhoad-Foy organization because Pinckney Greene, a member of the Rhoad-Foy organization, had supplied the vessel. Warren Steele, charged with engaging in a continuing criminal enterprise in indictment 166 with Riley and Harvey, testified, however, that Greene approached him about using the “Omega” and that Greene “had had prior dealings with, I think Barry Foy and Tom Rhoad, and he didn’t seem to be happy working there.” This testimony suggests, if anything, the independent nature of the two conspiracies. The other evidentiary links which the appellants offer are similarly weak. In an August 1980 venture in which the Rhoad-Foy organization imported approximately 18,-000 pounds of marijuana into South Carolina, Riley referred a crew member, John Jamison, to Foy for work on the vessel. Similarly, Rhoad’s former girlfriend was quoted in an FBI report as having told the FBI that Rhoad invested money in a Riley-Harvey venture involving the vessel “LaCativa” in January 1981. Even if one or two of these apparently separate ventures were, in fact, joint ventures, the far greater number of independent ventures undertaken by each of the three organizations supports the finding of separate conspiracies. At trial of the instant case, Pemell, a lead defendant in indictment 151 in the Eastern District of Virginia, testified that his organization had undertaken approximately fifty-two smuggling operations, of which forty-five were successful, and that he had done joint ventures with other groups including seven or eight with the Rhoad-Foy organization and either seven or fifteen to twenty joint ventures with the Riley-Harvey organization. Pernell also testified that Leon Harvey had informed him in early 1981 that the Riley-Harvey organization had successfully completed twenty-eight straight marijuana importations into Hilton Head alone and that the Riley-Harvey organization was using offload sites other than Hilton Head. The complicating factor in juxtaposing these illegal activities for the purpose of determining whether there existed one criminal conspiracy or several is that most of the leaders of these smuggling and distribution organizations had worked with each other, were acquainted with each other, had at times planned joint ventures, and in some instances shared the profits of overlapping operations. Similarly, the organizations used some of the same support personnel. For example, Leslie Riley had been employed by Rhoad-Foy and Pernell-Toombs as a boat captain in a number of ventures between 1974-1977. Greene, a member of the Rhoad-Foy organization, used a vessel he had purchased with Rhoad and Foy in a deal with the Riley-Harvey organization. Mike Abell worked for both organizations as an offloader and driver. As we noted previously, twelve defendants, at one time or another, were indicted in both 165 and 166, including MacDougall, Gunn and Sanders. Cooperation, pooling of risk, and exchange of personnel over a prolonged period of time are not inconsistent with a finding of independent conspiracies. Here, Pernell testified that in 1977 Riley and Harvey “were just forming their group or their partnership, for the purpose of smuggling marijuana.” He testified that none of the appellants in this case was a member of his organization. He was also unaware of exactly how Riley-Harvey financed their portion of the joint ventures. Pernell testified that at times the various organizations would be considered part of a large structure, but that at other times they would have a separate structure of their own. Participation in activities furthering one conspiracy is not inconsistent with the achievement of the goals of a second conspiracy and does not preclude culpability for separate conspiracies. See United States v. Ruggiero, 754 F.2d 927, 934 n. 13 (11th Cir.) (one overt act can be in furtherance of two conspiracies), cert. denied, — U.S. -, 105 S.Ct. 2661, 86 L.Ed.2d 277 (1985); United States v. Ingman, 541 F.2d 1329, 1331 (9th Cir.1976) (an action may be in furtherance of two or more conspiracies; some interrelationship between conspiracies does not make them the same criminal enterprise). We, of course, have considered the three other factors in the five-part totality of the circumstances test, but do not find that they bear as heavily on the ultimate determination of whether there were one or more conspiracies. To reiterate, the remaining three factors of the totality of the circumstances test relate to the statutory offenses charged, the location of the conspiracy activities and their time periods. As to the first of these factors, MacDougall, Gunn and Sanders were charged with the same statutory violations in the conspiracy counts of both indictments 165 and 166. Where the government charges major drug importation and distribution conspiracies, however, the fact that both indictments charge violations of 21 U.S.C. § 963, prohibiting conspiracy to import, and 21 U.S.C. § 846, prohibiting conspiracy to possess with intent to distribute, is not surprising and does not prevent the government from establishing the existence of separate conspiracies. See United States v. Booth, 673 F.2d at 30; United States v. Futch, 637 F.2d 386, 391 (5th Cir.1981) (identical statutory offenses would be factor common to separate conspiracies carried out in similar manner). With respect to the location of the activities, we note that while both the Riley-Harvey and Rhoad-Foy organizations were heavily involved in South Carolina and used some of the same locations for off-loading, the Riley-Harvey organization operated more extensively along the east coast. Further, within South Carolina, the operations had substantially different off-load locations. There is no question that there is substantial temporal overlap between the conspiracies charged in indictment 165 and those of which the appellants were convicted. The indictment in this case charged overt acts beginning in 1974. Proof at trial, however, established that the conspiracy led by Les Riley and Leon Harvey began in 1977. Appellants allege that evidence of acts prior to the formation of the Riley-Harvey conspiracy was used against them but do not point to any prejudice at trial from the inclusion in the indictment of overt acts relating to that period. Most references cited by appellants to those acts concern evidence in discovery, grand jury testimony and proceedings other than appellants' trial. A review of the references at trial convinces us that they do not establish a basis for reversible error. For example, defense counsel elicited testimony of a pre-1977 venture during cross-examination of a government witness. There was no objection by co-counsel, and we do not feel that the defense by this action can create reversible error. We also find that the admission of the somewhat confusing direct testimony of government witness Warren Steele relating to a 1977 venture involving the vessel “Fat Chance” was, if error, certainly harmless beyond a reasonable doubt in view of the overwhelming evidence of appellants’ guilt. Moreover, defendants did not object to this portion of Steele’s testimony. In sum, while we do not dismiss the overlap of time periods as a factor, we find that, in this case, its minimal relevance is effectively considered in our analysis of the significance of the overlapping activities between the conspiracies. We conclude from our consideration of the five stated factors that the level of cooperation between the Rhoad-Foy organization’s conspiracies charged in indictment 165 and those of the Riley-Harvey organization charged in 166 is insufficient to link the organizations into a single conspiratorial scheme. The organizations were formed around separate conspiratorial agreements; they had separate management structures; and, they pursued primarily independent ventures. Consequently, the prosecution of MacDougall, Gunn and Sanders in indictment 165 did not bar their prosecution for their activities in furtherance of the conspiracy to import and the conspiracy to possess with intent to distribute charged in 166. Michael Harvey’s Double Jeopardy Claim We next turn to Michael Harvey’s double jeopardy claims. Harvey and his brother, Leon Harvey, were charged in the Eastern District of Virginia in indictment 31-A with conspiracy to possess with intent to distribute hashish and with several substantive counts. While the indictment charged Leon Harvey with conspiracy to import hashish, Michael Harvey was only charged with conspiracy to possess with intent- to distribute and substantive charges. Pursuant to a plea bargain, Harvey pled guilty to one count of causing an individual to travel in interstate and foreign commerce in facilitation of unlawful purposes in violation of 18 U.S.C. § 1952(a)(3). In return, the government dismissed all other counts against him, including the charge of conspiracy to distribute. It is the entire Eastern District of Virginia prosecution, ending in his plea and sentencing, which forms the basis of Michael Harvey’s double jeopardy argument. He argues that the government’s statement of facts in the Virginia plea agreement and presentence report outlined his identical involvement in the importation conspiracy charged in Count One of the South Carolina indictment 166. He also asserts that the details of his involvement in the “Second Life” hashish operation contained in the presentence report are the basis of his conviction on South Carolina Count Thirteen. Harvey urges that for these reasons his prosecution in South Carolina is barred on double jeopardy grounds. Prior to trial, the South Carolina district court in the instant case dismissed Counts Two and Fourteen charging Michael Harvey with conspiracy to possess with intent to distribute and substantive possession on the grounds that the Eastern District of Virginia prosecution had placed him in jeopardy for the same offenses. Trial on Counts One and Thirteen — conspiracy to import and importation of hashish — then proceeded against Harvey, and the jury convicted him on both counts. During the trial, the district court permitted Harvey’s counsel to argue the issue of double jeopardy in the expectation that the jury would resolve the issue. Thus, in his opening statement to the jury, Harvey’s counsel conceded Harvey’s guilt on the charges underlying the convictions now on appeal. He argued that Harvey’s guilt was not at issue, but that the prosecution was barred by the proceedings in the Eastern District of Virginia. Overruling the government’s objections, the district court allowed the defendant to proceed with the development of a factual basis for his double jeopardy claim. The court indicated that it expected to charge the jury with respect to Harvey’s double jeopardy claims. The court subsequently determined, however, that it should resolve the double jeopardy issue, thus removing the issue from the jury and leaving Harvey without a jury defense. It ruled that, as a matter of law, the indictment charged a conspiracy separate from any other conspiracy with which the defendants had been charged. As a consequence, the jury was not allowed to consider the affirmative defense of double jeopardy. We recognize the correctness of the district court’s ruling that the court should decide whether a prosecution is barred as the result of double jeopardy considerations. Nevertheless, the confusion created by the court’s original ruling and exacerbated by the court permitting Harvey’s opening statement, including the admission of guilt, and not declaring a mistrial, deprived Harvey of a fair trial. As to Harvey, we remand for a redetermination by the district court of the question of double jeopardy. Initially, the district court must determine if the proceedings in the Eastern District of Virginia placed Harvey in jeopardy with respect to any part of the offenses charged in South Carolina Counts One and Thirteen. If so, it will be necessary to determine the scope of the double jeopardy bar, that is, what transactions are barred from prosecution. Should the court determine that there is no complete double jeopardy bar to retrial, the government may then proceed to retry Michael Harvey for any offense not barred by either double jeopardy or the plea bargain in the Eastern District of Virginia. Gunn’s Claim of Prosecutorial Vindictiveness Gunn also contends that the district court erred in failing to dismiss the indictment against him on grounds of prosecutorial vindictiveness. He alleges that he was indicted in the second superceding indictment in indictment 166 because he had secured his acquittal on the conspiracy and substantive importation charges brought against him in indictment 165. During the presentation of the government’s case in that earlier prosecution, Gunn moved for acquittal based on evidence which he had received from the government during discovery. The government joined with the defense in moving for acquittal, stating that the evidence it had against Gunn related more to the smuggling activities of the Riley-Harvey conspiracy charged in indictment 166. After dismissal of the charges against Gunn in indictment 165, the government entered the charges against him in indictment 166, the convictions of which he challenges in this appeal. Gunn maintains that the government indicted him in 166 only because he successfully asserted his constitutional rights to put the government to its proof in the earlier case. We find Gunn’s claim without merit. Apparently, Gunn was improperly charged in the indictment revolving around the conspiracy alleged in indictment 165. Made aware of the error, the government conceded the improper charges and joined in moving for dismissal. The government subsequently reindicted Gunn on the correct charge. While the government may be guilty of sloppiness in the preparation of the indictments, its conduct does not amount to constitutionally impermissible vindictive prosecution. The government has not increased the charges against the defendant because of his invocation of his constitutional rights. See Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (reindictment of defendant on a more serious charge after he pursued his statutory right of appeal from conviction on a lesser charge violated due process clause). United States v. Krezdorn, 718 F.2d 1360, 1365 (5th Cir.1983) (en banc) (charge of vindictive prosecution following a prosecutorial decision to increase the number or severity of the charges after a successful exercise of constitutional rights examined in context of entire proceedings; no presumption if any objective event or culmination of events in proceedings indicated to a reasonable minded defendant that the decision to increase severity of the charges was motivated by some purpose other than vindictive desire to deter or punish appeals), cert. denied, 465 U.S. 1066, 104 S.Ct. 1416, 79 L.Ed.2d 742 (1984). Gunn asserts that this court should apply in his appeal the analysis applied when the government increases the charges following a criminal defendant’s exercise of a statutory or constitutional right. Here, however, the defendant was charged in a separate case involving what we have determined was a different conspiracy. The connection between the dismissal in 165 and the reindictment in 166 is clear and legitimate. The discovery during trial in indictment 165 that the evidence against Gunn did not support that indictment, but rather prosecution in another case, led to his indictment in 166. We also note that, while not dispositive, Gunn was charged with fewer counts in indictment 166 than in 165. Thus, the case is factually distinguishable from Bláckledge v. Perry in which the prosecution changed a misdemeanor charge to a felony charge after a convicted defendant exercised his right to obtain a trial de novo following his misdemeanor conviction. Gunn has not demonstrated any evidence of vindictiveness on the part of the government, nor any circumstance from which we should presume vindictive motivation. In sum, we find that Gunn has failed to show his indictment in 166 was the result of prosecutorial vindictiveness. Challenges to Sufficiency of the Evidence MacDougall We next turn to the appellants’ assertions that the evidence is insufficient to support several of their convictions. MacDougall challenges his convictions on the conspiracy to import and importation of 30.000 pounds of hashish aboard the vessel “Second Life” in June 1980, on the grounds that the evidence showed that his sole duty in that venture was to serve as an offload-er after the act of importation was complete. He also challenges the sufficiency of the evidence regarding his conviction on Count Eight — possession with intent to distribute relating to a cargo of approximately 9.000 pounds of marijuana unloaded at Calibogue Cay, Hilton Head in 1979. The issue in MacDougall’s challenge to his convictions of conspiracy to import and importation of hashish is not factual; the government does not dispute MacDougall’s self-characterization as an offloader. Rather, the question is a legal one: at what point did importation cease? The essence of MacDougall’s argument is that the importation of hashish was complete once the contraband had crossed the United States border, which occurred in this case when it entered the territorial waters of the United States. We disagree. MacDougall’s argument would allow the imaginary boundary line not only to establish the requisite international element in importation, but also divide artificially and inaccurately into two separate components the process by which drugs are imported into the United States. Importation is a continuous crime not complete until the controlled substances reach their final destination and the cargo is offloaded. United States v. Corbin, 734 F.2d 643, 652 (11th Cir.1984) (importation still in progress at time marijuana was offloaded; offloading furthered the conspiratorial objectives of importation and possession with intent to distribute the marijuana). MacDougall cites Palmero v. United States, 112 F.2d 922 (1st Cir.1940) for the proposition that the act of importation was complete when the contraband entered territorial waters. In Palmero, the First Circuit rejected the contention that the presence of narcotics in United States waters was insufficient to support a conviction for importing contraband and that the prohibited act of importation occurred only when the narcotics were landed. 112 F.2d at 924-25. Our holding here does not conflict with the rationale of Palmero. While crossing into United States waters in Palmero was sufficient to establish importation, that event is not necessarily also the termination of the act of importation. Those who unload a vessel carrying the imported contraband are an essential component of furthering the conspiracy to import. Common sense alone is sufficient to refute the proposition that off-loaders of marijuana and hashish transported by sea going vessels to United States shores cannot be instruments of the proscribed importation. The evidence was more than sufficient for the jury to conclude beyond a reasonable doubt that MacDougall had joined the conspiracy to import. With respect to MacDougall’s challenge to his conviction on Count Eight, possession with intent to distribute marijuana, the jury heard apparently conflicting testimony as to MacDougall’s involvement in that crime. George Strickland, who worked for the Riley-Harvey organization during two ventures in early 1979, testified that he saw MacDougall at the off-load site of the 8,000 pound marijuana venture. Warren Steele, one of the organizers of the Count Eight venture, testified that MacDougall was not involved in the only drug venture in which Steele claimed to have participated during this time period. In reviewing a jury verdict of guilty, an appellate court must examine the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Jones, 735 F.2d 785, 790 (4th Cir.), cert. denied, — U.S. -, 105 S.Ct. 297, 83 L.Ed.2d 232 (1984). A decision to overturn a jury verdict for want of substantial evidence must be confined to cases where the prosecution’s failure to meet its burden of proof is clear. Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978); United States v. Grubbs, 773 F.2d 599, 601 (4th Cir.1985). As this court has stated, “[t]he relevant question is not whether the appellate court is convinced of guilt beyond a reasonable doubt, but rather whether, viewing the evidence in the light most favorable to the government, any rational trier of facts could have found the defendant guilty beyond a reasonable doubt.” Jones, 735 F.2d at 791 (quoting United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982)). It is the jury’s function to resolve inconsistencies in the evidence and to make factual determinations. In this case, they did so and found MacDougall guilty of the offense. Viewing the evidence in the light most favorable to the government, we must uphold the jury verdict unless we determine that there is no reasonable basis upon which a rational trier of fact could find MacDougall guilty beyond a reasonable doubt. Strickland’s testimony placing MacDougall at the off-load site, we believe, is sufficient to meet this standard and provided a basis for a jury to conclude beyond a reasonable doubt that MacDougall participated in the offense charged. Sanders Sanders attacks his convictions on Counts One and Twenty-three, conspiracy to import and importation, on the same grounds as MacDougall’s attack on his importation convictions, i.e., as an off-loader, he could not be convicted of conspiracy to import and of a substantive importation count. We affirm these convictions for the same reasons as we affirmed MacDougall’s convictions on Counts One and Thirteen. Gunn Gunn challenges his conviction on conspiracy to distribute marijuana and hashish on the grounds that the evidence that he was a crew member on sailing vessels importing large quantities of marijuana and hashish is insufficient to prove his guilt in the distribution conspiracy. There is no question of his culpability on the charge of conspiracy to import. The issue is whether Gunn possessed the requisite awareness of the distribution conspiracy and evidenced an intent to join it. The presence of large quantities of marijuana is clearly sufficient to establish the existence of the intent to distribute. United States v. Manbeck, 744 F.2d 360, 390 (4th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1197, 84 L.Ed.2d 342 (1985). A multton quantity of drugs is not for personal use. Proof of the existence of a conspiracy to distribute, however, does not prove that an individual involved in the importation conspiracy is necessarily involved in the conspiracy to distribute. Id. at 389-90. See also United States v. Watkins, 662 F.2d 1090, 1097 (4th Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1613, 71 L.Ed.2d 849 (1982); United States v. Laughman, 618 F.2d 1067, 1075 (4th Cir.) (simply proving the existence of a conspiracy cannot sustain a verdict against an individual defendant; proof of that defendant’s knowledge of the conspiracy’s purpose and some action indicating participation required), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980). The issue here is whether the evidence sustains the jury’s finding that Gunn joined the distribution conspiracy. The government must establish the defendant’s knowledge and participation. Manbeck, 744 F.2d at 386. Direct evidence of the elements of a conspiracy, however, is not necessary. Circumstantial evidence is sufficient, id., such as acts committed by the defendant or circumstances which indicate a plan or scheme. United States v. Williford, 764 F.2d 1493, 1500-01 (11th Cir.1985). The defendant’s role may be minor. Nevertheless, the government must establish that connection, however minor, by proof of guilt beyond a reasonable doubt. Here, even viewing the evidence with the inferences most favorable to the government, we hold that the evidence raises reasonable doubt as to his guilt on the conspiracy to distribute count, and we reverse Gunn’s conviction on this one count. In Manbeck, this court explicitly declined to reach the result reached by the Fifth Circuit in United States v. Michelena-Orovio, 719 F.2d 738 (5th Cir.1983), cert. denied, 465 U.S. 1104, 104 S.Ct. 1605, 80 L.Ed.2d 135 (1984), that participation in the importation of a large quantity of marijuana is sufficient to establish guilt of conspiracy to distribute the substance. 744 F.2d at 388-390. Consequently, the government must offer other evidence to meet its burden of proof. The jury in this case heard testimony that 584 grams of hashish were found in Gunn’s bag when he was arrested at the Savannah airport following the “Caroline C” venture. This court in Manbeck held that where a crew member possesses his own cache, a fair inference would be the intent to both import and distribute. 744 F.2d at 390. We did not need, however, to decide what amount would be necessary to distinguish between possession and possession with intent to distribute. In our view, given the facts of this case, particularly the size of the “Caroline C” cargo, 584 grams or approximately one-half kilogram of hashish, is insufficient. Campbell also testified that Gunn participated in meetings with organizers of the conspiracy, including Leslie Riley and Leon Harvey. The subject of the meetings concerned arrangements for importation. The government argues that Campbell’s testimony that Gunn deposited a bale of hashish on-shore after the unloading of the “Second Life” establishes his involvement in the conspiracy to distribute. Campbell’s testimony, however, indicated that Gunn, who was drunk at the time, dropped the bale onshore to remove it from the vessel so that the vessel could clear customs. There is no indication that this act was part of any distribution plan but was rather a concluding act of the importation. Similarly, Gunn’s participation in the offloading of the hashish from the “Caroline C” at a dock in North Carolina was insufficient to establish his connection to the conspiracy to distribute. In sum, we cannot infer Gunn’s participation in the conspiracy to distribute marijuana and hashish solely from his involvement in the conspiracy to import them. There is practically no other evidence of his participation in the distribution conspiracy so we must reverse his conviction as to that count. Lastly, we find no merit in the appellants’ contention that the district court’s denial of the bill of particulars prejudiced their ability to prepare for trial and, in particular, to prepare their affirmative defense of double jeopardy. The decision to grant or deny a motion for a bill of particulars lies within the sound discretion of the trial court and may be challenged only on the basis of abuse of that discretion. United States v. Dulin, 410 F.2d 363, 364 (4th Cir.1969); United States v. Garrett, 727 F.2d 1003, 1010 (11th Cir. 1984), aff'd, — U.S. -, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). The appellants fail to show that the lack of a bill of particulars prejudiced their defense or resulted in actual surprise at trial. We, therefore, find no abuse of discretion on the part of the district court. AFFIRMED IN PART, REVERSED IN PART, REMANDED IN PART. . MacDougall received five years incarceration for each of his Count One and Count Two convictions, to run consecutively. For Counts Eight and Thirteen, MacDougall received five years incarceration for each, to run consecutively to each other, but concurrently to Counts One and Two. As to Count Fourteen, MacDougall received five years to run concurrently to Counts One, Two, Eight, and Thirteen, plus twenty years special parole. Sanders received five years incarceration for each of his Count One and Count Two convictions, to run consecutively, and five years each for Counts Twenty-three and Twenty-four to run concurrently to each other and concurrently to his sentence for Counts One and Two. Sanders also received twenty-five years of special parole. Gunn received four years incarceration for each of his Count One and Count Two convictions, to run consecutively. Harvey received three and one-half years incarceration for each of his Count One and Count Thirteen convictions, to run consecutively, and twenty years special parole. . The original versions of indictment numbers 166 and 165 were handed down on the same day: May 19, 1983. MacDougall, Gunn and Sanders were defendants in the original 165 indictment. MacDougall and Harvey were defendants in the original 166 indictment. Sanders was added in the first superseding indictment in indictment 166. Gunn was added in the second superseding indictment. . Following his indictment in the instant case, Harvey filed a Motion for Enforcement of Plea Agreement in the Eastern District of Virginia alleging that the plea agreement barred the South Carolina charges. The district court ruled that the plea agreement was binding only against the Eastern District of Virginia. Harvey appealed that decision in another appeal decided by this court today, No. 83-5256. . Their organization is referred to as the "Riley-Harvey organization” throughout this opinion. In that context, “Harvey refers to Leon Harvey. . Pernell and Toombs were lead defendants in indictment number 151 filed in the Eastern District of Virginia in June 1982. That indictment also charged Leon Harvey with engaging in a continuing criminal enterprise. Pernell and Toombs testified at the appellants’ trial, while Leon Harvey had become a fugitive. . These acts were charged as overt act number 1 in indictment 166, and as acts number 4 and 5 in indictment 165. . Campbell testified that they were never prosecuted for their roles in this venture which terminated in the Bahamas. . The government included this joint venture as an overt act in both indictment 166 and in the Eastern District of Virginia indictment number 151 concerning the Pernell-Toombs organization’s activities. Unlike Michael Harvey, MacDougall, Gunn, and Sanders were not charged in either indictment number 151 or 31, and thus were not placed in jeopardy by any prosecution in the Eastern District of Virginia. . Fed.R.Crim.P. 12 provides in part: (b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial: (1) Defenses and objections based on defects in the institution of the prosecution: (e) Ruling on Motion. A motion.made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no such determination shall be deferred if a party's right to appeal is adversely affected. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record. . Sanders was acquitted on the 165 charges, and the charges as to MacDougall were dismissed prior to the trial in that case. Gunn was dropped from indictment 165 when evidence at the trial of 165 indicated that he had been improperly charged in that conspiracy — a fact tending to support the district court's determination of separate conspiracies. . In Lurz, this court held that there may be two distinct conspiracies "even though they may involve some of the same participants.” 666 F.2d at 74. Lurz, however, was the only defendant overlapping between two conspiracies involving twenty-three and four defendants, respectively. . The exact number of joint ventures between Riley-Harvey and Pernell-Toombs is unclear. At one point, Pernell testified to fifteen to twenty such ventures (Appendix 2575) and at another to only seven (Appendix 2659, 2756). At the appellants’ trial, Pernell described his organization, saying that he was the "co-boss” with Toombs; Toombs being the chairman of the board, Pernell the president. . The Eleventh Circuit has held: [T]he requirement of knowledge of the conspiracy agreement refers simply to knowledge of the essential objective of the conspiracy. To be found guilty, a defendant need not have knowledge of all the details of the conspiracy, and may play only a minor role in the total operation. Corbin, 734 F.2d at 643 (quoting United States v. Badolato, 701 F.2d 915, 920 (11th Cir.1983)). Question: Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_appel1_7_5

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 "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Leonard N. BEBCHICK and Leonard S. Goodman, Appellants, v. PUBLIC UTILITIES COMMISSION OF DISTRICT OF COLUMBIA and D. C. Transit System, Inc., Appellees. No. 15999. United States Court of Appeals District of Columbia Circuit. Argued Nov. 30, 1960. Decided Jan. 12, 1961. Messrs. Leonard N. Bebchick and Leonard S. Goodman, appellants pro se. Mr. George F. Donnella, Counsel, Public Utilities Commission of the District of Columbia, with whom Messrs. Chester H. Gray, General Counsel, Public Utilities Commission of the District of Columbia, and Andrew G. Conlyn, Counsel, Public Utilities Commission of the District of Columbia, were on the brief, for appellee Public Utilities Commission of the District' of Columbia. Mr. Owen J. Malone, Washington, D. C., for appellee D. C. Transit System, Inc. Mr. Harvey M. Spear, New York City, also entered án appearance for ap-pellee D. C. Transit System, Inc. Before Washington, Danaher and Bastian, Circuit Judges. WASHINGTON, Circuit Judge. This case involves an appeal from a decision of the Public Utilities Commission of the District of Columbia, relative to rates of bus and streetcar fares charged by appellee D. C. Transit System, Inc. Section 43-705 of the D.C.Code provides that “Any * * * person * * * affected by any final order or decision of the Commission, other than an order fixing or determining the value of the property of a public utility in a proceeding solely for that purpose, may” appeal to the District Court and from that court to this. See Pollak v. Public Utilities Commission, 1951, 89 U.S.App.D.C. 94, 191 F.2d 450. Appellants’ petition of appeal, filed pursuant to this section, was dismissed by the District Court on the ground “that the record certified to the Court contains no evidence to support the plaintiffs’ allegation that they are riders of Transit vehicles or are persons affected by the Order of the Commission appealed from [and] that, accordingly, within the purview of the statute governing review of orders of the Commission, the plaintiffs are without standing to bring this appeal. * * * ” The present appeal followed. Appellants contend that the record certified to the court demonstrates, at a minimum, that appellant Goodman is a “transit rider,” i. e., a user of Transit System vehicles; that from an affidavit properly before the court, although not a part of the certified record, it should have concluded that appellant Bebchick is also a “transit rider”; and that as such, both are “persons * * * affected” within the meaning of the statute. Appellant Goodman filed a petition to intervene in the proceedings before the Commission in which he made the sworn statement that he is a regular commuter on Transit • System vehicles. In its order granting intervention the Commission expressly relied upon this allegation. We believe that upon this evidence, which was a part of the record certified by the Commission, the District Court should have found that appellant Goodman is a transit rider. Although appellant Bebchick did not file a petition to intervene, he did join in the petition for reconsideration and alleged therein that he is a transit rider. Moreover, appellant Bebchick subsequently filed with the District Court an affidavit in which he stated that he is “an occasional and casual customer and rider of the buses and streetcars of D. C. Transit System, Inc.” We are of the opinion that this affidavit, although dehors the certified record, was proper for consideration below, the question being one of standing to bring the appeal, and that on the basis of all the evidence properly before it the trial court should have found that appellant Bebchick is also a transit rider. On the facts here, we believe that appellants, as transit riders, qualify as persons entitled to appeal. In United States v. Public Utilities Commission, 1945, 80 U.S.App.D.C. 227, 231, 151 F.2d 609, 613, we held that the language of Section 43-705 of the D.C.Code and its companion sections-manifests “an intention that consumers [of electric power] shall have a right to challenge the Commission’s actions.” This right accrues with equal force to users of transit facilities. Poliak v. Public Utilities Commission, supra. The order appealed from raises the cash fare for a single trip from 20 cents to 25 cents, but does not increase the token fare of 5 for $1.00, or 20 cents each. Appellees argue that transit riders are not affected by the change in cash fare sinee they can continue to travel at the old rates if they use tokens. The vice of this argument is that it proves too much, since presumably it would bar appeal from an order raising cash fares to 40 cents or 50 cents or even a dollar, so long as token fares were not increased. Manifestly appellees expect the new fare schedule to affect Transit’s revenues in a favorable and meaningful way, or they would not have provided for it. It must therefore affect transit riders, from whose pockets the additional revenues are expected to come. We hold that the complaint ought not have been dismissed for lack of standing, and order the ease remanded to the District Court for further proceedings. Reversed and remanded. . Reversed on other grounds, 1952, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068. . See Seatrain Lines, Inc. v. United States, D.C.Del.1957, 152 F.Supp. 619, 622-623. This point is conceded by ap-pellee Transit System, although not by appellee Commission. . Single tokens, however, are not offered: a lot of 5 is the smallest unit sold. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:

sc_caseorigin

160

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. AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA et al. v. LOCKRIDGE No. 76. Argued December 15, 1970 Decided June 14, 1971 Harlan, J., delivered the opinion of the Court, in which Black, Brennan, Stewart, and Marshall, JJ., joined.' Douglas, J., filed a dissenting opinion, post, p. 302. White, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 309. Blackmun, J., filed a dissenting statement, post, p. 332. Isaac N. Groner argued the cause for petitioners. With him on the briefs were - Earle W. Putnam and Paul T. Bailey. John L. Kilcullen argued the cause for respondent. With him on the brief were Robert W. Green and Samuel Kaufman. Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Linda Sher, for the National Labor Relations Board, and by /. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations. Jonathan C. Gibson filed a brief for the National Right to Work Legal Defense and Education Foundation as amicus curiae urging .affirmance. Mb. Justice Harlan delivered the opinion of the Court. San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), established the general principle that the National Labor Relations Act pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act. That decision represents the watershed in this Court’s continuing effort to mark the extent to which the maintenance of a general federal law of labor relations combined with a centralized administrative agency to implement its provisions necessarily supplants the operation of the more traditional legal processes in this field. We granted certiorari in this case, 397 U. S. 1006 (1970), because the divided decision of the Idaho Supreme Court demonstrated the need for this Court to provide a fuller explication of the premises upon which Garmon rests and to consider the extent to which that decision must be taken to have modified or superseded' this Court’s earlier efforts to treat with the knotty pre-emption problem. I Respondent, Wilson P. Lockridge, has obtained in the Idaho courts a judgment for $32,678.56 against peti-. tioners, Northwest Division 1055 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America and its parent international association, on the grounds that, in procuring Lockridge’s discharge from employment, pursuant to a valid union security clause in the applicable collective-bargaining agreement, the Union breached a contractual obligation embodied in the Union’s constitution and bylaws. From May 1943 until November 2, 1959, Lockridge was a member of petitioner Union and employed within the State of Idaho as a bus driver for Western Greyhound Lines, or its predecessor. At the time of Lockridge’s dismissal from the Union, § 3 (a) of the collective-bargaining agreement in effect between the Union and Greyhound provided: “All present employees covered by this contract shall become members of the ASSOCIATION [Union] not later than thirty (30) days following its effective date and shall remain members as a condition precedent to continued employment. This section shall apply to newly hired employees thirty (30) days from the date of their employment with the COMPANY.” App. 88. In addition, § 91 of the Union’s Constitution and General Laws provided, in pertinent part, that: “All dues ... of the members of this Association are due and-payable on the first day of each month for that month .... They must be paid by the fifteenth of the month in order to continue the member in good standing. ... A member in arrears for his dues . . . after the fifteenth day of the month is not in good standing . . . and where a member allows his arrearage ... to run into the second month before paying the same, he shall be debarred from benefits for one month after payment. Where a member allows his arrearage ... to run over the last day of the second month without payment, he does thereby suspend himself from membership in this Association. Where agreements with employing companies provide that members must be in continuous good financial standing, the member in arrears one month may be suspended from membership and removed from employment, in compliance with the terms of the agreement.” App. 91-92. Prior to September 1959, Lockridge’s dues had been deducted from his paycheck, by Greyhound, pursuant to a checkoff arrangement. During that year, however, Lockridge and a few other employees were released at their request from the checkoff, and thereby became obligated to pay their dues directly to the Union’s office in Portland, Oregon. On November 2, 1959, C. A. Bank-head, the treasurer and financial secretary of the union local, suspénded Lockridge from membership on the sole ground that since respondent had not yet paid his October dues he was therefore in arrears contrary to § 91. Bank-head simultaneously notified Greyhound of this determination and requested that Lockridge be removed from employment. Greyhound promptly complied. Lock-ridge’s wife received notice, of the suspension from membership in early November, while her husband was on vacation, and on November 10, 1959, tendered Bankhead a check to cover respondent’s dues for October and November, which Bankhead refused to accept. This chain of events, combined with the disparity between the above-quoted terms of the collective-bargaining agreement and the union constitution and general laws, generated this lawsuit. Lockridge has contended, and the Idaho courts have so held, that because he was less than two months behind in his payment of dues, respondent had not yet “suspended himself from membership” within the meaning of the Union’s rules, but instead had merely ceased to be a “member in good standing.” And, because the collective-bargaining agreement required only that employees “remain members,” those courts held that neither that agreement nor the final sentence of § 91 justified the Union’s action in procuring Lockridge’s discharge. Therefore, the Idaho courts have held, Lockridge’s dismissal violated a promise, implied in law, that the Union would not seek termination of his employment unless he was sufficiently derelict in his dues payments to subject him to loss of his job under the terms of the applicable collective-bargaining agreement. Although the trial court made no formal findings of fact on this score, it appears likely that the Union procured Lockridge’s dismissal in the mistaken belief that the applicable union security agreement with Greyhound did, in fact, require employees to remain members in good standing and that the Union insisted on what it thought was a technically valid position because it was piqued by Lockridge’s obtaining his release from the checkoff. The trial court did find specifically that “almost without, exception” it had been the past practice of this local division of the Union merely to suspend delinquent members from service, rather than to strip them of membership, and to put them back to work without loss, of seniority when their dues were paid. Lockridge initially made some efforts, with Bankhead’s assistance, to obtain reinstatement in the Union but these proved unsuccessful.. No charges were filed before the National Labor Relations Board. Instead, Lockridge filed suit in September 1960 in the Idaho State District Court against the Union and Greyhound, which was later dropped as a party. That court, on the Union’s motion, dismissed the complaint in April 1961 on the grounds that it charged the Union with the commission of an unfair labor practice and consequently fell within the exclusive jurisdiction of the NLRB. A year later, the Idaho Supreme Court reversed, holding that the state courts had jurisdiction under this Court’s decision in Machinists v. Gonzales, 356 U. S. 617 (1958), and remanded for trial' on the merits. Lockridge v. Amalgamated Assn. of St., El. Ry. & M. C. Emp., 84 Idaho 201, 369 P. 2d 1006 (1962). In 1965 Lockridge filed a second amended complaint which has since served as the basis for this lawsuit. Its first count alleged that “in suspending plaintiff from membership in the [Union] which resulted in plaintiff’s loss of employment, the [Union] . . . acted wantonly, wilfully and wrongfully and without just cause, and . . . deprived plaintiff of his . . . employment with Greyhound Corporation that accrued to him and would accrue to him by reason of his employment, seniority and experience, and plaintiff has been harassed and subject to mental anguish . . . .” App. 46-47. Count Two, sounding squarely in contract, alleged that “in wrongfully suspending plaintiff from membership in the [Union], which resulted in plaintiff’s discharge from employment with the Greyhound Corporation, the [Union] . . . acted wrongfully, wantonly, wilfully and maliciously and without just cause and violated the constitution and general laws of the [Union] which constituted a contract between the plaintiff as a member thereof and the [Union], and as a result of said breach of contract plaintiff has been deprived of his . . . employment with . . ; Greyhound Corporation . . . and plaintiff has been embarrassed and subjected to mental anguish . . . .” App. 48. The complaint sought damages in the amount of $212,000 “and such other and further relief as to the court may appear meet and equitable in the premises.” Ibid. After trial, the Idaho District Court found the facts as stated above and held that they did, indeed, amount to a breach of contract. The court felt itself bound by the prior determination of the Idaho Supreme Court to consider that it might properly exercise jurisdiction .over the controversy and to “decide [the] case on the theories of” Machinists v. Gonzales, supra. Consequently, the trial judge concluded that Lockridge was entitled to a decree restoring him to membership in the Union, “although plaintiff has never sought such remedy.” Lock-ridge was also awarded $32,678.56 as compensation for wages actually lost due to his dismissal from Greyhound’s employ, but his requests for future damages arising from continued loss of employment, compensation for loss of. seniority or fringe benefits, and punitive damages were all denied. On appeal the Idaho Supreme Court affirmed, over one dissenting vote, except that it also ordered restoration of respondent’s seniority rights. 93 Idaho 294, 460 P. 2d 719 (1969). Having granted certiorari for the reasons stated at the outset of this opinion, we now reverse. II A. On the surface, this might appear to be a routine and simple case. Section 8 (b) (2) of the National Labor Relations Act, as amended, 61 Stat. 141, 29 U. S. C. § 158 (b)(2), makes it an unfair labor practice for a union “to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) ... or to discriminate against an employee with respect to wThom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly r'equired as a' condition, of acquiring or retaining'membership.” Section 8 (b)(1)(A), 29 U. S. C. § 158 (b)(1)(A), makes it an unfair labor practice for a union “to restrain or .qoerce . . . employees in the exercise of the rights-guar-anteed in. section 7,” which includes the right not only* “to form, join, or assist labor organizations” but also “the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3).” 61 Stat. 140, 29 U. S. C. § 157. Section 8 (a) (3) makes it an unfair labor practice for an employer “by discrimination in regard.to hire or tenure of employment ... to encourage or discourage membership in any labor organization: Provided, That nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization ... to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date-of such agreement, whichever is the later . . . : Provided further, That no employer shall justify any discrimination against an employee for nonmémbership in a labor organization ... if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership . . . .” 29 U. S. C. § 158 (a)(3). Further, in San Diego Building Trades Council v. Garmon, 359 U. S., at 245, we held that the National Labor Relations Act pre-empts the jurisdiction of state and federal courts to regulate conduct “arguably subject to § 7 or § 8 of the Act.” On their face, the above-quoted provisions of the Act at least arguably either permit or forbid' the .union conduct dealt with by the judgment below. For the evident thrust of this aspect of the federal statutory scheme is to permit the enforcement of union security clauses, by dismissal from employment, only for failure to pay dues. Whatever other sanctions may be employed to exact compliance with those internal union rules unrelated to dues payment, the Act seems generally to exclude dismissal from employment. See Radio Officers’ Union v. NLRB, 347 U. S. 17 (1954). Indeed, in the course of rejecting petitioner’s pre-emption argument, the Idaho Supreme Court stated that, in its opinion, the Union “did most certainly -violate 8 (b)(1)(A), did most certainly violate 8 (b) (2) . . . and probably caused the employer to violate 8 (a) (3).” 93 Idaho, at 299, 460 P. 2d, at 724. Thus, given the broad pre-emption principle enunciated in Garmon, the want of state court power to resolve Lockridge’s complaint might well seem to follow as a matter of course. The Idaho Supreme Court, however, concluded that it nevertheless possessed jurisdiction in these eimumstances: That determination, as we understand it, rested upon three separate propositions, all of which are urged here by respondent. The first is that the Union’s conduct was not only, an unfair labor practice, but a breach of its contract with Lockridge as well. “Pre-emption is not established simply by showing that the same-facts will sustain two different legal wrongs.” 93 Idaho, at 300, 460 P. 2d, at 725. In other words Garmon, the state court and respondent assert, states a principle applicable only where the state law invoked is designed specifically to regulate labor relations; it has no force where the State applies its general common law of contracts to resolve disputes between a union and its members. Secondly, it is urged that the facts that might be shown to vindicate Lockridge’s claim in the Idaho state courts differ from those relevant to proceedings governed by the National Labor Relations Act. It is said that the conduct regulated by the Act is union and employer discrimination; general contract law takes into account only the correctness of competing interpretations of the language embodied in agreements. 93 Idaho, at 303-304, 460 P. 2d, at 728-729. Finally, there recurs throughout, the state court opinion, and the arguments-of respondent here, the theme that the facts of the instant case render it virtually indistinguishable from Machinists v. Gonzales, 356 U. S. 617 (1958), where this Court upheld the exercise of state court jurisdiction in an opinion written only one Term prior to Garmon, by the author of Garmon and which was approvingly cited in the Garmon opinion itself. We do not believe that any of these arguments suffice to overcome the plain purport of Garmon as applied to the facts of this case. However, we have determined to treat these considerations at some length because of the understandable confusion, perhaps in a measure attributable to the previous opinions of this Court, they reflect over the jurisprudential bases upon which the Garmon doctrine rests. B The constitutional principles of pre-emption, in whatever particular field of law they operate, are designed with a common end in view: to avoid conflicting regulation of conduct by various official- bodies which might have some authority over the subject matter. A full understanding of the particular pre-emption rule set forth in Garmon especially requires, we think, appreciation of the precise nature and extent of the potential for injurious conflict that would inhere in a system unaffected by- such a doctrine, and also the setting in which the general problem of accommodating conflicting claims of competence to resolve disputes touching upon labor relations has been presented to this Court. The course of events that eventuated in the enactment of a comprehensive national labor law, entrusted for its administration and development to a centralized, expert agency, as well as the very fact of that enactment itself, reveals that a primary factor in this development was the perceived incapacity of common-law courts and state legislatures, acting alone, to provide an informed and coherent basis for ■ stabilizing labor relations conflict and for equitably and delicately structuring the balance of power among competing forces so as to further the common good. The principle of pre-emption that informs our general national labor law was born of this Court’s efforts, without the aid of explicit congressional guidance, to delimit state and federal judicial authority over labor disputes in order to preclude, so far as reasonably possible, conflict between the exertion of judicial and administrative power in the attainment of the multifaceted policies underlying the federal scheme. As it appears to us, nothing could serve more fully to defeat the congressional goals underlying the Act than to subject,-without, limitation, the relationships it seeks to create to the concurrent jurisdiction of state and fed- ' eral courts free to apply the general local law. Nor would an approach suffice that sought merely to avoid disparity in the content, of proscriptive behavioral rules. As the Court observed in Garner v. Teamsters Union, 346 U. S. 485, 490-491 (1953), Congress in establishing overriding federal supervision of labor law “did not merely lay down a substantive rulé of law .to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision .... Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. ... A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.” Conflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy. As the passage from Garner indicates, in matters of dispute concerning labor relations a simple recitation of the formally prescribed rights and duties of the parties constitutes an inadequate description of the actual process for setfclément Congress has provided. The technique of administration and the range and nature of those remedies that are and are not available is a fundamental part and parcel of the operative legal system established by the National Labor Relations Act. “Administration is more than a means of regulation; administration is regulation. We have been concerned with conflict in its broadest sense; conflict with a complex and interrelated federal scheme of law, remedy, and administration.” Garmon, 359 U. S., at 243. The rationale for pre-emption, then, rests in large measure upon our determination that when it set down a federal labor policy Congress plainly meant to do more than simply to alter the then-prevailing substantive law. It sought as well to restructure fundamentally the processes for effectuating that policy, deliberately placing the responsibility for applying and'developing this comprehensive legal system in the hands of an expert administrative body rather than the federalized judicial system. Thus, that a local court, while adjudicating a labor dispute also within the jurisdiction of the NLRB, may purport to apply legal rules identical to those prescribed in the federal Act or may eschew the authority to define or apply principles specifically developed to regulate labor relations does not mean that all relevant potential for debilitating conflict is absent. A second factor that has played an important role in our shaping of the pre-emption doctrine has been the necessity to act without specific congressional direction. The precise extent to which state law must be displaced to achieve those unifying ends sought by the national legislature has never been determined by the Congress. This has, quite frankly, left the Court with few available options. 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. Nor can we proceed on a case-by-case basis to determine whether each particular final judicial pronouncement does, or might reasonably be thought to, conflict in some relevant manner with federal labor policy. This Court is ill-equipped to play such a role and the federal system dictates that this problem be solved with a rule capable of relatively easy application, so that lower courts may largely police' themselves in this regard. Equally important, such a principle would fail to take account of the fact, as discussed above, that simple congruity of legal rules does not, in this area, prove the absence of untenable conflict. Further, it is surely not possible for this Court to treat the National Labor Relations Act section by section, committing enforcement of some of its provisions wholly to the NLRB and others to the concurrent domain of local law. Nothing in the language or underlying purposes of the Act suggests any basis for such distinctions. Finally, treating differently judicial power to deal with conduct protected by the Act from that prohibited by it would likewise be unsatisfactory. Both areas equally involve conduct whose legality is governed by federal law, the application of which Congress committed to the Board, not courts. This is not to say, however, that these inherent limitations on this Court’s ability to state a workable rule that comports reasonably with apparent congressional objectives are necessarily self-evident. In fact, varying approaches were taken by the Court in initially grappling with this pre-emption problem. Thus, for example, some early cases suggested the true distinction lay between judicial application of general common law, which was permissible, as opposed to state rules specifically designed to regulate labor relations, which were pre-empted. See, e. g., Automobile Workers v. Russell, 356 U. S. 634, 645 (1958). Others made pre-emption turn on whether the States purported to apply a remedy not provided for by the federal scheme, e. g., Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 479-480 (1955), while in still others the Court undertook a thorough scrutiny of the federal Act to ascertain whether the state courts had, in fact, arrived at conclusions inconsistent with its provisions, e. g., Automobile Workers v. Wisconsin Employment Relations Bd., 336 U. S. 245 (1949). For the reasons outlined above none of these approaches proved satisfactory, however, and each was ultimately abandoned. It was, in short, experience — not pure logic — which initially taught that each of these methods sacrificed important federal interests in a uniform law of' labor relations centrally administered by an expert .agency without yielding anything in return by way of predictability or ease of judicial application. The failure of alternative analyses and the interplay of the foregoing policy considerations, then, led this Court to hold in Garmon, 359 U. S., at 244: “When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction .must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.” ' C Upon these premises, we think that Garmon rather clearly. dictates reversal of the judgment below. None of the propositions asserted to support that judgment can withstand an application, in light of those factors that compelled its promulgation, of the Garmon rule. Assuredly the proposition that Lockridge’s complaint was not subject to the exclusive jurisdiction of the NLRB because, it charged a breach of contract rather than an unfair labor practice is not tenable. Pre-emption, as shown above, is designed to shield the system from conflicting regulation of conduct. It is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern. Indeed, the notion that a relevant distinction exists for such purposes between particularized and generalized labor law was explicitly rejected in Garmon itself. 359 U. S., at 244. The second argument, closely related to the first, is that the state courts, in resolving this controversy, did deal with different conduct, i. e., interpretation of contractual terms, than would the NLRB which would be required to decide whether the Union discriminated against Lockridge. At bottom, of course, the Union’s action in procuring Lockridge’s dismissal from employment is the conduct which Idaho courts have sought to regulate. Thus, this second point demonstrates at best that Idaho defines differently what sorts of such union conduct may permissibly be proscribed. This is to say either that the regulatory schemes, state and federal, conflict (in which case pre-emption is clearly called for) or that Idaho is dealing with conduct to which the federal Act does not speak. If the latter assertion was intended, it is not accurate. . As pointed out in Part II-A, supra, the relevant portions of the Act operate to prohibit a union from causing or attempting to cause an employer to discriminate against an employee because his membership in the union has been terminated “on some ground other than” his failure to pay those dues requisite to membership. This has led the Board routinely and frequently to inquire into the proper construction of union regulations in order to ascertain whether the union properly found an employee to have been derelict in his dues-paying responsibilities, where his discharge was procured on the asserted grounds of nonmembership in the union. See, e. g., NLRB v. Allied Independent Union, 238 F. 2d 120 (CA7 1956); NLRB v. Leece-Neville Co., 330 F. 2d 242 (CA6 1964); Communications Workers v. NLRB, 215 F. 2d 835 (CA2 1954); NLRB v. Spector Freight System, Inc., 273 F. 2d 272 (CA8 1960). See generally 3 CCH Lab. L. Rep. ¶ 4525 (Labor Relations). That a union may in good faith have misconstrued its own rules has not been treated by the Board as a defense to a claimed violation of § 8 (b)(2). In the Board's view, it is the fact of misapplication by a union of its rules, not the motivation for that discrimination, that constitutes an unfair labor practice. See, in addition to the authorities cited above, Electrical, Radio & Machine Workers v. NLRB, 113 U. S. App. D. C. 342, 347, 307 F. 2d 679, 684 (1962), and Teamsters Local v. NLRB, 365 U. S. 667, 681 (1961) (concurring opinion). From the foregoing, then, it would seem that this case indeed represents one of the clearest instances where the Garmon principle, properly understood, should operate to oust state court jurisdiction. There being no doubt that the conduct here involved was arguably protected by § 7 or prohibited by § 8 of the Act, the full range of very substantial interests the pre-emption doctrine seeks to protect is directly implicated here. However, a final strand of analysis underlies the opinion of the Idaho Supreme Court, and the position of respondent, in this case. Our decision in Machinists v. Gonzales, 356 U. S. 617 (1958), it is argued, fully survived the subsequent reorientation of pre-emption doctrine effected by the Garmon decision, providing, in effect, an express exception for the exercise of judicial jurisdiction in cases such as this. The fact situation in Gonzales does resemble in some relevant regards that of the instant case. There the California courts had entertained a complaint by an individual union member claiming he had been expelled from his union in violation of rights conferred upon him by the union’s constitution and bylaws, which allegedly constituted a contract between him and his union. Gonzales prevailed on his breach-of-contract theory and was awarded damages for wages lost due to the revocation of membership as well as a decree providing for his reinstatement in the union. This Court confirmed the California courts’ power to award the monetary damages, the only aspect of the action below challenged in this Court. The primary rationale for the result reached was that California should be competent to “fill out,” 356 U. S., at 620, the reinstatement remedy by utilizing “the comprehensive relief of equity,” id., at 621, which the Board did not fully possess. Secondarily, it was said that the lawsuit “did not purport to remedy or regulate union conduct on the ground that it was designed to bring about employer discrimination against an employee, the evil the Board is concerned to strike at as an unfair labor practice under §8 (b)(2).” Id., at 622. Although it was decided only one Term subsequent to Gonzales, Garmon clearly did not fully embrace the technique of the prior case. It was precisely the realization that disparities in remedies and administration could produce substantial conflict, in the practical sense of the term, between the relevant state and federal regulatory schemes and that this Court could not effectively and responsibly superintend on a case-by-case basis the exertion of state power over matters arguably governed by the National Labor Relations Act that impelled the somewhat broader formulation of the pre-emption doctrine in Garmon. It seems evident that the full-blown rationale of Gonzales could not survive the rule of Garmon. Nevertheless, Garmon did not cast doubt upon the result reached in Gonzales, but cited it approvingly as an example of the fact that state court jurisdiction is not preempted “where the activity regulated was a merely peripheral concern of the . . . Act.” 359 U. S., at 243. Against this background, we attempted to define more precisely the reach of Gonzales within the more comprehensive framework Garmon provided in the companion cases of Plumbers’ Union v. Borden, 373 U. S. 690 (1963), and Iron Workers v. Perko, 373 U. S. 701 (1963). Borden had sued his union in state courts, alleging that the union had arbitrarily refused to refer him to a particular job which he had lined up.- He recovered damages, based on lost wages, on the grounds that this conduct constituted both tortious interference with his right to contract for employment and a breach of promise, implicit in his membership arrangement with the union, not to discriminate unfairly against any member or deny him the right to work. Perko had obtained a large money judgment in the Ohio courts on proof that the union had conspired, without cause, to deprive him of employment as a foreman by demanding his discharge from one such position he had held and representing to others that his foreman’s rights had been suspended. We held both Perko’s and Borden’s judgments inconsistent with the Garmon rule essentially for the same reasons we have concluded that Lockridge could not, consistently with the Garmon decision, maintain his lawsuit in the state courts. We further held there was no necessity to “consider the present vitality of [the Gonzales] rationale in the light of more recent decisions,” because in those cases, unlike Gonzales, “the crux of the action [s] . . . concerned alleged interference with the plaintiff’s existing or prospective employment relations and was not directed to internal union matters.” Because no specific claim for restoration of membership rights had been advanced, “there was no permissible state remedy to which the award of consequential damages for loss of earnings might be subordinated.” Perko, 373 U. S., at 705. See also Borden, 373 U. S., at 697. In sum, what distinguished Gonzales from Borden and Perko was that the former lawsuit “was focused on purely internal union matters,” Borden, supra, at 697, a subject the National Labor Relations Act leaves principally to other processes of law. The possibility that, in defining the scope of the union’s duty to Gonzales, the state courts would directly and consciously implicate principles of federal law was at best tangential and remote. In the instant case, however,- this possibility was real and immediate. To assess the legality of his union’s conduct toward Gonzales the California courts needed only to focus upon the union’s constitution and by-laws. Here, however, Lockridge’s entire case turned upon the construction of the applicable union security clause, a matter as to which, as shown above, federal concern is pervasive and its regulation complex. The reasons for Gonzales’ deprivation of union membership had nothing to do with matters of employment, while Lockridge’s cause of action and claim for damages were based solely upon the procurement of his discharge from employment. It cannot plausibly be argued, in any meaningful sense, that Lock-ridge’s lawsuit “was focused on purely internal union matters.” Although nothing said in Garmon necessarily-suggests that States cannot regulate the general conditions which unions may impose on their membership, it surely makes crystal clear that Gonzales does not stand for the proposition that resolution of any union-member conflict is within state competence so long as one of the remedies provided is restoration of union membership. This much was settled by Borden and Perko, and it is only upon such an unwarrantably broad interpretation of Gonzales that the judgment below could be sustained. Ill The pre-emption doctrine we apply today is, like any other purposefully administered legal principle, not without exception. Those same considerations that underlie Garmon, have led this Court to permit the exercise- of judicial power over conduct arguably protected or prohibited by the Act where Congress has affirmatively indicated that such power should exist, Smith v. Evening News Assn., 371 U. S. 195 (1962); Teamsters Union v. Morton, 377 U. S. 252 (1964), where this Court cannot, in spite of the force of the policies Garmon seeks to promote, conscientiously presume that Congress meant to intrude so deeply into areas traditionally left to local' law, e. g., Linn v. Plant Guard Workers, 383 U. S. 53 (1966); Automobile Workers v. Russell, 356 U. S. 634 (1958), and where the particular rule of law sought to be invoked before another tribunal is so structured and administered that, in virtually all instances, it is safe to presume that judicial supervision will not disserve the. interests promoted by the federal labor statutes; Vaca v. Sipes, 386 U. S. 171 (1967). In his brief before this Court, respondent has argued for the first time since this lawsuit was started that two of these exceptions to the Garmon principle independently justify the Idaho courts’ exercise of jurisdiction over this controversy. First, Lockridge contends that his action, properly viewed, is one to enforce a collective-bargaining agreement. Alternatively, he asserts the suit, in essence, was one to redress petitioner’s breach of its duty of fair representation. As will be seen, these contentions are somewhat intertwined. In- § 301 of the Taft-Hartley Act, 61 Stat. 156, Congress authorized federal courts to exercise jurisdiction over suits brought to enforce collective-bargaining agree- . ments. We have held that such actions are judicially cognizable, even where the conduct alleged was arguably protected or prohibited by the National Labor Relations Act because the history of the enactment of § 301 reveals that “Congress deliberately chose to leave the' enforcement of collective agreements 'to the usual processes of the law.’ ” Charles Dowd Box Co. v. Courtney, 368 U. S. 502, 513 (1962). It is firmly established, further, that state courts retain concurrent jurisdiction to adjudicate such claims, Charles Dowd Box Co., supra, and that individual employees have standing to protect rights conferred upon them by such agreements, Smith v. Evening News, supra; Humphrey v. Moore, 375 U. S. 335 (1964). Our cases also clearly establish that individual union members may sue their employers under § 301 for breach ' of a promise embedded in the collective-bargaining agreement that was intended to confer a benefit upon the individual. Smith v. Evening News, supra. Plainly, however, this is not such a lawsuit. Lockridge specifically dropped Greyhound as a named party from his initial complaint and has never reasserted a right to redress from his former employer. This Court has further held in Humphrey v. Moore, supra, that § 301 will support, regardless of otherwise applicable pre-emption considerations, a suit in the state courts by a union member against his union that seeks to redress union interference with rights conferred on individual employees by the employer’s promises in the collective-bargaining agreement, where it is proved that such interference constituted a breach of the duty of fair representation. Indeed, in Vaca v. Sipes, 386 U. S. 171 (1967), we held that an action seeking damages for injury inflicted by a breach of a union’s duty of fair representation was judicially cognizable in any event, that is, even if the conduct complained of was arguably protected or prohibited by the National Labor Relations Act and whether or not the lawsuit was bottomed on a collective agreement. Perhaps Count One of Lockridge’s second amended complaint could be construed to assert either or both of these theories of recovery. However, it is unnecessary to pass upon the extent to which Garmon would be inapplicable if it were shown.that in these circumstances petitioner not only breached its contractual obligations to respondent, but did so in a manner that constituted a breach of the duty of fair representation. For such a claim to be made out, Lockridge must have proved “arbitrary or bad-faith conduct “on the part of the Union.” Vaca v. Sipes, supra, at 193. There must be “substantial evidence of fraud, deceitful action or dishonest conduct.” Humphrey v. Moore, supra, at 348. Whether these reqúisite elements have been proved is a matter of .federal law. Quite obviously, they were not even asserted to be relevant in the proceedings below. As the Idaho Supreme Court stated in affirming the verdict for Lockridge, “[t]his was a misinterpretation of a contract. Whatever the undér-lying motive for expulsion might have been, this case has been submitted and tried on the interpretation of the contract, not on a theory of discrimination.” 93 Idaho, at 303-304, 460 P. 2d, at 728-729. Thus, the trial judge’s conclusion of law in sustaining Lockridge’s claim specifically incorporates the assumption that the Union’s “acts . . . were predicated solely upon the ground that [Lockridge] had failed to tender periodic dues in conformance with the requirements of the union Consti- ■ tution and employment contract as they interpreted [it] . . . .” App. 66. Further, the trial court excluded as irrelevant petitioner’s proffer of evidence designed to show that the Union’s interpretation of the contract was reasonably based upon its understanding of prior collective-bargaining agreements negotiated with Greyhound. Tr. 259-260. Nor can it be fairly argued that our resolution of respondent’s final contentions entails simply attaching variegated labels to matters of' equal substance. We have exempted § 301 suits from the Garmon principle because of the evident congressional determination that courts should be free to interpret and enforce collective-bargaining agreements even where that process may involve condemning or permitting conduct arguably subject to the protection or prohibition of the National Labor Relations Act. The legislative determination that courts are fully competent to resob e labor relations disputes through focusing on the terms of a collective-bargaining agreement cannot be said to sweep within it the same conclusion with regard to the terms of union-employee contracts that are said to be implied in law. That is why the principle of Smith v. Evening -News is applicable only to. those disputes that are governed by the terms of the collective-bargaining agreement itself. Similarly, this Court’s refusal to limit judicial competence to rectify a breach of the duty of fair representation rests upon our judgment that such actions cannot; in the vast majority of situations where they occur, give rise to actual conflict with the operative realities of federal labor policy. The duty of fair representation was judicially evolved, without the participation of the NLRB, to enforce fully the important principle that no individual union member may suffer invidious, hostile treatment at the hands of the majority of his coworkers. Where such union conduct is proved it is clear, beyond doubt, that the conduct could not be otherwise regulated by the substantive federal law. And the fact that the doctrine was originally developed and applied by courts, after passage of the Act, and carries with it the need to adduce substantial evidence of discrimination that is intentional, severe, and unrelated to .legitimate • union objectives ensures that the risk of conflict with the general congressional policy favoring expert, centralized administration, and remedial action is tolerably slight. Vaca v. Sipes, supra, at 180-181. So viewed, the duty of fair representation, properly defined, operates to limit the scope of Garmon where the sheer logic of the preemption principle might otherwise cause it to be extended to a point where its operation might be unjust. Vaca v. Sipes, supra, at 182-183.If, however, the congressional policies Garmon seeks to promote are not to be swallowed up, the very distinction, embédded within the instant lawsuit itself, between honest, mistaken conduct, on the one hand, and deliberate and severely hostile - and irrational treatment, on the other, needs strictly to be maintained. IV Finally, we deem it appropriate to discuss briefly two other considerations underlying the conclusion we have reached in this case. First, our decision must not be taken as expressing any views on the substantive claims, of the two parties to this controversy. Indeed, our judgment is, quite simply, that it is not the task of federal or state courts to make such determinations. Secondly, in our explication of the reasons for the Garmon rule, and the various exceptions to it, we noted that, although largely of judicial making, the labor relations pre-emption doctrine finds its basic justification in the presumed intent of Congress. While we do not assert that the Garmon doctrine is without imperfection, we do think that it is founded on reasoned principle and that until it is altered by congressional action or by judicial insights that, are born of further experience with it, a heavy burden rests upon those who would, at this late date, ask this Court to abandon Garmon and set out again in quest of a system more nearly perfect. A fair regard for considerations of stare decisis and the coordinate role of the Congress in defining the extent to which federal legislation pre-empts state law strongly support our conclusion that the basic, tenets of Garmon should not be disturbed. For the reasons stated above, the judgment below is Reversed. The local and its parent are, of course, separate legal entities for many purposes and were joined as codefendants below so that each, appears as a petitioner in this Court. However both will be jointly described throughout this opinion as “the petitioner”.or “the Union” since the parent was held liable on the theory that it was responsible for the acts of the local here involved, not on the basis of any separate acts committed only by the parent. Because the Idaho courts treated as irrelevant the actual motivation for the Union’s conduct, see Part III, infra, the trial court did not incorporate in its formal findings of fact and conclusions of law any reference to this checkoff dispute. However, some such evidence was allowed at trial, as well as testimony about the Union’s past practice regarding dues-delinquent members, on the theory that this might ultimately bear on the issue whether Lockridge had properly exhausted his administrative remedies. The trial judge in his initial memorandum decision, however, did indicate his belief that “the true facts are” as-stated in the text accompanying this footnote. It appears that at least one other person, Elmer Day, was similarly suspended from membership in the Union and discharged from Greyhound. On November 12, 1959, he filed a formal charge with the Board’s Regional Director. On December 15, 1959, the Director advised Day, by letter, that “it appears that, because there is insufficient evidence of violations, further proceedings are not warranted at this time. I am therefore refusing to issue Complaint in these matters.” The Director further informed Day that “you may obtain a review of this action by filing a request for such review with the General Counsel of the National Labor Relations Board . . . .” Day did not seek review. Instead, he filed suit against the Union in the Circuit Court of Multnomah County, Oregon, for tortious interference with employment, and obtained a jury award for general and punitive damages. On appeal, the Supreme Court of Oregon (two judges dissenting) reversed, holding the conduct complained of to be within the Board’s exclusive jurisdiction. Day v. Northwest Division 1055, 238 Ore. 624, 389 P. 2d 42 (1964). (Some of these facts are taken from the dissenting opinion in that ease.) For a discussion of these problems that formed a backdrop for the federal act, see H. Wellington, Labor and the Legal Process, c. 1 (1968). See also Cox, Federalism in the Law of Labor Relations, 67 Harv. L. Rev. 1297, 1302-1304, 1315-1317 (1954). This appears to be the precise point of difference between our assessment of congressional*purpose and that of Mr. Justice White. While it is not clear how he would treat the Garmon principle where the conflict is between unions and employers, he expressly argues that state power to regulate union conduct harmful to its-members that is- within the compass of the National Labor Relations Act should be unlimited, except- by the obvious qualification that States -may not punish conduct affirmatively protected by federal law. Thus, in his view, when it enacted the NLRA, Congress would have fully served those interests it intended to promote in the conduct of union-member relations had it simply declared that the States may not proscribe certain, defined conduct. Certainly, he is prepared to adopt a judicial construction of the Act that is consistent only with such a view of congressional intent. At bottom, what his position seems to imply is that giving the National Labor' Relations Board jurisdiction to enforce federal law regulating the use of union security clauses was largely, if not wholly, without rational purpose. As we have explained at some length above, we do not understand how courts may properly take such a limited view of congressional intent in the face of legislation that is in fact much more wide ranging, and in the absence of a contrary expression of intention from Congress itself. Further, Mr. Justice White apparently regards the remedial aspects of the federal scheme as unimportant to those who designed it. For example, assuming arguendo that petitioner’s conduct was prohibited under both federal and state law, he would deem it of no national significance if one State punished such conduct with a jail sentence, and another utilized punitive damages, while the NLRB merely awarded back pay. His position apparently is that Congress considered any state tribunal equally capable, with the Board, of assessing the appropriateness of a given remedy and was unconcerned about disparities in the reactions of the States to unlawful union behavior. This argument, too, seems incompatible with the simple fact that Congress committed enforcement of the federal law here involved to a centralized agency. For these reasons, Mr. Justice White’s analogies do not persuade us. Unlike the problem here under review, Congress did not put enforcement of the Labor-Management Reporting and Disclosure Act of 1959 into the hands of the Board. 73 Stat. 519. And it affirmatively expressed an intention that the Board not possess preemptive jurisdiction over suits to enforce collective bargaining agreements. See Part III, infra. The objections raised to this latter point, post, at 325-332 (White, J.; dissenting), seem largely irrelevant to the case under review. This, is not a situation where the sole argument for preemption is that the union's conduct was arguably protected. Clearly, if the facts are as respondent believes them to be, there is ample reason to conclude that petitioner probably committed an unfair labor practice. Garmon itself recognized that Russell permitted state courts “to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order.” 359 U. S., at 247. However, whereas the Court in Russell had justified that result principally upon the broad grounds that state law not specifically relating to labor relations per se was not pre-empted by the Act, the Court in Garmon restated this result as dictated by “the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace [which] is not overridden in the absence of clearly expressed congressional direction.” Ibid. It is," of course, this .latter and narrower rationale that survives today.. It may be that a similar exception would arise where the Board affirmatively indicates that, in its view, pre-emption would not be appropriate. Cf. post, at 310-312, 319 n. 2 (White, J., dissenting). As the Board’s amicus brief in the instant case makes clear, no such question is now before us. Indeed, Mr, Justice White’s dissenting opinion fails to demonstrate the need for such a departure from our traditional judicial role. On the contrary, he affirmatively establishes that Congress has taken an active, conscious role in apportioning power to deal with controversies implicating 'federal labor law among various competent tribunals. 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. 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songer_district

F

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Elias SIEGELMAN, individually, and as Administrator of the Estate of Eva Siegelman, deceased, Plaintiff-Appellant, v. CUNARD WHITE STAR Limited, Defendant-Appellee. No. 14, Docket 23054. United States Court of Appeals, Second Circuit. Argued Nov. 9, 1954. Decided Feb. 17, 1955. Frank, Circuit Judge, dissented. David Fox, New York City, for appellant. Lord, Day & Lord, William J. Brennan, New York City, for appellee. Before CLARK, Chief Judge, and FRANK and HARLAN, Circuit Judges. HARLAN, Circuit Judge. Plaintiff, in his own right and as administrator of his wife’s estate, brings this action to recover for injuries suf-. fered by his wife on the defendant’s vessel, the R.M.S. Queen Elizabeth. The action was begun in a New York state court on December 14, 1951, and removed on diversity grounds to the federal district court for the Southern District of New York on January 3, 1952, the requisite jurisdictional amount being present. On September 9, 1949, the Compass Travel Bureau, Inc., Cunard’s New York agent, issued to Mr. and Mrs. Elias Siegelman a document describing itself as a “Contract Ticket.” It was a large sheet of light green paper, about 13 inches long and 11 inches wide. On the back were certain notices to passengers, relating to baggage, time of collection of ticket, location of the company’s piers and offices, etc. On the front was printed in black Cunard’s promise to provide specified transportation, in this case from New York to Cherbourg, subject to certain exceptions, and to 22 “terms and conditions,” also printed in black. Printed in red in heavier type was a notice directing the attention of passengers to these “terms and conditions.” Also printed in red, and in capital letters, was a statement that “it is mutually agreed that this contract ticket is issued by the Company and accepted by the passenger on the following terms and conditions.” The paper also contained a space where the departure time, the names of the passengers and of the ship, and other data were typed in. The paper was stated to be non-transferable. In a space provided for the signature of the company, the name of the Compass Travel Bureau was typed. The paper was not signed by either of the passengers. On September 24, 1949, when the Queen Elizabeth had been at sea four days, Mrs. Siegelman was injured. While she was seated in a dining room chair, she and the chair were overthrown. Her chair was alleged to be the only one in the dining room which was not bolted to the floor. Upon returning to New York, the Siegelmans retained an attorney to prosecute their claim against Cunard. On August 31, 1950, after Cunard’s doctor had examined Mrs. Siegelman, Cunard offered $800, the approximate amount of medical expenses stated to have been incurred by the plaintiff and his wife, in settlement of the claim. This offer was made to the Siegelmans’ lawyer over the telephone by Swaine, a claim agent of Cunard. Noticing that the ticket required suits for bodily injury to be brought within a year of the injury, and that the injury had occurred barely less than a year ago, the lawyer asked Swaine whether it would be necessary to begin suit in order to protect his clients’ rights. Swaine is said to have stated that no suit was necessary, that the filing of an action would be futile in view of the prospect of early settlement, and that Cunard’s offer would stand open. Subsequently Mrs. Siegelman died. Then, on January 4, 1951, Cunard withdrew its offer, which had not yet been accepted, stating that it could not bo tendered to any one other than the injured party. On December 14, 1951, this suit was begun, claiming on behalf of the deceased damages for pain and medical expenses, and on behalf of her husband, damages for other medical expenses and for loss of consort. Cunard denied legal responsibility for the accident, and set up as a further defense the plaintiff’s failure to bring the action within a year of the date the injury was suffered. In January, 1953, the defendant moved to dismiss the action on the latter ground. Treating the motion as one for summary judgment, and having received affidavits from the attorneys and from the plaintiff, the court found the issues for the defendant, and dismissed the complaint. On this appeal appellant asserts that Cunard is barred from using the period of limitation as a defense, because of Swaine’s statement that suit was unnecessary. The provisions of the “Contract Ticket” relevant to the appeal are as follows: “10. * * * No suit, action or proceeding against the Company or the ship, or the Agents of either, shall be maintainable for loss of life of or bodily injury to any passenger unless * * * (b) * * * the suit, action or proceeding is commenced within one year from the day when the death or injury occurred. “11. The price of passage hereunder has been fixed partly with reference to the liability assumed by the Company as defined by this contract, and no agreement, alteration or amendment creating any other or different liability shall be valid unless made in writing and signed for the Company by its Chief Agent at the port of embarkation. “20. All questions arising on this contract ticket shall be decided according to English Law with reference to which this contract is made.” Before reaching the merits of the plaintiff’s claim, we must deal with a number of preliminary questions: (1) Are federal or state choice-of-law rules to be applied here? (2) What is the applicable choice-of-law- rule of the proper authority? (3) If the applicable choice-of-law rule points to the use of English law, what difference is made by the facts that English law was not pleaded or proved below, and that the plaintiff made no attempt to supply affidavits of experts on English law, after the trial Judge had offered him an opportunity to do so? I. This case involves a claim based on a tort, committed on the high seas, and a defense based on a contract made in New York, to be performed there, on the high seas, and abroad. Our first question, though, is not what law governs the issues involved, but rather what law, federal or New York, controls the choice of the governing law. This is not a question of choice of laws, properly speaking, but rather a question of the division of competence between federal and state authority. The Constitution, Article III, Section 2, extended the federal judicial power “to all Cases of admiralty and maritime Jurisdiction.” In implementing this provision in the Judiciary Act of 1789, Congress provided that litigants might also take advantage ' of their common-law remedies, and this provision was interpreted to permit suits on maritime causes in state as well as federal courts. See discussion in Chelentis v. Lucken-bach S. S. Co., 1918, 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171. From an early time, therefore, maritime litigation has been carried on in both systems of courts. And the law applied has been both state and federal; for example, state wrongful death acts have been applied in federal courts. See Levinson v. Deupree, 1953, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319, and the Jones Act, 46 U.S.C.A. § 688, extending the benefits of the Federal Employers’ Liability Act to maritime workers, has been applied in state courts, see Garrett v. Moore-McCormack Co., Inc., 1942, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239. Under these circumstances it is not always easy to ascertain whether federal or state law governs particular issues. In cases where federal jurisdiction is based solely on diversity of citizenship, the doctrine of Erie R. R. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, requires the application by the federal court of substantially the same law as would be applied by the courts of the state in which the federal court is held. If this case were governed by Erie, we would be required to apply New York’s choice-of-law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. But suits brought in admiralty are not governed by Erie. Levinson v. Deupree, supra. And even though this case was not begun in the federal admiralty court, Erie does not require the federal court to handle the case in substantially the same fashion as a state court would. Jansson v. Swedish-American Line, 1 Cir., 1950, 185 F.2d 212, 30 A.L.R.2d 1385. That is not to say, however, that state and federal courts may always apply different substantive law in maritime cases. On the contrary, where the cause of action is created by a state statute the federal court must presumably follow the state. court’s interpretation of it with regard to substantive matters, see Levinson v. Deupree, supra, assuming, of course, that the state-created right may be received into admiralty under the doctrine set out in Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, and its successors. The same substantive law must also be applied by federal and state courts in cases governed by federal statutes, see Garrett v. Moore-McCormack Co., Inc., supra. It has also been said that the same substantive law applies to common law actions whether brought in federal or state courts, Jans-son v. Swedish-American Line, supra; and a long list of authorities is cited for this proposition, although Mr. Justice Frankfurter, in Caldarola v. Eckert, 1947, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968, may have left that issue in doubt. Cf., however, the majority and concurring opinions in Pope and Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. Under the circumstances, we consider that we are not bound to apply New York’s choice-of-law rules. Erie and Klaxon do not compel us to. And this is not a case, like Levinson v. Deupree, supra, where the federal court is considering a claim based on a state-created right. Even if it were, it is possible that the federal court would not be bound by the state’s choice-of-law rule, unless the rule limited the scope of the right. Instead, the claim here is for a tort committed on the high seas, and the federal choice-of-law rule might well be binding on the state courts, if either rule is to be binding in both sets of courts. In Jansson v. Swedish American Line, supra, a suit brought originally on the civil side of the federal court but also involving a maritime tort, the court ap-applied the federal choice-of-law rule. It is true that in that case there was no defense, as there is here, based on a contract made in one of the United States, but we do not think that should change the result. That might be a ground for judging the claim and the defense by different laws. But as far as choice-of-law rules are concerned, either the forum’s rule should be applied automatically, or as Jansson suggests, the nature of the claim should govern which rule controls. Under both of these approaches, the federal choice-of-law rule applies here. II. Our next question is; under the federal choice-of-law rule, what law governs the issues here? We are not concerned with the law applicable to the accident. Instead we must decide what law applies to the validity and interpretation of certain provisions of the “Contract Ticket,” and to the effect of Swaine’s conduct upon Cunard’s right to resort to the one-year limitation period in the contract. The ticket stipulated that “All questions arising on this contract ticket shall be decided according to English Law with reference to which this contract is made.” Considering, as we do, the ticket to be a contract — -see Foster v. Cunard White Star, 2 Cir., 1941, 121 F.2d 12— the provision that English law should govern must be taken to represent the intention of both parties. Therefore, this provision, if effective under the federal choice-of-law rule, renders English law applicable here, even though, absent the provision, some other law would govern under the applicable federal conflicts rule. See Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 1889, 129 U.S. 397, 9 S.Ct. 469, 478, 32 L.Ed. 788, in which the Supreme Court said: “ * * * the general rule that the nature, the obligation, and the interpretation of a contract are to be governed by the law of the place where it is made, unless the parties at the time of making it have some other law in view, requires a contract of affreightment, made in one country between citizens or residents thereof, and the performance of which begins there, to be governed by the law of that country * * * ”. Liverpool also indicates that there may be an exception to this rule where a contract stipulates another law, but the scope of this exception is not clear. Thus, since we cannot assume that the parties’ choice of law will always foreclose the court from applying another law, our question is whether the contract provision here should have the effect, under federal conflicts rules, of making the English law applicable to the particular questions posed by this case. While this question may appear on the surface to be purely. one of conflict of laws, we think it also, involves interpretation of the contract. For it is not altogether free from doubt what is meant by the stipulation that “All questions arising on this, contract ticket shall be decided according to. English Law * * See 40 Col.L.Rev. 518, 522-23 (1940), criticizing one. interpretation of a similar provision. Our issue, then, involves two lines of inquiry: (1) What questions did the parties intend to be controlled by English lav/? and (2) Will the federal conflicts rule give effect to their intention? In pursuing the first inquiry, we must examine more closely the provision of the ticket quoted above. Three questions as to the scope of this provision arise under its language. First, are questions to be decided by the “whole” English law, including its conflicts rules, or just by the substantive English law? That is, are questions to be decided according to the law of England, or instead, as an English court might decide them, applying where appropriate the law of some other country? We think the provision must be read as referring to the substantive law alone, for surely the major purpose of including the provision in the ticket was to assure Cunard of a uniform result in any litigation no matter where the ticket was issued or where the litigation arose, and this result might not obtain if the “whole” law of England were referred to. Second, does the provision intend that questions of validity of the contract and its provisions, as well as questions of interpretation, are to be governed by English law? The language of the clause, covering “all questions,” indicates that validity as well as interpretation is embraced. Third, is the recital meant to require the application of English law to the question of what conduct may amount to a waiver of its provisions? Although the wording of the clause — relating to questions arising “on” the contract — may indicate that such a question was not meant to be covered, it appears unnatural to hold that all questions of validity and interpretation were intended to be governed by English law but that this question was not. We therefore consider that the question of what conduct was sufficient to operate as a waiver of the ticket’s provisions was also meant to be determined by English law. We now come to the inquiry as to the extent to which this provision, so construed, is to be given effect in deciding the particular issues before us. Those issues are: (1) Is the one-year limitation period provided in the contract for the bringing of suits valid? (2) Does Swaine’s conduct prevent Cunard from using the period as a defense? and (3) How is this matter affected by the clause requiring alterations of the contract to be in writing ? It appears not to be contested that the ticket should be treated as a contract and that failure to bring the action within the contract limitation period would be a defense under English law — see Jones v. Oceanic Steam Navigation Co., [1924] 2 K.B. 730, but since the same result would follow under American law — see 46 U.S.C.A. § 183(b); Scheibel v. Agwilines, Inc., 2 Cir., 1946, 156 F.2d 636 — we need not decide whether English law is applicable to the first of these issues. As to the second and third issues — where English and American law may differ — in the view which we take of the case, we need really only deal with applicability of English law to the second issue — viz., whether Swaine’s conduct prevents Cunard from using the one-year limitations provision as a defense — although- in light of what we say below we think that English law would clearly control the third issue —viz., the effect of the “alterations” clause. As we have said, we construe the contract as establishing the intention of the parties that English law should govern both the interpretation and validity of its terms. And we think it clear that the federal conflicts rule will give effect to the parties’ intention that English law is to be applied to the interpretation of the contract. Stipulating the governing law for this purpose is much like stipulating that words of the contract have the meanings given in a particular dictionary. See Cheatham, Goodrich, Gris-wold, & Reese, Cases on Conflict of Laws 461 (1951). On the other hand, there is much doubt that parties can stipulate the law by which the validity of their contract is to be judged. Beale, Conflict of Laws § 332.2 (1935). To permit parties to stipulate the law which should govern the validity of their agreement would afford them an artificial device for avoiding the policies of the state which would otherwise regulate the permissibility of their agreement. It may also be said that to give effect to the parties’ stipulation would permit them to do a legislative act, for they rather than the governing law would be making their agreement into an enforceable obligation. And it may be further argued that since courts have not always been ready to give effect to the parties’ stipulation, no real uniformity is achieved by following their wishes. See Beale, op. cit. supra, at page 1085. Here, of course, the question is neither one of interpretation nor one of validity, but instead involves the circumstances under which parties may be said to have partially rescinded their agreements or to be barred from enforcing them. The question is, however, more closely akin to a question of validity. Nevertheless, we see no harm in letting the parties’ intention control. See Hal Roach Studios, Inc., v. Film Classics, 2 Cir., 1946, 156 F.2d 596, 598; Duskin v. Pennsylvania-Central Airlines Corp., 6 Cir., 1948, 167 F.2d 727, 729-730; Note, Commercial Security and Uniformity through Express Stipulations in Contracts as to Governing Law, 62 Harv.L.Rev. 647 (1949). Instead of viewing the parties as usurping the legislative function, it seems more realistic to regard them as relieving the courts of the problem of resolving a question of conflict of laws. Their course might be expected to reduce litigation, and is to be commended as much as good draftsmanship which relieves courts of problems of resolving ambiguities. To say that there may be no reduction in litigation because courts may not honor the provision is to reason backwards. A tendency toward certainty in commercial transactions should be encouraged by the courts. Furthermore, in England, where much of the litigation on these contracts might be expected to arise, the parties’ stipulation would probably be respected. Vita Food Products, Inc. v. Unus Shipping Co., Ltd., [1939] A.C. 277 (P.C.) (similar provision in bill of lading given effect; construed, however, as referring to England’s whole law, including its conflicts rules). Where the law of the parties’ intention has been permitted to govern the validity of contracts, it has often been said (1) that the choice of law must be bona fide, and (2) that the law chosen must be that of a jurisdiction having some relation to the agreement, generally either the place of making or the place of performance. The second of these conditions is obviously satisfied here. The fact that a conflicts question is presented in the absence of a stipulation is some indication that the first condition is also satisfied. Furthermore, there does not appear to be an attempt here to evade American policy. We have no statute indicating a policy contrary to England’s on this subject. Cf. New York Life Insurance Co. v. Cravens, 1900, 178 U.S. 389, 20 S.Ct. 962, 44 L.Ed. 1116. And there is no suggestion that English law is oppressive to passengers. We regard the primary purpose of making English law govern here as being not to substitute English for American policies, but rather on the one hand, to achieve uniformity of result, which is often hailed as the chief objective of the conflict of laws, and on the other hand, to simplify administration of the contracts in question. Cunard’s employees need be trained in only one set of legal rules. This is not to suggest that English and American policies on this subject are identical. Any difference in law reflects some difference in policy. Consequently, to the extent English and American policies may differ on this question, we would consider that the parties may choose to have the English policies apply. But we express no opinion on what result would follow if we had stronger policies at stake, or if the parties had attempted a feined rather than a genuine solution of the conflicts problem. III. We must next decide whether it is within our competence to apply English law, which was neither pleaded nor proved below. Pleading the foreign law was clearly unnecessary. The Federal Rules of Civil Procedure, 28 U.S.C.A., apply here. Under Rule 8, a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. It is not necessary to set out the legal theory on which the claim is based. See Gins v. Mauser Plumbing Supply Co., Inc., 2 Cir., 1945, 148 F.2d 974. Whether we are at liberty to interpret and apply foreign law which has not been proved below is a more diflicult question. When sources of foreign law were not readily accessible, it was impractical to expect a judge to ascertain applicable foreign law, as might be expected of him with regard to the law of his state. It is most likely that for this reason courts in this country came to require foreign law to be proved as a fact if it was to be applied. Otherwise a presumption as to the applicability of local common law, sometimes as modified by statute, would be followed. See Hart-wig, Congressional Enactment of Uniform Judicial Notice Act, 40 Mich.L. Rev. 174, 176-78 (1941). Because of the increasing availability of the statutory and judge-made law of jurisdictions within the United States, many states now have statutes, such as the Uniform Judicial Notice of Foreign Law Act, requiring that law to be judicially noticed. See 42 Mich.L.Rev. 517 n. 65 (1943). Furthermore, while the difficulty of ascertaining foreign law might have been a reason for empowering a judge to disregard that law if not proven, it was hardly cause for requiring him to disregard it. Consequently, some statutes permit judges to apply unproven foreign law, even though it is not readily accessible. See Callahan and Ferguson, Evidence and the New Federal Rules of Civil Procedure, 47 Yale L.J. 194, 210-13 (1937). Under such statutes a judge may, but need not, require foreign law to be proved in the usual way. The New York statute, Civil Practice Act § 344-a, is of this latter type. Rule 43(a) of the Federal Rules of Civil Procedure permits the presentation of evidence according to the most convenient method prescribed in (1) the statutes of the United States, (2) the rules of evidence formerly applied in suits in equity by federal courts, or (3) the rules of evidence applied in the courts of general jurisdiction of the state in which the federal court is held. It may be argued, of course, that Rule 43(a) is not intended to touch the question whether it is necessary to introduce evidence of foreign law in the first place, but deals only with the manner of presenting it. Nevertheless, it seems to us, as to Professor Moore, Moore’s Federal Practice, § 43.09, that under the Rule, the New York judicial notice procedures, if most liberal, should apply. The most convenient method of presenting the foreign law is obviously not to have to introduce evidence on it at all, but simply to treat it in the same fashion as domestic law. Consequently, since a New York judge could consider and apply unproven foreign law, a federal district judge sitting in New York may do likewise. To this extent the Liverpool case, 1889, 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788, and the authorities cited therein, are out of date. Contrary statements made in cases not governed by the Federal Rules, such as Black Diamond S. S. Corp. v. Robert Stewart & Sons, 1949, 336 U.S. 386, 396-397, 69 S.Ct. 622, 93 L.Ed. 754, and U. S. ex rel. Jelic v. District Director of Immigration, 2 Cir., 1939, 106 F.2d 14, are of course irrelevant. The District Judge in this case appears to have exercised both his options under the New York law. He took notice of the English law and stated what he believed it to be. He also offered the parties an opportunity to submit affidavits of experts on English law, if it was thought that his understanding was incorrect. So far as appears, no affidavits were submitted. On this state of the record, it might be argued that the plaintiff is bound by the Judge’s understanding of the foreign law. But legal claims not presented below can normally be presented on appeal, unless waived or disclaimed. And in a situation such as this, where the plaintiff contests the applicability of the English law, we would not think that if this contention fails, his entire suit must also fail if not sustained by the trial Judge’s understanding of the English law. It is at least within our discretion to consider whether the English law as we understand it supports the plaintiff’s position. IV. Finally we come to the substantive question whether Swaine’s conduct prevents Cunard from successfully invoking the contractual limitation period as a defense. Upon argument of the motion to dismiss the complaint as untimely, the plaintiff submitted affidavits opposing the motion. One of these was an affidavit of the lawyer retained by the Sie-gelmans to press their claim against Cunard. The lawyer described the circumstances of Cunard’s offer of settlement: “I had made a demand for $5,000 to settle these claims and Mr. Swaine advised me that he would have to take the matter up with his committee. Thereafter on August 31, 1950, three weeks before the limitation on the commencement of action expired, Mr. Swaine countered with an offer of $800.00. “In that conversation Mr. Swaine told me that such offer was predicated to cover plaintiffs’ special damages but from the tenor of the conversation, it appeared to me that such offer might be somewhat increased. “I told Mr. Swaine that I would communicate this offer to my clients and that I would thereafter call him to advise him of their wishes in the matter. However, I told him that it might take sometime for my clients to consider such offer in view of the fact that at this time my clients were living apart. Mr. Swaine replied that there was no rush on the offer because it would stand open on the file and that the defendant believed our special damages should be paid as a matter of good will. “Since the time to commence this action was going to expire three weeks later, on September 24, 1950, I told Mr. Swaine it appeared that I would have to commence my action in order to protect my clients’ interests. Mr. Swaine answered that said suit was not necessary and that there was no point to commencing an action at this time since it appeared to both of us that there was an excellent chance of settling the matter.” On the basis of these assertions, which were uncontroverted, the plaintiff sought to establish either waiver of the limitation or that the defendants were estopped from relying upon it. The trial Judge appears to have held that the plaintiff was not entitled to assume that Swaine was authorized to waive the limitation, and held for the defendant. At this state of the proceedings, though, we think that the Judge should have assumed that Swaine’s acts bound the defendant. If Swaine had actually or impliedly been authorized to waive periods of limitation, and had done so, then the defendant could hardly rely on the contractual limitation. The scope of Swaine’s authority was a fact which the plaintiif might have established on trial. It was material, and could not properly have been presumed to be undisputed. Therefore, this question should not have been resolved against the losing party on summary judgment. If we assume, however, that Swaine was authorized to speak as he did, it does not follow that the plaintiff should prevail. For taking the facts as he has stated them, he has not established waiver or estoppel under English law. It appears true that in England a promise, supported by consideration, not to plead the statute of limitations is a sufficient answer to a defense based on the statute. 20 Halsbury’s Laws of England, Limitation of Actions § 803 (2d Ed. 1936). And if there were a promise here, the plaintiff’s forbearance from suit within the limitations period might be good consideration. But it is not possible to treat the statements said to have been made by Swaine as a promise. The most reasonable interpretation of his remarks is that because of the excellent chances of settlement, filing suit would turn out to be wasted effort. Under this view of the matter, Swaine’s statement cannot be regarded as even a statement that Cunard intended not to plead the limitations period as a defense in the event that efforts at settlement proved unfruitful. But even if his statements could be regarded as a statement of what Cunard’s intention was at that time, and if it could be shown that Cunard’s intention then was otherwise, still there would seem to be no right to recovery. For in Yorkshire Insurance Co. v. Craine, [1922] 2 A.C. 541 (P.C.), the Judicial Committee of the Privy Council stated that in order to raise an estoppel by representation, the authorities required a misrepresentation of fact, and a misrepresentation of intention would not suffice, in spite of the frequently-quoted statement that the state of a man’s mind is as much a fact as the state of his digestion. Furthermore, even if Swaine’s conduct were held to suspend the running of the limitations period, we do not think that under English law, the running of the period would never resume. At the time of the statements in issue, about three weeks remained in the one-year period. After the withdrawal of Cunard’s offer on January 4, 1951, it could no longer be thought that Cunard would not use the defense of untimeliness to any action thereafter brought. Even if the limitations period was tolled, therefore, while the offer was outstanding, this lawsuit should have been commenced within three weeks of the receipt of the January 4 letter. The situation is analogous to that obtaining in fraud cases, where the English rule is that the period of limitations is neither suspended altogether nor begins at the time the fraudulent acts were committed, but begins instead at the time fraud is discovered or could be discovered with reasonable diligence. § 26, Limitation Act, 1939, 2 & 3 Geo. 6, c. 21. The plaintiff states that he was delayed for six months in obtaining letters of administration. But this delay apparently would not toll the statute of limitations under English law. 20 Hals-bury’s Laws of England, Limitation of Actions §§ 782, 821 (2d Ed. 1936, and Supp. 1953). Again, though, even if the running of the period were suspended, this lawsuit was begun too late, for letters of administration appear to have been granted on June 7, 1951, and this action was not commenced until December 14, 1951. On this view of the case it is not necessary to decide the effect English law would give to the provision requiring all alterations to the contract to be in writing and over the signature of Cunard’s chief agent at the port of embarkation. Affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:

sc_lcdisagreement

B

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. SECURITIES AND EXCHANGE COMMISSION v. LOUISIANA PUBLIC SERVICE COMMISSION et al. No. 466. Argued April 30, May 1, 1957. Decided May 13, 1957. Thomas G. Meeker argued the cause for petitioner. With him on the brief were Solicitor General Rankin, David Ferher and Solomon Freedman. Robert A. Ainsworth, Jr. argued the cause and filed a brief for the Louisiana Public Service Commission, respondent. J. Raburn Monroe argued the cause for the Louisiana Power & Light Co., respondent. With him on the brief were /. Blanc Monroe and Monte M. Lemann. Daniel James filed a brief for Middle South Utilities, Inc., respondent. Per Curiam. On January 29, 1953, the Securities and Exchange Commission, pursuant to § 11 (b)(1) of the Public Utility Holding Company Act of 1935, 49 Stat. 820, 15 U. S. C. § 79k (b)(1), issued a notice and order for hearing directed to Middle South Utilities, Inc., and its subsidiary, Louisiana Power & Light Company, upon the matter of “[w]hether Middle South and Louisiana [Power] should be required to take action to dispose of the gas utility assets and non-utility assets of Louisiana [Power] and, if so, what terms and conditions should be imposed in connection therewith.” A copy of that notice and order for hearing was served upon those companies and also upon the Louisiana Public Service Commission by registered mail. A full hearing was conducted by the S. E. C. at which Middle South and Louisiana Power appeared, adduced evidence, and presented arguments in support of their position that they should be permitted to retain Louisiana Power’s gas properties as an additional integrated public utility system under the proviso to § 11 (b)(1) of the Act. The Louisiana Public Service Commission did not appear in that proceeding. On March 20, 1953, the S. E. C. issued its opinion, findings and order directing Middle South and Louisiana Power to divest themselves of all the non-electric assets of Louisiana Power “in any appropriate manner not in contravention of the applicable provisions of the Act,” which gave them one year for compliance under the provisions of § 11 (c) of the Act, 49 Stat. 821, 15 U. S. C. § 79k (c). No petition to review that order was ever filed, and it ceased to be subject to judicial review with the expiration of the 60 days allowed to petition for that purpose by § 24 (a) of the Act, 49 Stat. 834, 15 U. S. C. § 79x (a), on May 19, 1953. Thereafter, pursuant to § 11 (c) of the Act, the S. E. C. extended the time for compliance with its order to March 20, 1955. On November 10, 1954, Louisiana Power and its newly organized wholly owned subsidiary, Louisiana Gas Service Corp., filed a joint “application-declaration” with the S. E. C., proposing the transfer by Louisiana Power of all its non-electric properties to Louisiana Gas as a step in compliance with the divestment order of March 20, 1953, and expressing the intention of Louisiana Power to effect divestment of the common stock of Louisiana Gas within 18 months from the date the latter might begin operations. Thereupon, the S. E. C. issued a notice advising interested persons, including the Louisiana Public Service Commission, of the filing of the “application-declaration” mentioned, and that they might request a hearing on that proposal. By telegram of December 22, 1954, the Louisiana Commission requested the S. E. C. to grant a hearing upon that “application-declaration” and to reopen the §11 (b)(1) proceeding which had resulted in the divestment order of March 20, 1953. On December 27, 1954, it filed with the S. E. C. a formal petition accordingly, which it supplemented on January 3, 1955. Also, at the suggestion of the S. E. C., the Louisiana Commission submitted an offer of proof and a brief in support of its petition to reopen the divestment proceeding. The offer of proof did not indicate any change in conditions since the divestment order of March 20, 1953, but, rather, complained that the evidence in that proceeding had been incomplete and that the S. E. C. had acted, in part, upon an erroneous conception of the law. The S. E. C. heard oral argument upon the Louisiana Commission’s petition to reopen. Thereafter, on September 13; 1955, it found that there were “no grounds for questioning . . . [its] earlier conclusion and no changed circumstances justifying a modification” of its divestment order of March 20, 1953, and it denied the petition to reopen that proceeding. The Louisiana Commission then filed a petition in the Court of Appeals to review the order of September 13, 1955, denying its petition to reopen, and also therein stated that it sought review of the divestment order of March 20,1953. The S. E. C. moved the Court of Appeals to dismiss the petition for review upon the ground that the order of September 13, 1955, was not judicially reviewable and that the petition for review was in essence an attempt to appeal from the divestment order of March 20, 1953, long after the time allowed by law to do so had expired. The Court of Appeals held that the order of September 13, 1955, was reviewable, and it set aside that order. It also held that legal determinations made by the S. E. C. in its divestment order of March 20, 1953, were erroneous, and it, in effect, set aside that order too. 235 F. 2d 167. We granted certiorari. 352 U. S. 924. The conclusion of the Court of Appeals that the order of September 13, 1955, was subject to judicial review was rested upon the last two sentences of § 11 (b) of the Act, 49 Stat. 820, 15 U. S. C. § 79k (b), reading: “The Commission may by order revoke or modify any order previously made under this subsection, if, after notice and opportunity for hearing, it finds that the conditions upon which the order was predicated do not exist. Any order made under this subsection shall be subject to judicial review as provided in section 79x of this title.” It held that the Securities and Exchange Commission’s order of September 13, 1955, denying the Louisiana Commission’s petition to reopen the divestment proceeding was an “order” specifically made subject to judicial review by the quoted language. We take a different view. We hold that the orders made judicially reviewable by the quoted language are the directory orders mentioned in, and authorized by, subsection (b) of § 11 of the Act, and orders which may “revoke or modify” any such order previously made under that subsection, and that the quoted language does not include an order merely denying a petition to reopen §11 (b) proceedings. It follows that the Securities and Exchange Commission’s order of September 13, 1955, denying the Louisiana Commission’s petition to reopen the divestment proceeding was not an order which was subject to judicial review, and the judgment of the Court of Appeals must accordingly be reversed. It is so ordered. Mr. Justice Clark took no part in the consideration or decision of this case. 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:

songer_erron

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's use of the clearly erroneous standard support the government?" That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Plaintiff-Appellee, v. Howell C. WILLIS, Defendant-Appellant. No. 78-5649 Summary Calendar. United States Court of Appeals, Fifth Circuit. July 27, 1979. Rehearing and Rehearing En Banc Denied Sept. 12, 1979. Howell C. Willis, pro se. Arnaldo N. Cavazos, Jr., Dallas, Tex., for plaintiff-appellee. Before AINSWORTH, CLARK and VANCE, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et at, 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: Howell Willis, a tax protestor, appeals his conviction on two counts of willful failure to supply the Internal Revenue Service with information required by statute or regulation for the tax years 1974 and 1975, in violation of 26 U.S.C. § 7203. Among his numerous contentions, Willis asserts a right to claim on his income tax returns his constitutional privilege against self-incrimination and further urges that both the district judge and the prosecutor made prejudicial comments during his trial which require reversal of his conviction. We reject these and other contentions of appellant and affirm. In 1974 and 1975, Willis filed IRS income tax Form 1040’s that stated his name, address and social security number and asserted line by line his fifth amendment privilege against self-incrimination. The 1974 return reported only that defendant had $15.10 in dividend income and 24<p in interest income while the return for 1975 provided no financial information at all. Willis appended to his tax returns various documents purportedly explaining his failure to supply further data regarding his income and his assertion of the fifth amendment privilege. Evidence at trial showed that Willis earned wages of $19,332 in 1974 and $8,611 in 1975. Our decisions in United States v. Brown, 5 Cir., 1979, 591 F.2d 307; United States v. Wade, 5 Cir., 1978, 585 F.2d 573, and United States v. Johnson, 5 Cir., 1978, 577 F.2d 1304, conclusively dispose of appellant’s contentions respecting his right to assert his privilege against self-incrimination in lieu of supplying the tax information required by statute. Even if, as Willis argues, the trial judge and the prosecutor made prejudicial comments, which we do not concede, our review of the record convinces us that, given the incontestable evidence of guilt, these remarks did not affect appellant’s substantial rights. “Because the prejudicial effect, if any, of the comments was slight in relation to the overwhelming evidence of guilt, any impropriety was harmless beyond a reasonable doubt.” United States v. Greene, 5 Cir., 1978, 578 F.2d 648, 653-54. See United States v. Haynes, 5 Cir., 1978, 573 F.2d 236, 239. We have considered appellant’s remaining assertions of error and, finding them merit-less, we affirm. AFFIRMED. Question: Did the court's use of the clearly erroneous standard support the government? That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_respond1_1_4

C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant. Michael J. MORRISSEY, Appellant, v. WILLIAM MORROW & CO., INC., Bantam Books, Appellees. No. 82-1213. United States Court of Appeals, Fourth Circuit. Argued Dec. 8, 1983. Decided July 26, 1984. Rehearing and Rehearing En Banc Denied Sept. 25, 1984. W. Jeffrey Edwards, Richmond, Va. (D. Alan Rudlin, Hunton & Williams, Richmond, Va., Michael J. Morrissey, Washington, D.C., on brief), for appellant. Bruce W. Sanford, Washington, D.C. (Brian S. Harvey, Baker & Hostetler, Washington, D.C., on brief), for appellees. Before HALL, • MURNAGHAN and CHAPMAN, Circuit Judges. CHAPMAN, Circuit Judge: Michael J. Morrissey, a practicing attorney, brought this action against William Morrow and Company, Inc. and Bantam Books, Inc., publishers of the book Spooks: The Haunting of America — The Private Use of Secret Agents alleging claims of defamation, invasion of privacy and injurious falsehood. Federal jurisdiction is alleged under 28 U.S.C. § 1332(a) — diversity jurisdiction. The district court granted defendants’ motion for summary judgment finding the action barred by the one year statute of limitations, Va.Code 8.01-248. Plaintiff appeals alleging error of the district judge in (1) refusing to allow additional time for discovery after defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b) had been converted to a motion for summary judgment under Federal Rule of Civil Procedure 56; (2) “ruling on the record then established” that the statute of limitation began to run when the book was generally available to the public; and (3) failing to consider the possible conflict of law problem presented by the plaintiff’s claim of invasion of privacy. Finding no merit in these exceptions, we affirm. I The complaint alleges that Morrissey is an attorney and electrical engineer and that William Morrow published the hardback edition of Spooks and Bantam Books published the paperback edition of the same book. The complaint further alleges that publishing of the “false allegations, malicious statements and innuendo and implications assigning this material in the books has been humiliating and embarrassing to the plaintiff, caused him mental distress and has harmed him in his personal and business relationships and has the potential of causing further harm to him particularly in his profession as a lawyer.” Plaintiff also alleges that he is an attorney admitted to the Bars of Virginia, the District of Columbia and various federal courts including the United States District Court for the Eastern District of Virginia. His first action against the present defendants was filed in the United States District Court for the Eastern District of Virginia on December 1, 1980 with the plaintiff appearing pro se. On May 21, 1981 defendants filed a motion for summary judgment upon the ground that the Virginia one year statute of limitations applied to the action and that William Morrow’s publication of Spooks occurred in August of 1978 and Bantam Books publication occurred not later than November 20, 1979 and the one year statute of limitations had run before the complaint was filed on December 1, 1980. This motion was accompanied by an affidavit of James D. Landis, vice president and editorial director of William Morrow and an affidavit of Heather Grant Florence, the vice president, secretary and general counsel of Bantam Books. Each affidavit set forth the date that the book was available for sale to the public. The plaintiff filed nothing in response to the motion for summary judgment. The motion was set for hearing on May 29, 1981, but on May 28, 1981, an attorney entered an appearance for Morrissey and obtained a continuance of the hearing on the summary judgment motion until June 5, 1981. A pretrial order had been entered by the district judge on April 1, 1981, establishing a discovery cut off date of June' 12, 1981. At the June 5, 1981 hearing plaintiffs attorney argued that additional discovery was needed as to the statute of limitations issue and the district court granted this motion and again continued the hearing for summary judgment. Depositions were scheduled with plaintiffs scheduled for June 9, 1981. On that date plaintiff voluntarily dismissed the action without having conducted any discovery. On November 19, 1981, plaintiff filed the present action, again proceeding pro se, against the same defendants and alleging the same causes of action. On January 7, 1982 defendants filed a motion to dismiss the new action on the ground that it was barred by the statute of limitations. In support of this motion defendants filed affidavits seeking to establish the dates of publication and submitted the same supporting memorandum of law as used in the May 1981 motion. The hearing on this motion was set for January 22, 1982, but at Morrissey’s request the hearing was continued until February 12, 1982. Morrissey did not notice or obtain any discovery in connection with the second action, although he was aware of the grounds for the defendant’s motion and the supporting affidavits. In his opposition to the motion he pointed out that since it was supported by affidavits it must be tested by the standards of Rule 56. ' At the hearing on February 12, 1982 the plaintiff arrived late and argued against the motion and asked for additional time for discovery. He admitted that he had filed no interrogatories in either the first action or the second action, but stated that he had telephoned one of the defendants asking for date of publication information and seemed surprised that this telephone request was denied. He asserted that he had written a letter to the defendants’ attorneys in June 1981 asking certain questions, but admitted that these were not in the form of interrogatories under the Federal Rules. The district court found that the plaintiff had over six months to conduct discovery in the first action and three months to conduct discovery in the second action, but he had done nothing to create a factual dispute and had submitted nothing in opposition to the defendants’ affidavits, although he had known since May 21, 1981 the defendants’ position as to the statute of limitations and the content of the defendants’ affidavits as to publication dates. The district court observed that while the Virginia Supreme Court had not decided whether to adopt the “first-publication rule,” the district court would adopt such a rule, but “giving the plaintiff the benefit of treating the paperback edition as perhaps reaching a different audience so that for publication purposes, the paperback publication would be the date of accrual of the cause of action. But I find that it accrued at the latest on November 20, 1979.” The affidavit of James D. Landis, vice president and editorial director of William Morrow stated in pertinent part: 4. That William Morrow began shipping its publication of the book Spooks to its customers — including retail bookstores— on August 1,1978. Shipments of Spooks were completed by August 4, 1978 and the book was generally available and sold to the public on or before that date. The affidavit of Heather Grant Florence, vice president, secretary and general counsel of Bantam Books, stated in pertinent part: 4. That Bantam Books began shipping the book SPOOKS from its DesPlains, Illinois warehouse on November 9, 1979, and that the book was generally available for sale to the public in bookstores throughout the United States on or before November 20, 1979. These affidavits accompanied the motion to dismiss filed in the present action on January 7, 1982. Finding that the plaintiff had done nothing to establish a factual dispute as to the date of accrual of the cause of action, the court granted summary judgment because the action had not been brought within one year as required by Va.Code 8.01-248. II The main thrust of plaintiffs brief and oral argument is that he was not given a reasonable time as provided by Federal Rule of Civil Procedure 12(b) to respond to the defendant’s affidavit when the Rule 12 motion was converted to a Rule 56 motion. The last sentence of Rule 12(b) provides: If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. The first sentence of Rule 56(c) provides: “The motion shall be served at least 10 days before the time fixed for the hearing.” The last two sentences of Rule 56(e) state: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Morrissey concedes that this is a matter committed to the discretion of the district judge, but argues that it was an abuse of discretion to not allow him additional time for discovery to counter the statements in the defendants’ affidavits and to explore any facts omitted from the affidavits. The facts do not support this claim of abuse of discretion. It is abundantly clear that plaintiff engaged in no discovery in either his first suit or in the present action. In the original action the motion was set for a hearing on May 29, 1981, and on the day preceding such hearing, the court granted a continuance until June 5, 1981. On that date the court again granted a motion to continue the hearing and allowed plaintiff additional time for discovery, which was not used by the plaintiff, who took a voluntary dismissal on June 9, 1981. It can be assumed that between June 9, 1981 and the refiling of the case on November 19, 1981, the plaintiff must have given some thought to his lawsuit and how he would respond to the Landis and Florence affidavits. As the trial judge explained to the plaintiff, he could have filed interrogatories immediately upon commencement of the second action. Rule 33(a). But again, nothing was done by the plaintiff. He argues that during June 1981 he called the offices of one of the defendants to ask for certain information over the telephone. He claimed that he was surprised when defendants’ employees did not furnish this information to him by telephone. It is inconceivable that any attorney, admitted to practice in the courts of Virginia and the District of Columbia, as well as the United States District Courts, would expect to obtain or use information from such a telephone conversation with an adversary. Morrissey does not claim that he was taken by surprise by the motion to dismiss nor the fact that it was treated as a Rule 56 motion. He filed a 21 page “Memorandum of Points and Authorities in Support of Plaintiff’s Opposition to Defendants’ Motion to Dismiss” in which he discussed Rule 56, but he presented nothing to create an issue of fact. Plaintiff does not claim that he did not know or believe that he would be required to file counter-affidavits. Nor does he claim that he was denied the opportunity to proceed with the discovery or that he was denied continuances requested from the court. He primarily asserts that he should have been given more time and that the time provided was not reasonable. Morrissey’s reliance on Johnson v. RAC Corporation, 491 F.2d 510 (4th Cir.1974) is misplaced. In that case the court found that prejudice had resulted from the unexpected treatment of a motion under Rule 12(b)(6) as a summary judgment motion and the plaintiff had not had a “reasonable opportunity” to file material in opposition to a Rule 56 motion. In Johnson the plaintiff had filed extensive interrogatories which sought to counter the defendant’s affidavit, but no discovery was permitted until the motion to dismiss was heard. Thereby the plaintiff was prevented from exercising his rights to discovery which could have produced an issue of fact. By contrast, Morrissey simply did not use the discovery procedures available to him in either the first suit or the present suit, although he was well aware of the defendants’ position as to the statute of limitations and the content of the supporting affidavits. Morrissey, an attorney, knowingly and willfully did not avail himself of the opportunities for discovery, and we cannot say that the district court was in error in finding that he had a reasonable time in which to present affidavits or other materials in opposition to defendants’ motion. In Clarke v. Volpe, 481 F.2d 634 (4th Cir.1973), this court affirmed the district court’s dismissal of the complaint under Rule 12(b)(6) where the defendants submitted affidavits and moved for judgment on the pleadings or, in the alternative, for summary judgment. This court stated: The appellate court is not bound by the label that the district court places upon its disposition of the case. Whenever outside matters are presented to and not excluded by the trial court, the motion should be considered on appeal as one for summary judgment even though the trial court characterized its action as a dismissal of the case for failure of the plaintiffs to state a claim upon which relief can be granted. The record reveals that both parties were given a reasonable opportunity to present affidavits and other evidence upon which the trial court could properly determine whether summary judgment should be entered. Only the defendants availed themselves of such opportunity. When such circumstances appear from the record the appellate court, for the sake of judicial economy, should make an immediate determination of the issue rather than remand the case to the trial court for disposition. 481 F.2d at 635-636. Failure of a litigant to file counter-affidavits may be treated as a conscious waiver. See Hummer v. Dalton, 657 F.2d 621, 626 (4th Cir.1981), which involved a prisoner proceeding pro se. Morrissey is an attorney knowledgeable in the rules of procedure, who took the time to prepare a léngthy memorandum of law in opposition to the defendants’ summary judgment motion. His failure to conduct any discovery or submit any opposing affidavits in either of his cases, given the time available and the continuances granted, can only be viewed as a waiver of such rights. “Time and tide wait on no man,” and the district court waited long enough for the present plaintiff. Ill Appellant’s second point is that based upon the record then before it, the district court erred in finding that the statute of limitations began to run when the books became “generally available” to the public. A large part of this argument is little more than a further complaint that the trial judge did not allow the plaintiff additional time to “test” the defendants’ affidavits. Enough has been said on this point. The Virginia Supreme Court has consistently applied the one year statute of limitation in Va.Code 8.01-248 to defamation actions. Weaver v. Beneficial Finance Co., 199 Va. 196, 98 S.E.2d 687 (1957); Watt v. McKelvie, 219 Va. 645, 248 S.E.2d 826 (1978). The district court said that it was adopting the single publication rule even though the Virginia Supreme Court had not yet faced the issue. ’The district court was justified in making this assumption. “The great majority of the States now follow the single publication rule.” Keeton v. Hustler Magazine, Inc., — U.S.-,-n. 8, 104 S.Ct. 1473, 1480 n. 8, 79 L.Ed.2d 790 (1984). This rule is summarized in Restatement (Second) of Torts § 577A(4) (1977): As to any single publication, (a) only one action for damages can be maintained; (b) all damages suffered in all jurisdictions can be recovered in the one action; and (c) a judgment for or against the' plaintiff upon the merits of an action for damages bars any other action for damages between the same parties in all jurisdictions. Since William Morrow published the hardback edition of Spooks and Bantam Books more than a year later published the paperback edition, the district court addressed its attention to the latest date of publication. There is no claim that William Morrow and Bantam Books are affiliated companies and plaintiff does not argue that the act of one is the responsibility of the other. It is alleged that Bantam Books entered into a separate agreement with William Morrow to publish the book in paperback version and thereby Bantam Books restated the malicious falsehoods about the plaintiff. This is not a claim of republication by William Morrow, and it is obvious that from the record before the district court the hardback publication was shipped to bookstores and sold in August 1978, more than two years before plaintiff’s action was brought. The Landis affidavit states that the hardback edition “was generally available and sold to the public on or before that date.” (August 4, 1978). With nothing from the plaintiff to challenge this sworn statement as to the date of sale of the hardback book, there was no dispute as to a material fact and William Morrow was entitled to judgment as a matter .of law. The date of publication for the Bantam Books paperback edition involved a slightly different question. Neither the paperback nor the hardback editions are in the record, but plaintiff’s brief states as to the paperback edition “The book itself contains the publication date of December 16, 1979.” Argument of counsel is not evidence and although defendants’ acknowledge an “official publication date of December 19, 1979 printed in the paperback book”, it is common knowledge that publications are often in the hands of the public before the date appearing thereon. This is particularly true of magazines. The May issue of a monthly magazine usually arrives on the newsstands and at the homes of subscribers by mid-April. Courts have recognized this as common practice. Hartmann v. Time, Inc., 166 F.2d 127 (3rd Cir.1947); McGlue v. Weekly Publications, Inc., 63 F.Supp. 744 (D.Mass.1946); Khaury v. Playboy Publications, Inc., 430 F.Supp. 1342 (S.D.N.Y.1977). The use of arbitrary “official publication dates” has been recognized as to books and found not to be determinative of the date of publication. In Fleury v. Harper and Row Publishers, Inc., 698 F.2d 1022 (9th Cir.1983), cert. denied — U.S. -, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983) the court held that the official publication date listed inside the cover of the book is immaterial in determining when the statute of limitations begins to run, stating: The precedents with almost complete uniformity hold that publication occurs at the time of actual communication of the libel, not the date on the cover of the newspaper, magazine or other printed matter. 698 F.2d at 1028. Appellant argues that under Gregoire v. G.P. Putnam’s Sons, 298 N.Y. 119, 81 N.E.2d 45, 49 (1948) a test for determining when the statute of limitations begins to run is “when the finished product is released by the publisher for sale in accord with trade practice.” Appellant submits that “trade practice” should have been developed by the district court before granting summary judgment. The record before the district court contained the unchallenged affidavit that the paperback edition was shipped from the warehouse beginning November 9, 1979, and “that the book was generally available for sale to the public in bookstores throughout the United States on or before November 20, 1979.” There was no reason to develop a record on “trade practice” when there was no challenge to the sworn statement that the books were available to the public in bookstores throughout the United States on or before November 20, 1979. Morrissey submits that there were “a whole host of questions” to be resolved by the district court before deciding the statute of limitations issue. However, the district court was confronted with the single issue of the date of publication and properly resolved this issue based upon the unchallenged sworn statement that this date was not later than November 20, 1979. IV Plaintiffs last claim is that the trial court erred in failing to consider the possible conflict of law situation presented in his claim for invasion of privacy. He argues that the common law right of inva,sion of privacy is recognized in the District of Columbia and since he had contacts in the District of Columbia this cause of action should have been recognized. Virginia has rejected the “most significant relationship” test and applies the substantive law of the place of the wrong. McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662 (1979). Plaintiff resides in Virginia, practices law in Virginia, alleges he suffered damages in Virginia and brought his two actions in the United States District Court for the Eastern District of Virginia. There was no reason to consider a conflicts problem, and even if one had been considered, plaintiffs “most significant contacts” were in Virginia. Under the present facts to allow the plaintiff one more chance to create a factual issue and avoid summary judgment would do violence to Rule 56 and the other Federal Rules of Civil Procedure. AFFIRMED. . Rule 56 does not provide limited time to a party opposing a motion. It requires at least 10 days notice by the movant,' but states: "The adverse party prior to the day of hearing may serve opposing affidavits.” Rule 56(c). . The district court gave plaintiff the benefit of considering the paperback edition as a separate publication for purposes of the statute of limitations. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant? A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities B. private attorney or law firm C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations D. school - for profit private educational enterprise (including business and trade schools) E. housing, car, or durable goods rental or lease F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc. G. information processing H. consulting I. security and/or maintenance service J. other service (including accounting) K. other (including a business pension fund) L. unclear Answer:

songer_procedur

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. RED STAR YEAST & PRODUCTS CO. v. LA BUDDE. No. 5654. Circuit Court of Appeals, Seventh Circuit. April 13, 1936. Benjamin Poss and Joseph P. Brazy, both of Milwaukee, Wis., for appellant. Frank J. Wideman, Asst. Atty. Gen., Sewall Key and Frederic G. Rita, Sp. Assts. to Atty. Gen., and B. J. Rusting, U. S. Atty., and L. Hugo Keller, Asst. U. S. Atty., both of Milwaukee, Wis., for appellee. Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge. EVANS, Circuit Judge. Appellant brought this suit to enjoin appellee, the Collector of Internal Revenue, from attempting to assess and collect excise taxes on yeast by it manufactured and sold, or from imposing a lien for said tax upon its property, ft also asked the court to find and enter a declaratory decree that yeast by it sold was not subject to the tax imposed by section 603 of the Revenue Act of 1932 (26 U.S.C.A. § 1420 et seq. note), which imposes an excise tax upon cosmetics, etc. . Appellant asserts its belief to be that, unless restrained, appellee will assess the tax and resort to remedies provided by law to enforce its payment, and the amount will he so large that payment can only be made through a liquidation ol its assets. The court issued a temporary restraining order. Thereafter, it vacated this order and denied an application for a temporary injunction. The present appeal is from the refusal to grant the temporary injunction. Appellee’s answer raised the defense presented by section 3224 (26 U.S.C.A. § 1543), which prohibits the bringing of s suit to restrain the assessment or collection of any tax. It also asserted that the Commissioner had ruled that some yeast sold by appellant was subject to a tax under section 603, but no tax had as yet been assessed. It further answered that the purpose for which the yeast, upon which the tax, if assessed, would be levied, was manufactured' and sold by appellant, as declared in the public radio advertisement, was for-cosmetic use. It denied that the tax would be so large as to interfere with the conduct of appellant’s business. Affidavits were filed in support of the pleadings which dealt with the subject of advertising and the use of yeast for facials. Appellánt argued that many articles, such as lemons, milk, flax, oatmeal, eggs, vinegar, honey, olive oil, etc., were extensively advertised and used to a certain extent, as cosmetics. On the other hand there were copies of advertisements showing that appellant’s yeast was extensively sold for facials. In addition there appears in the record numerous articles extolling the benefits of yeast facials, not marked as advertisements, which were taken from newspapers. The ruling of the District Court must be sustained on any of several grounds. (a) In order to justify the issuance of a temporary injunction, there must be a showing of a threatened injury. The injury must be real, not imaginary. 14 R.C.L. page 354. Ordinarily, it must be of irreparable character, for which a money award would be inadequate. In the instant case, the Government has not yet assessed any tax against the taxpayer. Should such a tax be assessed and an attempted enforcement greatly prejudice the appellant in the conduct of its business, pendente lite, the court may again be appealed to. It will always be open to hear any application which may be addressed to it. Temporary injunctions differ in their finality from the final or permanent injunctions. Denial of an application for a temporary injunction does not prevent another application by the same party in the same suit, if new facts warrant it. In a suit for either injunction, however, the party seeking the relief must make a fact showing that the threatened injury is imminent. It is unnecessary to consider the effect of the statute which permits a court to grant declaratory decrees, because the section, which authorizes suits for a declaratory decree (28 U.S.C.A. § 400), expressly excepts suits involving Federal taxes. (b) Appellant has not brought its case within the rule set forth in Miller v. Standard Nut Margarine Company, 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422; Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822, so as to avoid the consequences of section 3224, Revised Statutes (26 U.S.C.A. § 1543). In the Miller Case, the court was dealing with a tax on oleomargarine. There the court said: “This is not a case in which the injunction is sought upon the mere ground of illegality because of error in the amount of the tax. The article is not covered by the act. A valid oleomargarine tax could by no legal possibility have been assessed against respondent, and therefore the reasons underlying § 3224 apply, if at all, with little force. * * * Respondent commenced business after the product it proposed to make had repeatedly been determined by the Commissioner and adjudged in courts not to be oleomargarine or taxable under the act, and upon the assurance from the Bureau that its product would not be taxed. * • * It is clear that, by reason of the special and extraordinary facts and circumstances, section 3224 does not apply. The lower courts rightly held respondent entitled to the injunction.” In view of the plain language of section 3224, which prohibits such suits as the instant one, we are not justified in extending the rule announced in the Miller Case. A third objection to the granting of the temporary injunction may be found in the fact showing which is insufficient to justify a ruling on the nontaxability of appellant’s product as a cosmetic. The fact controversy, in other words, is not closed. If we eliminate the fact knowledge of which the court may take judicial notice, we still could not hold, in the face of the other evidence, that the appellant’s product is not a cosmetic. The advertisements so describe it. The District Court could hardly be expected to find that the product was not what appellant said' it was in its advertisements. Appellant argues that the court must take judicial notice of the fact that compressed yeast cakes are used primarily in bread making and beer production. True, we will take judicial notice of the use of yeast in these two industries. It by no means follows, however, that appellant’s product was made for either or both of said purposes. Likewise, the statute imposing the tax, also the rules and regulations of the Department, call for information as to the percentage of appellant’s yeast production ^used'for facials. Such figures and other information are necessary to the determina- tion of the vital question in the case — the taxability of any of appellant’s product as a cosmetic. The order is Affirmed. “Tax on Toilet Preparations, etc. There is hereby imposed upon the following articles, sold by the manufacturer, producer, or importer, a tax equivalent to 10 per centum of the price for which so sold: Perfumes, essences, extracts, toilet waters, cosmetics, petroleum jellies, hair oils, pomades, hair dressings, hair restoratives, hair dyes, tooth and mouth washes (except that the rate shall be 5 per centum), dentifrices (except that the rate , shall be 5 per centum), toothpastes (except that the rate shall be 5 per centum), aromatic cachous, toilet soaps (except that the rate shall be 5 per centum), toilet powders, and any similar substance, article, or preparation, by whatsoever name known or distinguished; any oí the above which are used or applied or intended to be used or applied for toilet purposes.” “No suit ior the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_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. Edward Corbit HOULE, Appellant. No. 78-1876. United States Court of Appeals, Eighth Circuit. Submitted March 13, 1979. Decided Aug. 17, 1979. David García, Devils Lake, N. D., for appellant. James R. Britton, Fargo, N. D., for appellee. Before LAY, ROSS and McMILLIAN, Circuit Judges. LAY, Circuit Judge. The sole issue in this case is the question left undecided in United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), whether or under what circumstances an officer must obtain a warrant before he may lawfully enter a private place to effect an arrest. The defendant was convicted under 18 U.S.C. §§ 111 and 1114 of willfully and by means and use of a dangerous weapon, a rifle, forcibly assaulting, resisting, opposing, impeding, intimidating and interfering with law enforcement officers of the United States of America while they were engaged in the performance of their official duties. This appeal followed. The parties do not dispute the facts. In the early morning hours of September 5, 1978, the Bureau of Indian Affairs police department received a complaint that the defendant had threatened to shoot Sandra Houle at her father, Oscar Houle’s residence on the Turtle Mountain Indian Reservation at Belcourt, North Dakota. When the investigating officers arrived at the home, Sandra Houle and her father reported that the defendant had been drinking and making threats and was on his way to shoot them. The officers then heard two gun shots which one officer identified as coming from the direction of Edward Houle’s house. They removed Sandra Houle and her two children from the house and took them to the Belcourt police station, arriving there at approximately 2:40 A.M. Shortly before their arrival the police dispatcher received a call from a person who identified himself as Edward Houle. The caller stated that he wanted the officers to leave the area and to come back to talk to him in the morning. He also stated that he had a gun and that he would shoot any officer who came into his yard. The officers decided to delay action until the morning. At approximately 6:40 A.M. they went to the defendant’s house to arrest him. It is undisputed that the officers made no attempt to obtain a warrant for Edward Houle’s arrest during the intervening four hours. When the officers arrived at the house, they looked through a broken window and saw someone sleeping on a bed about five or six feet from a rifle lying on a chair. One of the officers reached through the broken window and seized the rifle. The others then kicked down the door and entered the home arousing Edward Houle from his sleep and arrested him. At the time of the arrest officers found two spent cartridges on the floor about an inch apart. At trial the defendant objected to the admission into evidence of the rifle, the clip removed from the rifle, and the two spent cartridges. The trial court overruled the defendant’s motion to suppress the evidence. Relying upon United States v. Watson, 428 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the court found that there had been probable cause to make the arrest so that no warrant had been necessary. We cannot agree that United States v. Watson is determinative. The defendant argues on appeal that his warrantless arrest violated the Fourth Amendment. In United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the Supreme Court held that a warrantless arrest in a public place based on probable cause does not violate the Fourth Amendment. It is undisputed in this case, however, that defendant’s arrest took place in his home. The parties agree that under these circumstances the Watson decision is not controlling. The competing values involved in warrantless entries into the home to arrest have been discussed at length in opinions of the United States Supreme Court and in decisions in the federal and state courts. We see little merit in repeating that discussion in this opinion. After reviewing these authorities we conclude that a warrantless search and seizure conducted on private premises in the absence of exigent circumstances violates the Fourth Amendment. See Cooiidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948). The Supreme Court recently held in Brown v. Texas, - U.S. -, -, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) that “seizure” for purposes of the Fourth Amendment includes all seizures of the person and that such seizures, therefore, must be reasonable. See also United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The vast majority of state and federal decisions have applied the same Fourth Amendment standards to warrantless entries to search as they have to warrantless entries to arrest. See notes 3 & 4 supra. See also Comment, Watson and Santana: Death Knell for Arrest Warrants?, 28 Syracuse L.Rev. 787, 791 (1977). Although the Supreme Court has indicated that the question remains open, we feel that until the Court has issued a mandate to the contrary the plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), articulates the principle most in accord with our view. As Mr. Justice Stewart observed in that opinion, It is clear, then, that the notion that the warrantless entry of a man’s house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man’s house without warrant are per se unreasonable in the absence of some one of a number of well defined “exigent circumstances.” Id. at 477-78, 91 S.Ct. at 2044. Although the Government urges that exigent circumstances did exist relying upon United States v. Garcia Mendez, 437 F.2d 85 (5th Cir. 1971), we cannot agree. This is not a case involving hot pursuit. The officers’ deliberate four hour delay from 1:50 A.M. to 6:30 A.M., indicates that the officers had no reason to believe, and did not believe, that the defendant would attempt to escape or destroy the evidence in his possession. It is undisputed that the officers made no attempt to obtain a search or arrest warrant during that period of delay. Any exigency that arose by virtue of the presence of the rifle near the bed could have been anticipated by the officers and does not excuse their earlier failure to obtain a warrant. Without a proper search or arrest warrant the seizure of the gun within the house was illegal. Even if, arguendo, that seizure had been lawful, it disposed of any justification officers might have had for kicking down the door and entering the defendant’s home without a warrant; the officers had secured the only visible weapon. In short, our review of the record fails to disclose evidence that any exigency justified the warrantless entry and seizure. We conclude that the warrantless intrusion into the home is one that cannot be sanctioned under the Fourth Amendment even for the purpose of private arrest, absent exigent circumstances. See United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 820, 46 L.Ed.2d 498 (1972) (entry of the home is the chief evil against which the Fourth Amendment is directed); Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (the right to be free, except in limited circumstances, from unwarranted governmental intrusions into the privacy of the home is fundamental to our free society); Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 (1961) (at the core of the Fourth Amendment “stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”); Mapp v. Ohio, 367 U.S. 643, 646, 81 S.Ct. 1684, 1687, 6 L.Ed.2d 1081 (1961) (Fourth Amendment applies “to all [governmental] invasions ... of the sanctity of a man’s home and the privacies of life.”); Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359,1361, 93 L.Ed. 1782 (1949) (security of privacy in the home against arbitrary governmental intrusion is basic to a free society); McDonald v. United States, 335 U.S. 451,455-56, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (right of privacy in the home is too precious to entrust to police discretion and absent some grave emergency the Constitution requires magistrate’s approval before the police may violate the privacy of the home); Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (when the right or privacy in the home must yield to the right of search is to be decided by a judicial officer absent exceptional circumstances). Finding that the district court erred in failing to suppress the evidence, the judgment is ordered vacated; the mandate shall issue forthwith and the defendant shall be released from the penitentiary, subject to the appropriate bond in the event that the Government determines that he shall be retried. . See United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (Stewart, J„ concurring): The arrest in this case was made upon probable cause in a public place in broad daylight. The Court holds that this arrest did not violate the Fourth Amendment, and I agree. The Court does not decide, nor could it decide in this case, whether or under what circumstances an officer must obtain a warrant before he may lawfully enter a private place to effect an arrest. id. at 433, 96 S.Ct. at 832. Mr. Justice Powell observed of Mr. Justice Stewart's concurring opinion: It makes clear that we do not today consider or decide whether or under what circumstances an officer lawfully may make a warrantless arrest in a private home or other place where the person has a reasonable expectation of privacy, United States v. Watson, 423 U.S. at 432-33, 96 S.Ct. at 832 (Powell, J., concurring) (footnote omitted). This issue is before the Supreme Court in Riddick v. New York, 45 N,Y.2d 300, 408 N.Y. S.2d 395, 380 N.E.2d 224, prob. juris, noted, 439 U.S. 1045, 99 S.Ct. 718, 58 L.Ed.2d 703 (1978). The case was argued March 26, 1979, 47 U.S. L.W. 3651 (April 3, 1979). Submission to the Court was vacated, however, and the case was set for reargument this fall. See -U.S. -, 99 S.Ct. 2049, 60 L.Ed.2d 658 (1979). . The record is silent as to where the two spent cartridges came from and whether the rifle had been fired. No evidence was found of bullet holes in any of the homes or vehicles. . See, e. g., United States v. United States District Court, 407 U.S. 297, 315-17, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 477-81, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chimel v. California, 395 U.S. 752, 760-62, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Jones v. United States, 357 U.S. 493, 496-500, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Miller v. United States, 357 U.S. 301, 306-14, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948); McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191, 93 L.Ed. 153 (1948). See also United States v. Santana, 427 U.S. 38, 47-48, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) (Marshall, J., dissenting). . See e. g., Salvador v. United States, 505 F.2d 1348 (8th Cir. 1974); United States v. Campbell, 581 F.2d 22 (2d Cir. 1978); United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978); United States v. Killebrew, 560 F.2d 729 (6th Cir. 1977); United States v. Phillips, 497 F.2d 1131 (9th Cir. 1974); United States v. Shye, 492 F.2d 886 (6th Cir. 1974); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (en banc); Lankford v. Gelston, 364 F.2d 197, 205-06 (4th Cir. 1966); Morrison v. United States, 104 U.S.App.D.C. 352, 262 F.2d 449 (1958); State v. Cook, 115 Ariz. 188, 193-94, 564 P.2d 877, 882-83 (1977); People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, cert. denied 429 U.S. 929, 97 S.Ct. 335, 50 L.Ed.2d 299 (1976); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971). . See also Coolidge v. New Hampshire, 403 U.S. at 480-81, 91 S.Ct. 2022, wherein the Court concluded that Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) “certainly stands by negative implication for the proposition that an arrest warrant is required [to enter the home] in the absence of exigent circumstances.” . Garcia Mendez is clearly distinguishable. In that case the issue was whether the officers, who went to the defendant’s home for the purpose of executing a search warrant, were justified in not complying with 18 U.S.C. § 3109, the notice of authority and purpose statute, because of their observation through a window of an automatic pistol lying inches from the hand of the sleeping defendant. The issue before us is not whether the method of entry was lawful, but whether the officers’ failure to obtain a warrant was justified. . It is urged that the defendant might have had other weapons; this is pure speculation. There is no evidence that the officers had any reasonable apprehension that the defendant had other weapons at the time of his arrest. . Cf. Dorman v. United States, 140 U.S.App. D.C. 313, 435 F.2d 385 (1970) (en banc) (justification for warrantless entry evidenced, inter alia, by the possibility that delay would permit escape, by the fact that the delay in the arrest was not of the police officers’ making and that officers had attempted to obtain a warrant, and by the peaceful nature of the entry which was made after announcement of authority and purpose). . We find Judge Frank’s eloquent description of the importance of the sanctity of the home particularly apropos: A man can still control a small part of his environment, his house; he can retreat thence from outsiders, secure in the knowledge that they cannot get at him without disobeying the Constitution. That is still a sizeable hunk of liberty — worth protecting from encroachment. A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place which is a man’s castle. United States v. On Lee, 193 F.2d 306, 315-16 (2d Cir.) (Frank, J., dissenting), aff'd 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). 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_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. Robert H. RUNGE, Appellant, v. UNITED STATES of America, Appellee. Robert H. RUNGE, Appellant, v. UNITED STATES of America, Appellee. Nos. 121-68, 167-69. United States Court of Appeals, Tenth Circuit. May 26, 1970. H. C. Cooper, Oklahoma City, Okl. (Stephen K. Lester, Wichita, Kan., on the brief) for appellant. Richard E. Oxandale, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief) for appellee. Before LEWIS, Chief Judge, HILL, Circuit Judge, and LANGLEY, District Judge. HILL, Circuit Judge. In this consolidated case, appellant seeks reversal of two judgments which denied motions to vacate under 28 U.S. C. § 2255. The central issue before this court now is whether appellant’s plea of guilty was coerced because of the possibility of a jury-imposed death penalty under the Federal Kidnapping Act, 18 U.S.C. § 1201(a). The settled rule is that a plea of guilty is void and subject to a § 2255 collateral attack when threats or promises divest it of the character of a voluntary act. When a coerced plea is the issue, all matters bearing on that allegation must be considered. When a case is in this posture, § 2255 requires a hearing on the issue unless the files, records, motions and transcripts conclusively show that appellant’s plea was voluntary; free from threat, promise or other coercion. Numerous incidents, beginning with the plea and continuing through the second § 2255 motion, impress upon this Court the conclusion that the plea of April 9, 1962, was not in fact coerced by the threat of a jury-imposed death sentence; rather, we believe the coercion argument to be but a belated afterthought. At arraignment time both Runge and his codefendant were represented by able court appointed counsel who advised each defendant to enter a plea of not guilty. Several days later, however, each defendant withdrew his former plea and pled guilty as charged under the Kidnapping and Dyer Acts. In the course of accepting appellant’s plea, it is apparent from the record that full compliance was had with Rule 11, F.R. Crim.P., 18 U.S.C.A. Furthermore, it is implicit in those proceedings that the court was satisfied that Runge was not encouraged to plead guilty because of the alleged threat inherent in a jury trial. On April 11, 1968, appellant filed his first § 2255 motion, seeking relief on numerous grounds, including violations of Rules 5(a), (b), (c), 7, 9, 10, 21(b), 40(b), F.R.Crim.P.; violations of the 5th, 6th and 7th Amendments, U.S. Constitution; and violations of 18 U.S.C. § 3238. Nowhere in that motion is there any mention of a coerced plea. In fact, not until the sentencing court’s Memorandum and Order of April 18, did the question of a coerced plea and the case of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), arise. In that memorandum the court said it wished to be “fully advised as to all of the circumstances surrounding petitioner’s plea and sentence ** * * [so it could] determine the impact on that sentence of the decision of the Supreme Court of the United States in the case of United States v. Jackson * * The first time an allegation of coercion arose in behalf of appellant was in the June 4 Traverse written by Runge’s attorney in response to the District Attorney's Answer to the rule to show cause. Not until June 14, 1968, in a letter to Mr. Hackler, did appellant manifest a desire to use the new argument. Runge wrote: “ * * * Seeing as the Court saw fit to bring the Jackson v. United States, case in to my Motion. We would be quite foolish not to look into it, and it is my belief that I would qualify under the decision given by the Supreme Court.” In an attempt to determine the necessity of an evidentiary hearing, a pretrial conference was held on July 10, 1968. Other than Runge’s own assertion that he was coerced into a guilty plea, there is no indication that the plea was made other than voluntarily. In fact, the record of the proceedings commands a contrary conclusion: “MR. HACKLER (Runge’s Attorney) : If the Court please, as I understand our hearing this morning, we are to determine the necessity of a hearing and, as I read the cases on this matter, this boils down to a question of fact, whether there is a factual issue involved —or factual issues, involved that need to be presented to the Court. I have made some independent inquiry and investigation outside of the Court’s records. If I were to present — if we were to have a hearing, anything more than the affidavit on file in the record by Mr. Runge based on his statement that the — that he entered a plea to avoid the death penalty and to that extent the plea was involuntary and the other issues raised regarding how he came to be in the jurisdiction, I would not be able to present any other factual matters. “I, just to review this matter, have made personal interview and telephone conversations with people involved in the prior hearing and the factual situation —on the factual situation I would not call any of those witnesses. So from that point of view, to be totally frank with the Court, I cannot present issues of fact other than is already in the record.” This candid revelation by Runge’s attorney illustrates to our satisfaction that appellant’s mere denials of that which he has previously admitted, does not raise a substantial issue of fact within the meaning of . § 2255. Although an allegation of fact must ordinarily be accepted as true, it is not required where, as here, the allegation is contradicted by the files and records before the court. Putnam v. United States, 10 Cir., 337 F.2d 313 at 315. From the pre-trial conference of July 10, the court determined that a hearing was not required and entered findings of fact and conclusions of law denying the motion to vacate. In December, 1968, Runge filed a second § 2255 petition, singularly urging coercion in his guilty plea. This motion was denied on the grounds that it presented an issue identical to one on appeal under the initial § 2255 appeal. Both denials are appealed. In order to be a beneficiary under the Jackson case, appellant reads it to say that prior to that decision, all who pled guilty while under a Federal Kidnapping Act charge, were, as a matter of law, coerced. That interpretation cannot fairly be attributed to that opinion, as we recognized in Brady v. United States, 404 F.2d 601. Rather, the coercive nature of the Act must be considered as but one element in a search to determine voluntariness. Runge, just as Brady, seizes upon the language of Jackson stating, that since the “inevitable effect” of the death penalty provision of § 1201(a) was to needlessly encourage guilty pleas and jury trial waivers, all such pleas and waivers are ipso facto coerced when the fear of death is shown to be a factor in the plea. Our rejection of that interpretation of Jackson has been affirmed in Brady v. United States, 396 U.S. 809, 90 S.Ct. 86, 24 L.Ed.2d 63 (1970). Jackson did not hold § 1201(a) inherently coercive of guilty pleas; neither did it rule that all guilty pleas encouraged by fear of a possible death sentence are involuntary; nor did it hold that guilty pleas, so encouraged, are per se invalid. If a plea is “voluntarily” and “intelligently” made, it is valid. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). See Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); and McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The voluntary character of Runge’s plea must be resolved by considering all relevant circumstances surrounding it. Initially, as Brady decided, the fact that Runge may have withheld his guilty plea if there had been no death penalty provision in § 1201(a) is not absolute proof of coercion. There is no claim of impropriety on the part of law officers, the court or his counsel. And there is a total lack of evidence that Runge was “so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty.” Brady v. United States, 397 U.S. at 750, 90 S.Ct. at 1470. Our independent review of the record discloses no evidence of threats, misrepresentation or improper promises. The record before us likewise supports the conclusion that Runge’s plea was intelligently made. Competent counsel advised him, he was made aware of the nature of the charges against him, and nothing indicated that he was incompetent or otherwise not in control of his mental faculties. It must be concluded upon the record that Runge intelligently admitted that he had kidnapped the victim and not released her unharmed. Crow v. United States, 397 F.2d 284 (10th Cir. 1968) is a distinguishable case which does not require an evidentiary hearing in Runge’s case. In Crow, § 2255 relief was denied without a hearing principally because of the comprehensive questioning of the defendant, by the court, to determine the voluntariness of his plea. There, the § 2255 motion alleged a coercive threat which purportedly caused appellant to plead guilty. The trial court simply stated it could not “accept” such a threat as coercive, thereby permitting the existence of the threat to go undenied. The case was then remanded to determine whether the alleged coercion actually existed. After the Runge § 2255 pre-trial, the court entered findings of fact and conclusions of law which specifically state that there was an absence of any coercion. The court said, “the files, records and transcripts herein conclusively show that this petitioner was not coerced or influenced in any manner and therefore he is not entitled to the relief requested.” The difficulty of attempting to accurately disclose appellant’s subjective state of mind at plea time cannot be minimized. However, it is not an impossible task, and is an undertaking which must eventually be assumed in all cases such as this. If there was any evidence in the files of this case to warrant an evidentiary hearing, our decision would properly be stayed. But for us to deny such inquiry here would unnecessarily postpone it for another court. And, the straightforward disclosures of appellant’s lawyer convinces this court that a remand would be repetitious of the July 10, 1968, pre-trial conference. Our own careful review of the entire record, files, motions and transcripts leads us to the same conclusion: When Runge entered his guilty plea, he did it voluntarily, knowingly and free from any statutory, court or otherwise imposed coercion. This conclusion is conclusively reflected in the entire case, and thereby did not require the court below to conduct an evidentiary hearing. The remaining § 2255 allegations, all of which were dependent upon the foregoing, may be disposed of summarily. A plea of guilty waives all non-jurisdictional defects. See Tyler v. United States, 361 F.2d 862 (10th Cir. 1966); Jude v. United States, 262 F.2d 117, 118 (10th Cir. 1958). Allegations of improper removal from one district to another are not grounds for § 2255 relief. See Ragavage v. United States, 272 F.2d 196, 197 (5th Cir. 1959). Allegations of illegal arrest are insufficient grounds for attack under § 2255. Moreland v. United States, 347 F.2d 376 (10th Cir. 1965). And, an allegation of illegal detention prior to arraignment is not grounds for relief under § 2255, Semet v. United States, 369 F.2d 90 (10th Cir. 1966). The denial of each of the § 2255 motions to vacate is affirmed. . Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Crow v. United States, 397 F.2d 284 (10th Cir. 1968); Howell v. United States, 355 F.2d 173 (10th Cir. 1966); Putnam v. United States, 337 F.2d 313 (10th Cir. 1964). . Brady v. United States, 404 F.2d 601 (10th Cir. 1968), aff’d 396 U.S. 809, 90 S.Ct. 86, 24 L.Ed.2d 63 (1970). . Crow v. United States, 397 F.2d at 285; Howell v. United States, 355 F.2d at 174; Putnam v. United States, 337 F.2d at 315. . “THE COURT: Of course, it should be entirely clear that the defendants understand their rights and that no action by the Court, hy the United States attorney or counsel for defendant or by anyone, has induced them to change their position. The defendants should realize that they have the right to trial by jury and that only they can waive that right. It is entirely up to the defendants whether they desire to enter pleas of guilty to one or more counts of the indictment. Now, the United States attorney and counsel for the defendants had mentioned to the Court the possibility that the defendants might desire to enter a plea of guilty. The charge in this case on Count 1 is a serious charge, of course, and the penalty upon conviction can be death if the verdict of the jury shall so recommend, or by imprisonment for any term of years or for life if the death penalty is not imposed. Now, the practical effect of that is this: That the penalty of death can be imposed only by recommendation of the jury which returns a verdict of guilty if they should find the defendants or either of them guilty. The Court could, of course, even on a plea of guilty, impanel a jury to determine the penalty only, and I am not going to make any statement here that might possibly be construed as any inducement to these defendants to enter a plea of guilty. I did receive a letter from Hiss Smalley indicating that she did not desire that the death penalty be inflicted. I received also a letter from Miss Smalley’s father to the same effect, and my own view is that under these circumstances, if a plea of guilty is entered, that the Court would not be justified in impaneling a jury to determine the penalty, but I certainly want these defendants to understand before any further action is taken, I want to hear from them, themselves, that they do understand this situation. Of course, it is up to them whether they withdraw their plea of not guilty .or not and enter a plea of guilty, but it must be crystal clear in the record and in the minds of all of us and in the minds particularly of these defendants, that no promise is held forth to them and that they themselves take the action voluntarily and with full knowledge of the situation. :& * * * * MR. HARDING: If Your Honor please, with respect to Robert Henry Runge, at this time the defendant would like leave of Court to withdraw the plea of not guilty to the several counts of the indictment entered on March 5, 1962, and to change those pleas at this time. Prior to that, I would like to state for the record and for Your Honor and make a few comments in the form of questions to Mr. Runge. Since I have been appointed to represent you in this matter, Mr. Runge, have you and I had the opportunity on several occasions to discuss the charges in the indictment and your wishes and desires with respect thereto? DEPENDANT RUNGE: Yes, sir. MR. HARDING: And we have gone over those matters on several occasions at some length, have we not? DEPENDANT RUNGE: Yes, sir. MR. HARDING: And on Wednesday of last week in the presence of your mother, Mrs. Muller, did we discuss the mater of the plea to this indictment or change in the plea to the counts of the indictment, for a period of about two hours? DEPENDANT RUNGE: Yes, sir. MR. HARDING: And as a result of our discussion of this matter, do you feel that you were fully informed by me of your several constitutional rights and the things that I, as your attorney, did recommend to you with respect to this matter? DEPENDANT RUNGE: Yes, sir. MR. HARDING: Were any promises or extenuating circumstances of any kind indicated by me in connection with this matter, as either might be coming from the district attorney or from 1-Iis Honor? DEPENDANT RUNGE: No, sir. MR. HARDING: And that if a plea of guilty were entered and made by you to any of the counts of the indictment, it would have to be based solely upon the information which I presented to you as your attorney and your own judgment and decision in the matter? DEPENDANT RUNGE: Yes, sir. MR. HARDING: Now, you have heard here Judge Stanley’s explanation of the receipt of the letters from Miss Smalley and her parents? DEPENDANT RUNGE: Yes, sir. MR. HARDING: The statements that His Honor has made in connection with that aspect of the matter. At this time you are asking the Court for leave to withdraw the pleas of not guilty to the three counts of the indictment and, as I understand it, you are now ready to enter a plea of guilty of your own free will without any coercion or any inducement whatever, to Counts 1 and 2 of the indictment, is that correct, sir? DEPENDANT RUNGE: Yes, sir. THE COURT: Counts 1 and 2? MR. HARDING: I mean 1 and 3, Your Honor-, of the indictment. S}C it* THE COURT: Mr. Runge, I think that Mr. Harding has covered very fully the questions that I would have asked you, but I want it to be very clear in the record here that you understand that if you should withdraw your plea of not guilty to Counts 1 and 3 of the indictment and enter a plea of guilty to those counts, that you understand that by so doing you admit the facts alleged in these counts, waive your right to trial on the charge in each count and subject yourself to punishment within the limits fixed by law. DEPENDANT RUNGE: Yes, sir. THE COURT: And you do understand, do you, that the punishment prescribed for the offense charged in Count 1 of the indictment, that is, the kidnapping charge, that the punishment for that charge could be imprisonment for any term of years or for life? DEPENDANT RUNGE: Yes, sir. THE COURT: And with all that understanding and as a matter of your own choice, freely made, is it your desire to withdraw the plea of not guilty to Counts 1 and 3 and to enter a plea of guilty to those counts? DEFENDANT RUNGE: Yes, sir. * sfc * * THE COURT: Mr. Runge, I’ll ask you, do you feel that your counsel, you originally had two, Mr. Smith was with you in this initially, was he not? Mr. Harding? MR. HARDING: That is right, Your Honor. THE COURT: Mr. Smith was relieved when he was appointed to office. Do you feel that Mr. Harding and Mr. Smith while he was so acting, have served your best interests throughout in this case? DEFENDANT RUNGE: Yes, sir. THE COURT: And do you feel that they have both served you capably and honestly and as you would want to be served under the circumstances? DEFENDANT RUNGE: Yes, sir.” . This Order granted leave for Runge to proceed in forma pauperis; appointed Mr. Hackler as appellant’s attorney; and ordered a rule to show cause to determine “whether or not under the decision in the case of United States v. Jackson the sentence under attack was validly imposed * * . United States v. Jackson, 390 U.S. at 583, 88 S.Ct. at 1217. The Court elaborated in note 25: “So, too, in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 the Court held that comment on a defendant’s failure to testify imposes an impermissible penalty on the exercise of the right to remain silent at trial. Yet it obviously does not follow that every defendant who ever testified at a pre-Griffin trial in a State where the prosecution could have commented upon his failure to do so is entitled to automatic reléase upon the theory that his testimony must be regarded as compelled.” . Shelton v. United States, 246 F.2d 571, 572, n. 2 (5th Cir. 1957) (en banc), rev’d on confession of error on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958). . E. g., Howell v. United States, 355 F.2d 173 (10th Cir. 1966); Putnam v. United States, 337 F.2d 313 (10th Cir. 1964). 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_othadmis

E

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". Benjamin W. COREY, Defendant, Appellant, v. UNITED STATES of America, Appellee. No. 6046. United States Court of Appeals First Circuit. Submitted Aug. 24, 1962. Decided Sept. 18, 1962. Russell Morton Brown, Washington, D. C., for appellant on memorandum. W. Arthur Garrity, Jr., U. S. Atty., and Thomas P. O’Connor, Asst. U. S. Atty., for appellee on motion to dismiss and memorandum. Before WOODBURY, Chief Judge, and HARTIGAN, Circuit Judge. PER CURIAM. This is a motion by the United States to dismiss, as untimely, defendant-appellant’s appeal from a judgment of conviction entered by the United States District Court for the District of Massachusetts. Defendant was convicted as charged in the indictment of seventy-five offenses of making and presenting for payment to a department of the United States— the Department of the Army — false, fictitious and fraudulent claims in violation of 18 U.S.C. § 287. The maximum penalty for each offense is five years imprisonment or a fine of $10,000 or both. On April 9, 1962, the district court entered a judgment of conviction against the defendant expressly noting that the judgment was entered pursuant to 18 U.S.C. § 4208(b). This statute empowers a court for a maximum period of six months to modify a defendant’s sentence without being restricted to sixty days, as provided by Rule 35, Federal Rules of Criminal Procedure, 18 U.S.C. Following the April 9 judgment, defendant was placed in the custody of the Attorney General and committed by him to the United States Penitentiary at Lewis-burg, Pennsylvania. Thereafter, on July 17, 1962, again pursuant to 18 U.S.C. § 4208(b), the district court entered an Order On Probation, suspending sentence and placing the defendant on probation for a term of two years. Defendant took no appeal from the April 9 judgment but has appealed the Order On Probation entered July 17, 1962. The United States Attorney’s position is that the judgment of April 9, 1962, under § 4208(b), was a final appeal-able judgment and that defendant’s right of appeal has been lost by failure to give notice of appeal within ten days thereof. The defendant contends that under the April'9 judgment “No sentence whatever was pronounced. No punishment was imposed, * * However, the district court expressly noted that it was acting under the provisions of Title 18 U.S.C. § 4208(b). Under this section the statute clearly states that the term of “commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law.” Consequently, at this point the defendant was on notice as to the extent of his punishment. If he desired to appeal, this was the time that he should have acted. While it is true that defendant could reasonably assume that the judge would modify this maximum sentence, the judge was assuredly under no duty to do so. See United States v. Behrens, 190 F.Supp. 799 (D.C.S.D., Ind.1961). An order will be entered docketing the case and granting the motion to dismiss defendant’s appeal. 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_geniss

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". JARVIS et al. v. UNITED STATES. No. 3121. . „ , „ . .. Circuit Court of Appeals, First Circuit. May 24, 1937. _ F. J. Carney, of Boston Mass (Wilham H. Lewis, james H Vahey, Charles F. Smith, Daniel A. Lynch William J. Bullion, and Kevin P. Hern, all of Boston, Mass., on the brief), for appellants. Charles W. Bartlett, Asst. U. S. Atty.,of Boston, Mass. (Francis J. W. Ford, U. S. Atty., of Boston, Mass., on the brief), for the United States. Before BINGHAM, WILSON, and MORTON, Circuit Judges. MORTON, Circuit Judge. This is an appeal by the defendants from convictions and sentences on two separate indictments. The first charged use of the mails in a scheme to defraud. It contained ten counts each alleging a separate substantive offense, and an eleventh count alleging a conspiracy to commit the same offense. The appellants, JarVis and Gaines, were convicted on all counts and were sentenced to five years’ imprisonment on each of the substantive counts, and to two years’ imprisonment on the conspiracy count, the sentences to run concurrently. Other appellants were convicted only on part of the counts, and concurrent sentences were imposed on such counts. The second indictment was for a conspiracy to violate section 17 of the Securities Act of 1933. (15 U.S. C.A. § 77q). The appellants were also convicted under this indictment and each was sentenced to imprisonment for two years, the sentences to run concurrently with those imposed under'the first indictment. There are 100 assignments of error, 48 in the first case and 52 in the second. This is clearly an unreasonable number and would justify a dismissal of the appeal. Patterson v. Mobile Gas Co., 271 U.S. 131, 132, 46 S.Ct. 445, 70 L.Ed. 870; Albert Pick-Barth Co. v. Mitchell Woodbury Corporation (C.C.A.) 57 F.(2d) 96, 100. However, as for reasons hereafter stated, we find it unneces sary to consider the assignments of error in the second case, and, as substantial sent,ences are involved, we think a dismissal of *lle aPPeal on thls Sround would be t0° ras 1C‘ As to the first indictment: About a dozen errors are assigned on matters of pleading, viz., overruling demurrers and motions to quash, denying specifications or particulars, refusing to hold the indictments were bad for variance and duplicity, and refusing motions for election on the ground that the government’s evidence showed two conspiracies. since the act of 1919 (Jud. Code § 269, as amended, 28 U.S.C.A. § 391) r iri that on appeal the court shall giye judgment witllout regard to technicai errors which do not affect the substantial rights of the parties, it is only under exceptional circumstances that rulings of this character will give rise to reversible error, See Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. We think the demurrers and motions to quash were properly overruled, and that the indictments Jere formally sufficient. It was within the discretion of the District Judge whether to grant the motions for specifications. It does not appear that in refusing them he abused his discretionary power. The other motions going to the pleadings were, we think, properiy dealt with, The trail Judge under objection and exception by the defendants ordered that the, two mdictments should be tried toget;her- This order was made after the government had nol prossed against three defendants m the first indictment who were no^ defendants in the second indictment, thereby making the defendants in each indictment the same persons. To a very large extent the facts Evolved m each indictment were the same. There was cleaily no abuse of discretion m directing that the two be tried together. Such orders are explicitly authorized by R.S. § 921 (28 U.S.C.A. § 734). See Brown v. United States, 143 F. 60 ( C.C.A.8); Morris v. United States, 12 F.(2d) 727 (C.C.A.9) The defendants complain that the government was not directed to state in regard to each piece of evidence which was presented, on which indictment it was offered. When separate cases are tried together it is because of great similarity in the evidence applicable to them. The trial judge followed the customary method of admitting any evidence which bore on either indictment, leaving to the defendants to ask to have any particular piece of evidence limited if they thought it should be. There was no error in so doing. Kansas City Ry. Co. v. Jones, Adm’x, 241 U.S. 181, 36 S.Ct. 513, 60 L.Ed. 943; Farnsworth v. Nevada Co., 102 F. 578 (C.C.A.8). Many exceptions were taken on questions of evidence. None of these is of basic character. The most doubtful was the admissibility of certain telephone conversations. In a typical instance, the witness said that he had been receiving, for some little time before this talk, daily and weekly market letters from Gibbs & Co., and a day or two before, a special letter; that he received one morning a telephone call from Springfield; that the speaker said he was A. E. Gibbs and asked if he had received their literature, letters, etc.; that he then went on to talk about the Polymet stock, urging him to buy it, saying that the company was shortly to be taken over by the Westinghouse Company and its stock would greatly enhance in value, etc. The witness did not recognize the voice, but said he afterwards received other calls of the same sort. So far as appeared no other person or concern was at that time selling Polymet stock. The law is now well settled with respect to telephone calls, that, if the person testifying does not recognize the voice, the surrounding circumstances may show sufficient probability that the person talking at the other end was one whose statements would be admissible to warrant admitting the conversation. Andrews v. United States, 78 F.(2d) 274, 105 A.L.R. 322 (C.C.A.10) ; American & British Corporation v. New Idria Co. (C.C.A.) 293 F. 509; General Hospital Soc. v. New Haven Rendering Co., 79 Conn. 581, 65 A. 1065, 118 Am. St.Rep. 173, 9 Ann.Cas. 168; Van Riper v. United States, 13 F.(2d) 961, 968 (C.C.A.2). The circumstances surrounding the incident made it altogether probable that the person talking to the witness over the telephone was connected with Gibbs & Co. as i . , ..c , i • * he said he was, and justified the admission £ ^ A . rrAi . , . of the testimony The same is true mutatis mutandis as to the other telephone conversations. Without undertaking to discuss in detail the testimony of the witnesses Caroll, Newton, Flackman, and Badger to which exception was taken, we are of opinion that there was nothing in the rulings of the trial judge in this connection which amounted to reversible error. The telephone records would not have been admissible at common law on the proof offered. But the common law rule has of necessity been modified in recent years. United States v. Cotter, 60 F.(2d) 689 (C.C.A.2); E. I. Du Pont, etc., Co v. Tomlinson 296 F. 634 (C.C.A.4); NorthWestern Refrigerator Line Co. v. Ervin 78 F.(2d) 186 (C.C.A.5) ; Jennings v. United States 73 F.(2d) 470 (C.A.5). At tbe close °f evidence the defendants moved for directed verdicts on the conspiracy count on the ground that the government’s evidence showed, not a single conspiracy as alleged, but two successive independent conspiracies; they also moved that tbe government be required to elect on which of the two alleged conspiracies it would go to the jury on this count. These motions were denied. The defendants also moved that the government be required to elect between counts 1 to 4, inclusive, which relate to dealings at Financial Profits in Boston in June and July, 1933, and counts 5 to 10 inclusive, which relate to dealings at A. E. Gibbs & Co., in Springfield, in August and September, 1934. The motion was denied. The questions involved in these motions may conveniently be considered togetiler The indictment of the use of the mails in a sch«me ,to def^ whl,cb W£\s íormed ab°Ut ?c}ob.crJ.1' 1932’ f d„laSted UP t0 tbe daf of tlle ^dicttnent. It charged that, !he scheme was that the defendants w™ld °P®rate. tbroi«h F“lal Profits an0 °*ce ln Boston and through A. E. Glbbs * 1TOth anm Springfield It described the method of operation at each Pkce- The first four counts refer to alleged vlfms °f Financial Profits the next six «=íer all,e£ed vlctlms of ,A' F' Glbbs & Ga; the last c°uut> as. has bcen saad’ cha^es a ^eral conspiracy to use the malls “ a schc”e: defraud’ with overt act* at ^ancial Profits and at A. E Gibbs & Ga The operations at Financial Profits m Boston terminated m July, 1933': The , 0 ^ • t operations at Cribos <& Co. began w une or Jul 1934 and terminated abfeQut October 1, lm The evidence showed that Jarvis and Gaines were active throughout at both places. Shuman worked at Gibbs & Co., but not at Financial Profits. Gibbs had nothing to do with Financial Profits, and others of the defendants had nothing to do with Gibbs & Co. A considerable interval elapsed between the cessation of business at Financial Profits and the beginning of business at Gibbs & Co. ’ t, .1. , It was the contention of the appealing defendants that the government had shown, not a single conspiracy, but two distinct conspiracies separated in place and in time, This was a question of fact on the evidence, According to the government’s evidence Jarvis and Gaines were the prime movers and the principal beneficiaries of the scheme and conspiracy. They set up Financial Profits as an office from which to make fraudulent sales of stock in which they were interested. They operated it with the aid of salesmen and^ assistants, some of whom were indicted with them. When they regarded it as inadvisable to continue at Financial Profits they closed^ it and some months later arranged with Gibbs & Co. to take over the latter s business at Springfield and to use it in the same way as an agency through which to sell the same stock. At Springfield they had as assistants some of the persons who had been employed by them in Boston and others who had had no previous connection with them. Throughout practically the entire period Jarvis and Gaines had an office m Boston from which they directed operations at both places. The same stock, called “Poly C,” was sold at both places. That their operations were grossly fraudulent the government’s evidence, if accepted, leaves no doubt. The governments theory of the case was that Jarvis and Gaines were parties to .. ■ ... ,, ,, , a continuing conspiracy to swindle the pub- .... ? 1 i 1 r j. 1 .. j. • lie by fraudulent sales of stock; that van-J, , . ous other persons became for a time mem- , , .. , t bers of this conspiracy. The scheme to defraud described m the substantive counts ,s a leged to have included illegal use of the mails at both Boston and Springfield. The jury under the instructions of the presiding . / .. - -^jlj j^jj judge discriminated between defendants. L, & , -itt u , 01 , . They acquitted Waldo and Shuman (who worked at Springfield) on the counts relating to Financial Profits and convicted them on thé counts relating to Gibbs & Co. and to the general conspiracy. There was evidence of a close connection throughout between Jarvis and Gaines in a fraudulent enterprise. It cannot be said that it did not warrant tjie view which the jury took that it constituted a continuing scheme and a continuing conspiracy as charged in the indictment. The motions under discussion were rightly denied. See United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168; Scaffidi v. United States, 37 F.(2d) 203 (C.C.A.1) ; Van Riper v. United States, 13 F.(2d) 961 (C.C.A.2). The appellants moved that the government be required to elect whether it would proceed on the first indictment or the second. The District Judge refused to order it to do so. In this he was clearly right. The two cases were not consolidated, they were being tried together and the crimes charged were substantially different. We have examined those parts of the District Attorney’s argument to which the appeilan.ts took exception. In long and compiica(;ed trials it is not uncommon for coungej argUjng to the jury to make unintentionaj misstatements of fact. When this occurs js die duty of opposing counsel to call attention to the misstatement and request t;he court to instruct the jury to disregard jq0 exception lies merely to the remarks 0£ counsel. Dunlop v. United States, 165 U.S. 486, 498 17 S.Ct. 375 41 L.Ed. 799 ; Diggs v. United States, 220 F. 545 (C.C.A 9). United States v. Wexler, 79 F.(2d) 526; 529 (C.C.A.2). In the present case no request was made for instruction by the .court that the jury disregard the improper aro-umen+ 8 ^ An exception was taken on the ground that the instructions as to good faith were inadequate. The trial judge plainly told the jury that good faith on th of the defendaIlts in making the ... , , , ,., , ., 0 representations, honest belief that they were . e -Li-j- t.-i.i_ , ' , true, a belief which has some substantial , .’ ... . . . . , basis, would be a legal excuse. We think ., . ,, . , - jl^ * the jury could not have been m doubt as to the correct rule of jaw. on this point The other -assignments 0f error in this case have bfien exam¡ned. None of them seems t0 us bg wdl founded nQr tQ ^ discussion. ... We conclude that there was no reversible ■ ±1. ± • 1 * error m the trial of the first indictment. We find it unnecessary to consider the questions raised under the' second indictment. The sentences imposed under that indictment did not exceed those imposed under the first indictment and are to run concurrently with them. Even if the convictions on the second indictment should be reversed, the defendants’ punishment would be in no way affected. It is well established that, where a conviction is sustained on counts sufficient to support the sentence. it will not be disturbed for error on certain other counts. Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692; Claassen v. United States, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966; Hill v. United States (C.C.A.) 42 F.(2d) 812. The affirmance of the convictions under the first indictment makes the correctness of the convictions under the second indictment merely a moot question. The appeal on the second indictment will accordingly be dismissed. And on the first indictment the judgments are affirmed. The appeals on the second indictment are dismissed, and the judgments on the first indictment are affirmed. 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_appbus

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Glen Watson REAMER, Appellant, v. UNITED STATES of America, Appellee. No. 17163. United States Court of Appeals Eighth Circuit. June 7, 1963. T. Eugene Thompson, St. Paul, Minn., made argument for the appellant and filed brief. Murray L. Galinson, Asst. U. S. Atty., Minneapolis, Minn., made argument for the appellee; Miles W. Lord, U. S. Atty., Minneapolis, Minn., was with him on the brief. Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and YOUNG, District Judge. . This is not legal in Minnesota. M.S.A. §§ 340.731, 340.732, 340.79, 340.80, 645.45(14). BLACKMUN, Circuit Judge. Glen Watson Reamer in March 1962 was charged by indictment with a violation of the Mann or White-Slave Traffic Act, 18 U.S.C.A. § 2421. He pleaded not guilty and, in the manner prescribed by Rule 23(a), F.R.Cr.P., waived his right to a jury trial. He was convicted by the court and received a sentence of three years with the provision, “Defendant to be confined in a Jail type institution for a period of four (4) months. The execution of the remainder of the sentence of imprisonment is hereby suspended and the defendant placed on probation for such period as. remains”. Reamer now appeals in forma pauper-is. The complete transcript of the trial was provided at government expense. The defense argues insufficiency of the evidence and error in denying its motion for judgment of acquittal. The events in question took place on the cold Minnesota-Wisconsin winter night of January 20-21, 1962. There was snow on the ground. Reamer, then 28, first met Sally about 8:45 P.M. that evening at Scotty’s Tavern in St. Paul. This was a combination “neighborhood” 3.2 beer parlor and grocery store. Sally was 18 and unmarried. She had a tenth grade education. She had never had a date alone with a man before. Her parents were at the tavern that evening. Sally telephoned her mother there and was asked to come over to get the bread and milk her mother had purchased. She came. The defendant introduced himself to Sally as “Jack Larson”. She was invited to sit at his table. She did so. She had a soft drink. Reamer asked Sally’s father if he might take her to a movie. Her father consented if he would bring her home by one o’clock. The two left the tavern about nine. Reamer did not take her to a movie but stopped instead at his brother’s home nearby. There Reamer had whiskey. Some was offered to Sally but she refused it and said she did not drink. After about 20 minutes Reamer and Sally left and went to a restaurant in downtown St. Paul. While there Reamer told Sally he was going to take her to Hudson, Wisconsin, because 18-year old girls could drink legally in that state. Sally told him she did not wish to go to Hudson and that she did not drink. However, when Reamer agreed to stay in Hudson for only 15 minutes, she consented to go. Sally had never been in Hudson before. Hudson is a Wisconsin town approximately 16 miles east of St. Paul. It is on the east side of the St. Croix River which, at that point and north beyond Stillwater, Minnesota, 10 miles upstream, constitutes the boundary between Minnesota and Wisconsin. There are paved roads on each side of the river between Hudson and Stillwater and there are bridges at each of these points. The defendant drove Sally to Hudson. They spent approximately two hours there at the Badger Bar and at Sam's Bar. Sally had cokes at both places. The defendant had whiskey and some food. They left Sam’s about 12:30 A.M. with Reamer agreeing to take Sally home. Up to this point, as Sally testified, Reamer had not “done anything that [she] objected to”. The foregoing facts are not in dispute. What happened between the time the couple left Sam’s Bar and Reamer’s return of Sally to her St. Paul home about four hours later with her feet swollen from frostbite is said by the defense to be in dispute. Sally was the only direct witness as to this period for the defendant did not take the stand. Sally testified on direct examination that after they left Sam’s Bar, Jack Larson did not take her back to St. Paul but that, instead, he stopped his car on the road and attacked her. We need not at this point set forth all the described details. In themselves they are not too important. It is enough to note that Sally testified that the defendant’s advances to her were with force; that he removed much of her clothing; that she resisted; that intercourse was effected; that she was able to get out of the car; that she ran down the road; that she lost her shoes; that she encountered barbed wire; that she cut her legs; that the defendant ran after her and caught up with her; that he said once more he would bring her home; that she walked back to the ■car with him; that her feet were frozen; that when they returned to the car he again had intercourse with her; that they then drove to the Green Acres Motel ; that she took a shower there and he assisted in thawing out her feet; that they returned to St. Paul about five A. M.; that the defendant carried her to the porch of her home because she could not walk; that he left her on the porch; that the police were called; and that she went to the hospital for ten days. On cross-examination Sally testified that she had never had anything to drink; that she was introduced to the defendant’s brother and his wife at their house but could not remember whether they were referred to as Mr. and Mrs. Reamer; that she did consent to go to Wisconsin; that she had only coke at the Badger Bar; that at Sam’s Bar she refused the defendant’s offer of a drink and had coffee instead; that it was about an hour after they left Sam’s place when the defendant stopped the car; that this was “out in the country”; that the defendant had kissed her that evening when they left his brother’s home, when they entered the Badger Bar, and when they left Sam’s place; that she did not cooperate with him in any way in his advances ; that when she got out of the car she did so on the driver’s side and fell into a ditch and met with barbed wire and was cut; that she then ran up the hill with the defendant after her; that he did not disturb her at the motel while she took her shower; that when she came out of the bathroom with only a slip on she lay on the bed; that Reamer was then in the bed; that he fondled her; that she objected to this and told him to take her home; that he obtained her underclothing from the car; that he took her home; that she was completely dressed, except for her shoes when she arrived home; that she had been at Still-water before; that the road on which the incident took place was between Still-water and Hudson; that she knew there were two roads between these towns; that she had no idea where the car was stopped other than that it was a plain road and no houses were nearby; that she did not know for sure if it was in Wisconsin; that she was not familiar with the area between Hudson and Still-water ; that the place they stopped could have been in Minnesota; and that the Green Acres Motel was in Wisconsin. Sally’s father testified that he met the defendant at Scotty’s Tavern on the night of January 20; that the defendant introduced himself as Jack Larson; that he had seen him three or four times before but had not talked with him; that the defendant asked him if he could take Sally to a show; and that he told the defendant she had never been with men. Her mother testified that they had met the defendant once or twice before to the extent of greeting him. The prosecution stipulated that Reamer sustained no orgasm on the night in question. There is other testimony, not contested, that the Green Acres Motel is in Wisconsin across the St. Croix River east from Stillwater, and that Reamer registered there that night as “Mr. and Mrs. Glen W. Reamer”. There are some discrepancies in Sally’s testimony; it is also evident that she was not positive about the exact location of the car when it was stopped, or, perhaps, even about the ultimate nature of the physical advances Reamer made upon her. It is apparent, too, that Sally was not well educated or experienced and that she was emotionally upset upon the happening of the events that evening. Her judgment and that of her parents may not have been good but the points of discrepancy and of unsureness in her testimony, as we point out below, concern matters of little legal consequence in the light of other admitted or established facts. On this record there is no dispute that Reamer used a false name in his introduction to Sally and her parents; that he asked her to go with him to Hudson; that he drove her from Minnesota to Wisconsin; that he was drinking both before and after that drive; that he stopped the car at a lonely spot; that he effected sex play of some kind with Sally; that Sally endeavored to get away; that she was able to get out of the car; that she encountered barbed wire and sustained lacerations and severely frostbitten feet; that the defendant registered himself and Sally as husband and wife in a Wisconsin motel; and that he drove her back to her home in Minnesota in the very late hours of the night. The defense here is three-fold. It is first argued that the Mann Act does not embrace activity of the essentially private and non-commercial kind indulged in by Reamer with Sally. It is urged next that, even if the statute is sufficiently broad to encompass this, the prosecution’s case falls short of establishing that any act proscribed by the statute took place outside Minnesota, or in other words, that the interstate aspect was not proved. It is argued, last, that, even if the statute is broad, the prosecution’s proof also falls short of establishing that the interstate transportation was effected with the requisite intent on the part of the defendant, that is, with a then existing, and not later acquired, purpose of the kind described in the statute. A. The application of the Mann Act. There is of course, nothing in the indictment’s charge and nothing whatsoever in this record which associates the events of the night with either commercialized vice or pecuniary gain to Reamer or habitual conduct on his part with Sally. The government does not so contend. This was a private “date” and concerned only personal intimacies between the two. The defense argument as to the scope and breadth of the Act is concededly not new. The Supreme Court has passed upon it on more than one occasion. Although the cases decided by that Court dealt with what is perhaps to be described as the more serious situations of intended concubinage and polygamous relationships, and although there were vigorous dissents, the Court’s attitude and holdings as to the application of the statute are clear. “It is contended that the act of Congress is intended to reach only ‘commercialized vice’ * * *. In none of the cases was it charged or proved that the transportation was for gain or for the purpose of furnishing women for prostitution for hire, and it is insisted that, such being the case, the acts charged and proved, upon which conviction was had, do not come within the statute. * * * There is no ambiguity in the terms of this act. It is specifically made an offense to knowingly transport or cause to be transported, etc., in interstate commerce, any woman or girl for the purpose of prostitution or debauchery, or for ‘any other immoral purpose,’ or with the intent and purpose to induce any such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice. * * * “While such immoral purpose would be more culpable in morals and attributed to baser motives if accompanied with the expectation of pecuniary gain, such considerations do not prevent the lesser offense against morals of. furnishing transportation in order that a woman may be debauched, or become a mistress or a concubine from being the execution of purposes within the meaning of this law. To say the contrary would shock the common understanding of what constitutes an immoral purpose when those terms are applied, as here, to sexual relations.” Caminetti v. United States, 1917, 242 U.S. 470, 484-486, 37 S.Ct. 192, 194, 61 L.Ed. 442. “It is argued that the Caminetti decision gave too wide a sweep to the Act; that the Act was designed to cover only the white slave business and related vices; that it was not designed to cover voluntary actions bereft of sex commercialism * * *. In support of that interpretation an exhaustive legislative history is submitted * * *. Prostitution, to be sure, normally suggests sexual relations for hire. But debauchery has no such implied limitation. In common understanding the indulgence which that term suggests may be motivated solely by lust. * * * We do not stop to reexamine the Caminetti case to determine whether the Act was properly applied to the facts there presented. But we adhere to its holding, which has been in force for almost thirty years, that the Act, while primarily aimed at the use of interstate commerce for the purposes of commercialized sex, is not restricted to that end.” (footnotes omitted) Cleveland v. United States, 1946, 329 U.S. 14, 17-18, 67 S.Ct. 13, 14-15, 91 L.Ed. 12. And in Mortensen v. United States, 1944, 322 U.S. 369, p. 375, 64 S.Ct. 1037, p. 1040, 88 L.Ed. 1331, where a conviction was reversed by a bare majority, that majority nevertheless said: “What Congress has outlawed by the Mann Act, however, is the use of interstate commerce as a calculated means for effectuating sexual immorality.” See also Hawkins v. United States, 1958, 358 U.S. 74, 79-80, footnote 9, 79 S.Ct. 136, 3 L.Ed.2d 125, and United States v. Bitty, 1908, 208 U.S. 393, 402, 28 S.Ct. 396, 52 L.Ed. 543. On these holdings alone, and not being presumptuous enough to assume that the scope of the statute today has shrunk in the seventeen years since the Cleveland case was decided, we would feel compelled here to rule against the defense on this issue and to hold that the statute does have valid application to a situation such as that described in the present record. The law in this circuit furthermore is settled. This court, in following what it felt was the lead of the Caminetti case, has viewed the statute broadly and has held it applicable to a private, non-commercial, casual and non-habitual venture of the kind we have here. In Brown v. United States, 8 Cir., 1956, 237 F.2d 281, a case strikingly similar to this one, so far as its pertinent facts are concerned, Judge Sanborn said, p. 283: “The language of Section 2421, Title 18 U.S.C. in our opinion, covers the interstate transportation, without pecuniary motive, of a woman with intent to have illicit relations with her by force or otherwise.” Earlier opinions of this court are to the same effect. Blackstock v. United States, 8 Cir., 1919, 261 F. 150, cert. denied 254 U.S. 634, 41 S.Ct. 8, 65 L.Ed. 449; Carey v. United States, 8 Cir., 1920, 265 F. 515; Christian v. United States, 8 Cir., 1928, 28 F.2d 114; Poindexter v. United States, 8 Cir., 1943, 139 F.2d 158. Every other federal court of appeals has recognized the application of the statute to non-commercial as well as to commercial activity. The defense recognizes the existence of these cases and their established authority. It presses upon us, however, the case of United States v. McClung, E.D.La., 1960, 187 F.Supp. 254, and urges that we reexamine the purposes of the White-Slave Traffic Act. It is true that Judge J. Skelly Wright (now of the Court of Appeals for the District of Columbia) in that case held that the Act did not apply to conduct charged in the indictment there, namely, transportation in interstate commerce of each of two named women “for an immoral purpose, to-wit, for the purpose of engaging in sexual intercourse and other sexual acts with her”. The court emphasized the legislative history of the Act and said that “the only type of immorality intended is that which is habitual”. Whether McClung is to be distinguished on its facts (its indictment’s lack of reference to debauchery; absence of victimization) from the present case, whether the opinion tends to support the defense position here, and whether it contains valid elements of protest against Caminetti and Cleveland and the extension of principles enunciated in those cases, are matters which we need not determine. We are satisfied that Caminetti and Cleveland and the unbroken line of consistent appellate authority leave us no present room for contrary statutory construction irrespective of what this panel’s reactions to this case might be were it one of first impression. We are controlled by the decided cases. If the law in this area is to be changed by judicial decision at this late date, that step is one to be taken by the Supreme Court and not by this inferior federal appellate court. As a last detail on this point, we are not to be persuaded by references to the legislative history of the Act. This perhaps would be of greater moment had that history not been unearthed before. It is clear, however, that it was presented to the Supreme Court in Caminetti, see pp. 474-475, 481, 490, and 497-499 of 242 U.S., pp. 193, 196, and 199-200 of 37 S. Ct., in Cleveland, pp. 17 and 27-28 of 329 U.S., pp. 14 and 19-20 of 67 S.Ct. and in United States v. Beach, 1945, 324 U.S. 193, 65 S.Ct. 602, 89 L.Ed. 865, where the dissent makes much of it. This was noted by the Third Circuit in United States v. Reginelli, supra, p. 597 of 133 F.2d. We hold that the Act is of sufficient breadth to apply to an enterprise of the kind which took place here. This first point, therefore, must be decided adversely to the defense. B. The interstate feature. .As we have already noted, the defense concedes that Reamer knowingly transported Sally from Minnesota to Wisconsin. Yet Sally’s testimony as to where, whether in Minnesota or in Wisconsin, Reamer’s advances to her took place is confused and uncertain. The car was stopped presumably in Wisconsin if Reamer took from Hudson the road east of the St. Croix; it was stopped presumably in Minnesota if he took the road on the west side of the river. And Sally’s testimony is not entirely consistent as to whether intercourse was effected. We think that, so far as the interstate feature is concerned, consummation of intercourse and its Minnesota or Wisconsin situs are of no ultimate legal significance here. What is significant is the knowing transportation of the girl from St. Paul in Minnesota to Hudson in Wisconsin. If the necessary intent is present and there is knowing interstate transportation, it is immaterial whether the immoral act took place or whether there was consummation. Actual fulfillment of the purpose is not necessary. Wilson v. United States, 1914, 232 U.S. 563, 570-571, 34 S.Ct. 347, 58 L.Ed. 728; Cleveland v. United States, supra, p. 20 of 329 U.S. p. 16 of 67 S.Ct.; Batsell v. United States, 8 Cir., 1954, 217 F.2d 257, 261-262; Bell v. United States, 8 Cir., 1958, 251 F.2d 490, 491; United States v. Marks, 7 Cir., 1959, 274 F.2d 15, 18-19. And the fact that the travelers, having crossed a state line, could have returned to the state of origin does not deny the interstate aspect. Batsell v. United States, supra, p. 261 of 217 F.2d. The interstate feature, so far as it is necessary under the statute, was therefore established in this case. C. The defendant’s intent. The statute requires that the transportation be for a purpose specified. Under this indictment, it must be that of debauchery “or any other immoral practice”. This purpose “must be found to-exist before the conclusion of the interstate journey and must be the dominant motive of such interstate movement”. Mortensen v. United States, supra, p. 374 of 322 U.S. p. 1040 of 64 S.Ct.; Hansen v. Haff, 1934, 291 U.S. 559, 563, 54 S.Ct. 494, 78 L.Ed. 968. It must be an “efficient purpose”, albeit one of several, as distinguished from an incidental one. Mellor v. United States, 8 Cir., 1947, 160 F.2d 757, 764, cert. denied 331 U.S. 848, 67 S.Ct. 1734, 91 L.Ed. 1858; Daigle v. United States, 1 Cir., 1950, 181 F.2d 311, 314; Dunn v. United States, 10 Cir., 1951, 190 F.2d 496, 497-498. But Mann Act intent may be inferred from all the circumstances. Shama v. United States, 8 Cir., 1938, 94 F.2d 1, 4, cert. denied 304 U.S. 568, 58 S.Ct. 1037, 82 L.Ed. 1533; Berry v. United States, 8 Cir., 1960, 283 F.2d 465, 466, cert. denied 364 U.S. 934, 81 S.Ct. 380, 5 L.Ed.2d 366. Although this case could be said to be somewhat close, we have no difficulty in concluding that the evidence here is sufficient to support the court’s necessary finding of the requisite intent in Reamer when he drove Sally from St. Paul to Hudson. His use of a false name, not only to Sally, but to her parents; his repeated talk of a movie, coupled with his continuing delay in ever getting started toward one; his awareness from the very beginning that Sally did not drink, had never had an alcoholic beverage, and did not wish to drink; and his being told by her father that she had never dated with a man alone before, support an inference of immoral purpose with respect to Sally even before the couple left St. Paul. His knowledge of her negative drinking habits transforms into a hollow excuse his claim that the purpose of his drive to Wisconsin was to enable her to drink legally in public. The fact that two hours elapsed between their arrival at Hudson and their departure does not compel an adverse finding as to intent; the acquisition of the requisite courage, bolstered by continuing liquor consumption, may have required that much time. The Court’s determination of guilt, entailing, as it must, a finding that Sally’s transportation was for an immoral purpose within the meaning of the Act, has adequate foundation in the evidence. Mr. T. Eugene Thompson of the St. Paul bar was appointed by the district court as counsel for the defendant for both the trial and this appeal. Mr. Thompson has given the defendant vigorous representation and he came to St. Louis at his own expense to present the oral argument. This has prompted us to set forth the facts and law in greater detail than we would ordinarily do in a case of this kind. We are grateful to Mr. Thompson for his assistance. Affirmed. . “That on or about January 20, 1962 in the City of St. Paul, State and District of Minnesota, Third Division, the Defendant GLEN WATSON REAMER did knowingly transport in interstate commerce, to-wit: from St. Paul, Minnesota, to Hudson, Wisconsin, and vicinity, a woman for the purpose of debauchery and other immoral purposes and with the intent and purpose to induce, entice and compel such woman to give herself up to debauchery and to engage in immoral practices; in violation of Title 18 United States Code, Section 2421.” . § 2421. “Whoever knowingly transports in interstate * * * commerce, * * * any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice ; * * * “Shall be fined not more than $5,000 or imprisoned not more than five years, or both.” . Jarabo v. United States, 1 Cir., 1946, 158 F.2d 509, 511; United States v. Pape, 2 Cir., 1944, 144 F.2d 778, 781, cert. denied 323 U.S. 752, 65 S.Ct. 86, 89 L.Ed. 602; United States v. Reginelli, 3 Cir., 1943, 133 F.2d 595, 597, cert. denied 318 U.S. 783, 63 S.Ct. 856, 87 L.Ed. 1150; Sipe v. United States, 1945, 80 U.S.App.D.C. 194, 150 F.2d 984, cert. denied 326 U.S. 788, 66 S.Ct. 473, 90 L.Ed. 478 ; Simon v. United States, 4 Cir., 1944, 145 F.2d 345, 347; Masse v. United States, 5 Cir., 1954, 210 F.2d 418, cert. denied 347 U.S. 962, 74 S.Ct. 711, 98 L.Ed. 1105; Whitt v. United States, 6 Cir., 1959, 261 F.2d 907, 909; United States v. Marks, 7 Cir., 1959, 274 F.2d 15, 18; Ghadiali v. United States, 9 Cir., 1927, 17 F.2d 236, 237, cert. denied 274 U.S. 747, 47 S.Ct. 660, 71 L.Ed. 1328; Long v. United States, 10 Cir., 1947, 160 F.2d 706. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

songer_appel1_1_2

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". Raymond J. FUNKHOUSER’S TRUSTS, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 7922. United States Court of Appeals Fourth Circuit. Argued Nov. 5, 1959. Decided Jan. 14, 1960. Mannes F. Greenberg, Baltimore, Md. (John W. Cable, III, and John S. Me-Daniel, Jr., Baltimore, Md., on the brief), for petitioners. Carolyn R. Just, Atty., Dept, of Justice, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson and Melva M. Graney, Attys., Dept, of Justice Washington, D. C., on the brief), for respondent. Before SOPER and BOREMAN, Circuit Judges, and R. DORSEY WATKINS, District Judge. R. DORSEY WATKINS, District Judge: Question Presented The Commissioner of Internal Revenue (Respondent) held that under the terms of certain trusts created by Raymond J. Funkhouser (hereinafter, Petitioner) $3,000 exclusions were not allowable under the Internal Revenue Code of 1939, 26 U.S.C. § 1003, for each gift to such trusts by Petitioner in the years 1948, 1950, 1951, 1952 and 1953. The Tax Court affirmed. We agree with the result reached by the Tax Court. Position of the Parties Petitioner over the years 1948, 1950, 1951 and 1953 established seventeen separate trusts for his five children and twelve grandchildren. Separate gifts were made to the various trusts in 1948, 1950, 1951, 1952 and 1953. As to each gift and each year, the Commissioner determined that no exclusions were allowable, since they were gifts of future interests. Petitioner and the trustees under sixteen of the various trusts contend that a portion of each gift was of a present interest, namely, the gift to each beneficiary of an interest in trust income. Respondent counters that even were this so, there is no method of valuing such interest or right. The deficiencies claimed relate only to alleged gift tax liability for the years 1952 and 1953. However, the gifts in prior years must be considered, because increases in the taxable amounts of the gifts in prior years will tend to increase the rate of gift tax applicable to 1952 and 1953. The case was tried in the Tax Court entirely upon stipulations. The parties are in agreement that if the Tax Court is in error, none of the petitioners is liable for any gift tax. The parties have further agreed upon the extent of liability if the Tax Court is affirmed. Discussion The trusts created by Petitioner are irrevocable, and are identical in terms except for designation of the respective beneficiaries. Article Fifth contains the critical provisions, which so far as relevant are as follows: “1. For a period ending twenty-one (21) years after the death of the survivor of the Grantor’s children * * * or until the death of the last surviving descendant, if the same shall occur prior to the expiration of said period, the Trustees shall collect the dividends and interest from the trust fund, and * * shall distribute and pay over the same forthwith as follows: “(a) To * * * [the particular named initial income beneficiary] for and during [his or her] life; and after [his or her] death to [his or her] descendants living at the time of each payment in equal shares per stirpes and not per capita.” *##*** “3. Notwithstanding anything herein to the contrary provided, the Trustees are authorized in their absolute discretion from time to time to pay over to or expend on behalf of any person who is an income recipient hereunder at the time, such sum or sums from the principal of the Trust as they shall deem necessary or advisable to provide for any illness or other emergency affecting such person who is an income recipient hereunder at the time or any member of his or her immediate family, or to provide for the care, maintenance, support or education of such person or any member of his or her immediate family.” In each trust the trustees were thus given the absolute discretion to invade to the point of extinction the corpus of the trust, and thus destroy the interest of the initial income beneficiary in income to the extent of such invasion, not merely to provide for “any illness or emergency affecting” any “person who is an income recipient at the time * * * or to provide for the care, maintenance, support or education of such person”; but the same right was given, for the same purposes, with respect to “any member of his or her immediate family.” There is no evidence in the record that the use of corpus for either class was so remote as to be negligible. The Internal Revenue Code of 1939 <26 U.S.C.) provides: “§ 1003. Net gifts. “(a) General definition. The term ‘net gifts’ means the total amount of gifts made during the calendar year, less the deductions provided in section 1004. “(b) Exclusions from gifts. # -x- * -x- * “(3) [as added by Sec. 454 of the Revenue Act of 1942, c. 619, 56 Stat. 953] Gifts after 19 b2. In the case of gifts (other than gifts of future interests in property) made to any person by the donor during the calendar year 1943 and subsequent calendar years, the first $3,000 of such gifts to such person shall not, for the purposes of subsection (a), be included in the total amount of gifts made during such year.” It was conceded that the interests of the beneficiaries in the principal of the trusts were future interests, for which no exclusion is allowed. It was further agreed that the unqualified right to receive income for life or other ascertainable periods is a present interest. But where the taxpayer claims an exclusion of a present interest: “The taxpayer claiming the exclusion must assume the burden of showing that the value of what he claims is other than a future interest * * * ” Commissioner v. Disston, 1945, 325 U.S. 442, 449, 65 S.Ct. 1328, 1331, 89 L.Ed. 1720. The “right” of the income beneficiaries to receive income was dependent upon the existence and amount of a corpus from which the income was to be derived. There was no certainty as to duration, or amount. The corpus of any trust could have been reduced at any time, in any amount (with corresponding reduction of income productivity), not simply for the needs of an income beneficiary but for those of any member of his or her immediate family. Petitioners’ contention that their income interests should be valued as life estates because their interests could only be increased, as distinguished from decreased, by distributions of corpus, is without merit. Under the trusts, no beneficiary had any life interest in the income from any ascertainable amount of corpus. That corpus could be reduced or wiped out at any time. Such reduction or elimination could be on behalf not only of the income beneficiary but of any member of his or her immediate family. Further, to the extent that any distribution (whether directly to or for the income beneficiary or on behalf of a member of his or her immediate family) could be considered an increase in the income beneficiary’s income interest, this would come from corpus, and the gifts of corpus admittedly were gifts of future interests, excluded in valuing the beneficiary’s interest in income when the trust was created. The principles of the decided cases support the foregoing conclusions, and the decision of the Tax Court. In Kniep v. Commissioner, 8 Cir., 1949, 172 F.2d 755, a trust provided for the payment currently to the beneficiaries of the trust income, and a proportionate share of the corpus was to be distributed to each upon arrival at the age of sixty years. The trustees were authorized to use corpus up to $1,000 for the proper maintenance and support of, or to provide against any emergency encountered by, any beneficiary. The court approved the Commissioner’s computation of the present worth of the gifts of income on the basis of a trust corpus reduced by the maximum permitted invasion, saying (at pages 757-758): “ *- * * The argument [of the taxpayer] is that, if article V is to be given any effect in the determination of the amount of exclusions allowable under section 1003(b) (3), the necessary result would be to increase rather than to diminish the present worth of the gifts of present interests. * * * * * * -» * “ * * * The taxpayer has the burden of proving not only his right to the claimed exclusion, but also the amount of it. Commissioner v. Disston, supra, 325 U.S. at page 449, 65 S.Ct. at page 1331, 89 L.Ed. 1720, 158 A.L.R. 166. The insuperable difficulty with which the petitioner is confronted is that it is impossible for him to prove that the principal of the trust estate, and thus the income from it, will not be decreased by the exercise of the discretionary power of invasion granted to the trustees; or to prove the amount by which the principal, upon which the present worth of the right to receive income must be computed, may be reduced by the exercise of the trustees’ power of invasion.” On the contention there made, as here, that any distribution must enlarge the income beneficiary’s interest, the court, said (at page 757): “ * * * the right to receive principal through the power of the trustees to invade it is a future interest * * * ” In Evans v. Commissioner, 3 Cir., 1952, 198 F.2d 435, trust income was currently payable to each child of the donor for life, the trustees being given uncontrolled discretion to use such amount of principal as they deemed necessary for the education, comfort and support of such child, or the spouse or children of such child. The trust also authorized each child after reaching thirty years of age to withdraw principal not exceeding $1,000 each year. Relying upon Sensenbrenner v. Commissioner, 7 Cir., 1943, 134 F.2d 883 and Fisher v. Commissioner, 9 Cir., 1942, 132 F.2d 383, the court denied the claimed exclusions for the right to trust income, saying (198 F.2d at page 437): “In brief, the terms of the present trust may enable us to ascribe a minimum combined value to the present and future interests of each beneficiary. But we ’cannot ascertain their values separately. Neither are we justified, for gift tax purposes, in treating them as if merged into a single present interest. The donor expressly divided the rights of each beneficiary into those of present and those of future enjoyment and must, accordingly, accept the tax consequences of that division.” In Herrmann’s Estate v. Commissioner, 5 Cir., 1956, 235 F.2d 440, the donor had created irrevocable trusts for his minor grandchildren, providing for the distribution of the annual net income, and authorizing the trustee to distribute to each beneficiary any or all of the corpus, to the extent deemed necessary or advisable for the education, maintenance and support of the beneficiary. The trusts were to terminate as to each beneficiary upon reaching the age of twenty-five years. The court pointed out the twofold nature of the transaction; one an interest in income, the other in principal. The gifts of principal were clearly future. Although the requirement to pay income annually was unconditional, the authorized reductions of principal made it impossible to assign a present value to the income interest. The court said (at pages 444-445): “ * * * Where, as here, the trustee is authorized to distribute all or any part of the principal, the distribution, be it little or much, would result in a ratable reduction in the trust income and a proportional reduction in the income producing potential of the trust res. Since it cannot be known, at the creation of the trust, what part, if any, of the trust principal will be distributed, or when, if ever, any principal distributions will be made, there is no basis or formula by which the future interest can be valued, and the taxpayers are unable to meet the burden imposed on them to establish a value.” In La Fortune v. C.I.R., 10 Cir., 1958, 263 F.2d 186, the power of the trustee to terminate the trust at any time the trustee deemed it for the best interest of the beneficiary, and to distribute it to him, was held to make it impossible to value the income interest. Petitioner again advanced the argument that accelerated termination of the trust could not change the size or value of the present right to income. It was again rejected. The court said (at pages 192-194): “The value of a present right to income given in trust is calculated by multiplying the expected annual return by the probable period over which it will be paid. In the case of the 1951-2 gifts the probable period over which the income will be paid is uncertain because the trustee has the discretionary right of termination. An integral element of the formula is unknown. “ * * * Appellants rely on the theory of the Tax Court dissents. It is argued that the accelerated termination of the trust can only have the effect of investing the beneficiary with the title to the corpus and cannot change the size or value of the present right to income. As heretofore noted separate consideration must be given to the gift of the corpus and to the gift of the income. A separate valuation of each is necessary. The theory that the valuation of the right to income is not affected by the circumstance of an accelerated distribution of principal overlooks the difference between income received by an owner as the result of absolute ownership of property and income received by a trust beneficiary as the result of payments to his trustee from the proceeds of trust investments. The two are different in legal contemplation. The possibility of a future merger of the corpus and the right to income does not justify the conclusion that the value of the right to income is the same whether derived from the trust or from ownership because it ignores the distinction between income from ownership and income from a trustee to his beneficiary * * *. •x x x x x x “x x x we conclude that the Tax Court correctly held that the rights to income under the 1951-2 gifts wore incapable of valuation and hence were not subject to the claimed exclusion.” The decision of this court in United .States v. Baker, 4 Cir., 1956, 236 F.2d 317, 319, is not to the contrary. There, trusts were created for the donors’ minor grandchildren, “the net income and principal” to be used for the support, education and benefit of each beneficiary “in such amounts and manner and at such times as shall be in accordance with the needs and best interests of the beneficiary and as if the Trustee herein were holding the properties as Guardian of the beneficiary and making distributions of the properties in that capacity for the needs and benefit of the beneficiary. It is the intention of the Grantor to make, and the Grantor does hereby make, an immediate and present gift to the beneficiary of the use and benefit of the properties.” The trust agreement also provided for distribution of “all properties not used for the aforesaid purposes” to each beneficiary on the twenty-first anniversary of his birth, and further provided that if he should die before that time the trust property should pass as part of the beneficiary’s estate, excluding the donor. The trust agreement was to be construed and the trust estate administered under the laws of North Carolina. The Commissioner disallowed the claimed exclusions on the grounds that the gifts were of future interests. The appellees paid the deficiencies so determined, claims for refunds were filed and denied, and suit was instituted in the district court which entered judgment for the appellees, which judgment was confirmed on appeal. After mentioning that “ [although not controlling, it is of some significance that the donor * * * expressed his intention to make ‘an immediate and present gift to the beneficiary’ ”, this court pointed out that “It was conceded by appellant in argument that an outright gift by a donor to the guardian of a minor would be the gift of a present and not a future interest under the terms of the statute.” The trust agreements not only created no barrier to the present enjoyment by the infants of the trust funds beyond those established by the laws of North Carolina, but in fact removed certain of those barriers, since the trustee, although empowered to deal with the funds as if a guardian, was not, as a guardian would be, under North Carolina law, required’ to secure the approval of any court. “ * * * Here the right of the beneficiaries to present enjoyment of both the corpus and the income is not different from what it would be if the gifts had been made directly to each of them [the infant beneficiaries], or to a guardian for their benefit. There is no magic in mere words. These gifts to a trustee, since they conferred on the beneficiaries the same right to present enjoyment which they would have had if the gifts had been made to a guardian for them, must be judged by the same standard as that applied to gifts made to a guardian.” 236 F.2d at page 320. “We believe that the gifts made by appellees were equivalent to outright gifts by them to the infant beneficiaries * * (236 F.2d at page 321.) The other citations of petitioners have also been considered, but they are likewise inapposite. Where a present right, although based upon a contingency (remarriage of a widow) is actuarially determinable, Du Charme’s Estate v. Commissioner, 6 Cir., 1947, 164 F. 2d 959, Commissioner v. Maresi, 2 Cir., 1946, 156 F.2d 929, such value should be recognized. Newlin v. Commissioner, 31 T.C. 451, decided slightly more than one month before the decision of the Tax Court herein, is not inconsistent with that decision. In the Newlin case, the present interests in income were terminable only with the consent of the trustees and all living beneficiaries. This veto power was, understandably, held to justify treating the life income interests as susceptible of valuation. For the foregoing reasons, the decisions of the Tax Court are Affirmed. . T. C. Memo. 1958-222 (Harron, J.). . The parties so agree, in view of Commissioner v. Disston, 1945, 325 U.S. 442, 446, 449, 65 S.Ct. 1328, 89 L.Ed. 1720. . It is therefore not necessary to consider the fact that the 1948 gifts were reported under 26 U.S.C. § 1000(f) as made one-half by petitioner and one-half by his wife. The underlying principle would not. in any event be affected. . The stipulation contains computations of the “Value of the right to receive income for life from and after December 30,1950, from property of stated value.” (Emphasis supplied). . Our problem and function is not to reconcile, criticize or review all decisions of the Tax Court, but only to determine the validity, vel non, of the particular decision under review. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:

songer_appel1_1_2

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". MARKOWITZ BROTHERS, INC., a Corporation, and Continental Casualty Co., Appellants, v. FOX-GREENWALD SHEET METAL CO., Inc., a Corporation, Appellee. No. 20900. United States Court of Appeals District of Columbia Circuit. Argued Jan. 26, 1968. Decided June 25, 1968. Mr. Charles C. Hartman, Jr., Annapolis, Md., with whom Messrs. Kahl K. Spriggs and Mark P. Friedlander, Washington, D. C., were on the brief, for appellants. Messrs. Mark P. Friedlander, Jr., Blaine P. Friedlander, Washington, D. C., Harry P. Friedlander, Marshall H. Brooks, Arlington, Va., and John F. Myers, Washington, D. C., also entered appearances for appellants. Mr. Fred C. Sacks, Washington, D. C., for appellee. Before Bazelon, Chief Judge, and McGowan and Robinson, Circuit Judges. PER CURIAM: Fox-Greenwald Sheet Metal Co., Inc., obtained a jury verdict of $103,458.91 in the District Court against Markowitz Brothers, Inc., and Continental Casualty Company for money due on unpaid requisitions resulting from work allegedly performed by Fox-Greenwald under a sub-contract with Markowitz. Marko-witz and Continental, upon this appeal, assert the failure of Fox-Greenwald to establish liability as a substantive matter, as well as error in the conduct of the trial. We leave the jury’s verdict undisturbed. Under the contractual arrangements formulated for this construction project, Fox-Greenwald submitted requisitions for work completed to Markowitz; Markowitz thereupon . included these amounts in its monthly requisitions to Blake, the prime contractor; and, subsequent to receiving payments of its requisitions from Blake, it paid Fox-Green-wald. Pursuant to this plan, the work and payments proceeded relatively well until December of 1963. In this month, Markowitz, while submitting the full amount of Fox-Greenwald’s requisition in its requisition to Blake, remitted to Fox-Greenwald only part of the amount claimed by it, and failed to pay anything on Fox-Greenwald’s January requisition. Fox-Greenwald’s effort to collect what it considered due and owing proved unavailing, and it instituted this suit. During an eight-day trial both parties presented an abundance of testimony and exhibits relating to the amount of work satisfactorily performed. After comprehensive closing arguments, the jury was instructed that it had to decide: (1) whether any amount was due Fox-Green-wald for work performed prior to the termination of the contract on February 15, 1964, and (2) if Markowitz had received from Blake money for the benefit of Fox-Greenwald which it had not paid over to the latter. As we view the case, the primary issue is appellant’s contention that the jury verdict is insupportable because it exceeded the amount that Blake paid Markowitz. Although the presentation of evidence in this- case is marked by considerable confusion, as is also its treatment in appellant brief and argument, our own examination of the record leaves us unpersuaded that it was inadequate. From a procedural standpoint, appellants were afforded their day in court. Every possible circumstance which arose during the Markowitz-Fox-Greenwald relationship was permitted to be explored, and appellants had a full and fair opportunity to convince the jury that no sum of money was due Fox-Greenwald, and that Blake had not paid Markowitz in any event. More specifically, during closing arguments appellants’ counsel referred to a blackboard on which appeared all the relevant figures relied upon to show that no money was owing. Obviously the jury, in deliberating seven hours, thoroughly considered the positions of the parties. The thoroughness of the jury’s consideration of the case is supported by the fact that the jury, during deliberation, requested and obtained: (1) the figures placed on the blackboard by appellants, (2) Markowitz’s statement to the Bonding Company, giving the percentage figures of completion of the project as of December 31, 1963, (3) witnesses’ statements relating to the overall completion of the project and (4) Blake’s checks to Markowitz. We find no error necessitating the imposition upon an already over-extended District Court of the reenactment of this lengthy proceeding in which the full opportunity afforded to illuminate the issues succeeded, as often as not, only in obscuring them. Affirmed. . Continental is a party because Marko-witz had secured a payment bond from it. . Markowitz had entered into a sub-contract with Blake Construction Company, which had contracted with the United States Government to construct buildings of the National Bureau of Standards at Gaithersburg, Maryland, to perform the plumbing, heating, and air conditioning. Markowitz, in turn, sub-subcontracted the “sheetmetal” portion of its work to Fox-Greenwald. . The contract involved was dated July 20, 1962, but was not executed until October 1962 when Fox-Greenwald commenced working on the project. . Although Markowitz included the full amount of Fox-Greenwald’s requisition in its requisition to Blake, it attached a note stating it had not approved Fox-Green-wald’s requisition. When Blake did not pay the full amount of Markowitz’s requisition, Markowitz apparently apportioned all of this reduction to Fox-Green-wald. During the trial a Blake representative testified that none of the cut related to Fox-Greenwald’s work. . Although Blake did not remit any cash to Markowitz for its January requisition, there was some testimony to the effect that Markowitz had earlier over-requisitioned and Blake credited Markowitz’s account accordingly. . Appellants also claim that the District Court erred when it (1) decided as a matter of law that Fox-Greenwald did not have to prove it met certain contractual conditions precedent in order to be entitled to be paid for work performed, and (2) limited the instruction of the jury to the issue of money due and owing for work performed. We reject both of these claims. With regard to the first, we do not think this has any bearing on the issue of money had and received by one party for work performed by another which was the non-contractual theory upon which the court, with the explicit assent of all parties, received evidence and submitted the case to the jury. On appeal, appellants argue that such assent was not given by them, but the record is clearly to the contrary. As to the instruction argument, appellants’ trial counsel understood what issue was to be submitted to the jury and he tendered no proposed instructions. One other issue raised by appellants is that the judge erred when he refused to incorporate any specfic figures in his instructions. We do not think that this was error because counsel had ample opportunity to present and explain the figures to the jurv Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:

songer_r_fed

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. HARRIS et al. v. COMMISSIONER OF INTERNAL REVENUE. No. 5841. United States Court of Appeals Fourth Circuit. April 8, 1949. Stanley Worth, of Washington, D. C. (Blair, Komer, Doyle & Appel, of Washington, D. C., on the brief), for petitioner. Sumner M. Redstone Sp. Asst. to Atty. Gen. (Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack and L. W. Post, Sp. Asst. to Atty. Gen., on the brief), for respondent. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PER CURIAM. The main question in this proceeding to review the decision of the Tax Court is whether the Commissioner of Internal Revenue has met the burden resting upon him to prove that the taxpayers, Frank Harris and Victoria Harris, his wife, fraudulently reported less net income than they actually received in certain years between 1934 and 1942 The Tax Court held in favor of the Commissioner for deficiencies and penalties for the years 1934, 1936-37, 1939, and 1941-2, amounting in the aggregate to $7690.84. The taxpayers pleaded the statute of limitations as to- all years before 1941, and showed that in the absence of fraud, Section 6 of the Current Tax Payment Act of 1943, 57 Stat. 126, 145, 26 U.S.C.A. § 1622 note, prevented the assessment of any deficiency for 1942. The Commissioner took the position that neither defense could properly be made, since the taxpayers filed false and fraudulent returns for the years in question. Section 1112 of the Internal Revenue Code, 26 U.S.C.A. § 1112, provides that “in any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax, the burden of proof in respect of such issue shall be upon the Commissioner.” In order to meet this burden, the revenue agents endeavored to show the taxpayer’s net income for each of the years in question by comparing his net worth at the beginning and end of the year. They adopted this method because the taxpayer refused to cooperate with them in their investigation and because he denied that he had any books and records from which his gross income for each year and the allowable deductions therefrom could be ascertained. The taxpayer owns about 400 acres of farm land in North Carolina, some 250 of which are under cultivation. At the time of the trial below in October, 1947, he was 72 years of age, and after 1940, because of ill health, he rented his farms to sharecroppers. Besides feed and products for home consumption, he -raised tobacco-, his principal crop, and some cotton for sale. His only other source of income consisted of interest on United States Government bonds and on mortgage loans, all o'f which were recorded. He and his family live with -extreme simplicity in a small farmhouse with no telephone, heating plant, or other conveniences except lights; they rarely go to town and have never seen a motion picture, or gone on a vacation. They raise practically all- their food, and their living expenses are relatively negligible. The taxpayer reads and writes with great difficulty, and has never kept any record of his business transactions. Besides the recording of his mortgages, the only record with respect to them is the notation on the mortgage notes themselves of payments of interest and principal. At the close of each year, the taxpayer collected his tobacco and cotton bills (statements issued by a warehouse as selling agent, concerning the particulars of the sales), and his receipts evidencing disbursements, and with the help of his daughter-in-law, prepared a summary which was generally the result of three to five hours’ work. Some expenses had to- be estimated and the taxpayer conceded that it was impossible to be certain that he reported all the income he should have. He testified, however, that he conscientiously tried to report his income accurately, and intended to pay all the tax that was due. The summary thus prepared was turned over to taxpayer’s accountant, who prepared the returns. Neither taxpayer’s daughter-in-law nor his accountant had any independent knowledge of the accuracy of the items in the summary. The number and variety o!f the activities and investments from which the taxpayer derived his income, and his failure to keep records of his transactions, made it impossible for the government to state his annual income with complete accuracy. Yet there are certain outstanding facts, supported by the proof, which strongly indicate that he was wilfully and deliberately, that is, fraudulently misstating his taxable income during the period under investigation. It is true that he was deficient in those , capacities that make for accurate accounting, but he was prudent and canny-enough to amass a considerable fortune in the business world -so that at the end of the period hi-s net worth was substantially greater than it was at the beginning. This fact cannot be denied, even though the estimate of the Tax Court that he was worth some $80,000 more in 1942 than in 1934 may be disputed. Definite proof of deliberate understatement of income is found in the tax returns in respect to the item of interest which the taxpayer received from his investments in government securities and farm mortgages, and which is not open to dispute. The evidence indicates that during the period the taxpayer owned $30,000 in Government bonds on which the income approximated $975 annually; and also 6 per cent, mortgage notes which, according to evidence produced by the taxpayer, varied in amount during the tax years from $20,000 to $30,000. To these amounts should be added interest on bank accounts (at a rate not disclosed) which ranged from $10,000 in 1934 to $55,000 in 1941. Yet he reported his income from interest to be only $208.73 in 1934, $500 in 1938, $600 in 1941, $941.67 in 1942 and nothing in other years. The following statement from the court’s opinion is well substantiated by the proof: “Whatever doubts may surround the amount of entire-net income, the evidence adduced is conclusive that petitioner has owned United States Government bonds of a face value of $30,000 since prior to 1934, and the annual interest on these bonds was about $975 — slightly more before exchanges for new issues in 1934 and 1935. The record is convincing that during all of the taxable years petitioner held 6 percent mortgage notes in aggregate face amounts ranging from $19,888 in 1938 to $31,545 in 1937 and in addition, interest-bearing bank accounts ranging from $10,000 in 1934 to over $55,000 in 1941, on which the rate of interest is not indicated. We have noted above that petitioner’s bonds and mortgages ■should have produced annually at least $2,375. It is certain that the interest from Government bonds was about $975 annually. Nonetheless petitioner reported as interest received $207.93 in 1934, $500 in 1938, $600 in 1941 and $941.67 in 1942. Of the last amount $300 only was described as interest on Government obligations. He reported no interest at all in other years. The assertion of mere forgetfulness can not be credited in a professional lender who has operated profitably for many years. We believe that these omissions were intentional and fraudulent.” This statement demonstrates that the Commissioner has borne the burden of proof to show fraud on the part of the taxpayer, especially when the persistent recurrence of the understatement of interest in each of the years in the nine year period is considered. It also renders unnecessary a consideration of the taxpayer’s contention that the authorities hold that a net worth statement may be resorted to to measure the unreported income of a taxpayer only if there has been a prior showing by extraneous evidence of a gross misstatement of income. Calafato v. Commissioner, 42 B.T.A. 881, affirmed, 3 Cir., 124 F.2d 187; Hoefle v. Commissioner of Internal Revenue, 6 Cir., 114 F.2d 713. Since fraud has been established, it remains to consider whether there was sufficient evidence to support the Tax Court’s decision that deficiencies in tax and penalties were due; and it must be borne in mind that in this posture of the case the burden is upon the taxpayer to overcome the presumption that the Commissioner’s determinations are correct. Snell Isle, Inc., v. Commissioner, 5 Cir., 90 F.2d 481; Rogers v. Commissioner, 6 Cir., 111 F.2d 987; Greenfeld v. Commissioner, 4 Cir., 165 F.2d 318; Leonard Willits, 36 B.T.A. 294. The investigation was fraught with difficulty and the taxpayer was able to demonstrate that there were errors in the Commissioner’s calculations with the result that the court found that the aggregate net taxable income for the years in question was $58,807.45 rather than $123,450.15 as the Commissioner had found, and that the aggregate deficiencies and penalties found by the Commissioner to be $24,569.42 should be reduced to $7,690.84. Originally the Tax Court admitted in evidence over the taxpayer’s objection an exhibit prepared by a revenue agent which was based upon facts and figures taken from bank records of the taxpayer’s deposits and withdrawals, and from the land records showing his title to the farms and mortgages, and in part consisted of the agent’s own estimate of property values. The supporting documents for this calculation, however, were not offered or produced in evidence and the exhibit was clearly inadmissible. We think, however, that the error was harmless because the court did not accept the agent’s calculations but eliminated from consideration calculations which were shown to be erroneous, and confined itself to the amount of the mortgages shown by the taxpayer’s own evidence, and an examination of the bank deposits and withdrawals which were admitted by the taxpayer to be correct. For example, there was error in the Commissioner’s original statement of the amount of government bonds owned by the taxpayer; and since the evidence showed that the amount held by him did not vary materially during the period, they were omitted from the calculations of net worth. Again, it was not possible from the land records to ascertain the value of the lands, buildings and equipment, but, as the evidence indicated only slight variation in these items during the period, they were also eliminated. Depreciation, which was not itself a large item, was eliminated, but as an offset the living expenses of the family estimated to run from $1,000 to $1,500 per year were also eliminated. The taxpayer points out that an element of uncertainty and conjecture remains in the final determinations, and this criticism is not without foundation. The Government agents did not attempt to check the sales records of the agents who disposed of the farm products from which a substantial part of the taxpayer’s income was derived, although such an investigation might have been made. Moreover, it was not always possible to trace with complete accuracy the source of the deposits or the disposition of the withdrawals, since the taxpayer failed to produce any checks or other records. The Government, however, made an earnest effort to identify the transactions and in one year, 1936, when the final figures indicated an increase of net worth of $24,362.40, the court treated only one-half thereof, or $12,181.20, as net income, since the former amount seemed abnormally large and the evidence indicated somewhat vaguely that the taxpayer had been engaged in trading in real estate and hence the great increase in the bank balance was probably attributable to the deposit of the proceeds of sale. Notwithstanding the uncertainty and lack of precision which necessarily pervade the calculations on which the Tax Court’s determinations are based, we do not feel justified in setting them aside. It is admitted that the taxpayer’s income, aside from interest on government bonds, was derived entirely from sales of farm products and from mortgage loans, and hence the possibility that the notable increase in his bank deposits was derived from unknown sources is minimized. In addition, it is of importance that the comparison of the taxpayer’s net worth at the beginning and end of the year was not confined to a single year but was repeated over a series of years so that the chance of error is thereby lessened. Most important, of course, is the failure or refusal of the taxpayer to produce any records or to render such assistance to the court, although represented by able counsel, as would enable it to make its findings with accuracy and precision. Under such circumstances, approximation in the calculation of net income is justified. See Helvering v. Safe Deposit Co., 316 U.S. 56, 66-67, 62 S.Ct. 925, 86 L.Ed. 1266, 139 A.L.R. 1513; Cohan v. Commissioner, 2 Cir., 39 F.2d 540, 543. The following statement from the Tax Court’s opinion seems to us to be fully justified : “In considering the evidence we have been constantly mindful of petitioner’s handicap of illiteracy and of credible testimony that he enjoys a reputation for commercial integrity in his community. But as petitioner has been ¡successful in his financial operations with individuals, we can not credit his statement that the amounts of principal and interest due to him are unrecorded or forgotten. He has evidently conducted his loan business with care. He owes to the Government an equal care in accounting for his profits from it, and having failed to account ¡for most of his receipts, we find that his returns for 1934, 1936, 1937 . . ., 193-9, 1941 and 1942 were false and fraudulent with intent to evade tax and sustain imposition of the 50 per cent penalty for fraud. Because of ¡fraud the income tax for 1942 is not forgiven. Section 6, Current Tax Payment Act of 1943.” Affirmed. 1942 was the only year in issue in which Frank Harris, hereinafter called the taxpayer, filed a joint return with Iris wife, and the Tax Court therefore properly dismissed the case against her except as to that year. Since, as taxpayer testified, it was his custom to bank all'his funds as he received them except for a negligible amount he kept in a safe deposit box, there is little danger that the increases in bank deposits during the years in question reflect anything other than increases in current income. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:

songer_respond1_1_4

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant. McGLOTHAN v. PENNSYLVANIA R. CO. No. 9594. United States Court of Appeals Third Circuit. Argued June 8, 1948. Decided Sept. 14, 1948. Owen B. Rhoads, of Philadelphia Pa. (H. Francis De Lone and Barnes, Dechert, Price, Smith & Clark, all of Philadelphia, Pa., on the brief), for appellant. Donald J. Farage, of Philadelphia, Pa. (B. Nathaniel Richter, and Richter, Lord & Farage, all of Philadelphia, Pa., on the brief), for appellee. Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges. KALODNER, Circuit Judge. This action to recover damages for the death of Edna Hawkins was brought by her representative under the provisions of the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. A verdict was returned in the amount of $10,000, but the court below granted to the defendant a partial new trial on an issue not pertinent here, and at the same time rejected its arguments for a full new trial or, in the alternative, for judgment in accordance with its motion for directed verdict. 72 F.Supp. 176. This appeal followed the disposition, contrary to the interest of the defendant, of the partial new trial. 74 F.Supp. 808. The defendant asserts that it is entitled to a retrial of the case because the court below erred in (1) instructing the jury on the evidence with respect to the existence of a reasonably safe footway, and denying the defendant’s request for charge on that issue; (2) excluding evidence relating to the marital status of decedent and her husband; and (3) allowing interest from the date of the judgment entered upon the verdict, rather than from the date of the order following the disposition of the partial new trial. The issue first raised by the defendant does not encompass the full scope of its alleged liability for. negligence, but rather one phase of the case against it. Accordingly, the necessary statement of the evidence is considerably narrowed. Edna Hawkins suffered her fatal injuries on December 27, 1944, while in the defendant’s employ as a switch oiler on its tracks in the immediate vicinity of the Girard Avenue-Forty-Fourth Street Bridge, in Philadelphia. Eight tracks, running in an east-west direction, pass under this bridge, some being separated by the concrete bridge supports or abutments, as they were referred to in the court below. A plan, introduced in evidence, assigns names to these tracks, which, for convenience, will be used here, and discloses their relation to each other and to the abutments. Reading from north to south, the plan is as follows: “Jersey,” abutment, “Westward,” “Eastward,” abutment “Cut,” “Departure,” abutment, “No. 2 Freight,” abutment, “Outward Passenger,” and “Inward Passenger.” A few minutes prior to the accident the decedent was given instructions, at a point east of the east side of the bridge, to oil the “No. 28 switch.” That meant that she was to oil a switch on the “Eastward” track about ten feet east of the east side of the bridge, and another switch on the same track about ten feet west of the west side of the bridge. It is thus obvious that at some time she had to pass under the bridge, there being no evidence of any other means of getting from one side to the other. Although there was no direct evidence that the decedent was trying to get from one side of the bridge to the other, the fact is that she was crushed to death just within the east side of the bridge between an engine moving west on the “Eastward” track and the abutment to the south of it. It is conceded, as it must be, that there is no sufficient clearance for a person to stand or walk under the bridge between an engine on the “Eastward” track and the abutment to the south of it. There was evidence, adduced by the defendant, however, of clearances north of the “Westward” track, between the “Departure” track and the abutment to the south of it, and between the “No. 2 Freight” track and the abutment to the north of it. The defendant’s evidence also disclosed that the decedent had no duties that would take her to the “No. 2 Freight” track or those to the south of it, the “Outward Passenger” and the “Inward Passenger.” These latter three tracks, according to the testimony, are high speed “main” lines, whereas the others in the group are “yard” tracks on which traffic operated at a reduced speed not exceeding 15 MPH. Moreover, one of the defendant’s witnesses stated that the designated pathway under the bridge was south of the “Departure” track, and that decedent might have been subject to discipline if she were found along the “main” lines. Another of the defendant’s witnesses, however, testified that he had given the decedent her instructions when she first took over the job of switch oiler, and his testimony affords the inference that he had instructed her to use a clearance north of the “Westbound” tracks. With this evidential background, the defendant requested a charge to the jury as follows: “In considering the question of negligence on the part of the defendant you may take into consideration the evidence that the decedent had no duties to perform under the bridge; that her duties were to be performed at points either east or west of the bridge and beyond the abutments and that the defendant furnished her a reasonably safe passageway from one point to the other.” This request was refused, but in the course of his instructions to the jury, the learned trial judge said: “The testimony, as I recollect it, was that Mrs. Hawkins, or Mrs. Smith, as she was known by the railroad company, was to perform her services on tracks which were beyond the tracks over which there has been some evidence offered that she could have crossed and then went through and under the bridge by what they called a sort of footway, as it were, a clearance. But you must bear in mind that the evidence discloses that her work was on the tracks in the opposite direction, and the tracks that she imtst cross in order to get to this clearance, to go under the bridge, were tracks over which were operated trains at a high rate of speed. It will be for you to determine whether under those circumstances she should cross those tracks to get to that footpath or clearance and go under the bridge, or whether it was the reasonably safe thing for her to go through the bridge where the yard trains were operated at a reduced speed.” (Emphasis defendant’s). We do not think it was error to deny the quoted request for charge. Plainly, the decedent had a duty to be under the bridge at some time. Considering the position of the switches on which she was to work, it is plain, too, that she would have had to cross tracks to reach a “reasonably safe” pathway, if there was one, or follow the “Eastward” track, along which she met her misfortune. It was for the jury to measure the risks involved, and to determine the extent, if any, to which the decedent was contributorily negligent, since the statute under which the action is brought provides for recovery where the defendant is wholly or partially at fault. 45 U.S.C.A. § 51. Whether there was a reasonably safe footway depended, among other things, on the position of the decedent with respect to the pathways, the scope of her work and the area ip which she was permitted to operate, her previous experience, and the instructions given to her. Nevertheless, it is patent that the charge as rendered was erroneous, for the evidence was undeniably misstated. The learned trial judge did not consider the error to have been prejudicial, 72 F.Supp., at page 181, and concluded that, “in any event, a new trial is not merited.” We are thus to determine whether the misstatements in the charge substantially prejudiced the defendant’s case. Although the jury was forewarned that it was the sole judge of the facts, and that its recollection of the evidence was controlling, nonetheless it would not readily conclude that the court erred. Especially is this true where, despite the previous allocation to the jury of its particular function, the court, at the time the error was called to its attention, insisted upon the correctness of its statement, instead of referring the doubt to the conceded trier of the facts. In our opinion, the statement of the testimony by the trial court could serve only to confuse the jury on a prime factual issue. And at the same time, the statement fails to comply with the elemental principle that it ought not to be one-sided. As held in Sperber v. Connecticut Mut. Life Ins. Co., 8 Cir., 1944, 140 F.2d 2, 5, certiorari denied, 321 U.S. 798, 64 S.Ct. 939, 88 L.Ed. 1087: “The problem here is not that of a judge commenting upon or stating an opinion about the evidence. The situation is that the Court in summarizing an important aspect of the evidence * * * outlined the evidence favoring appellees and, when requested to cover the same aspect where favorable to appellant, omitted to do so. “While a federal trial court is not at all required to state his recollection of the evidence with nice exactitude for both sides, yet, if such summary is made, it must be fair to both sides to the extent that it is not so one-sided or so warped that it must be regarded as prejudicial to one side in its effect upon the jury.” The case at bar is thus immediately distinguished from Zurich v. Wehr, 3 Cir., 1947, 163 F.2d 791, 793. We think our summary of the evidence indicates with sufficient clarity the shortcomings of the statement quoted. That statement narrowed the several possibilities suggested by the evidence in defendant’s favor for the decedent’s safe passage under the bridge. The question left to the jury, whether the decedent should have crossed the high speed lines, or risked the inadequate passage along the “Eastward” track, where she met her death, forbode an inevitable answer that the defendant had failed to furnish her a “reasonably safe” transitway through the bridge tunnels. Not only was the jury misinformed as to the tracks which the decedent would have to cross, but also as to the nature of the traffic she could expect to encounter on those tracks. In this wise, too, the court,, albeit unintentionally, eliminated the possible safe passage suggested by the evidence along the south of the “Departure” track, or, at least, confused it with the passage along the north of the “No. 2 Freight” track. The statement that the decedent had “no duties on those tracks” further added to the confusion, for it would be as well applicable whether the tracks were high speed or not. The importance' of the issue is certainly to be considered in assessing the prejudicial effect of trial error. Here, the issue is one which alone could support the jury’s, decision that the defendant was guilty of negligence which contributed to the death of Edna Hawkins. Coupling the statement in the charge with the further statement of the Court at the time of the defendant’s objection thereto, it is clear that the jury was left with a mistaken and misleading impression of the evidence in the case, and as well with respect to its force and direction. We are of the opinion, therefore, that the error was prejudicial to the defendant and that a new trial must be ordered. The defendant’s second point complains, as already noted, of the rejection by the trial judge of evidence relating to the marital status of the decedent and her husband, Benjamin Hawkins. By this evidence the defendant sought both to attack Hawkins’ credibility on cross-examination, and, as part of its own case, to affect the damages for the decedent’s death. Independent of the purpose of the evidence, we have also a question, whether certain Veterans’ Administration (“VA”) tecords pertaining to Hawkins were available to the defendant in view of a statute characterizing such records as “confidential and privileged.” The decedent’s husband was the only one of her surviving relatives as to whom evidence of pecuniary loss was adduced. It was the aim of the plaintiff to show that Hawkins, by reason of disabilities sustained by him while in the armed service in time of war, would be dependent upon the decedent for support. As part of his •case, following the evidence relating to the accident, plaintiff put on the stand a representative of the VA who had with him, in accordance with the demands of a subpoena caused to be issued by the plaintiff, Hawkins’ VA file. From this file, evidence was adduced relating to Hawkins’ physical •condition. When plaintiff put Hawkins on the stand, he testified on direct examination, •in effect that he and the decedent were on good terms. The defendant was permitted Jo cross-examine Hawkins on this issue on the basis of the statements made by him in the “Induction Report” which was part of his VA file. According to this document, Hawkins had reported on May 29, 1942, that he was separated from his wife and that her specific address in Philadelphia was unknown to him. It also disclosed that Hawkins had named his mother as the nearest relative to be notified in case of emergency, had made her his beneficiary for allotment purposes, and his sister as alternate beneficiary. The plaintiff’s objection to this line of examination as irrelevant, and not affecting the decedent’s legal obligation to contribute to Hawkins’ support, was overruled on the specific ground that it was an attack upon Hawkins’ credibility. For the sole purpose of mitigating damages, the defendant sought to include the Induction Report as part of its own case. This, too, was permitted. Later, the defendant sought to adduce additional evidence respecting the marital status, but by then the trial judge had concluded that it was irrelevant and rejected it. In the course of his charge, the trial court ruled that the the jury could not consider the issue of the marital status or the VA records in connection therewith. The views of the learned trial judge on this issue are fully stated in his opinion disposing of the defendant’s motions. It is sufficient to state here, by way of summary, that the evidence with which we are now concerned was excluded because (1) there was no issue of past non-support, since Hawkins’ need for support did not arise until after decedent’s death; (2) the evidence was merely indicative of a lack of interest on the part of decedent toward Hawkins, and whether that feeling would continue in view of Hawkins’ need was too speculative to have any bearing on the issue ®f probable non-support; and (3) the evidence fell short of destroying the marital duty of the decedent and could not be admitted as indicating a probable termination of the relation or duty in the future. It was also concluded that the evidence was inadmissible on the issue of Hawkins’ credibility since if was collateral and not useful for any purpose independent of the contradiction. These arguments are adopted in toto by the plaintiff, and in addition, it is urged, presumably to bring the case within the decision of this Court in Dow v. Carnegie-Illinois Steel Corp., 3 Cir., 1948, 165 F.2d 777, that the evidence was too remote. We are at once brought into a phase of the law explored in Dow v. CarnegieIllinois Steel Corp., supra. Parenthetically, it may be noted that the learned trial judge could not have had this decision before him at the time he made the rulings complained of. The actual holding of the Dow case, however, does not encompass the problem of the case at bar; in that case there had been a reconciliation, and the fact that divorce action had been instituted and terminated years before the reconciliation did not permit an inference of such a “disposition on the part of the husband to withhold funds which he might otherwise have given his wife if he had lived.” But as we stated in the Dow case: “An examination of the authorities demonstrates that there are no clear signs as to what evidence respecting marital happiness or unhappiness may or may not be admissible. * * * Under almost all other conceivable circumstances, however, recovery has been allowed by some courts though aggravated conditions or causes of separation between husband and wife have served to mitigate damages. While it may be doubted that the human mind, whether empaneled in a jury box or not, can cast up with any degree of accuracy degrees of domestic bliss or marital unhappiness in terms of money, this is the course upon which our law, whether federal or State, has projected itself, and we may not now turn it into a new and perhaps more profitable direction.” 165 F.2d at page 780. It is a singular feature of the instant case that the absence of past support from the decedent to Hawkins could carry no weight because the obligation to support is reversed and the facts effectuating the decedent’s alleged obligation did not begin to operate until after the husband had been discharged from the Army. By that time, of course, the decedent had met her death. We think, nevertheless, that evidence of an existing separation, or evidence of a separation commencing prior to the decedent’s death and affording a reasonable inference of continuing to that point, is under the circumstances both relevant and material in mitigation of damages. Cf. Fogarty v. Northern Pac. R. Co., 1915, 85 Wash. 90, 147 P. 652, L.R.A.1916C, 803; Gilliam v. Southern R. Co., 1917, 108 S.C. 195, 93 S.E. 865. Such evidence, it is true, would not be adequate to deprive the husband of all benefits under the Act. Southern Ry. Co. v. Miller, 4 Cir., 1920, 267 F. 376, 381. Nor would it be sufficient to justify an inference that the decedent was not obligated, under the laws of Pennsylvania, to contribute to her husband’s support, or the inference that that obligation would soon come to an end. But the question for the jury was how much would the decedent have contributed to her disabled husband. To that end, the jury was instructed to determine “the amount that she (decedent) would give or contribute toward the maintenance of Mr. Hawkins” after considering “her earning power, which would be that, the length of time she would live, the regularity of her employment, the amount in this case that would be required to maintain herself.” That the evidence would not affect the reasonableness of Hawkins’ expectancy of support, in view of the local law, is not decisive. For at least it had a bearing on the jury’s determination of the amount which the decedent might be expected to contribute over and above any amount which she might be compelled to furnish by virtue of the operation of the local law. The case of Dunbar v. Charleston & W. C. R. Co., C.C.Ga.1911, 186 F. 175, upon which the plaintiff puts some reliance, is distinguishable for the dual reason that the court assumed that the separation was merely temporary, and the holding of the case was merely that the separation did not affect the right to recover damages. The defendant does not contend here that the separation, if it existed, should operate to cut off the right to damages, but only that the evidence was worthy of consideration in mitigation of damages. We conclude, accordingly, that rejection of the evidence relating to the marital status of the decedent and her husband was erroneous, and also that, in removing from the jury’s consideration an element affecting damages, the error was prejudicial. It follows, too, that since the evidence was relevant, and since Hawkins had testified on direct examination on the issue of his marital status, the defendant was entitled to cross-examine him on that score and to test his credibility. But the plaintiff asserts that in so doing the defendant was not entitled to use portions of Hawkins’ VA file other than that which the plaintiff himself had used. In fact, as already noted, the defendant used Hawkins’ Induction Report both to attack Hawkins’ credibility and as part of its own case in mitigation of damages. The statute and VA Regulations upon which the plaintiff bases his claim of privilege are set out in the margin. The first attempt of the defendant to use the Induction Report was in cross-examination of the VA representative. At that time, the plaintiff’s objection, that it was beyond the scope of the direct examination, was sustained. As stated, the defendant again sought to use the Induction Report in its cross-examination of Hawkins. The plaintiff’s objection, that the information was irrelevant, was overruled; Hawkins identified the Report and his signature, the Report was marked as an Exhibit, and the information therein was made known to the jury through the cross-examination. Thereafter, the defendant made the VA representative its own witness, as part of its case, and limited questions to identification of the Report. During this brief direct examination, the VA representative stated that if it was necessary that the document “be submitted as identification,” he was not permitted to release it from the folder. This statement apparently was in obedience to the Regulation, § 1.315(b), that “Where original records are produced they must remain at all times in the custody of a representative of the Veterans’ Administration * * The direct examination ended, the plaintiff stated that he did not wish to cross-examine. It was then that the Court asked the VA representative whether the “paper” was confidential, and how it came to be released. Stating that it was confidential, the representative added, “These reports, it was merely released for inspection here. The folder of Mr. Hawkins was subpoenaed into Court, so that both counsel would be permitted to examine anything in the folder. For instance, your Honor, where a man has made application for a pension and we do not have his records, we send to Washington for his records and then after those records come back we rate him, and all of those folders are placed and kept very securely in an envelope by itself and they remain part of the records for the rest of his life.” Following this answer, the Court suggested to the defendant that the document be permitted to remain in the file, and agreed to allow the defendant to read the pertinent portions to- the jury “with the same force and effect as though the exhibit were attached to the record.” Before the reading began, however, the plaintiff, for the first time in the case, objected on the ground that “it is a confidential communication, and by statute of the United States it is not admissible except of pro tanto as it is released.” The objection was overruled, and after the reading to the jury, the document was submitted to it for inspection. The records and files of the various governmental departments and agencies are frequently the subject of statutes and regulations enshrouding them with the cloak of confidence and privilege. Such statutes, as might be expected, differ widely, as do the Regulations. Whether the instant statute accords a privilege in the records to the individual concerned as well as to the government does not expressly appear. Cf. Harris v. Walsh, 1922, 51 App.DC. 167, 277 F. 569; Federal Life Ins. Co. v. Holod, D.C.M.D.Pa.1940, 30 F. Supp. 713. The legislative history does suggest, however, that some consideration for the desire of the individual was entertained. But that suggestion leaves in doubt whether it was merely the aim of the legislators to make confidential the files held by the governmental agency because they concerned “a chapter of some man’s life history,” granting a license to the claimant to authorize release of such information, or whether the object was to create a privilege running to the veteran as protection for communications made to the government which might otherwise have been withheld. Such an inquiry is unnecessary here, for by express provision of the applicable statute the VA files are shorn of their “confidential and privileged” overdress when those records are “required by process of a United States court to be produced in any suit or proceeding therein pending.” (Emphasis supplied.) Insofar as there exists a governmental policy of secrecy, therefore, it has been waived to that extent. And it would appear that, in accordance with its Regulations, the VA had expressly exercised its discretion to release the records of Hawkins, the VA representative declaring, “The folder of Mr. Hawkins was subpoenaed into Court, so that both counsel would be permitted to examine anything in the folder.” We cannot assume that these records were not properly produced by the VA. Cf. Flannery v. Flannery Bolt Co., 3 Cir., 1939, 108 F.2d 531, 534, 535. It is patent, from the recitation of the circumstances, that plaintiff’s objection was designed to take exception to the VA records on whatever privilege he could claim. But the plaintiff, who was in point of fact acting for Hawkins, subpoenaed the file. Aside from the doubt that the privilege running to Hawkins was thus destroyed, it is significant that the objection to the Induction Report on the ground of privilege was not raised at the time the defendant used the Report to cross-examine Hawkins. And the Report was then so used that in truth, if not formally, it was in evidence, the information contained therein having been made available to the jury. Again, the plaintiff permitted the defendant to establish the identity of the Report. It was not until the VA representative stated that he was not permitted to physically relinquish the document, and the court ascertained the basis of this refusal, that the plaintiff first raised the issue of confidence and privilege. Under the particular facts, we believe that whatever privilege Hawkins had to keep the file out of the case was waived by him. The assertion of such a privilege must be timely to be effective. In so holding, we add that the court below did not exclude the Induction Report from the case on any ground of privilege, but rather because the information sought to be included in the record was irrelevant. We add, too, out of an abundance of caution, that we do not here hold that the VA files pertaining to veterans may be summarily brought out into the open in any private litigation. The answer, we think, depends upon the particular facts of the case, and upon the ruling of the VA as well. On the view we have taken, it becomes unnecessary to consider the defendant’s final point relating to interest on the judgment Accordingly, for the reasons stated, the judgment will be reversed and the cause remanded for further proceedings not inconsistent herewith. The verdict was returned on November 20, 19-16, and judgment entered that day. The partial new trial was granted on June 4, 1947, to determine the capacity of the “representative” to sue, and was disposed of, without jury, on December 18, 1947, 74 F.Supp. 808. The order thereon, entered January 7, 1948, directed that judgment for the plaintiff be entered in the amount of $10,000.00 with costs, and interest from November 20, 1946. Shortly after the accident, the decedent’s “tools,” a broom and a pail, -wore found on the west side of the bridge. Apparently she had left them there while she walked to the east side for her instractions. At least such an inference is permissible, there being no evidence that her “tools” had been moved. The engine was facing east, but moving backwards. The names of the tracks are for reference only and, according te one witness, these tracks carried traffic in both directions. Decedent held the position as switch oiler for two weeks prior to the accident. “Mr. Rhoads: Then, if Your Honor please, I would like to take exception to that portion of the charge where you were referring to her work being distant from the safe passageway and saying that there was evidence of trains passing on the departure and cutting tracks, which are the two tracks at high speed. If Your Honor please, the evidence, I believe, was that her duties included those tracks and the east and west bound— “The Court: No, sir, it was very clear in my mind about that. “Mr. Rhoads: There was ample clearance on the east and west bound tracks, also. “The Court: The evidence is quite clear, Mr. Rhoads, that she had no duties on those tracks.” The complaint stated that the death of Edna Hawkins resulted in damage to “her husband, Benjamin Hawkins, and a number of brothers and sisters.” His testimony was that the decedent gave him a “going away” party on May 28, 1942, the day before he entered the Army; that they corresponded regularly until the decedent died; and that by correspondence they had planned to buy a home when he came out of the service. He stated that he knew her address, and on cross-examination admitted that they had had a falling out sometime in 1938, but that a reconciliation had taken place. He could not account for the statements in his induction paper that her address was unknown and that they were separated at the time the paper was signed by him, on May 29, 1942. He accounted for the fact that he had made his mother eligible for his allotment by stating that ho and his wife agreed that since she was working she would not need it. The offers were as follows: (1) Application signed by “Edna Louise Smith” for participation in the defendant’s relief fund making her sister beneficiary, bearing the statement “Benjamin (Separated)”, and dated January 5, 1943; (2) defendant’s check pursuant to that application to the order of her sister, dated February 8, 1945; (3) withholding exemption certificate dated June 9, 1943, signed by “Edna L. Smith” on which was checked the statement “Single person (not head of a family) or married person not living with husband or wife (not head of a family)”; (4) a card from defendant’s files showing that the decedent was carried on defendant’s records under the name of “Smith, Edna Louise (Mrs.)”; (5) two papers acknowledging receipt of copies of safety rules dated January 5, 1943, and May 5, 1943, signed “Edna L. Smith” and “Edna Louise Smith” respectively; (6) a form known to the defendant as “CER-1” dated January 5, 1943, signed “Mrs. Edna Louise Smith”; and (7) testimony of a witness that the decedent was known to the defendant and was carried on its records as Smith, rather than Hawkins. It may be noted that in the part of the case relating to the manner in which the decedent sustained her injuries, there was evidence that she was known to her fellow employees by the name of Smith. The instruction was: “Yon will recall the induction record that was produced here by the Veterans Bureau. The record was passed among yourselves and I observed that you read it tery carefully. On that record there was allegedly a reply to a question asked to the effect of ‘Are you married?’ and ‘Are you living with your wife?’ and the answer was ‘Separated’. You will totally disregard that from this case. That question does not exist here. It is not properly in the case.” 62 P.S. § 1973. See also Commonwealth ex rel. Killmaier v. Hermann, 1930, 93 Pa.Super. 135; Department of Public Assistance v. Heinbaugh, 1942, 45 Pa.Dist. & Co. 38; Department of Public Assistance v. Palmer, 1942, 45 Pa. Dist. & Co. 590. June 7, 1924, c. 320, § 30, 43 Stafc 615, as amended, 38 U.S.C.A. § 456, which, insofar as here pertinent, reads: “All files, records, reports, and other papers and documents pertaining to any claim for the benefits of the provisions of this chapter, whether pending or adjudicated, shall be deemed confidential and privileged and no disclosure thereof shall be made except as follows: “(a) To a claimant or his duly authorized representative, as to matters concerning himself alone, when in the judgment of the Administrator of Veterans’ Affairs such disclosure would not be injurious to the physical or mental health of the claimant; “(b) Where required by the process of a United States Court to be produced in any suit or proceeding therein pending; or when such production is deemed by tbo Administrator of Veterans’ Affairs to be necessary in any suit or proceeding brought under the provisions of this chapter; * * The Regulations of the VA, 38 C.F.R., Part 1, insofar as here pertinent read: “ § 1.315. Judicial Proceedings Generally. “(b) Where the process of a United States court requires the production of documents or records (or copies thereof) contained in the Veterans’ Administration file of a claimant, such documents or records (or copies) will be produced in the court out of which process has issued. Where original records are produced they must remain at all times in the custody of a representative of the Veterans’ Administration and if offered of received in evidence permission should be obtained to substitute a copy so that the original may remain intact in the file. Where the subpoena is issued on praecipe of a party litigant other than the United States such party litigant must prepay the cost of copies in accordance with fees prescribed by § 1.328 and any other costs incident to production.” See 8 Wigmore on Evidence (3rd ed. 1940) §§ 2377-2379, and notes thereto. See also, Boske v. Comingore, 1900, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846 (distillery reports to collector of internal revenue); Harris v. Walsh, 1922, 51 App.D.C. 167, 277 F. 569, and Federal Life Ins. Co. v. Holod, D.C.M.D.Pa.1940, 30 F.Supp. 713 (Selective Service records) ; Ex parte Sackett, 9 Cir., 1935, 74 F.2d 922 (Department of Justice records) ; In re Grove, 3 Cir., 1910, 180 F. 62, and Firth Sterling Steel Co. v. Bethlehem Steel, Co., D.C.E.D.Pa.1912, 199 F. 353, and United States v. Haugen, D.C.Wash.1944, 58 F.Supp. 436 (Military secrets); Crosby v. Pacific S. S. lines, 9 Cir., 1943, 133 F.2d 470 (foreign government communications); and United States v. Beekman, 2 Cir., 1946, 155 F.2d 580 (O.P.A. files). Of these, all except the Haugen and Beekman cases involved private litigation in which the governmental department or agency was not a party. See 8 Wigmore on Evidence, op. cit. supra, §§ 2377-2378a, and notes thereto.' Congressional Record, 68th Cong. 1st Sess. (1924), p. 11011: Mr. Johnson: “We have made the files of the Veterans’ Bureau confidential. Some members of the House might think they would not have authority to go into those files; but if there is any patient of the Veterans’ Bureau who desires any Member of the House or Senate or anyone else to go into his case for him, all he has to do is to write a letter conferring that authority.” Mr. Johnson: “I think it (permission to examine) would be refused, and I think it ought to be refused, unless he can show that he represents the claimant. In other words, you have there the military records of thousands of men. Each military record contains a chapter of some man’s life history. “It contains the medical testimony that touches his life during the war and those records should not be open to inspection to everyone.” “This provision was inserted only to prevent unauthorized persons from the inspection of records.” Mr. Chindbloom: “Will not the gentleman concur in the opinion that a letter from an ex-serviceman, or from a member of his family, addressed to a Member of Congress, ought to be considered as authority, even under the provisions proposed?” Mr. Johnson: “Unless that letter was written by a member of his family for the purpose of interfering in some civil suit; then I would say no.” Mr. Chindbloom: “Certainly. The gentlemen’s modification is absolutely correct.” Cf. 26 U.S.C.A. § 55(a) (2), relating to income tax returns. See 8 Wigmore on Evidence, op. cit. supra, §§ 2374 and 2377. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". What subcategory of business best describes this litigant? A. railroad B. boat, shipping C. shipping freight, UPS, flying tigers D. airline E. truck, armored cars F. other G. unclear Answer:

songer_genresp1

C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. MELODY MUSIC, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. No. 18857. United States Court of Appeals District of Columbia Circuit. Argued Jan. 14, 1965. Decided April 8, 1965. Mr. Marcus Cohn, Washington, D. C., with whom Messrs. Paul Dobin and Stanley S. Neustadt, Washington, D. C., were on the brief, for appellant. Mr. John Conlin, Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, Gen. Counsel, and Daniel R. Ohlbaum, Deputy Gen. Counsel, Federal Communications Commission, were on the brief, for appellee. Mr. Howard Jay Braun, Counsel, Federal Communications Commission, also entered an appearance for appellee. Before Bazelon, Chief Judge, and Fahy and Weight, Circuit Judges. BAZELON, Chief Judge: The Federal Communications Commission refused to renew appellant’s license to operate WGMA, a standard radio broadcast station in Hollywood, Florida. Appellant’s only shareholders, Daniel En-right and Jack Barry, produced television quiz shows prior to 1960 in which some contestants were secretly given assistance in answering questions. The hearing examiner stated that Enright and Barry “have engaged in activities relating to television quiz programs which are censurable and [which] * * * reflect adversely upon their character qualifications to be a licensee of a radio station. However * * * such activities do not constitute an absolute disqualification. * * The examiner found, as mitigating factors, that WGMA had provided “outstanding service,” and that Enright and Barry had violated no law or express Commission policy when they conducted the deceptive programs, though Congress has since amended the Communications Act to forbid such practices. The examiner further stated: “[S] imple justice requires that Barry and Enright’s conduct be considered in the light of the then-existing circumstances. Certainly the networks which broadcast these then highly rated programs had both network and licensee responsibility, since the programs in question were broadcast over their own stations, as well as over those of their affiliates. “From the evidence, it appears that, at least, the higher echelons of the networks were not aware of the use of such controls. It is, however, equally evident that there had been public exposés which would appear likely to alert persons with a desire to know the facts * * * and to cause real investigations to be made * * *. [A]s was pointed out to the vice president and general attorney of NBC by at least two members of the congressional committee [which investigated these practices in 1960], it was singular indeed that no suspicion had been aroused * * On the basis of these findings, the examiner recommended license renewaL On April 15, 1964, the Commission reversed the examiner, because Enright and Barry “lack the requisite character qualification to be licensees” on the ground that their “prolonged deception practiced upon the television viewing public * * * is so patently and flagrantly contrary to the public interest as to warrant, without more, the denial of an application for renewal * * The Commission also found that Enright and Barry had attempted “to discourage and to frustrate” initial investigations by a New York City grand jury and by network officials. Appellant petitioned the Commission to reconsider its decision and to consolidate oral argument with pending applications for renewal of operating licenses by the National Broadcasting Company, the network which carried, and for a time owned, the quiz shows produced by En-right and Barry. Alternatively appellant asked the Commission to vacate its decision and withhold further decisions until it had decided the NBC case. It appears that before the Commission’s initial decision in the present case, the hearing examiner in the NBC case rendered his opinion, stating in pertinent part: “NBC contends that it was duped, and that it acted promptly to protect the public interest as soon as it determined what was going on. * * * The manner in which NBC reacted when the revelations inescapably broke upon it shows how clearly it was recognized inside the company that the trickery of its quiz shows was on the wrong side of the line separating downright dishonesty from the permissible make-believe of show business. The record urges the judgment that so long as there was no danger of disclosure to threaten audience acceptance of the shows, NBC turned its back on the evidence that the quiz programs might be counterfeit, and acted finally only when it was compelled by the growing tide of public dissatisfaction and by the threat posed in the aroused interest of various public agencies. Clearly, any disposition to frame conduct not according to ordinary morality and public requirements but in response to business necessities, and which shuns misconduct only because of the risks in discovery, is a substantial discredit.” The examiner concluded, however, that this discredit was counterbalanced by “the record of the network” in broadcasting, and that its role in the deceptive quiz shows thus did not disqualify it from holding broadcast licenses. On July 24, 1964, while the NBC proceedings were still pending, the Commission denied appellant’s request for reconsideration in conjunction with the NBC applications on the ground that “no useful purpose would be served.” One week later, on July 30, 1964, the Commission granted several license renewals to NBC without any mention of the network’s role in the deceptive quiz shows. We think the Commission’s refusal at least to explain its différent treatment of appellant and NBC was error. Both were connected with the deceptive practices and their renewal applications were considered by the Commission at virtually the same time. Yet one was held disqualified and the other was not. Moreover, while in other cases the Commission found that criminal violations of antitrust laws were not sufficient character disqualifications to bar license renewals, in the present case it found noncriminal conduct sufficient. The Commission stated, “Obviously, misconduct of the nature here involved in the broadcast field is necessarily in a somewhat different category [from criminal antitrust violations] and, on the facts of this case, of a most serious consequence.” Without intimating any opinion as to whether any of the misconduct discussed here is “in a somewhat different category” from appellant’s, we think the differences are not so “obvious” as to remove the need for explanation. And whether there are differences may be a question of decisional importance. Moreover, “the Commission has not explained its decision ‘with the simplicity and clearness through which a halting impression ripens into reasonable certitude. In the end we are left to spell out, to argue, to choose between conflicting inferences. * * * We must know what a decision means before the duty becomes ours to say whether it is right or wrong.’ ” Secretary of Agriculture v. United States, 347 U.S. 645, 654, 74 S.Ct. 826, 832, 98 L.Ed. 1015 (1954). We therefore remand this case for further proceedings. The Commission should reconsider appellant’s application in accordance with the purposes of this remand. Whatever action the Commission takes on remand, it must explain its reasons and do more than enumerate factual differences, if any, between appellant and the other cases; it must explain the. relevance of those differences to the purposes of the Federal Communications Act. So ordered. . Section 509, Federal Communications Act, 47 U.S.C. § 509 (Supp. V, 1964). . In re Applications of Nat’l Broadcasting Co., Docket Nos. 13085, 14091-92, 14054-56, initial decision of Hearing Examiner, released Nov. 20, 1963. . Following oral argument before this court, counsel for the Oommission submitted a memorandum stating that “no formal findings as to the network’s lack of knowledge or participation in the shows had been publicly made” by the Oommission. . Any inconsistency here may not be explained as a ehange in policy or correction of a previously erroneous ruling since the cases were decided contemporaneously. Compare Federal Communications Comm’n v. WOKO, 329 U.S. 223, 67 S.Ct. 213, 91 L.Ed. 204 (1946); Leedom v. International Brotherhood of Elec. Wkrs., 107 U.S.App.D.C. 357, 278 F.2d 237 (1960); Shawmut Ass’n v. Securities & Exchange Comm’n, 146 F.2d 791 (1st Cir. 1945); Feinstein & Co. v. United States, 317 F.2d 509 (2d Cir. 1963); Lanolin Plus Cosmetics v. Marzall, 90 U.S.App.D.C. 349, 196 F.2d 591 (1952). . General Electric Company, 2 Pike & Fischer R.R.2d 1038 (1964); Westinghouse Broadcasting Co., 22 Pike & Fischer R.R. 1023 (1962). . Compare Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Hornsby v. Allen, 326 F.2d 605, 330 F.2d 55 (5th Cir. 1964); Mary Carter Paint Co. v. Federal Trade Comm’n, 333 F.2d 654 (5th Cir. 1964). . See Sunbeam Television Corp. v. Federal Communications Comm’n, 100 U.S.App.D.C. 82, 243 F.2d 26 (1957), where the case was remanded to the Commission because of its apparent failure to apply consistent standards in a comparative hearing for a broadcast license. See also Secretary of Agriculture v. United States, supra; Carter Mountain Transmission Corp. v. Federal Communications Comm’n, 116 U.S.App.D.C. 93, 321 F.2d 359 (1963). 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_counsel1

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Leslie Stilman WIGAND, Appellant, v. J. C. TAYLOR, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee. No. 6560. United States Court of Appeals Tenth Circuit. Dec. 23, 1960. Roy Cook, Kansas City, Kan., for appellant. James C. Waller, Jr., Major, JAGC, Office of Judge Advocate General, Washington, D. C., (Wilbur G. Leonard, U. S. Atty., Topeka, Kan., and Alden Lowell Doud, First Lieutenant, JAGC, Office of Judge Advocate General, Washington, D. C., with him on the brief), for appellee. Before BRATTON, PICKETT and BREITENSTEIN, Circuit Judges. PICKETT, Circuit Judge. The petitioner, while on active duty with the United States Army in Germany, was tried and convicted in two courts-martial proceedings in each of which the crime of rape was charged, together with other offenses committed in connection with rape. The two sentences totaled 50 years, which the petitioner is now serving at the United States Penitentiary at Leavenworth, Kansas. The trials were reviewed as required by Article 66 of the Uniform Code of Military Justice, 10 U.S.C. § 866. In this habeas corpus proceeding it is contended that the failure to consolidate the charges for trial as provided for in Paragraph 30f of the Manual for Courts-Martial, United States, 1951, invalidates the second sentence, and that the prisoner is now entitled to his release. This is an appeal from a judgment of the District Court dismissing the petition and remanding the petitioner to the custody of the Warden. Briefly, the facts are these. On July 22, 1953 the petitioner, with an unknown accomplice, assaulted and raped a German girl near the town of Oberbernbach, Germany. On the 23rd of August, 1953, the petitioner, with two other American soldiers, made a similar attack upon another German girl at Box-burg, Germany. On September 28, 1953, a general court-martial was convened at Goeppingen, Germany to try the petitioner and his confederates for the offense of August 23rd. Upon conviction each of the three defendants was sentenced to 20 years confinement at hard labor. On February 8, 1954 a general court-martial was convened at Augsburg, Germany to try the petitioner for the offenses of July 22nd. Upon conviction he was sentenced to be confined at hard labor for a term of 30 years. No contention is made that the petitioner was not represented by qualified counsel during the two trials or throughout the appellate proceedings which followed his convictions. Likewise, no contention is made that the military tribunals which tried the appellant were improperly constituted or lacked jurisdiction over the offenses charged. We find no merit in the claim that the failure to consolidate the trial of the two offenses violated any fundamental right of the petitioner which is subject to review by a civil court. As a general rule, a review of a court-martial conviction in a civil court is limited to an inquiry as to whether the tribunal had jurisdiction over the person and the offense charged, and acted within its lawful powers. Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691 ; In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636; Sutiles v. Davis, 10 Cir., 215 F.2d 760, certiorari denied 348 U.S. 903, 75 S.Ct. 228, 99 L.Ed. 709; Easley v. Hunter, 10 Cir., 209 F.2d 483. In Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508, it was said: “In military habeas corpus cases, even more than in ^tate habeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings — of the fair determinations of the military tribunals after all military remedies have been exhausted. Congress has provided that these determinations are ‘final’ and ‘binding’ upon all courts. We have held before that this does not displace the civil courts’ jurisdiction over an application for habeas corpus from the military prisoner. Gusik v. Schilder, 340 U.S. 128 [71 S.Ct. 149, 95 L.Ed. 146] (1950) * * * (Footnote omitted.) The Court was careful to point out that -the military courts have the same responsibility as the federal courts to protect an accused from a violation of his ■Constitutional rights. But when the military court has fairly dealt with the ■question involving Constitutional guarantees, the Court concluded that “it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence.” In the present case, the error •complained of is not one which affects fundamental rights of the petitioner. 'The consolidation suggested in Paragraph 30 f of the Manual for Courts-Martial is a procedural matter, and is qualified by Paragraph 33 l, which provides in -part that “offenses charged against different accused which are not closely related should not be tried in a common trial, notwithstanding the fact that some other offenses with which each accused is charged may be closely related.” Under Paragraph 33 l, the charges arising out of the first rape were not subject to consolidation in a common trial of the petitioner and his co-defendants for the charges arising out of the second rape. In this event, the same paragraph further provides that “the convening authority may exercise his discretion in determining the order in which such charges shall be tried.” An abuse of this discretion is subject to correction in the military courts, but the procedural question is not reviewable in a habeas corpus proceeding in the civil courts. Casey v. Taylor, 10 Cir., 281 F.2d 549. Furthermore, the record does not disclose that the question was presented to the military courts. It may not be raised for the first time in a habeas corpus proceeding Bennett v. Davis, 10 Cir., 267 F.2d 15; Thomas v. Davis, 10 Cir., 249 F.2d 232, certiorari denied 355 U.S. 927, 78 S.Ct. 385, 2 L.Ed.2d 358; Suttles v. Davis, supra. Affirmed. . Paragraph 30f, Manual for Courts-Martial, United States, 1951, provides: “f. Subject to jurisdictional limitations, charges against an accused, if tried at all, should be tried at a single trial by the lowest court that has power to adjudge an appropriate and adequate punishment. See 33h and 1.” . Petitioner’s accomplice in this offense was never apprehended. . In Easley v. Hunter, 10 Cir., 209 F.2d 483, 487, we said: “The court held that from an examination of the record the questions presented in the habeas corpus action had been fully and fairly considered and decided by the reviewing authorities provided for in the procedure for courts-martial and could not be retried in the civil courts. In other words, as we understand the Burns decision, it does no more than hold that a military court must consider questions relating to the guarantees afforded an accused by the Constitution and when this is done, the civil courts will not review its action.” Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

songer_casetyp1_1-3-2

R

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 - state offense". Charles PURCILLA and Timothy McLEAN, Appellants, v. William H. BANNAN, Warden, State Prison of Southern Michigan, Appellee. No. 13541. United States Court of Appeals Sixth Circuit. Nov. 3. 1958. Flach Douglas, Cincinnati, Ohio, for appellants. Paul Adams, Atty. Gen., Samuel J. Torina, Sol. Gen., Lansing, Mich., for appellee. Before MARTIN and MILLER, Circuit Judges, and JONES, District Judge. PER CURIAM. This cause has been heard and considered on appeal by two convicts from the denial of a petition for writ of habeas corpus filed by them. Having duly considered the briefs and oral arguments and the record in the cause, conclusion has been reached that the dismissal of the petition for writ of habeas corpus by the district court was correct, for the reasons stated by United States District Judge Thornton in his carefully prepared and detailed opinion. The judgment of the district court is affirmed. Question: What is the specific issue in the case within the general category of "criminal - state offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other state crimes R. state offense, but specific crime not ascertained Answer:

sc_respondent

028

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. UNITED STATES v. ALASKA No. 73-1888. Argued April 16, 1975 — Decided June 23, 1975 Deputy Solicitor General Randolph argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Johnson, Gerald P. Norton, Bruce C. Rashkow, and Edward F. Bradley. Charles K. Cranston and Thomas M. Phillips argued the cause and filed a brief for respondent. Mr. Justice Blackmun delivered the opinion of the Court. The issue here is whether the body of water known as Cook Inlet is a historic bay. The inlet extends northeastward well over 150 miles into the Alaskan land mass, with Kenai Peninsula to the southeast and the Chigmit Mountains to the northwest. The city of Anchorage is near the head of the inlet. The upper, or inner portion, of the inlet is not in dispute, for that part is conceded to be inland waters subject to Alaska’s sovereignty. If the inlet is a historic bay, the State of Alaska possesses sovereignty over the land beneath the waters of the lower, or seaward, portion of the inlet. If the inlet is not a historic bay, the United States, as against the State, has paramount rights to the subsurface lands in question. I In early 1967 the State of Alaska offered 2,500 acres of submerged lands in lower Cook Inlet for a competitive oil and gas lease sale. The tract in question is more •than three geographical miles from the shore of the inlet and is seaward more than three miles from a line across the inlet at Kalgin Island, where the headlands are about 24 miles apart, as contrasted with 47 miles at the natural entrance at Cape Douglas. In the view of the United States, the Kalgin Island line marks the limit of the portion of the inlet that qualifies as inland waters. The United States, contending that the lower inlet constitutes high seas, brought suit in the United States District Court for the District of Alaska to quiet title and for injunctive relief against the State.' Alaska defended on the ground that the inlet, in its entirety, was within the accepted definition of a “historic bay” and thus constituted inland waters properly subject to state sovereignty. Alaska prevailed in the District Court. 352 F. Supp. 815 (1972). The United States Court of Appeals for the Ninth Circuit affirmed with a per curiam opinion. 497 F. 2d 1155 (1974). We granted certiorari because of the importance of the litigation and because the case presented a substantial question concerning the proof necessary to establish a body of water as a historic bay. 419 U. S. 1045 (1974). II State sovereignty over submerged lands rests on the Submerged Lands Act of 1953, 67 Stat. 29, 43 U. S. C. §§ 1301-1315. By this Act, Congress effectively confirmed to the States the ownership of submerged lands within three miles of their coastlines. See United States v. Maine, 420 U. S. 515 (1975). “Coast line” was defined in terms not only of land but, as well, of “the seaward limit of inland waters.” The term “inland waters” was left undefined. In United States v. California, 381 U. S. 139, 161-167 (1965), the Court concluded that the definitions provided in the Convention on the Territorial Sea and the Contiguous Zone, [1964] 2 U. S. T. 1606, T. I. A. S. No. 5639, should be adopted for purposes of the Submerged Lands Act. See also United States v. Louisiana (Louisiana Boundary Case), 394 U. S. 11, 35 (1969). Under Art. 7 of the Convention, and particularly ¶¶ 5 and 6 thereof, a bay with natural entrance points separated by more than 24 miles is considered as inland water only if it is a “historic” bay. Since the distance between the natural entrance points to Cook Inlet is greatly in excess of 24 miles, the parties agree that Alaska must demonstrate that the inlet is a historic bay in order successfully to claim sovereignty over its lower waters and the land beneath those waters. The term “historic bay” is not defined in the Convention. The Court, however, has stated that in order to establish that a body of water is a historic bay, a coastal nation must have “traditionally asserted and maintained dominion with the acquiescence of foreign nations.” United States v. California, 381 U. S., at 172. Furthermore, the Court appears to have accepted the general view that at least three factors are significant in the determination of historic bay status: (1) the claiming nation must have exercised authority over the area; (2) that exercise must have been continuous; and (3) foreign states must have acquiesced in the exercise of authority. Louisiana Boundary Case, 394 U. S., at 75 and 23-24, n. 27. These were the general guidelines for the District Court and for the Court of Appeals in the present case. Ill The District Court divided its findings on the exercise of authority over lower Cook Inlet into three time periods, namely, that of Russian sovereignty, that of United States sovereignty, and that of Alaskan statehood. We discuss these in turn. A The evidence that Russia exercised authority over lower Cook Inlet as inland waters is understandably sparse. The District Court, nonetheless, concluded that “Russia exercised sovereignty over the disputed area of Cook Inlet.” The court based this conclusion on three findings. First, by the early 1800’s there were four Russian settlements on the shores of Cook Inlet. Second, about 1786, an attempt by an English vessel to enter the inlet drew a volley of cannon fire from a Russian fur trader in the vicinity of Port Graham. Third, in 1821, Tsar Alexander I issued a ukase that purported to exclude all foreign vessels from the waters within 100 miles of the Alaska coast. S. Exec. Doc. No. 106, 50th Cong., 2d Sess., 204-205 (1889). We feel that none of these facts, as found by the District Court, demonstrate the exercise of authority essential to the establishment of a historic bay. The presence of early Russian settlements on the shores of Cook Inlet certainly demonstrates the existence of a claim to the land, but it gives little indication of the authority Russia may have exerted over the vast expanse of waters that constitutes the inlet. The incident of the fur trader’s firing on an English vessel near Port Graham might be some evidence of a claim of sovereignty over the waters involved, but the act appears to be that of a private citizen rather than of a government official. In the absence of some evidence that the trader was acting with governmental authority, the incident is entitled to little legal significance. Moreover, under the then-common Cannon Shot Rule, the firing of cannon from shore was wholly consistent with the present position of the United States that the inland waters of Alaska near Port Graham are to be measured by the three-mile limit. Finally, the imperial ukase of 1821 is clearly inadequate as a demonstration of Russian authority over the waters of Cook Inlet because shortly after it had been issued the ukase was unequivocally withdrawn in the face of vigorous protests from the United States and England. B In reviewing the period of United States sovereignty over the, Territory of Alaska, the District Court found that there had been five separate instances in which the Federal Government had exercised authority over all the waters of Cook Inlet. Pet. for Cert. 26a-37a. 1. Revised Statutes § 1956 (1878). Soon after Alaska was ceded to the United States, Congress prohibited the killing of sea otter and other fur-bearing animals “within the limits of said territory, or in the waters thereof.” Act of July 27, 1868, 15 Stat. 241, codified as Rev. Stat. § 1956 (1878). By itself, the statutory language does not indicate whether the waters of lower Cook Inlet were encompassed within the limits of Alaska “territory, or in the waters thereof.” The District Court, however, found that in 1892 and 1893 five American vessels were boarded more than three miles from shore in the lower inlet by United States revenue officials investigating possible violations of § 1956. From these boardings the District Court concluded that the statutory prohibition was enforced throughout Cook Inlet. 2. The Alien Fishing Act of 1906. This Act, 34 Stat. 263, prohibited noncitizens of the United States from fishing by commercial methods “in any of the waters of Alaska under the jurisdiction of the United States.” Once again, the bare language of the statute fails to reveal the extent to which the prohibition applied to the waters of lower Cook Inlet. There is no evidence in the record and no findings by the District Court of any instance in which the Alien Fishing Act was enforced in the waters of Cook Inlet. 3. Executive Order No. 3752. In 1922 President Harding issued an Executive Order creating the Southwesterly Alaska Fisheries Reservation. Exec. Order No. 3752 (Nov. 3, 1922); 2 App. 676. The Order subjected all commercial fishing within the reservation to substantial regulation. See Regulations for the Administration of the Southwestern Alaska Fisheries Reservation, Department of Commerce Circular No. 251, pp. 8-9 (9th ed., Jan. 9, 1923); 2 App. 678-679. The reservation was described in the Order by a series of straight baselines to encompass a substantial expanse of waters, and the regulations promulgated pursuant to the Order by Secretary of Commerce Hoover referred to and embraced “all the shores and waters of Cook Inlet.” 4. The White Act. In 1924 Congress passed “An Act For the protection of the fisheries of Alaska, and for other purposes,” otherwise known as the White Act. C. 272,43 Stat. 464. This authorized the Secretary of Commerce to “set apart and reserve fishing areas in any of the waters of Alaska over which the United States has jurisdiction.” Ibid. The Act subjected commercial fishing within the reserved waters to such regulations as the Secretary might issue. From that time until Alaska statehood, the regulations of the Secretary defined the waters set aside pursuant to the Act to include all the waters of Cook Inlet. The District Court found that there had been several instances of enforcement of fishing regulations against American vessels more than three miles from shore in lower Cook Inlet. 5. The Gharrett-Scudder line. In 1957 representatives of Canada and of the United States met to discuss the possibility of prohibiting citizens of the two countries from fishing with nets for salmon in international waters in the North Pacific. The delegates generally agreed that the line used by the United States for enforcing fishing regulations under the White Act and related statutes would be used to delimit “offshore waters” for purposes of the joint salmon fishing limitations. Since the Canadian delegates felt that the description of the closing lines connecting headlands in the Alaska fishery regulations were not definitive, they requested a map showing the American line with greater precision. Two United States Bureau of Fisheries employees, John T. Gharrett and Henry Clay Scudder, prepared a chart of the Alaska coast with a line reflecting the boundaries in the then-current United States fishery regulations. This so-called Gharrett-Scudder line enclosed all the waters of Cook Inlet. Charts reflecting the line were transmitted to the Canadian delegates. It is undisputed that the exact location of the Gharrett-Scudder line was determined primarily with reference to the needs of fishery management. The maps were forwarded by the Bureau of Fisheries to the State Department for transmittal to the Canadian delegates with express disclaimers that the line was intended to bear any relationship to the territorial waters of the United States in a legal sense. Based on the facts summarized above, the District Court concluded that the United States had exercised authority over the waters of lower Cook Inlet continuously from the Treaty of Cession in 1867 until Alaska statehood. The District Court, of course, was clearly correct insofar as it found that the United States had exercised jurisdiction over lower Cook Inlet during the territorial period for the purpose of fish and wildlife management. It is far from clear, however, that the District Court was correct in concluding that the fact of enforcement of fish and wildlife regulations was legally sufficient to demonstrate the type of authority that must be exercised to establish title to a historic bay. In determining whether the enforcement of fish and wildlife management regulations in Cook Inlet was an exercise of authority sufficient to establish title to that body of water as a historic bay, it is necessary to recall the threefold division of the sea recognized in international law. As the Court stated in the Louisiana Boundary Case: “Under generally accepted principles of international law, the navigable sea is divided into three zones, distinguished by the nature of the control which the contiguous nation can exercise over them. Nearest to the nation's shores are its inland, or internal waters. These are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory, and the coastal nation has the privilege even to exclude foreign vessels altogether. Beyond the inland waters, and measured from their seaward edge, is a belt known as the marginal, or territorial, sea. Within it the coastal nation may exercise extensive control but cannot deny the right of innocent passage to foreign nations. Outside the territorial sea are the high seas, which are international waters not subject to the dominion of any single nation.” 394 TJ. S., at 22-23 (footnotes omitted). We also recognized in the Louisiana Boundary Case that the exercise of authority necessary to establish historic title must be commensurate in scope with the nature of the title claimed. There the State of Louisiana argued that the exercise of jurisdiction over certain coastal waters for purposes of regulating navigation had given rise to historic title over the waters in question as inland waters. Since the navigation rules in question had allowed the innocent passage of foreign vessels, a characteristic of territorial seas rather than of inland waters, the Court concluded that the exercise of authority was not sufficient in scope to establish historic title over the area as inland waters. Id., at 24-26. As has been noted, and as the parties agree, Alaska, in order to prevail in this case, must establish historic title to Cook Inlet as inland waters. For this showing, the exercise of sovereignty must have been, historically, an assertion of power to exclude all foreign vessels and navigation. The enforcement of fish and wildlife regulations, as found and relied upon by the District Court, was patently insufficient in scope to establish historic title to Cook Inlet as inland waters. Only one of the fishing regulations relied upon by the court, the Alien Fishing Act, treated foreign vessels any differently than it did American vessels. That Act, however, did not purport to apply beyond the three-mile limit in Cook Inlet. It simply applied to “the waters of Alaska under the jurisdiction of the United States.” 34 Stat. 263. The meaning of that general statutory phrase, as applied to Cook Inlet, can only be surmised, since there was not a single instance of enforcement to suggest that the Act was applicable to foreign vessels in the waters beyond the three-mile limit in lower Cook Inlet. The remainder of the fish and wildlife regulations relied upon by the District Court clearly were enforced throughout lower Cook Inlet for at least much of the territorial period, but these regulations were not commensurate in scope with the claim of exclusive dominion essential to historic title over inland waters. Each afforded foreign vessels the same rights as were enjoyed by American ships. To be sure, there were instances of enforcement in the lower inlet, but in each case the vessels involved were American. These incidents prove very little, for the United States can and does enforce fish and wildlife regulations against its own nationals, even on the high seas. See, e. g., 38 Stat. 692, 16 U. S. C. § 781 (taking commercial sponges in the Gulf of Mexico or the Straits of Florida); 80 Stat. 1091, 16 U. S. C. § 1151 (taking fur seals in the North Pacific Ocean); 86 Stat. 1032, as amended, 16 U. S. C. § 1372 (1970 ed., Supp. Ill) (taking marine mammals on the high seas). See also Skiriotes v. Florida, 313 U. S. 69 (1941). Our conclusion that the fact of enforcement of game and fish regulations in Cook Inlet is inadequate, as a matter of law, to establish historic title to the inlet as inland waters is not based on mere technicality. The assertion of national jurisdiction over coastal waters for purposes of fisheries management frequently differs in geographic extent from the boundaries claimed as inland or even territorial waters. See, e. g., Presidential Proclamation No. 2668, 59 Stat. 885 (1945). This limited circumscription of the traditional freedom of fishing on the high seas is based, in part, on a recognition of the special interest that a coastal state has in the preservation of the living resources in the high seas adjacent to its territorial sea. Convention on Fishing and Conservation of the Living Resources of the High Seas, Art. 6, H 1, [1966] 1 U. S. T. 138, 141, T. I. A. S. 5969. Even a casual examination of the facts relied upon by the District Court in this case reveals that the geographic scope of the fish and wildlife enforcement efforts was determined primarily, if not exclusively, by the needs of effective management of the fish and game population involved. Thus, for example, the Gharrett-Scudder line, which the District Court considered “a classic demonstration of the assertion by the United States government of its claim to sovereignty over the whole of Cook Inlet,” Pet. for Cert. 37a, was drawn almost solely with reference to the needs of the coastal salmon net fisheries and was never intended to depict the boundaries of the territorial waters of the United States. Indeed, the very method of drawing the fishery boundaries by use of straight baselines conflicted with this country’s traditional policy of measuring its territorial waters by the sinuosity of the coast. See United States v. California, 381 U. S., at 167-169. Even if we could agree that the boundaries selected for purposes of enforcing fish and wildlife regulations coincided with an intended assertion of territorial sovereignty over Cook Inlet as inland waters, we still would disagree with the District Court’s conclusion that historic title was established in the territorial period. The court found that the third essential element of historic title, acquiescence by foreign nations, was satisfied by the failure of any foreign nation to protest. Scholarly comment is divided over whether the mere absence of opposition suffices to establish title. See Juridical Regime of Historic Waters, Including Historic Bays, 2 Yearbook of the International Law Commission, 1962, pp. 1, 16-19 (U. N. Doc. A/CN.4/143). The Court previously has noted this division but has taken no position in the debate. See Louisiana Boundary Case, 394 U. S., at 23-24, n. 27. In this case, we feel that something more than the mere failure to object must be shown. The failure of other countries to protest is meaningless unless it is shown that the governments of those countries knew or reasonably should have known of the authority being asserted. Many assertions of authority are such clear expressions of exclusive sovereignty that they cannot be mistaken by other governments. Other assertions of authority, however, may not be so clear. One scholar notes: “Thus, the placing of lights or beacons may sometimes appear to be an act of sovereignty, while in other circumstances it may have no such significance.” Juridical Regime of Historic Waters, supra, at 14. We believe that the routine enforcement of domestic game and fish regulations in Cook Inlet in the territorial period failed to inform foreign governments of any claim of dominion. In the absence of any awareness on the part of foreign governments of a claimed territorial sovereignty over lower Cook Inlet, the failure of those governments to protest is inadequate proof of the acquiescence essential to historic title. C The District Court stressed two facts as evidence that Alaska had exercised sovereignty over all the waters of Cook Inlet in the recent period of Alaska statehood. First, the court found that since statehood Alaska had enforced fishing regulations in basically the same fashion as had the United States during the territorial period. Second, the court found that in 1962 Alaska had arrested two vessels of a Japanese fishing fleet in the Shelikof Strait. Since we have concluded that the general enforcement of fishing regulations by the United States in the territorial period was insufficient to demonstrate sovereignty over Cook Inlet as inland waters, we also must conclude that Alaska’s following the same basic pattern of enforcement is insufficient to give rise to the historic title now claimed. The Shelikof Strait incident, however, deserves scrutiny because the seizure of a foreign vessel more than three miles from shore manifests an assertion of sovereignty to exclude^ foreign vessels altogether. The facts of the incident, for the most part, are undisputed. In early 1962 a private commercial fishing enterprise in Japan, Eastern Pacific Fisheries Company, publicly announced its intention to send a fishing fleet into the waters of Cook Inlet and the Shelikof Strait. Alaska officials learned of the plan through newspaper accounts and requested action by the Federal Government to prevent entry of the fleet into the inlet and the strait. The Federal Government, although thus forewarned of the intrusion, significantly took no action. In March 1962, the mothership Banshu Maru 81 and five other vessels arrived at the Kodiak fishing grounds. On April 5, the six vessels sailed north of the Barren Islands into the lower portion of Cook Inlet. The vessels left the inlet the next day without incident and sailed southwest into the Shelikof Strait. The vessels fished in the strait for approximately 10 days undisturbed. Then, on April 15, Alaska law enforcement officials boarded two of the vessels in the Shelikof Strait. At the time, at least one of the ships was more than three miles from shore. The officials arrested three of the fleet’s captains and charged them with violating the state fishing regulations applicable to the strait. On April 19, Eastern Pacific Fisheries Company and the State of Alaska entered into an agreement whereby the State released the company’s employees and ships in return for a promise from the company that it would not fish in the inlet or in the strait pending judicial resolution of the State’s jurisdiction to enforce fishing regulations therein. 2 App. 1186-1188. The Japanese Government did not participate in, or approve of, the agreement between the company and Alaska. Instead, shortly after the agreement was executed, Japan formally protested to the United States Government. Our Government declined to take an official position on the matter pending completion of the judicial proceedings. Ultimately, the judicial proceedings were dismissed without reaching any conclusion on the extent of Alaskan jurisdiction over the strait. The Federal Government took no formal position on the issue after the dismissal of the proceedings. To the extent that the Shelikof Strait incident reveals a determination on the part of Alaska to exclude all foreign vessels, it must be viewed, to be sure, as an exercise of authority over the waters in question as inland waters. Nevertheless, for several reasons, we find the incident inadequate to establish historic title to Cook Inlet as inland waters. First, the incident was an exercise of sovereignty, if at all, only over the waters of Shelikof Strait. The vessels were boarded in the strait, some 75.miles southwest from the nearest portion of the inlet. Although Alaska officials knew of the fleet’s earlier entry into Cook Inlet, no action was taken to force the vessels to leave the inlet, and no charges were filed for the intrusion into those waters. Second, even if the events in Shelikof Strait could constitute an assertion of authority over the waters of Cook Inlet as well as those of the strait, we are not satisfied that the exercise of authority was sufficiently unambiguous to serve as the basis of historic title to inland waters. The adequacy of a claim to historic title, even in a dispute between a State and the United States, is measured primarily as an international, rather than a purely domestic, claim. See United States v. California, 381 U. S., at 168; Louisiana Boundary Case, 394 U. S., at 77. Viewed from the standpoint of the Japanese Government, the import of the incident in the strait is far from clear. Alaska clearly claimed the waters in question as inland waters, but the United States neither supported nor disclaimed the State’s position. Given the ambiguity of the Federal Government’s position, we cannot agree that the assertion of sovereignty possessed the clarity essential to a claim of historic title over inland waters. Finally, regardless of how one views the Shelikof Strait incident, it is impossible to conclude that the exercise of sovereignty was acquiesced in by the Japanese Government. Japan immediately protested the incident and has never acceded to the position taken by Alaska. Admittedly, the Eastern Pacific Fisheries Company formally and tentatively agreed to respect the jurisdiction claimed by Alaska but, as we have already noted, the acts of a private citizen cannot be considered representative of a government’s position in the absence of some official license or other governmental authority. In sum, we hold that the District Court’s conclusion that Cook Inlet is a historic bay was based on an erroneous assessment of the legal significance of the facts it had found. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Me. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Stewart and Mr. Justice Rehnquist would affirm the judgment, believing that the findings of fact made by the District Court and adopted by the Court of Appeals were not clearly erroneous, and that both of those courts applied the correct legal criteria in ruling that Cook Inlet is a historic bay. Cook Inlet is larger than Great Salt Lake and Lake Ontario. It is about the same size as Lake Erie. It dwarfs Chesapeake Bay, Delaware Bay, and Long Island Sound, all of which the United States has claimed as historic bays. It would appear that the case qualifies, under Art. Ill, § 2, cl. 2, of the Constitution, for our original jurisdiction. United States v. West Virginia, 295 U. S. 463, 470 (1935). We are not enlightened as to why the United States chose not to bring an original action in this Court. Section 6 (m) of the Alaska Statehood Act of July 7, 1958, provides that the Submerged Lands Act “shall be applicable to the State of Alaska and the said State shall have the same rights as do existing States thereunder.” 72 Stat. 343, note following 48 U. S. C. c. 2. Section 2 of the Act provides: “The State of Alaska shall consist of all the territory, together with the territorial waters appurtenant thereto, now included in the Territory of Alaska.” 72 Stat. 339, note following 48 U. S. C. c. 2. Section 3 (a) of the Submerged Lands Act, 43 U. S. C. § 1311 (a), provides: “It is determined and declared to be in the public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States . . . .” Section 2 (b), 43 U. S. C. § 1301 (b), defines a State’s boundaries: “The term ‘boundaries’ includes the seaward boundaries of a State ... as they existed at the time such State became a member of the Union . . . but in no event shall the term ‘boundaries’ or the term ‘lands beneath navigable waters’ be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean . . . .” Section 2 (c) of the Act, 43 U. S. C. § 1301 (c), reads: "The term ‘coast line’ means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.” The full text of Art. 7 is as follows: "1. This article relates only to bays the coasts of which belong to a single State. “2. For the purposes of these articles, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation. "3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water areas of the indentation. “4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed twenty-four miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shah be considered as internal waters. “5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds twenty-four miles, a straight baseline of twenty-four miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. “6. The foregoing provisions shall not apply to so-called 'historic’ bays, or in any case where the straight baseline system provided for in article 4 is applied.” Brief for Respondent 1; Brief for United States 2, 32. Some disagreement exists as to whether there must be formal acquiescence on the part of foreign states, or whether the mere absence of opposition is sufficient. United States v. Louisiana (Louisiana Boundary Case) 394 U. S. 11, 23-24, n. 27 (1969). Pet. for Cert. 25a. In addition to its reported opinion, 352 F. Supp. 815 (Alaska 1972), the District Court made detailed written findings and conclusions that are not published. These are reproduced in the Petition for Certiorari 21a-55a. The reported opinion of the District Court did not discuss the exercise of sovereignty prior to 1906, but the unreported findings indicate that the court relied on assertions of authority dating from Russian territorial times as well as the early American period. As with many colonial enterprises of the day, the governance of Alaska in the Russian period, for the most part, was exercised through semiprivate corporations. See generally H. Chevigny, Russian America: The Great Alaska Venture, 1741-1867 (1965). The most important of these corporations, the Russian-American Company, was chartered in 1799, several years after the incident near Port Graham. Id., at 75 The record and findings are silent on the relationship between the fur trader and the interests asserted. Thus, we have no occasion to consider whether the acts of a semiprivate colonial corporation are to be given the same weight as the direct acts of a national government for purposes of establishing a claim to historic Waters. The Cannon Shot Rule was to the effect that a coastal state possessed sovereignty over the waters within range of cannon shot from its shore. Many modern scholars believe that the present 3-mile limit is derived from the traditional range of 18th century cannon. Kent, The Historical Origins of the Three-Mile Limit, 48 Am. J. Int’l L. 537 (1954); Walker, Territorial Waters: The Cannon Shot Rule, 22 Brit. Y. B. Int’l L. 210 (1945). The actual range of the cannon fired by the fur trader is, of course, now irrelevant. The significant fact is that the incident can be viewed as an assertion of jurisdiction only over those waters in Cook Inlet that were within range of cannon shot from shore. For a discussion of the events surrounding the issuance and withdrawal of the ukase, see Chevigny, supra, n. 10, at 174-188. By the Treaty of Cession in 1867 Russia ceded to the United States “all the territory and dominion now possessed [by Russia] on the continent of America and in the adjacent islands.” 15 Stat. 539. The cession was effectively a quitclaim. It is undisputed that the United States thereby acquired whatever dominion Russia had possessed immediately prior to cession. In June 1892 a United States revenue cutter, the Mohican, entered Cook Inlet to enforce Rev. Stat. § 1956. The Mohican arrested three American vessels in the lower inlet on charges of violating the statute. The prosecutions ultimately were dismissed on the ground that the vessels merely had been purchasing pelts from natives who were authorized by § 1956 to hunt sea otter for commercial sale. See The Kodiak, 53 F. 126 (Alaska 1892). In 1893 two other American vessels were stopped in the lower inlet by a revenue cutter. Since these vessels, like the Kodiak, were carrying only native hunting parties, they were allowed to proceed without further incident. The District Court made no findings about the enforcement of § 1956 after June 1893. The District Court acknowledged that no foreign vessels had ever been arrested in Cook Inlet on charges of violating the Alien Fishing Act. The court sought to explain this fact on the ground that foreign vessels entered the inlet infrequently. The court relied on statements of certain former wildlife officials that “they would have taken affirmative action” against foreign vessels if they had seen any in the inlet. 352 F. Supp., at 819-820. In the absence of any actual enforcement or official announcement of intentions to enforce the Alien Fishing Act in lower Cook Inlet, the private intentions of witnesses are largely irrelevant. The testimony of John T. Gharrett, who was called as a witness by the State of Alaska, is indicative of the predominance of fish and wildlife concerns in the preparation of the Gharrett-Scudder line: On direct examination: “Q What was your role in the preparation of that line? “A My role was to decide where the line goes. “Q Did you have assistance from anyone? “A Mr. Clay Scutter [sic]. “Q Has the line since been given any kind of name? “A Oh, I don’t know since. At the time we drew it, rather than to say 'a line beyond which we proposed,’ et cetera, et cetera, we called it the Gharrett-Scutter [sic] line for short. “Q In your preparation of the line what criteria did you use for placing the line on the chart? “A We used two basic criteria: 1) we wanted to encompass within the line existing salmon net fisheries along the Coast of Alaska, and 2) we wanted in some areas to allow for a modest, perhaps, expansion of existing fisheries, salmon net fisheries.” 1 App. 292-293. On cross-examination by counsel for the United States: “Q Did the lines you drew enclose areas in which you knew foreigners had previously fished? “A Yes. “Q By drawing these lines did you intend to stop those fisheries? “A No. “Q Was the line you drew with Mr. Scutter [sic] intended to represent the outer limit of the territorial sea? “A No. “Q Was the line you drew with Mr. Scutter [sic] intended to represent the base line from which the territorial sea was to be measured? “A No. “Q Were the lines you drew with Mr. Scutter [sic] used for law enforcement purposes while you were in Alaska? “A No.” 1 App. 294. The United States has argued that historic title to Cook Inlet is defeated by several United States disclaimers of sovereignty over the waters of lower Cook Inlet. The Court previously has discussed the importance of governmental disclaimers in weighing claims to historic title in actions of this kind. Louisiana Boundary Case, 394 U. S., at 76-78; United States v. California, 381 U. S. 139, 175 (1965). The District Court rejected the disclaimers on the grounds that they were ill-advised and, perhaps, self-serving. 352 F. Supp., at 818-819. Inasmuch as we have concluded that none of the facts relied upon by the District Court suffice to establish historic title, we have no occasion to consider whether the disclaimers of the United States could have defeated otherwise sufficient facts. 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_bank_r1

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. Your task is to determine whether or not the first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt. 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: Is the first listed respondent bankrupt? A. Yes B. No Answer:

songer_appbus

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Leemunth Peter JOHN, Defendant-Appellant. No. 90-5052. United States Court of Appeals, Fourth Circuit. Argued Jan. 11, 1991. Decided June 4, 1991. William Dupree Spence, Kinston, N.C., for defendant-appellant. John Stuart Bruce, First Asst. U.S. Atty., argued (Margaret Person Currin, U.S. Atty., on brief), Raleigh, N.C., for plaintiff-appellee. Before RUSSELL, HALL, and WILKINSON, Circuit Judges. WILKINSON, Circuit Judge: This case involves the question of whether and by what means a defendant’s sentence may be enhanced under the United States Sentencing Guidelines due to that defendant’s conduct during the course of an arrest. Because we are unable to assess on this record whether such an adjustment would be warranted in appellant’s case, we remand for further findings. I. Leemunth Peter John pled guilty to one count of possession with intent to distribute cocaine base (21 U.S.C. § 841(a)(1)) and one count of use of a firearm in a drug trafficking crime (18 U.S.C. § 924(c)(1)). At the sentencing hearing on May 3, 1990, Detective David Best and appellant John testified as to the events of August 17, 1989, the evening John was arrested. Best testified that he saw a gold colored Chrysler with no rear lights weaving from side to side as it proceeded down Dixon Avenue in Greenville, North Carolina. Unable to find back-up, Best stopped the Chrysler, approached the driver — John— and asked him for his driver’s license. When John responded that he did not have a driver’s license, Best told him to keep his hands on the dash where they could be seen. Best testified that, at that time, John’s left hand was on the steering wheel and his right hand was down beside his right leg. According to his testimony, Best then pointed his flashlight into the car. At that point, he saw appellant’s right shoulder move. Shining the flashlight on appellant’s right leg, Best saw about two inches of the barrel of a gun resting between appellant’s index and middle fingers. Best testified that he believed that John was going to use the gun. In response, Best went for his gun. Unable to get it out of his ankle holster, Best dropped his flashlight and lunged through the open car window. Best managed to get the car door open and, trying to fight John off, grabbed John’s right hand. Best’s partner, who had been sitting in the squad car guarding two suspects, saw what was happening and came to help. According to Best’s testimony, the two officers pulled the resisting John out and “fought him all the way down the side of the car.” A third officer pulled up in a second squad car and came to assist. Together, the three officers wrestled John and succeeded in handcuffing him. One of the officers searched John and the passenger area of the car. The presen-tence report detailed the items found which included approximately 5.9 grams of crack cocaine, an undetermined amount of marijuana and a fully loaded Excam caliber .380 pistol. Appellant John’s testimony as to the events of the evening of August 17, 1989 differed from Best’s in several respects. According to John, after Best approached his car, he started to turn the car off. Best asked him what he was doing. When John explained, Best told him to leave the car alone and John agreed. John testified that Best then asked him to step out of the car and that he complied. Best searched John and then asked John to let him cuff him. John testified that he put his arms behind his back but that Best tried to cuff them in a painful position. John asked Best to cuff them differently; Best argued that he could cuff them the way he wanted. John testified that, at that point, several other officers approached and all of them started wrestling him. The officers searched him again and then started roughing him up. John testified that he did not resist arrest. At the conclusion of the evidentiary hearing, the district court granted the government’s request for a two level increase for obstruction of justice, noting that “there was a struggle beyond the norm in this case.” The court then determined that the Guideline range for the possession count was sixty-three to seventy-eight months and that the firearm count carried a mandatory term of sixty months. Judgment was entered and John was sentenced to seventy-eight months imprisonment for the possession count and sixty months for the firearm count, the terms to run consecutively for a total of 138 months. The district court added a special directive that, after serving his sentence, the defendant be released to the custody of United States immigration authorities with the request of the court that John be deported immediately. In addition, the court directed that John be on supervised release as long as he remained in this country. This appeal followed. II. John contends that his conduct cannot serve as the basis for an enhancement under the relevant obstruction of justice provision. The provision of the Sentencing Guidelines applicable to John’s case reads as follows: § 3C1.1 Willfully Obstructing or Impeding Proceedings If the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase offense level by 2 levels. United States Sentencing Commission, Guidelines Manual, § 3C1.1 (Nov. 1989). In statutory interpretation, “the starting point is the language of the statute.” Dole v. United Steelworkers of America, 494 U.S. 26, 110 S.Ct. 929, 934, 108 L.Ed.2d 23 (1990) (quoting Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 5, 105 S.Ct. 2458, 2461, 86 L.Ed.2d 1 (1985)). The plain language of § 3C1.1 encompasses administration of justice in the broadest sense— from the beginning of the criminal justice process through all aspects of prosecution. Willful interference with police activity can operate as an obstruction of justice in certain circumstances. Police officers are intimately involved in the “investigation” and “prosecution” of the offense, including the arrest of suspects. If the police were threatened during a criminal investigation, § 3C1.1 would clearly apply. Similarly, a defendant’s conduct that endangers an officer during arrest is conduct that “impeded or obstructed ... the administration of justice during the investigation or prosecution of the instant offense.” To hold that a defendant’s conduct during the course of an arrest could never constitute obstruction of justice would be to carve such conduct out of a provision whose inclusive language does not invite exception. The cases interpreting the obstruction of justice provision support the view that extraordinary interference with or endangerment of law enforcement officials or bystanders can constitute obstruction of justice. See United States v. Paige, 923 F.2d 112, 114 (8th Cir.1991) (enhancement affirmed where suspect “endangered others’ lives and destroyed incriminating evidence” during high-speed flight from arrest); United States v. Castillo-Valencia, 917 F.2d 494, 502 (11th Cir.1990) (enhancement affirmed where defendant assisted in attempt to evade and to ram Coast Guard vessel with vessel carrying drugs); United States v. White, 903 F.2d 457, 462 (7th Cir.1990) (enhancement affirmed where defendant endangered law enforcement personnel and bystanders in course of high-speed flight from arrest); United States v. Tellez, 882 F.2d 141, 143 (5th Cir.1989) (enhancement affirmed where defendant attempted flight, endangering arresting officer and bystanders, and made vigorous efforts to resist arrest after his vehicle crashed); United States v. Franco-Torres, 869 F.2d 797, 800 (5th Cir.1989) (enhancement affirmed where defendant threw gun away to hide it and shot at agent who was both witness to crime and investigating officer). The dissenting opinion, by contrast, has pointed to no court that holds its view that the provision is inapplicable to flight or resistance to arrest “regardless of the danger posed.” If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels. While the examples of conduct listed in the application notes to § 3C1.1 as a basis for applying the adjustment do not specifically include resistance to arrest, the non-inclusion of such conduct in the enumerated list is not dispositive. White, 903 F.2d at 461. The failure of the Sentencing Commission to include a particular type of conduct was not thought significant by the Seventh Circuit both because the application notes themselves provide that the list of examples is not meant to be exclusive and because “the drafters of the commentary to the Sentencing Guidelines recognized the obvious inability of any group drafting guidelines to encompass and list each and every example of obstruction of justice.” Id. Even in United States v. Stroud, 893 F.2d 504, 506 (2d Cir.1990), the case relied on most heavily by John, the court declined the defendant’s invitation to narrowly confine the obstruction provision in § 3C1.1 to attempts to corrupt the truth-finding process. In sum, the obstruction of justice provision applicable in John’s case represented a broad residual and omnibus provision whose sweeping language permitted application to a variety of different circumstances. As the provision in effect at the time of John’s arrest, it was the logical provision for the district court to apply. As the Guidelines have undergone further refinements, however, certain forms of police-citizen contact have been removed from this general provision and made the basis for specific adjustments. To take an initial example, § 3A1.2(b) (effective date November 1, 1989) provides for a three level increase if “during the course of the offense or immediate flight therefrom, the defendant or a person for whose conduct the defendant is otherwise accountable, knowing or having reasonable cause to believe that a person was a law enforcement or corrections officer, assaulted such officer in a manner creating a substantial risk of serious bodily injury.” It is, of course, an elementary canon of statutory construction that the specific provision controls the general. Markair, Inc. v. Civil Aeronautics Bd., 744 F.2d 1383, 1385 (9th Cir.1984). Had this specific provision been in effect at the time of John’s arrest, the district judge would have been well advised to address its application to John’s conduct. However, as this revision only took effect between the time of John’s arrest and his sentencing, application of the two level enhancement under the older residual provision rather than the three level enhancement under the amended provision avoided any potential problem of an ex post facto application. See United States v. Morrow, 925 F.2d 779, 782-83 (4th Cir.1991). To take a second example of removal of specific conduct from the omnibus provision, § 3C1.2 (effective date November 1, 1990) provides for a two level enhancement for reckless endangerment during flight. Those courts which had applied the earlier omnibus provision to endangerment during flight would now presumably apply the more specific § 3C1.2. The latest application notes to § 3C1.1 now reference § 3C1.2 as a particular species of obstructive conduct to which the two level adjustment will apply, and the Commission has noted that “reckless endangerment during flight is sufficiently different from other forms of obstructive conduct to warrant a separate enhancement.” U.S.S.G.App. C, note to amendment 347 (Nov. 1990). The Guidelines reveal, however, that the parent of § 3C1.2 was the earlier omnibus obstruction provision in § 3C1.1. As the Sentencing Commission is embarked upon an enterprise whose continuous and evolving nature is apparent, detailing the development of specific concepts may be helpful. The above examples, however, would be of no avail in supporting an enhancement if the plain language of the applicable provision and a substantial body of caselaw interpreting it did not, at the time of John’s arrest, clearly support the adjustment. Here, the indicators all point to the fact that the district court properly applied the plain language of § 3C1.1 — at the time the only language relevant to John’s conduct — to address the appropriateness of a two level increase for forcible resistance to arrest. III. There remains the question of whether the findings of the district court are adequate to support a two level increase in this case. An ordinary course of conduct during arrest would plainly not justify an enhancement under the obstruction of justice provision. Arrests by their very nature are often not amiable encounters and an unpleasant exchange of words, for example, between a suspect and an arresting officer provides no basis for an adjustment. Such conduct can appropriately be sanctioned, not by way of enhancement, but by the determination of the particular sentence within the otherwise applicable Guideline range. See, e.g., U.S.S.G. § 3CI.1, comment. (n. 4) (Nov. 1990). Extraordinary conduct, however, which endangers arresting officers or others, would support an adjustment because the very purpose of such adjustments is to take into account culpable conduct outside the norm. See U.S.S.G. § 3C1.1, comment, (n. 3(d)) (Nov. 1990). For example, mere flight from an arresting officer would not, by itself, warrant an enhancement. See United States v. Hagan, 913 F.2d 1278, 1285 (7th Cir.1990) (enhancement not warranted where officers were never endangered by unarmed suspect who attempted flight on foot); United States v. Garcia, 909 F.2d 389, 392 (9th Cir.1990) (obstruction of justice does not include “the instinctive flight of a suspect who suddenly finds himself in the power of the police.”); Stroud, 893 F.2d at 506 (“mere flight from arrest, by itself, does not constitute obstruction”). The addition of § 3C1.2 providing for an enhancement for reckless endangerment during flight made the absence of an enhancement for ordinary flight explicit. The cases suggest that endangering others during flight or in the course of resisting arrest involves active, willful behavior; in contrast, mere flight or disagreeableness during an encounter involves more passive or instinctive conduct. We now turn to the particular finding at issue. The entirety of the finding underlying the district court’s enhancement was that “there was a struggle beyond the norm in this case.” While it appears that the district court credited the testimony of Detective Best, its finding is insufficiently informative. We do not know, for example, why the struggle ensued or whether the district court credited the testimony of Best that John intended to use the gun that lay in his right hand. If the arrestee’s conduct endangered the personal safety of the police officer, an enhancement under § 3C1.1 was plainly warranted. The present finding, however, requires that we make what would be at best an educated guess as to endangerment. We, therefore, remand for the district court to make a factual finding to which we may accord due deference. See 18 U.S.C. § 3742(e). IV. For the foregoing reasons, the judgment of the district court is REMANDED WITH DIRECTIONS. . Since the time of John’s sentencing, § 3C1.1 has been made broader still. Effective November 1, 1990, the provision reads: § 3C1.1 Obstructing or Impeding the Administration of Justice . In order for an adjustment under § 3C1.1 to be warranted, the defendant must also have acted "willfully." Most courts — at least implicitly — have found endangerment can be willful. We have no difficulty concluding that intending to use a gun on an officer is willful within the meaning of § 3C1.1. . At the time of John's sentencing, the introductory note to the commentary to § 3C1.1 stated that ‘‘[t]his section provides a sentence enhancement for a defendant who engages in conduct calculated to mislead or deceive authorities or those involved in a judicial proceeding, or otherwise to willfully interfere with the disposition of criminal charges, in respect to the instant offense." This introductory paragraph was deleted as part of the November 1990 amendments. We note that this explanatory statement cannot trump the plain language of the provision which it is intended to illuminate. In any case, the phrase "conduct calculated ... to willfully interfere with the disposition of criminal charges” can be interpreted to encompass all aspects of investigation and prosecution. . § 3C1.2 Reckless Endangerment During Flight If the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase by 2 levels. . Finally, John argues that the district court acted improperly in giving him a sentence at the top of the applicable guideline range. We have no jurisdiction, however, to review a sentence which is within the correct guideline range. United States v. Porter, 909 F.2d 789, 794 (4th Cir.1990). Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

sc_partywinning

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. ROADWAY EXPRESS, INC. v. PIPER et al. No. 79-701. Argued April 15, 1980 Decided June 23, 1980 Powell, J., delivered the opinion of the Court, in which Brennan, White, and Marshall, JJ., joined; in Parts I, II, and IV of which Stewart and Rehnquist, JJ., joined; in all but Part II-A and the first sentence of Part IV of which Blackmun, J., joined; and in Part II-B of which Stevens, J., joined. Blackmun, J., post, p. 768, and Stevens, J., post, p. 769, filed opinions concurring in part and dissenting in part. Burger, C. J., filed a dissenting opinion, post, p. 771. Miles Curtiss McKee argued the cause for petitioner. With him on the briefs was Armin J. Moeller, Jr. Herschel E. Richard, Jr., argued the cause and filed a brief for respondents. Harriet S. Shapiro argued the cause for the United States et al. as amici curiae urging affirmance. With her on the brief were Solicitor General McCree, Assistant Attorney General Days, Leroy D. Clark, Joseph T. Eddins, Lutz Alexander Prager, and Raymond R. Baca. Jack Greenberg and James M. Nabrit III filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging affirmance. Mr. Justice Powell delivered the opinion of the Court. This case presents the question whether federal courts have statutory or inherent power to tax attorney’s fees directly against counsel who have abused the processes of the courts. I In June 1975, two former employees and one unsuccessful job applicant brought a civil rights class action against petitioner Roadway Express, Inc. (Roadway). The complaint filed in the United States District Court for the Western District of Louisiana alleged that Roadway’s employment policies discriminated on the basis of race, and asked for equitable relief. Counsel for the plaintiffs — Robert E. Piper, Jr., Frank E. Brown, Jr., and Bobby Stromile — are the respondents in the present case. In September 1975, respondents served interrogatories on Roadway. Having secured an extension from the District Court, Roadway answered the interrogatories on January 5, 1976, and served its own set of interrogatories at the same time. Thereafter, however, the litigation was stalled by respondents’ uncooperative behavior. On April 13, 1976, Roadway moved for an order compelling answers to its interrogatories. The motion was set for argument on the morning of April 21, but counsel for the plaintiffs did not appear. They did attend a rescheduled hearing that afternoon, and the Magistrate ordered that the interrogatories be answered by May 24. Respondents ignored that deadline and, in fact, never answered the interrogatories. Roadway also served notice in April that it would take depositions from all three plaintiffs in early May. One of the plaintiffs did not appear on the appointed days, however, and he never was deposed. The respondents showed no greater respect for the orders of the District Court than for the requests of their adversaries. On April 7, the court instructed counsel for both sides to file briefs evaluating the impact of a recent decision in a related ease. Although respondents’ brief was due within 10 days, nothing arrived for six weeks. On May 19, the District Court gave respondents 10 additional days to file a brief or face dismissal of the action. No brief was ever submitted. On June 14, Roadway moved to dismiss the suit under Federal Rule of Civil Procedure 37. Roadway also requested an award of attorney’s fees and court costs. On June 30, the District Court heard argument and dismissed the action with prejudice. A second hearing, limited to the question of costs and attorney’s fees, was held in October 1976. The District Court’s opinion sharply criticized the respondents for their “deliberate inaction” in handling the case. Monk v. Roadway Express, Inc., 73 F. R .D. 411, 417 (1977). Observing that respondents apparently had not advised their clients that the suit was a class action, id., at 414, 417, the court concluded that the three lawyers “improvidently enlarged and inadequately prosecuted” the action, id., at 417. As a sanction, the court ordered them to pay Roadway’s costs and attorney’s fees for the entire lawsuit. The total assessment exceeded $17,000. Monk v. Roadway Express, Inc., 599 F. 2d 1378, 1381 (CA5 1979). The District Court found justification for its ruling in the confluence of several statutes. The civil rights statutes allow the prevailing party to recover attorney’s fees “as part of the costs” of litigation. See 42 U. S. C. §§ 1988, 2000e-5 (k). And 28 TJ. S. C. § 1927 permits a court to tax the excess “costs” of a proceeding against a lawyer “who so multiplies the proceedings ... as to increase costs unreasonably and vexatiously. ...” Read together, the District Court concluded, the statutes authorize the assessment of costs and attorney’s fees against respondents. The United States Court of Appeals for the Fifth Circuit found no clear error in the ruling that respondents had violated § 1927. 599 F. 2d, at 1381. The appellate court held, however, that respondents were not liable for attorney’s fees. It rejected the District Court’s view that the civil rights statutes can be read into § 1927. The civil rights laws, the court wrote, “provide for attorneys’ fees awards against unsuccessful parties to a suit, and they focus on actions which are frivolous, unreasonable, and baseless. . . .” 599 F. 2d, at 1383 (emphasis in original). In contrast, § 1927 deals only with attorney conduct and involves taxing costs against counsel. The Court of Appeals vacated the District Court’s order and remanded for recalculation of costs under § 1927. We granted certiorari, 444 U. S. 1012 (1980). II This case involves the problem of what sanctions may be imposed on lawyers who unreasonably extend court proceedings. Two specific provisions have been said to be controlling in this case: 28 U. S. C. § 1927, and Federal Rule of Civil Procedure 37. This opinion considers both provisions. A Section 1927 provides that lawyers who multiply court proceedings vexatiously may be assessed the excess “costs” they create. The provision, however, does not define the critical word. Only if “costs” includes attorney’s fees can § 1927 support the sanction in this case. Courts generally have defined costs under § 1927 according to 28 U. S. C. § 1920, which enumerates the costs that ordinarily may be taxed to a losing party. E. g., United States v. Ross, 535 F. 2d 346, 350 (CA6 1976); Kiefel v. Las Vegas Hacienda, Inc., 404 F. 2d 1163, 1170 (CA7 1968), cert. denied sub nom. Hubbard v. Kiefel, 395 U. S. 908 (1969). Section 1920 lists clerk’s and marshal’s fees, court reporter charges, printing and witness fees, copying costs, interpreting costs, and the fees of court-appointed experts. Section 1920 also permits the assessment of the attorney “docket” fees set by 28 TJ. S. C. § 1923. In this case, that fee is $20. 28 TJ. S. C. § 1923 (a). Roadway insists, however, that its recovery should not be restricted to the costs listed in § 1920. It argues that since courts look to § 1920 to determine the costs taxable under § 1927, they should be equally free to define costs according to other statutes that may be involved in a lawsuit. Roadway emphasizes that the civil rights statutes allow the award of attorney’s fees “as part of the costs” of the litigation. 42 TJ. S. C. § 2000e-5 (k); 42 TJ. S. C. § 1988. Accordingly, Roadway asks that we reinstate the District Court’s award. This superficially appealing argument cannot survive careful consideration. 1 Congress enacted the first version of § 1927 in 1813. It was drafted by a Senate Committee appointed “to inquire what Legislative provision is necessary to prevent multiplicity of suits or processes, where a single suit or process might suffice. . . .” 26 Annals of Cong. 29 (1813). The resulting legislation provided in part that any person who “multiplied the proceedings in any cause ... so as to increase costs unreasonably and vexatiously” could be held liable for “any excess of costs so incurred.” Act of July 22, 1813, 3 Stat. 21. The sparse legislative history makes this provision difficult to interpret. In construing “costs,” however, we may look to the contemporaneous understanding of the term. Cf. Gilbert v. United States, 370 U. S. 650, 655 (1962). In 1796 the Court decided Arcambel v. Wiseman, 3 Dali. 306. That ruling overturned an award of counsel fees on the ground that “[t]he general practice of the United States is in op [position to it.” Ibid. Thus, the Court recognized the “American rule” that attorney’s fees ordinarily are not among the costs that a winning party may recover. See Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 717-718 (1967). We may assume that Congress followed that rule when it approved the 1813 Act. Congress returned to the problems of the federal courts in 1853, when it approved a comprehensive measure setting the fees and costs for all federal actions. Act of Feb. 26, 1853, 10 Stat. 162; see Alyeska Pipeline Co. v. Wilderness Society, 421 U. S. 240, 251-253 (1975). Some of those provisions survive, largely intact, in 28 U. S. C. §§ 1920 and 1923. See 10 Stat. 161-162, 168. The 1853 statute also substantially-re-enacted the earlier provision that allows lawyers who multiply legal proceedings to be taxed with the extra “costs” they generate. That provision, now codified as § 1927, has remained basically unchanged since 1853. This history suggests that § 1920 and § 1927 should be read together as part of the integrated statute approved in 1853. See Erlenbaugh v. United States, 409 U. S. 239, 243-244 (1972); 2A C. Sands, Sutherland on Statutory Construction § 51.03, p. 299 (4th ed. 1973). The 1853 Act specified the costs recoverable in federal litigation and also allowed the award of excess “costs” against counsel who vexatiously multiply litigation. The most reasonable construction is that the Act itself defined those costs that may be recovered from counsel. Congress, of course, may amend those provisions that derive from the 1853 Act. In the absence of express modification of those provisions by Congress, however, we should not look beyond the Act for the definition of costs under § 1927. The available legislative material supports this view. Congress in 1853 prescribed taxable costs for the same reasons it authorized the assessment of costs against dilatory attorneys: “[T]o prevent abuses arising from ingenious constructions ... to discourage unnecessary prolixity, old useless forms, and the multiplication of proceedings, and the prosecutions of several suits which might better be joined in one.” H. R. Rep. No. 50, 32d Cong., 1st Sess., 6 (1852); see also Alyeska Pipeline Co. v. Wilderness Society, supra, at 251-253. Above all, Congress sought to standardize the treatment of costs in federal courts, to “make them uniform— make the law explicit and definite.” H. R. Rep. No. 50, supra, at 6. The sponsor of the legislation spoke of the need for “uniform rule[s],” Cong. Globe, 32d Cong., 2d Sess., App. 207 (1853) (Sen. Bradbury), while other Senators agreed that the legislation was designed to impose “uniformity,” id., at 584 (Sen. Bayard); see also id., at 589 (Sen. Geyer). Roadway presses us to abandon the uniform approach of the 1853 Act. Because prevailing parties now may recover counsel fees in civil rights suits, Roadway argues that the statutes authorizing those recoveries should be read to modify § 1927. But Roadway offers no evidence that Congress intended to incorporate those attorney’s fee provisions into § 1927. Neither § 1988 nor § 2000e-5 (k) makes any mention of attorney liability for costs and fees. Roadway identifies nothing in the legislative records of those provisions that suggests that Congress meant to control the conduct of litigation. Without any evidence that Congress wished to alter the uniform structure established by the 1853 Act, we are reluctant to disrupt it. See Fleischmann Distilling Corp. v. Maier Brewing Co., supra, at 719-720. 2 The statutory interpretation proposed by Roadway not only runs counter to the apparent intent of Congress in 1813 and 1853, but also could introduce into the statute distinctions unrelated to its goal. Indeed, Roadway’s argument could result in virtually random application of § 1927 on the basis of other laws that do not address the problem of controlling abuses of judicial processes. The fee provisions of the civil rights laws are acutely sensitive to the merits of an action and to antidiscrimination policy. Unlike § 1927, both § 1988 and § 2000e-5 (k) restrict recovery to prevailing parties. In addition, those provisions have been construed to treat plaintiffs and defendants somewhat differently. Prevailing plaintiffs in civil rights cases win fee awards unless “special circumstances would render such an award unjust,” Newman v. Piggie Park Enterprises, 390 U. S. 400, 402 (1968) (per curiam), but a prevailing defendant may be awarded counsel fees only when the plaintiff’s underlying claim is “frivolous, unreasonable, or groundless.” Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 422 (1978). This distinction advances the congressional purpose to encourage suits by victims of discrimination while deterring frivolous litigation. But § 1927 does not distinguish between winners and losers, or between plaintiffs and defendants. The statute is indifferent to the equities of a dispute and to the values advanced by the substantive law. It is concerned only with limiting the abuse of court processes. Dilatory practices of civil rights plaintiffs are as objectionable as those of defendants. In order to assess counsel fees against respondents under § 1927, the Court would have to adopt one of two alternatives. It could incorporate into § 1927 the normative considerations of the civil rights laws that are foreign to the 1813 enactment. Or the Court could select on an ad hoc basis those features of § 1988 and § 2000e-5 (k) that should be read into § 1927. The first course would alter fundamentally the nature of § 1927; the second would constitute standardless judicial lawmaking. Moreover, Roadway’s statutory construction would create a two-tier system of attorney sanctions. A number of federal statutes permit the award of attorney’s fees. See Alyeska Pipeline Co. v. Wilderness Society, 421 U. S., at 260, n. 33. Under Roadway's view of § 1927, lawyers in cases brought under those statutes would face stiffer penalties for prolonging litigation than would other attorneys. There is no persuasive justification for subjecting lawyers in different areas of practice to differing sanctions for dilatory conduct. A court’s processes may be as abused in a commercial case as in a civil rights action. Without an express indication of congressional intent, we must hesitate to reach the imaginative outcome urged by Roadway, particularly when a more plausible construction flows from the original enactments in 1813 and 1853. To avoid the arbitrary results of Roadway's argument, Commissioner v. Brown, 380 U. S. 563, 571 (1965), citing Helvering v. Hammel, 311 U. S. 504, 510-511 (1941), we must reject the claim that § 1988 and § 2000e-5 (k) may supplant the framework established by the 1853 Act. B Federal Rule of Civil Procedure 37 (b) authorizes sanctions for failure to comply with discovery orders. The District Court may bar the disobedient party from introducing certain evidence, or it may direct that certain facts shall be “taken to be established for the purposes of the action. ...” The Rule also permits the trial court to strike claims from the pleadings, and even to “dismiss the action ... or render a judgment by default against the disobedient party.” See National Hockey League v. Metropolitan Hockey Club, 427 U. S. 639 (1976) (per curiam); Heliums v. Powell, 184 U. S. App. D. C. 339, 566 F. 2d 231 (1977). Both parties and counsel may be held personally liable for expenses, “including attorney’s fees,” caused by the failure to comply with discovery orders. Rule 37 sanctions must be applied diligently both “to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent.” National Hockey League v. Metropolitan Hockey Club, supra, at 643. The respondents in this case never have complied with the District Court’s order that they answer Roadway’s interrogatories. That failure was the immediate ground for dismissing the case, 73 F. R. D., at 412, and it also exposed respondents and their clients to liability under Rule 37 (b) for the resulting costs and attorney’s fees. Indeed, Roadway’s motion for dismissal sought recovery of those expenses under Rule 37. On the remand of this action, the District Court will have the authority to act upon that request. Ill Roadway also contends that the District Court’s ruling was a proper exercise of the court’s inherent powers. The inherent powers of federal courts are those which “are necessary to the exercise of all others.”' United States v. Hudson, 7 Cranch 32, 34 (1812). The most prominent of these is the contempt sanction, “which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court. . . .” Cooke v. United States, 267 U. S. 517, 539 (1925); see 4 W. Blackstone, Commentaries *282-*285. Because inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion. See Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 450-451 (1011); Green v. United States, 356 U. S. 165, 193-194 (1958) (Black, J., dissenting). There are ample grounds for recognizing, however, that in narrowly defined circumstances federal courts have inherent power to assess attorney’s fees against counsel. In Link v. Wabash R. Co., 370 U. S. 626, 632 (1962), this Court recognized the “well-acknowledged” inherent power of a court to levy sanctions in response to abusive litigation practices. The trial court had dismissed an action for failure to prosecute. Mr. Justice Harlan wrote for the Court: “The authority of a federal trial court to dismiss a plaintiff’s action with prejudice because of his failure to prosecute cannot seriously be doubted. The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts. The power is of ancient origin, having its roots in judgments of nonsuit and non prosequitur entered at common law, e. g., 3 Blackstone, Commentaries (1768), 295-296, and dismissals for want of prosecution of bills in equity, e. g., id., at 451.” Id., at 629-630 (footnote omitted). The Court denied that Federal Rule of Civil Procedure 41 (b) limits a court’s power to dismiss for failure to prosecute to instances where a defendant moves for dismissal. The Court wrote: “The authority ... to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,’ governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs. . . .” 370 U. S., at 630. Since the assessment of counsel fees is a less severe sanction than outright dismissal, Link strongly supports Roadway’s contention here. Of course, the general rule in federal courts is that a litigant cannot recover his counsel fees. See Alyeska Pipeline Co. v. Wilderness Society, 421 U. S., at 257. But that rule does not apply when the opposing party has acted in bad faith. In Alyeska, we acknowledged the “inherent power” of courts to “assess attorneys’ fees for the 'willful disobedience of a court order ... as part of the fine to be levied on the defendant[,] Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399, 426-428 (1923),’ Fleischmann Distilling Corp. v. Maier Brewing Co., supra, at 718; or when the losing party has 'acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . .’ F. D. Rich Co. [v. United States ex rel. Industrial Dumber Co.], 417 U. S. [116], at 129 [(1974)] (citing Vaughan v. Atkinson, 369 U. S. 527 (1962)).” Id., at 258-259. The bad-faith exception for the award of attorney’s fees is not restricted to cases where the action is filed in bad faith. '"[B]ad faith’ may be found, not only in the actions that led to the lawsuit, but also in the conduct of the litigation.” Hall v. Cole, 412 U. S. 1, 15 (1973). See Browning Debenture Holders’ Comm. v. DASA Corp., 560 F. 2d 1078, 1088 (CA2 1977). This view coincides with the ruling in Link, supra, which approved judicial power to dismiss a case not because the substantive claim was without merit, but because the plaintiff failed to pursue the litigation. The power of a court over members of its bar is at least as great as its authority over litigants. If a court may tax counsel fees against a party who has litigated in bad faith, it certainly may assess those expenses against counsel who willfully abuse judicial processes. See Renfrew, Discovery Sanctions: A Judicial Perspective, 67 Calif. L. Rev. 264, 268 (1979). Like other sanctions, attorney’s fees certainly should not be assessed lightly or without fair notice and an opportunity for a hearing on the record. But in a proper ease, such sanctions are within a court’s powers. IV We affirm the ruling of the Court of Appeals on § 1927. Since the District Court did not consider the costs and fees that' Roadway might recover under Rule 37, that question must be addressed on remand. Similarly, the trial court did not make a specific finding as to whether counsel’s conduct in this case constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court’s inherent powers. The case is remanded to the Court of Appeals with directions to return it to the District Court for proceedings consistent with this opinion. So ordered. The initial complaint also named a local of the International Brotherhood of Teamsters as defendant. If a party “fails to obey an order to provide or permit discovery,” Rule 37 (b) (2) (C) allows the district court to “dismis[s] the action or proceeding or any part thereof, or rende[r] a judgment by default against the disobedient party.” Rule 37 (b) (2) (E) also permits a court to “require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure. . . .” Section 1927 states in full: “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs.” As the Court of Appeals pointed out, “§ 1927 provides only for excess costs caused by the plaintiffs’ attorneys’ vexatious behavior and consequent multiplication of the proceedings, and not for the total costs of the litigation.” Monk v. Roadway Express, Inc., 599 F. 2d 1378, 1383 (CA5 1979) (emphasis in original). Due to sloth, inattention, or desire to seize tactical advantage, lawyers have long indulged in dilatory practices. Cf. C. Dickens, Bleak House 2-5 (1948). A number of factors legitimately may lengthen a lawsuit, and the parties themselves may cause some of the delays. Nevertheless, many actions are extended unnecessarily by lawyers who exploit or abuse judicial procedures, especially the liberal rules for pretrial discovery. See Burger, Agenda for 2000 A. D.- A Need for Systematic Anticipation, 70 F. R. D. 83, 95-96 (1976); ABA, Report of Pound Conference FollowUp Task Force, 74 F. R. D. 159, 191-192 (1976); U. S. Dept, of Justice, C. Ellington, A Study of Sanctions for Discovery Abuse 117 (1979). The glacial pace of much litigation breeds frustration with the federal courts and, ultimately, disrespect for the law. Section 2000e-5 (k) states: “In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity] Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.” Section 1988 provides in relevant part: “In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or in any civil action or proceedings [to enforce] a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” For the purposes of the issues in this opinion, the two provisions may be considered to have the same substantive content. See Lopez v. Arkansas County Independent School Dist., 570 F. 2d 541, 545 (CA5 1978); Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F. 2d 34, 37-38 (CA2 1978). They authorize fee awards in identical language, and Congress acknowledged the close connection between the two statutes when it approved §1988. S. Rep. No. 94-1011, pp. 2-6 (1976); H. R. Rep. No. 94-1558, pp. 5-8 (1976). A letter from the Secretary of the Treasury to the House of Representatives in 1842 suggests that the provision was prompted by the practices of certain United States Attorneys. H. R. Doe. No. 25, 27th Cong., 3d Sess., 21-22 (1842). Some of those officers, who were paid on a piecework basis, apparently had filed unnecessary lawsuits to inflate their compensation. The attorney liability portion of the 1853 Act was codified as § 982 of the Revised Statutes, while the cost-setting portions were included as §§ 823 and 824. The portions assumed their present positions at §§ 1920, 1923, and 1927 of Title 28 in the Revised Code of 1948. See 28 U. S. C. §§ 1920, 1923, 1927 (1946 ed., Supp. II). For example, in 1978 Congress added 28 U. S. C. § 1920 (6) (1976 ed., Supp. II), providing for recovery of interpreting costs. Pub. L. 95-539, § 7, 92 Stat. 2044. Congress is now considering legislation that would expand § 1927 in all cases to include “costs, expenses and attorney’s fees. . . .” H. R. 4047, 96th Cong., 1st Sess. (1979); S. 390, 96th Cong., 1st Sess., § 4 (1979). The Senate Report accompanying § 1988 stated that the bill authorizes “an award of attorneys’ fees against a party. . . .” S. Rep. No. 94-4011, p. 5 (1976) (emphasis supplied). This reference reinforces the view that the statute was not intended to permit recovery from opposing counsel. See Stanziale v. First National City Bank, 74 F. R. D. 557 (SDNY 1977) (attorneys); Charron v. Meavx, 66 F. R. D. 64 (SDNY 1975) (party); Chesa International, Ltd. v. Fashion Associates, Inc., 425 F. Supp. 234 (SDNY), aff’d, 573 F. 2d 1288 (CA2 1977) (joint liability of attorney and party). Mr. Justice Stewart and Mr. Justice Rehnquist would not reach the inherent power question considered in Part III of the opinion. Rather, they view that question as a substantial issue that should be addressed by the District Court on remand. See generally In re Bithoney, 486 F. 2d 319 (CA1 1973); Flaksa v. Little River Marine Constr. Co., 389 F. 2d 885, 888-889 (CA5), cert. denied, 392 U. S. 928 (1968); Gamble v. Pope & Talbot, Inc., 307 F. 2d 729, 735-736 (CA3) (en banc) (Biggs, C. J., dissenting), cert, denied sub nom. United States District Court v. Mahoney, 371 U. S. 888 (1962). New York courts have ordered attorneys who delay litigation to pay costs or fines to the opposing party. E. g., Moran v. Rynar, 39 App. Div. 2d 718, 332 N. Y. S. 2d 138 (1972); Kahn v. Stamp, 52 App. Div. 2d 748, 382 N. Y. S. 2d 199 (1976); Gillet v. Beth Israel Medical Center, 99 Misc. 2d 172, 415 N. Y. S. 2d 738 (Sup. Ct. 1979). The state-court opinions cite no statutory authority for their holdings, apparently relying on the inherent powers of those courts. Moran v. Rynar, supra, noted favorable commentary on Schwarz v. United States, 384 F. 2d 833, 836 (CA2 1967), which suggested that courts faced with cases “of inexcusable neglect by counsel [should consider] imposing substantial costs and attorney’s fees payable by offending counsel personally to the opposing party. . . .” Although the New York courts have sanctioned lawyers for •mere negligence, this opinion addresses only bad-faith conduct. Some due process implications of sanctions for misconduct of litigation were discussed in Societe Internationale v. Rogers, 357 U. S. 197, 208-212 (1958), which reversed the dismissal of an action for failure to comply with a pretrial discovery order. The due process concerns posed by an outright dismissal are plainly greater than those presented by assessing counsel fees against lawyers. Cf. Schwarz v. United States, supra. Moreover, Societe Internationale did not involve willful misconduct or bad faith. The Court found that the party whose claim was dismissed had been barred by a Swiss criminal statute from complying with the order. 357 U. S., at 209, 211. 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_casesource

060

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. CARTER et al. v. STANTON, DIRECTOR, MARION COUNTY DEPARTMENT OF PUBLIC WELFARE, et al. No. 70-5082. Argued November 8, 1971 Decided April 3, 1972 Jon D. Noland argued the cause for appellants. With him on the briefs were John T. Manning and David F. Shadel. Robert W. Oeddes argued the cause for appellee Stanton. With him on the brief were Harold W. Jones and Carl J. Meyer. Mark Peden, Deputy Attorney General of Indiana, argued the cause for appellee Ster-rett. With him on the brief were Theodore L. Sendak, Attorney General, William F. Thompson, Assistant Attorney General, and William F. Harvey. Solicitor General Griswold and Richard B. Stone filed a brief for the United States as amicus curiae. Per Curiam. Appellants are women who contend that an Indiana welfare regulation governing eligibility for state and federal aid to dependent children contravenes the Fourteenth Amendment and the Social Security Act, 49 Stat. 627, as amended, 42 U. S. C. § 602 (a) (10). The regulation provides that a person who seeks assistance due to separation or the desertion of a spouse is not entitled to aid until the spouse has been continuously absent for at least six months, unless there are exceptional circumstances of need. Burns Ind. Admin. Rules & Regs. (52-1001 )-2 (1967). Appellants brought this action in the United States District Court for the Southern District of Indiana, basing jurisdiction on 42 U. S. C. § 1983 and 28 U. S. C. § 1343, and seeking both declaratory and injunc-tive relief. A three-judge court was convened pursuant to 28 U. S. C. § 2281. After a “preliminary hearing on defendants’ ” motion to dismiss “at which the court” received evidence upon which to resolve the matter, the court dismissed the complaint on the ground that none of the claimants had exercised her right under Indiana law to appeal from a county decision denying welfare assistance, Burns Ind. Admin. Rules & Regs. (52-1211)-1 (Supp. 1970), and therefore appellants had failed to exhaust administrative remedies. In the alternative, the court held that the pleadings did not present a substantial federal question and that the court lacked jurisdiction under 42 U. S. C. § 1983 and 28 U. S. C. §§ 2201, 2202. Carter v. Stanton, No. IP 70-C-124 (SD Ind., Dec. 11, 1970). This direct appeal followed and we noted probable jurisdiction. 402 U. S. 994 (1971). Contrary to the State’s view, our jurisdiction of this appeal under 28 U. S. C. § 1253 is satisfactorily established. Sullivan v. Alabama State Bar, 394 U. S. 812, aff’g 295 F. Supp. 1216 (MD Ala. 1969); Whitney Stores, Inc. v. Summerford, 393 U. S. 9, aff’g 280 F. Supp. 406 (SC 1968). Also, the District Court plainly had jurisdiction of this case pursuant to 42 U. S. C. § 1983 and 28 U. S. C. § 1343. Damico v. California, 389 U. S. 416 (1967). Damico, an indistinguishable case, likewise establishes that exhaustion is not required in circumstances such as those presented here. Cf. McNeese v. Board of Education, 373 U. S. 668 (1963); Monroe v. Pape, 365 U. S. 167 (1961). Finally, if the court’s characterization of the federal question presented as insubstantial was based on the face of the complaint, as it seems to have been, it was error. Cf. Dandridge v. Williams, 397 U. S. 471 (1970); Shapiro v. Thompson, 394 U. S. 618 (1969); Damico v. California, supra. But it appears that at the hearing on the motion to dismiss, which was based in part on the asserted failure “to state a claim upon which relief can be granted” (App. 19), matters outside the pleadings were presented and not excluded by the court. The court was therefore required by Rule 12 (b) of the Federal Rules of Civil Procedure to treat the motion to dismiss as one for summary judgment and to dispose of it as provided in Rule 56. Under Rule 56, summary judgment cannot be granted unless there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. If this is the course the District Court followed, its order is opaque and unilluminating as to either the relevant facts or the law with respect to the merits of appellants’ claim. In this posture of the case, we are unconvinced that summary judgment was properly entered. The judgment of the District Court is therefore vacated and the case is remanded to that court for proceedings consistent with this opinion. So ordered. Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case. Mr. Justice Douglas. I agree that both this Court and the District Court have jurisdiction to entertain this case and that the appellants were not required to exhaust administrative remedies before launching their challenge. But, although the District Court should have made more complete findings of fact and conclusions of law, I would not remand simply on this score but would hold that the appellants are entitled to judgment. The problem is simple and should be disposed of here. The federal Act defines a “dependent child” as a “needy child . . . who has been deprived of parental support or care by reason of . . . continued absence from the home.” Indiana by its Board of Public Welfare has adopted the federal definition of “needy child.” The term “continued absence from the home” is not defined in the federal Act, though HEW recommends “that no period of time be specified as a basis for establishing continued absence as an eligibility factor.” Indiana, however, has established by rule a definition of “continued absence” in case of “desertion or separation.” In those two instances it makes “continued absence” mean that “the absence shall have been continuous” for at least six months, except when the department of welfare finds there are “exceptional circumstances of need.” A dependent child gets aid immediately and continuously in case the parent is incarcerated or in case the parent is inducted into the armed services. The six-month rule creates a separate class of needy children who by the federal standard may be as “needy” as those in the other two categories. The federal Act directs that “aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.” The federal regulation requires decisions on applications to be made “promptly” and “not in excess of” 30 days and that the assistance check or notification of denial be mailed within that period. As noted, the federal Act contains no waiting period to establish “continued absence.” And the HEW Handbook, already referred to, states as respects “continued absence” that “[a] child comes within this interpretation if for any reason his parent is absent.” Here, as in California Human Resources Dept. v. Java, 402 U. S. 121, 135, the State’s program “tends to frustrate” the Social Security Act. King v. Smith, 392 U. S. 309, “establishes that, at least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.” Townsend v. Swank, 404 U. S. 282, 286. While a State has a legitimate interest in preventing fraud, there are, as we said in Shapiro v. Thompson, 394 U. S. 618, 637, “less drastic means” available “to minimize that hazard.” Rather than remanding for a lower court determination of the law of the case, the merits ought to be decided now inasmuch as (a) the facts are essentially undisputed, (b) the appellants’ claim based on the federal Act is plainly correct, and (c) further litigation would work a hardship upon welfare recipients affected by the Indiana rule. See generally Note, Individualized Criminal Justice In The Supreme Court: A Study Of Dispositional Decision Making, 81 Harv. L. Rev. 1260 (1968); Bell, Appellate Court Opinions And The Remand Process, 2 Ga. L. Rev. 526, 536 (1968). The Indiana regulation so plainly collides with the federal Act that I would end this frivolous defense to this welfare litigation by deciding the merits and reversing by reason of the Supremacy Clause. 49 Stat. 629, as amended, 42 U. S. C. § 606 (a). Ind. State Bd. of Pub. Welfare Reg. 2-400 (a). Dept. of Health, Education, & Welfare Handbook of Public Assistance Administration, pt. IV, §3422.5 (1968). Bums, Ind. Admin. Rules & Regs. (52-1001)-2 (1967): “When the continued absence is due to desertion or separation, the absence shall have been continuous for a period of at least six [6] months prior to the date of application for assistance to dependent children; except that under exceptional circumstances of need and where it is determined that the absence of a parent is actual and bona fide an application may be filed and a child may be considered immediately eligible upon a special finding of the county department of public welfare setting forth the facts and reasons for such action.” 42 U. S. C. §602 (a) (10). 45 CFR §206.10 (3), 36 Fed. Reg. 3864. N. 3, supra. Part IV, §3422.2, of the Handbook provides: “Continued absence of the parent from the home constitutes the reason for deprivation of parental support or care under the following circumstances: “1. When the parent is out of the home; “2. When the nature of the absence is such as either to interrupt or to terminate the parent’s functioning as a provider of maintenance, physical care, or guidance for the child; and “3. When the known or indefinite duration of the absence precludes counting on the parent’s performance of his function in planning for the present support or care of the child. “A child comes within this interpretation if for any reason his parent is absent, and this absence interferes with the child’s receiving maintenance, physical care, or guidance from his parent, and precludes the parent’s being counted on for support or care of the child. For example: The child’s father has left home, without forewarning his family, and the mother really does not know why he left home, nor when or whether he will return.” Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:

songer_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". PACKER PUB. CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 14678. United States Court of Appeals, Eighth Circuit. April 15, 1954. Charles C. Shafer, Jr., Kansas City, Mo. (Lancie L. Watts, Kansas City, Mo., on the brief; Watts & Shafer, Kansas City, Mo., of counsel), for petitioner. Harry Marselli, Sp. Asst, to Atty. Gen. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Sp. Asst, to Atty. Gen., on the brief), for respondent. Before GARDNER, Chief Judge, and JOHNSEN and COLLET, Circuit Judges. COLLET, Circuit Judge. The Packer Publishing Company duly filed its excess profits tax returns for the years 1943, 1944 and 1945. In those returns it did not claim any adjustments under § 711(b) (1) (J) of the Internal Revenue Code, 26 U.S.C.A. § 711. In due time it made claims for refunds under § 711 for all three years. These claims were allowed in part by the Commissioner by stipulation. The taxpayer did not then nor does it now criticize the stipulated allowance. Thereafter, it filed claims for relief and refunds for each of the three years under § 722 of the Internal Revenue Code, 26 U.S.C.A. § 722. The Commissioner disallowed the claims under § 722. Upon petition by the taxpayer to the Tax Court, that court allowed a portion of the claims by decision reported in Packer Publishing Co. v. Commissioner of Internal Revenue, 17 T.C. 882. The claims based on § 711 having been settled by stipulation between the taxpayer and the Commissioner, neither pleaded the basis for the stipulated allowance in the § 722 proceedings before the Tax Court. The exhibits filed in the Tax Court, made a part of the petition addressed to that court, showed, however, that an allowance had been made under § 711 and the calculations and computations in those exhibits were based upon that stipulated allowance. When the Tax Court granted relief under § 722 it directed that the Commissioner and the taxpayer undertake to make the computation of the amount of refund due and submit the result to the court. This pursuant to the Tax Court’s Rule 50. When the Commissioner and the taxpayer undertook to do so, the Commissioner took the position that the taxpayer could not be entitled to relief under both § 722 and § 711 and, since the court had directed relief under § 722, the Commissioner eliminated from consideration the relief theretofore granted by stipulation under § 711. The taxpayer contended that it was entitled to both. Each submitted to the court, under Rule 50, computations based upon its respective position. The dispute was heard by one judge of that court. The record shows that the judge concluded that the court was without jurisdiction to consider whether the taxpayer was entitled to any relief under § 711 in a proceeding for relief under § 722. This decision was made without inquiry into the basis' for the claimed relief under § 711. Judgment was entered for the taxpayer upon the computation submitted by the Commissioner. That computation was correct if relief under § 722 necessarily and automatically excluded any relief under § 711. If that premise is not correct, the taxpayer has been denied the relief granted by the Commissioner by stipulation without any opportunity to be heard thereon by the Tax Court. Also presented to the Tax Court in the § 722 proceeding was a claim for adjustment in the event relief was granted under § 722. Briefly, that claim was based upon the fact that one of the taxpayer’s executives was paid upon a bonus agreement, the bonus to be a stipulated portion of net profits after taxes. If relief was granted under § 722, the taxes would be lower and the bonus greater. The claim was that the greater compensation to be paid the executive, in the event the bonus was automatically increased as a result of relief being granted under § 722, be treated as operating expense and the increase deducted from the taxable income of the corporate taxpayer. The Tax Court refused to consider this claim on the ground that it was without jurisdiction to grant such relief in a § 722 proceeding. The Commissioner now seeks to sustain the Tax Court’s judgment upon the grounds that: (1) the Tax Court’s judgment is not reviewable and the Commissioner’s motion to dismiss on that ground should be sustained; (2) that if it is reviewable the judgment is correct, because in a § 722 proceeding the Tax Court’s jurisdiction is strictly limited to issues arising under § 722 alone; (3) that the taxpayer did not plead the grounds upon which it was claiming the relief theretofore administratively granted by stipulation under § 711 and hence such relief could not be considered in the § 722 proceeding; (4) that in its petition for review of the Tax Court’s judgment the taxpayer did not include in the errors assigned or points stated therein any reference to its claim to an increased deduction on account of the-increased bonus compensation in the nature of salary to its executive. A motion was addressed to this court, prior to docketing and submission of this cause, for leave to include this additional point for presentation to this court. At that time the motion was denied without prejudice to its renewal at the time of argument and submission. It has been renewed and is before us for determination with the case. The Commissioner’s motion to dismiss is based upon § 732(c), which is as follows : “(c) Finality of determination. If in the determination of the tax liability under this subchapter the determination of any question is necessary solely by reason of section 711(b) (1) (H), (I), (J), or (K), section 721, or section 722, the determination of such question shall not be reviewed or redetermined by any court or agency except the Board.” 26 U.S.C.A. § 732(c). Broadly and generally stated, both § 722 and § 711 deal with determining the normal income base to be used for purposes of comparison with the income for the tax year in question in order to determine the excess profits for a given year which were earned in addition to the normal or base period earnings. This for the purpose of determining the tax for that year. The provision of § 722 under which the Tax Court granted relief is § 722(b) (4), reading as follows : “(b) Taxpayers using average earnings method. The tax computed under this subchapter (without the benefit of this section) shall be considered to be excessive and discriminatory in the case of a taxpayer entitled to use the excess profits credit based on income pursuant to section 713, if its average base period net income is an inadequate standard of normal earnings because— “(4) the taxpayer, either during or immediately prior to the base period, commenced business or changed the character of the business and the average base period net income does not reflect the normal operation for the entire base period of the business. If the business of the taxpayer did not reach, by the end of the base period, the earning level which it would have reached if the taxpayer had commenced business or made the change in the character of the business two years before it did so, it shall be deemed to have commenced the business or made the change at such earlier time. For the purposes of this subparagraph, the term ‘change in the character of the business’ includes a change in the operation or management of the business, a difference in the products or services furnished, a difference in the capacity for production or operation, a difference in the ratio of nonbor-rowed capital to total capital, and the acquisition before January 1, 1940, of all or part of the assets of a competitor, with the result that the competition of such competitor was eliminated or diminished. Any change in the capacity for production or operation of the business consummated during any taxable year ending after December 31, 1939, as a result of a course of action to which the taxpayer was committed prior to January 1, 1940, or any acquisition before May 31, 1941, from a competitor engaged in the dissemination of information through the public press, of substantially all the assets of such competitor employed in such business with the result that competition between the taxpayer and the competitor existing before January 1, 1940, was eliminated, shall be deemed to be a change on December 31, 1939, in the character of the business, or * * Section 711(b) (1)(J), 26 U.S.C.A. § 711, under which relief was granted administratively by stipulation and later withdrawn by the Commissioner after the Tax Court had granted relief under § 722, is as follows: “(b) Taxable years in base period. “(1) General rule and adjustments. The excess profits net income for any taxable year subject to the Revenue Act of 1936 shall be the normal-tax net income, as defined in section 13(a) of such Act; and for any other taxable year beginning after December 31, 1937, and before January 1, 1940, shall be the special-class net income, as defined in section 14(a) of the applicable revenue law. In either case the following adjustments shall be made * * *_ “(J) Abnormal deductions. Under regulations prescribed by the Commissioner, with the approval of the Secretary, for the determination, for the purposes of this sub-paragraph, of the classification of deductions— “(i) Deductions of any class shall not be allowed if deductions of such class were abnormal for the taxpayer, and “(ii) If the class of deductions was normal for the taxpayer, but the deductions of such class were in excess of 125 per centum of the average amount of deductions of such class for the four previous taxable years, they shall be disallowed in an amount equal to such excess.” 26 U.S.C.A. § 711(b)(1) (J). It is obvious, from the above quoted portions of § 722 and § 711 that the application of the formulae for determining normal or base period income is a complicated process. Reference to the remainder of both sections not quoted herein makes that fact more certain. It is safe to say from the proceedings in Congress incident to the enactment of § 732(c) and the language of the latter section, heretofore quoted, that the congressional intent and purpose was to provide that the application of the formulae set out in § 722 and § 711 (and § 721, not now directly involved) should be finally reviewed by the experts in that field, — the Tax Court. The Commissioner contends that such finality of review by the Tax Court extends not only to the ascertainment of whether the facts in a particular case warrant relief under those sections, but also to the legal construction of those sections for the purpose of determining whether relief granted under § 722 automatically precludes and is in lieu of any and all relief which is provided for by § 711. The cases of Colonial Amusement Co. v. Commissioner, 3 Cir., 173 F.2d 568; Colorado Milling & Elevator Co. v. Commissioner, 10 Cir., 205 F.2d 551; George Kemp Real Estate Co. v. Commissioner, 2 Cir., 182 F.2d 847; James F. Waters, Inc., v. Commissioner, 9 Cir., 160 F.2d 596, are cited iñ support of that position. An examination of these authorities discloses that neither of them holds thát a review of the question presented here is barred by § 732(c). In each of those cases the question determined by the Tax Court was whether, under the facts, relief under § 721, § 722, or § 711 was appropriate. It is true that in the Kemp case the court stated that the language of § 732(c) “forbids any judicial review, whether of fact or law.” [182 F.2d 849.] But that statement was made in answer to á contention that § 732(c) should-not be construed to forbid appellate review of questions of law when there were no disputed questions of fact. That presented an entirely different situation from that which is before us. There the facts were before the Tax Court. They were considered and the formulae of § 721 and § 722 were applied by that court with the result that it was determined the facts justified no relief under the law. Here the Tax Court declined to consider whether relief was appropriate under § 711, not because the facts did not justify relief, but because that court concluded the proper judicial construction of § 722 and § 711 must result in a holding that the granting of any relief under § 722 automatically precluded any consideration of relief under § 711, and hence no consideration could be given a claim for relief under § 711 in a § 722 case. That decision involved solely the judicial construction of the statute. It did not involve to any extent the determination of whether the formula of the statute, applied to the facts by the experts, justified or did not justify relief. The facts were not before the court and the taxpayer was prevented from presenting them by the court’s construction of the statutes. Such a decision of the Tax Court is not within the purview of the prohibition of § 732(c). Cf. Dowd-Feder, Inc., v. Commissioner, 6 Cir., 173 F.2d 673; Stimson Mill Co. v. Commissioner, 9 Cir., 163 F.2d 269. We are not confronted with the necessity of determining the propriety of a denial of relief by the Tax Court under § 711 upon the ground that such relief, if any was merited, was included in the relief given under the broad scope of § 722, or upon any other ground involving the merits or the facts upon which a claim under § 711 is based. As we have undertaken to make clear, our problem is to determine whether the Tax Court was precluded by § 722 and § 711 from entertaining jurisdiction of the merits of the claim made and granted by stipulation under § 711 in a proceeding instituted under § 722. Granting that both sections are relief provisions and are to be strictly construed to the end that the relief intended should not be extended beyond the clear intent of the law as written, yet such construction should not be unreasonable or arbitrary. In Mutual Lumber Co. v. Commissioner, 16 T.C. 370, the Tax Court held (with three judges dissenting) that in a case arising under § 722 it had no jurisdiction to consider an issue other than one arising under § 722. In H. Fendrich, Inc., v. Commissioner, a similar ruling was made. The latter case was reversed in H. Fendrich, Inc., v. Commissioner, 7 Cir., 192 F.2d 916, decided November 16, 1951. In the case of City Machine & Tool Company v. Commissioner, 6 Cir., 194 F.2d 535, decided February 22, 1952, the Tax Court had followed the rule it announced in Mutual Lumber Co. v. Commissioner and H. Fendrich, Inc., v. Commissioner. The Commissioner confessed error and the Court of Appeals (6 Cir.) reversed, following H. Fendrich, Inc., v. Commissioner (7 Cir.). In the case of Jefferson Amusement Co. v. Commissioner, 18 T.C. 44, decided April 9, 1952, and East Texas Theatres v. Commissioner, 19 T.C. 615, decided December 31, 1952, the Tax Court followed the decisions of the Courts of Appeals for the Sixth and Seventh Circuits in the City Machine & Tool Company and the Fendrich cases. The hearing on the merits of the claim under § 722 was held in November, 1950. The record appears to have been closed April 9, 1951. Although the findings and opinion were not filed until November, 1951, apparently that opinion was rendered before the decision of the Fendrich case, November 16, 1951. When the hearing was held in March, 1952, by the trial judge, on the dispute arising at the conference of the parties under Rule 50, the hearing judge considered the Fendrich case but concluded that the Mutual Lumber case, supra, was the law of this case, the opinion of the Tax Court in the § 722 case having been theretofore filed. Whether the trial judge should have reached that conclusion is of no present importance, for we must now determine the correctness of the judgment of the Tax Court and the decision reached in the Fendrich and City Machine & Tool Company cases, supra, by the Courts of Appeals for the Sixth and Seventh Circuits. We find no fault with those cases. The principle decided in both is correct and controlling here. In both of them those courts reached the conclusion that the Tax Court had jurisdiction to consider issues arising under other parts of the Internal Revenue Code in a proceeding arising under § 722. The argument is made by the Commissioner that the facts showing the grounds upon which relief was sought (and which had been granted by stipulation) under § 711 should have been pleaded by the taxpayer in its petition to the Tax Court for relief under § 722, and not being pleaded, no relief could be granted under § 711. The taxpayer contends that since the relief under § 711 had been granted by the Commissioner and was no longer in dispute, if the Commissioner considered that relief a bar to or a duplication of the relief sought in the petition for § 722 relief, that fact should have been pleaded as an affirmative defense by the Commissioner and that not having been done, any such defense is now waived. We are not impressed with the value or desirability of making hard and fast pronouncements concerning procedural practices which experience has taught and formal rules of procedure contemplate should be left sufficiently elastic to enable trial courts to exercise a large degree of discretion in the administration of substantial justice. Formal rules of procedure are necessary and desirable in order that litigants may have an authoritative guide in a proper course to be safely followed to obtain a determination of the merits of their controversy. They should not be made the means of entrapping a litigant, whereby he loses his opportunity to present his cause on its merits. The Tax Court did not do this. It did not reach the question. Since the cause must be remanded, it is sufficient for present purposes to observe that if the formal pleading of additional facts be deemed necessary by the Tax Court for the clarification and presentation of this issue, leave should be granted to make appropriate amendment to the pleadings. From what has already been said it must follow that the taxpayer’s motion for leave to include in the errors assigned the point that the Tax Court had jurisdiction to pass upon the claim for an increased deduction on account of an increase in the compensation of the taxpayer’s executive should be granted. It is granted. We agree with the statement of the Senate Finance Committee and the Court of Appeals for the Seventh Circuit in II. Fendrich, Inc., v. Commissioner, 192 F.2d 916, 920, that: “ '* * * it is essential that all such issues be decided by one group familiar with the problems involved. Only by this method can a consistent and uniform application of the principles established be assured in all cases. At the same time there is provided [by the statute] flexible machinery to coordinate cases involving both relief and abnormality issues as well as other questions.’ ” The petitioning taxpayer requests that we direct the entry of a judgment allowing the relief claimed under § 711. A consideration of the merits of that claim and the facts upon which it is based, in the light of the relief granted under § 722, is essential to a determination of whether relief under § 711 is appropriate, in addition to that granted under § 722. That is for the Tax Court to determine, both from necessity in this case, and also because of the direction of the statute. For the reasons stated, the cause is remanded to the Tax Court for its determination of the taxpayer’s right to relief under § 711, and the propriety of an additional deduction on account of an increase in the compensation of the taxpayer's executive, occasioned by the decrease in taxes resulting from such relief as may be granted by the Tax Court. . Since the pertinent portions of § 711 will be referred to later, they are not set out here. Question: 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_usc1

28

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. DAYTONA BEACH RACING AND RECREATIONAL FACILITIES DISTRICT, a body politic and corporate under the laws of the State of Florida, and International Speedway Corporation, a Florida Corporation, Plaintiffs-Appellants, v. COUNTY OF VOLUSIA, a political subdivision of the State of Florida, et al., Defendants-Appellees. No. 78-1634 Summary Calendar. United States Court of Appeals, Fifth Circuit. Sept. 1, 1978. Rehearing Denied Oct. 17,1978. Nathan Lewin, James E. Rocap, III, Washington, D. C., Thomas T. Cobb, S. La-Rue Williams, Daytona Beach, Fla., for plaintiffs-appellants. Raymond, Wilson, Conway, Barr & Burrows, William M. Barr, Daytona Beach, Fla., for County of Volusia, James Bailey, Robert D. Summers. Robert L. Shevin, Atty. Gen., Harold F. X. Purnell, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for J. Edward Straughn, Dept. of Revenue, State of Florida. Before THORNBERRY, GEE and FAY, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: In 1955, the Florida legislature exempted from taxation racing and recreational facilities to be acquired or constructed by the plaintiff, Daytona Beach Racing and Recreational Facilities District. Subsequently, plaintiff, International Speedway Corporation, subleased land from the District and constructed a racing facility. In 1973, the Florida legislature repealed the tax exemption. The plaintiffs brought suit in United States district court in 1974 alleging that the Florida legislature’s action violated the Impairment of Contract Clause. The district court dismissed the action holding that the Tax Injunction Act of 1937, 28 U.S.C. § 1341, prohibited relief since the State of Florida provided a “plain, speedy, and efficient remedy” in state court. We affirmed without opinion. Daytona Beach Racing and Recreational Facilities District v. County of Volusia, 512 F.2d 1404 (5 Cir. 1975). The plaintiffs then amended a pending state suit to include their constitutional claim. The plaintiffs, however, did not offer any evidence to the Florida trial court relating to their constitutional contention. The Florida trial court found for the plaintiffs on state grounds and the defendants appealed. The Florida Supreme Court reversed the trial court and the United States Supreme Court dismissed the appeal for lack of a substantial federal question. Day-tona Beach Racing and Recreational Facilities District v. County of Volusia, 341 So.2d 498 (Fla.1977), appeal dismissed, 434 U.S. 804, 98 S.Ct. 32, 54 L.Ed.2d 61 (1977). The plaintiffs again brought suit in federal court contending that the Florida Supreme Court improperly rejected their constitutional argument since no evidence was presented on the issue in the Florida trial court. The district court dismissed the action holding that the Supreme Court’s dismissal in the prior action was dispositive on the constitutional claim. We need not consider this argument since it is plain that the Tax Injunction Act of 1937 still bars the federal courts from assuming jurisdiction in this suit. The Act states: The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. June 25,1948, c. 646, 62 Stat. 932. 28 U.S.C. § 1341. All that is required is that the state must provide a “plain, speedy and efficient remedy” in the courts of the state. This Florida has done, and the plaintiffs’ failure to present any evidence and argument to the Florida state court will not make the Florida remedy improper. The plaintiffs cannot fail to take advantage of the state remedy and then litigate in federal court. The plaintiffs’ first suit was barred because the State of Florida provided a proper remedy for the litigation of their claim, and the plaintiffs’ second suit is barred for the same reason. See Kiker v. Hefner, 409 F.2d 1067 (5 Cir. 1969). The district court was correct in dismissing the action because it is without jurisdiction to hear the matter. AFFIRMED. . U.S.Const. Art. 1, § 10. . The Order dismissing the action under the Tax Injunction Act of 1937 is reproduced below: This cause came on before the Court for a hearing on the motion of all the defendants, County of Volusia, Robert Bolin, Robert D. Summers, and J. Ed Straughn, to dismiss the complaint. The undisputed facts are that the plaintiffs seek to challenge in this court on federal constitutional claims the action of the Legislature of Florida in terminating a previously enacted tax exemption granted to the plaintiffs. 1 Section 13 of Florida Statutes, Chapter 31343, enacted in 1955 provided that no taxes or assessments were to be levied upon any of the racing and recreational facilities that were constructed pursuant to the Act. In 1973, Fla. Statutes Chapter 73-647 was enacted which repealed Section 13 of Chapter 31343, Laws of Florida, 1955, thus eliminating plaintiffs’ tax exempt status. The plaintiffs have also filed in the State Courts of Florida a challenge to the same statute eliminating their tax exemption based upon alleged state grounds. The defendants contend that Section 1341, Title 28 United States Code, precludes this Court from considering this case and that plaintiffs must look to the State Courts for relief, including the federal constitutional grounds raised by them. In view of Great Lakes Dredge & Dock Company v. C. C. Huffman, 319 U.S. 293 (63 S.Ct. 1070), 87 L.Ed. 1407 (1943) and Bland v. McHann, 463 F.2d 21 (5th Cir., 1972), the position of the defendants appears to have merit in that this Court finds that the plaintiffs have a “plain, speedy, and efficient remedy” in the state courts. 28 United States Code § 1341. 2 FSA § 194.171, the predecessor to which the Fifth Circuit has found satisfied the requirements of 28 U.S.C. § 1341. Carson v. City of Ft. Lauderdale, 293 F.2d 337 (5th Cir., 1961). The plaintiffs presented the ingenuous argument that, based on cases not involving state taxes, this court should retain jurisdiction of this case so as to permit the plaintiffs to litigate in the state courts only their state claims and then, if unsuccessful, to pursue for the first time their federal claims in this court. While such a procedure has been authorized for nonstate tax issues, it is not the procedure specifically approved in state tax matters. It is, therefore ORDERED that the motion to dismiss be and is hereby granted and this case is dismissed. DONE AND ORDERED in Chambers at Orlando, Florida, this 7th day of November, 1974. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

songer_appbus

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. John E. DEMARINIS, Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, Respondent. No. 83-7489. United States Court of Appeals, Ninth Circuit. Argued Nov. 18, 1983. Submitted March 21, 1984. Decided March 21, 1984. John William Cumming, Eureka, Cal., for petitioner. Dennis A. Paquette, Dept. of Labor, Washington, D.C., for respondent. Before GOODWIN, SCHROEDER and FARRIS, Circuit Judges. GOODWIN, Circuit Judge: John E. Demarinis appeals from the Assistant Secretary of Labor’s decision that he is ineligible for Redwood Employee Protection Program (REPP) benefits under Title II of the Redwood National Park Expansion Act of 1978, Pub.L. No. 95-250, §§ 201-13, 92 Stat. 163, 172-82. Demarinis was employed as a lab technician for over nine years with the Samoa Lumber Mill of the Louisiana-Pacific Corporation. In early November, 1978, the hourly employees went on strike, and Demarinis was temporarily assigned to an eight-hour graveyard shift tending the boiler. During this period he worked overtime to complete his regular duties as a lab technician. On November 8, 1978, he refused to work a twelve-hour graveyard shift tending the boiler, and was discharged from his position as a lab technician. Demarinis testified before the administrative law judge that he did not refuse to work, but rather sought to be reassigned away from the graveyard shift. The California Employment Development Department (EDD) found Demarinis eligible for both State unemployment compensation benefits and REPP benefits. An administrative law judge affirmed on the grounds that the refusal to work constituted a voluntary leaving with “good cause” as defined in Cal.Unemp.Ins.Code § 1256. De-marinis began collecting his benefits. Several months later, the EDD changed its eligibility policy and decided that a voluntary leaving with good cause did not constitute a qualifying layoff as defined in the Redwood Act. Demarinis was issued a notice that because he voluntarily left his employment and therefore was not “laid off”, he was not an eligible employee under the Redwood Act. An ALJ and the Secretary affirmed the EDD’s new determination of ineligibility. This appeal presents a question of statutory interpretation. Title II of the Act, section 213(f), provides that where there is more than one reasonable interpretation of the Act, the Secretary shall adopt the construction which is the most favorable to employees. See Local 3—98, International Woodworkers of America v. Donovan, 713 F.2d 436, 439 (9th Cir.1983). This rule also applies to the interpretation of Redwood Act regulations. David v. Donovan, 698 F.2d 1057 (9th Cir.1983). In this case the Secretary’s own regulations preclude him from reconsidering De-marinis’ eligibility for REPP benefits. 29 C.F.R. § 92.50(c) provides that the EDD may reconsider determinations of eligibility on the same terms and under the same conditions as it may reconsider its own determinations made under California unemployment insurance statutes and regulations. The California Unemployment Insurance Code, § 1332(a), provides that a determination may be reconsidered within twenty days after mailing or service of the notice of determination. The Secretary clearly has not met this time limit. The Secretary claims that California unemployment insurance regulations permit him to reconsider Demarinis’ claim, citing 22 Cal.Adm.Code §§ 1326-1 through 1326-6. Section 1326-1(b)(4), which describes the “usual procedures” followed in handling a claim, see § 1326-l(b), comes closest to supporting the Secretary. This subsection says that the claimant reports periodically to the EDD for an interview concerning his or her efforts to find work, and states that the interview “is designed’ to discover any potential eligibility issue.” This language at most authorizes the Secretary to redetermine a claimant’s eligibility if the factual situation changes, e.g., if he or she finds another job. It does not authorize him to reconsider eligibility when he changes his interpretation of the applicable law, because the interviews are not designed to discover changes in the law. The Secretary is bound by his own regulations. United States v. Nixon, 418 U.S. 683, 696, 94 S.Ct. 3090, 3101, 41 L.Ed.2d 1039 (1974); 2 K. Davis, Administrative Law Treatise § 7:21 (2d ed. 1979). He is not permitted to redetermine whether De-marinis quit or was laid off now that the 20 day period has expired. In a somewhat similar case we held on equitable grounds that the Secretary was not free to redetermine whether an employee had been laid off before or after the effective date of the Act many months after the state agency had found the worker to be eligible. See Egbert v. Donovan, 720 F.2d 1122 (9th Cir.1983). Construing the statutory scheme as a whole, we hold that the Secretary was time barred from redetermining Demarinis’ eligibility and that the petition must be allowed. Judgment for Petitioner. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

songer_procedur

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. DE CASTRO v. BOARD OF COM’RS OF SAN JUAN. No. 3796. Circuit Court of Appeals, First Circuit. June 14, 1943. Hugh R. Francis and Gabriel de la Piaba, both of San Juan, Puerto Rico, for appellant. F. Fernandez Cuyar and H. Gonzales Blanes, both of San Juan, Puerto Rico, for appellee. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAGRUDER, Circuit Judge. On January 4, 1937, the Board of Commissioners of San Juan (the newly elected members of which took office on that day) appointed Carlos M. de Castro, appellant herein, as city manager of the Capital of Puerto Rico. Pursuant to § 22 of Act No. 99, Laws of Puerto Rico (1931) pp. 638-640, the said Board of Commissioners, after hearing upon charges, removed de Castro from office on April 5, 1939. The District Court of San Juan upheld the Board. On appeal the Supreme Court of Puerto Rico reversed the judgment of the district court and directed appellant’s reinstatement. The Supreme Court’s judgment which was rendered June 28, 1940, read as follows: “For the reasons set forth in the foregoing opinion, the judgment appealed from, which was rendered by the District Court of San Juan on August 21, 1939, is hereby reversed, and in its stead a new one rendered, annulling Ordinances No. 370, of January 5, 1939, and No. 373, of April 5, 1939, which decreed the suspension .and removal of the city manager, and in consequence thereof, ordering the reinstatement of the petitioner Carlos M. de Castro in his office of city manager, said reinstatement to date hack from January 5, 1939, when the petitioner was suspended from office and pay.” An appeal was duly allowed, and on July 30, 1940, the court below approved a supersedeas bond. This court affirmed the judgment of the Supreme Court of Puerto Rico on January 10, 1941. Board of Commissioners of San Juan v. De Castro, 1 Cir., 116 F.2d 806. Certiorari was denied on October 13. 1941, 314 U.S. 614, 62 S.Ct. 61, 86 L.Ed. 495. Shortly after our mandate went down to the Supreme Court of Puerto Rico the Board, on October 27, 1941, filed in that court a motion to stay the execution of its judgment of June 28, 1940 (which we had affirmed) insofar as it ordered the reinstatement of appellant, on the ground that meanwhile appellant’s term of office as city manager had expired. Appellant filed an opposition to this motion, and after a hearing thereon, the Supreme Court of Puerto Rico on January 14, 1942, entered its judgment, from which the present appeal is taken reading as follows: “For the reasons set forth in the foregoing opinion, the motion filed by the Board of Commissioners of San Juan on October 27, 1941, is granted, and in consequence thereof the execution of the judgment of this court of June 28, 1940, is stayed insofar as it decrees the reinstatement of petitioner Dr. Carlos M. de Castro in the office of city manager of the capital because the term for which he was appointed expired in February, 1941.” If the court below was correct in its conclusion that appellant’s term of office expired at some time subsequent to its judgment of June 28, 1940, ordering appellant’s reinstatement, we think it is manifest that that court had jurisdiction to stay the execution of its judgment insofar as it decreed reinstatement, despite the fact that the said judgment had been affirmed by this court. See Puerto Rican Code of Civil Procedure, § 7, subdivision 8. Appellant urges that the issue as to his tenure of office had become res judicata in his favor, because in his brief before the Supreme Court of Puerto Rico at the earlier hearing he had advanced the contention that the city manager holds office during good behavior. But that court in its opinion of June 28, 1940, did not go into the question of the tenure of the office at all, and did not need to, because at that time appellant’s four-year term, which the Board claims was the extent of his tenure, had not expired. Certainly, when we affirmed on the previous appeal we had no idea that we were passing on the tenure of the office. We affirmed a judgment holding that appellant had been improperly removed and ordering his reinstatement. How long appellant should retain his office after reinstatement was quite another question. When the Supreme Court of Puerto Rico, upon remand from us, regained jurisdiction over its judgment of June 28, 1940, a new situation was then presented. It was then inappropriate, if appellant’s term of office had meanwhile expired, for the Supreme Court of Puerto Rico to carry into execution its decree of reinstatement. This brings us to the merits, the question whether under the applicable statute the city manager holds office for a life tenure (during good behavior), or as contended by the Board, for a definite term of four years coincident with the four-year terms of the members of the Board which appointed him. Act No. 99 of the insular legislature approved May 15, 1931, established a special government for the body politic to be known as the “Capital of Puerto Rico”. Relevant portions of this Act, Laws P. R. (1931) p. 626, and of amendatory Act No. 10, Laws P. R. (1937) p. 131, are copied in the footnote. The legislative powers are conferred upon a governmental body known as the “Board of Commissioners of San Juan”, As originally constituted by § 9 of the Act, this was a continuing body, composed of five commissioners, appointed by the Governor and confirmed by the Senate, with staggered terms, the term of one commissioner expiring each year. Section 50 of the Act, however, provided that at the general elections in 1936 and every four years thereafter the commissioners should be elected by popular vote, the commissioners previously appointed by the Governor under § 9 to hold office until the first Monday in January, 1937. Act No. 10, approved March 24, 1937, increased the membership of the Board by providing that the Governor should forthwith appoint, with the advice and counsel of the Senate, four additional commissioners to serve with the five commissioners who had been elected in 1936. For the future it was provided that the nine members of the Board should take office on the second Monday in February following each general election, which seems to imply that the four appointed commissioners are to hold office for four years, as in the case of those elected by popular vote. Section 10 creates the offices of city manager, treasurer, director of public works, director of health and charities, school director, auditor and secretary of the Capital. Section 21 provides that the city manager shall be the chief executive of the Capital; “he shall be appointed by the Board of Commissioners created by this Act and shall hold office during good conduct.” [Italics ours.] Procedure for removal of the city manager by the Board “for just cause” after hearing is set forth in § 22. Section 26 provides that the city manager shall appoint the various departmental heads previously mentioned, except the auditor. No specific provision is made as to the tenure of these officers so appointed by the city manager, but § 27 provides that they may be removed by the city manager, for just cause after hearing, the removal provisions being the same as those empowering the Board to remove the city manager. Section 36 provides that the auditor shall be appointed by the Board of Commissioners. No specific provision is made as to the auditor’s term of office; but he also may be removed by the Board for just cause after hearing. It is to be observed that the legislature has dealt in various ways with the tenure of officers and employees of the city government. The commissioners have fixed terms of years. Of the two officers to be appointed by the Board, the city manager “shall hold office during good conduct”; the auditor’s tenure is not stated. Nor is any tenure stated for the other offices to which the city manager has the appointing power. “Employees” are appointed for the term of the appointing officer. Act No. 99 supersedes, so far as concerns the capital city, the Municipal Law of April 28, 1928, Laws, P.R.(1928) No. 53, p. 334, under whch the chief executive was a mayor, elected for a fixed term, though subject to impeachment by the municipal assembly. Appellant contends that the legislature, in providing that the city manager should hold office “during good conduct,” evidenced a clear and unambiguous purpose to introduce experimentally in the city of San Juan a new type of city government, under which the chief executive or city manager would hold office during good behavior “without being tied to the whims and uncertainties of partisan politics.” The court below, however, reached the conclusion that “the tenure of office of the city manager of the capital is that of four years, provided that during the same he observe good behavior.” It is difficult for us to see how § 21 could mean anything different in 1937, and thereafter, from what it meant in 1931, when the new form of government was instituted. There is no basis for saying that the first city manager, appointed in 1931, held a four year term, for at that time the tenure of office of the commissioners themselves was not four years, and their terms were staggered so that only one of the five commissioners went out of office each year. But passing that difficulty, suppose it had been provided from the outset that the whole body of commissioners should be elected by popular vote every four years, as § 50 provided for 1936 and thereafter. It might then be implied that the auditor, whose tenure is not specifically stated, holds office during a four year term, coinciding with that of the commissioners. The only other alternative would be (1) that the auditor holds office at the pleasure of the Board, which would seem to be contrary to the implication of the further provision that the auditor is removable by the Board for just cause, after notice and hearing, or (2) that the auditor holds office for life, subject to removal for cause. But a life tenure for public officers is the exceptional thing and will not be read into the statute by implication. Shurtleff v. United States, 1903, 189 U.S. 311, 316, 23 S.Ct. 535, 47 L.Ed. 828. Notwithstanding the provision that the city manager shall hold office “during good conduct,” the court below has read the statute as meaning that the city manager has the same limited tenure as that of the auditor, as to whose tenure the legislature is silent. Under this interpretation the phrase “during good conduct” in § 21 seems to be rendered meaningless and of no significance. The tenure of federal judges under Article III, § 1 of the Constitution is described as “during good Behavior,” which means for life, provided they behave themselves. Cf. Matter of Hennen, 1839, 13 Pet. 230, 258, 10 L.Ed. 138. Nobody ever supposed' that “during good behavior” meant that the judge would hold office during the term of the president who appointed him, provided that he observed good behavior during that time. In Smith v. Bryan, 1902, 100 Va. 199, 203, 40 S.E. 652, 653, cited by the court below in another connection, it is stated: “An official tenure ‘during good behavior’ is for life, unless sooner determined for cause. And removal for cause implies a right to be heard, and a trial in one form of procedure or another.” The steps in the reasoning of the court below are as follows: (1) Life tenure for public officers is the exception; hence should not be read into the statute by implication but only if the intention of the legislature to that effect appears to be so evident as to permit of no doubt. This is an accepted canon of construction, for which the court properly cites Shurtleff v. United States, 1903, 189 U.S. 311, 23 S.Ct. 535, 47 L.Ed. 828. That case involved the tenure of the office of general appraiser of merchandise. It was provided in the act creating the office that the appraisers should be appointed by the President with the advice and consent of the Senate and might be removed from office at any time by the President for inefficiency, neglect of duty or malfeasance in office. Beyond that the statute was silent as to the tenure of the office. The court held that Congress had not clearly enough indicated an intention to make the tenure one for life subject only to removal for cause; and therefore that the act should be construed as leaving unrestricted the President’s implied power of removal without cause. But the significant thing is that the act there involved did not provide that appraisers should hold office “during good behavior”. The court pointed out (page 316 of 189 U.S., page 536 of 23 S.Ct, 47 L.Ed. 828) that “The tenure of the judicial officers of the United States is provided for by the Constitution; but, with that exception, no civil officer has ever held office by a life tenure since the foundation of the government”. How is the life tenure of judicial officers provided for in the Constitution except by the phrase that they shall hold office “during good Behavior”? The rule of interpretation laid down in the Shurtleff case, where the act in question did not use the phrase “during good Behavior”, should not be used to create an ambiguity in § 21 of the act now before us, where the legislature describes the tenure simply as “during good conduct”. (2) The court points to the “anomaly” which would result if the city manager were held to have a life tenure, from the fact that the treasurer, the director of public works, etc., might under § 26 be appointed “for a limited term to be fixed by the city manager,” while an employee attached to the office of the city manager, “for example, the messenger of his office, by the mere fact of being appointed by the city manager would hold his employment for life unless removed for just cause.” Along the same line, the court states that an uncalled for discrimination would be created between the employees appointed by the other officers and the employees appointed by the city manager, “as the former would hold their employments during the tenure of the appointing officer while the term of office of the employees appointed by the city manager would be for life.” But these “anomalies,” if such they be, are relevant only if it is assumed that there is doubt or ambiguity as to the meaning of § 21. (3) The court invokes the rule of construction that where the legal provision describing a term is uncertain or doubtful, an interpretation will be adopted which limits the term to the shortest time — in this 'case, “that of four years, which is the one of the majority, at least, of the Board of Commissioners which appointed” the city manager. This, again, assumes some ambiguity in § 21. (4) The court refers to the rule that in cases of doubt “the practical construction given to a statute by public officials and acted upon by the people” will be regarded as decisive. In this connection the court took judicial notice of the facts that at the general elections held in 1936 and 1940 the various political parties had indicated to the electorate in advance their respective choices for city manager, and that when the newly elected commissioners took office the board proceeded to appoint as city manager the candidate of the successful political party. Appellant objects that the court below ought not to have taken judicial' notice of these facts; that he had no opportunity to put in evidence other facts or explanations which would rob the judicially noticed facts of their significance, and thereby he was denied due process of law. But it is clear that an appellate court may take judicial notice of public acts and facts of common knowledge bearing on a doubtful issue of statutory construction. If the court below took judicial notice of some fact that wasn’t so, appellant, on appeal to us, by reference to official records or in some other appropriate way, could bring the true situation to our notice, and we in our turn, taking judicial notice of the relevant facts, could review any error in statutory interpretation committed by the court below as the result of a misapprehension of the facts judicially noticed by it. Appellant, however, has not undertaken to enlighten us on these matters. Indeed, appellant does not deny the fact, as stated by the court below, that appellant, himself was the preannounced choice for city manager of the winning party at the general elections of 1936. And there seems to be no doubt of the further fact, stated by the court below, that when the newly elected commissioners came into office on January 4, 1937, they proceeded at once to appoint appellant as city manager. Appellant is no doubt embarrassed by the argument ad hominem, namely, that appellant himself obtained the office of city manager upon an assertion of an interpretation of § 21 inconsistent with that which he now maintains. But we know of no principle of “estoppel” which would preclude appellant from taking this inconsistent position in the present proceedings. The interpretation put upon the Act by the local political parties and by the successive boards of commissioners would be a relevant consideration in determining the construction of the Act, if the Act itself is deemed to be doubtful or ambiguous in meaning. If we were free to take a wholly independent view of the point at issue we would be inclined to conclude that the meaning of § 21 is clear, and that the court below went beyond the permissible limits of interpretation in reading the clause “and shall hold office during good' conduct” as meaning that “the tenure of office of the city manager of the capital is that of four years, provided that during the same he observe good behavior.” But in Sancho Bonet v. Texas Co., 1940, 308 U.S. 463, 471, 60 S.Ct. 349, 353, 84 L.Ed. 401, the court said: “To reverse a judgment of a Puerto Rican tribunal on such a local matter as the interpretation of an act of the local legislature, it would not be sufficient if we or the Circuit Court of Appeals merely disagreed with that interpretation. Nor would it be enough that the Puerto Rican tribunal chose what might seem, on appeal, to be the less reasonable of two possible interpretations. And such judgment of reversal would not be sustained here even though we felt that of several possible interpretations that of the Circuit Court of Appeals was the most reasonable one. For to justify reversal in such cases, the error must be clear or manifest; the interpretation must be inescapably wrong; the decision must be patently erroneous.” We are not prepared to say that the judgment now under review is “inescapably wrong.” For many years this court has not had much luck in reversing the Supreme Court of Puerto Rico on questions of local law. As we pointed out in de La Torre v. National City Bank, 1940, 110 F.2d 976, 983, “though Congress has given us appellate jurisdiction over the Supreme Court of Puerto Rico in matters of local law where the value in controversy exceeds $5,000, the exercise of this jurisdiction is so restricted by the canon prescribed by the Supreme Court of the United States that appeals in such cases are likely to be futile and merely to cause needless delay and expense.” It may be pointed out that our function in this class of cases, technically, at least, is different from that of the Supreme Court of the United States upon review of decisions of state courts. There, the Supreme Court has no appellate jurisdiction in matters of state law, and hence it accepts as conclusive the decisions of the state tribunals in matters of local law. But Congress has given us, and the Supreme Court of the United States upon certiorari, appellate jurisdiction over the Supreme Court of Puerto Rico in matters of local law where the jurisdictional amount is involved. It may well be that as a matter of legislative policy we ought not to have this jurisdiction; the present case is a good example, involving as it does a political matter of strictly local concern in San Juan, Puerto Rico. But as the law now stands litigants bring these cases to us as a matter of right, and we have to pass on them. It is a bit humiliating to this court to be obliged to act practically as a rubber stamp, or else to be reversed by the Supreme Court of the United States. Incidentally, we have two lines of appellate jurisdiction from Puerto Rico, one from the United States District Court for Puerto Rico~ and the other from the Supreme Court, of Puerto Rico. 28 U.S.C.A. § 225. Appeals from the District Court may involve questions of local Puerto Rican law; so far as we know, the “inescapably wrong” rule has never been applied in such cases. Suppose, upon such an appeal, we should decide a question of local law which had never been passed upon by the Supreme Court of Puerto Rico, and that subsequently, in other litigation, the same question should come before that court. Would it be “inescapably wrong” if it should refuse to follow our previous ruling on the point? Or is the Supreme Court of Puerto Rico free in such a case to make its own interpretation of the local law, brushing aside an earlier decision of this court, which on the face of 28 U.S.C.A. § 225 has appellate jurisdiction over it? We have gone into this case at such length not in any spirit of complaint, because we recognize that the Supreme Court of the United States applies to itself the same self-denying canon which it imposes on us; and it may be a good thing. But to save future litigants from disappointment and futile expense, we wish to reiterate that our appellate jurisdiction in this class of cases is pretty much of a dead letter. The judgment of the Supreme Court of Puerto Rico is affirmed, with costs to the appellee. Act No. 99: “Section 9. — The legislative powers conferred by this Act on the Capital shall be exercised by a governmental body which shall be officially known as ‘Board of Commissioners of San Juan.’ This Board of Commissioners shall be composed of five members, who shall be appointed by the Governor of Porto Rico, with the advice and consent of the Insular Senate, for the following terms: One Commissioner for a term of one year; One Commissioner for a term of two years; One Commissioner for a term of three years; One Commissioner for a term of four years; One Commissioner for a term of five years. “None of the first five commissioners appointed in accordance with this Act shall assume his ofiice until his appointment has been confirmed by the Insular Senate. “Section 10. — There are also hereby created the offices of City Manager, Treasurer, Director of Public Works, Director of Health and Charities, School Director, Auditor and Secretary of the Capital. “Section 21. — The City Manager shall be the chief executive of the Capital; he shall be appointed by the Board of Commissioners created by this Act and shall hold office during good conduct. “Section 22. — The City Manager may be removed by the Board of Commissioners, for just cause, upon hearing and an opportunity to defend himself either in person or through attorneys. The following shall be causes for the removal of the City Manager: Any act of his constituting a felony; any act of his constituting a misdemeanor and implying moral turpitude; or carelessness, inexcusable negligence in the performance of his duties, or immoral or incorrect conduct in the exercise thereof. “Section 26. — The City Manager shall appoint the following officers: (1) Treasurer of the Capital; (2) Director of Public Works; (3) Director of Health and Charities; (4) School Director; (5) Secretary of the Capital. “Section 27. — The Treasurer, the Director of Public Works, the Director of Health and Charities, the School Director, and the Secretary of the Capital may be removed by the City Manager, for just cause, upon hearing and an opportunity to defend themselves either in person or through attorneys. The following shall be causes for the removal of said officers; Any act of theirs constituting a felony; any act of theirs constituting a misdemeanor and implying moral turpitude; carelessness, or inexcusable ignorance in the performance of their duties, or immoral or incorrect conduct in the exercise thereof. “Section 36. — The Auditor of the Capital shall be appointed by the Board of Commissioners. This official may be removed by the Board of Commissioners for just cause, after a hearing and an opportunity to defend himself either personally or by attorneys. Causes for removal of this official shall be any act performed by him which constitutes a felony; any act performed by him which constitutes a misdemeanor and implies moral turpitude; carelessness or inexcusable negligence, or immoral and incorrect conduct, in the discharge of his office. * * * * e * • “Section 39. — All appointments of employees shall be made by the respective officers, according to the department, of the Capital in which they render services. Said employees shall be appointed for the term for which each officer is appointed. The employees of the Capital may be removed for just cause by the officer appointing them, after a hearing and an opportunity to defend themselves. Any employee may be suspended from office and salary upon the preferment of charges against him by the corresponding official. “Section 50. — The Board of Commissioners created by this Act shall be elected by popular vote at the general elections to be held in 1936, and every four years thereafter. The Commissioners appointed by the Governor of Porto Eico in accordance with section 9 of this Act shall hold office until the first Monday in January of 1937.” Amendatory Act. No. 10: “Section 1. — Section 50 of Act No. 99, entitled ‘An Act to establish a special government for the Capital of Puerto Eico, and for other purposes’, approved May 15, 1931, as subsequently amended, is hereby amended to read as follows: “ ‘Section 50. — The Board of Commissioners created by this Act shall be composed of nine members. Five of these nine members shall be elected by the popular vote of the qualified voters of both precincts of San Juan at the general elections to be held in 1940 and each succeeding four years. The other four members shall be appointed by the Governor of Puerto Eico with the advice and consent of the Insular Senate. The nine members of the Board of Commissioners shall take office on the second Monday in February following each general election; Provided, That the five members of the Board of Commissioners elected at the general election of 1936 shall continue in office until the end of the terms for which they were elected, and said Board of Commissioners shall be increased in the manner indicated as soon as this Act takes effect. * * * * * * See People of Puerto Rico ex rel. Luis A. Castro, - P.R.R. -, decided by tbe Supreme Court of Puerto Rico July 29, 1942. Whose “life”? Presumably not that of the employee, for the idea in § 39 seems to be that the employee holds office during the tenure of the officer who appointed him. If appellant is correct, the tenure of the city manager is for life unless sooner terminated by his resignation or removal for cause. In Ms opposition to the motion of the Board for stay of execution of the judgment insofar as it ordered reinstatement, filed in the court below, appellant, referring to the tenure of his predecessor in the office, said: “The fact remains that Mr. Benitez Castaño did not cease in the exercise of his office because a part of the Board of Commissioners was again elected in 1936, but because of his voluntary resignation, effective many months after January, 1937.” But we note that in appellant’s original petition in the District Court of San Juan, seeking review of the Board’s order of removal, appellant recites that he “held the public office of City Manager, appointed therefor by the respondent Board on the 4th of January 1937.” In the complaining petition filed before the Board, seeking removal of appellant, it is recited: “The respondent, Carlos M. de Castro is and has been at all times stated in this petition City Manager having been appointed by the Board of Commissioners of the Capital for that office during good conduct, in the month of January 1937, the said Carlos M. de Castro having taken possession of said office on the 4th day of January 1937 temporarily and on the 19th day of March 1937, as proprietor.” Appellant’s answer, referring to this paragraph in the complaint, states: “He admits that he is City Manager, appointed by the Board of Commissioners of San Juan and has been in the discharge of his present office from the 4th day of January 1937 up to the present time.” In the court’s opinion in Rodriguez v. de Castro, 1937, 52 P.R.R. 275, 277, there is quoted a letter written by appellant stating that Mr. Jesús Benitez Castaño “ceased to be City Manager of the Capital on the 19th of March, 1937.” It may be surmised from all this that the newly elected board coming into office on January 4, 1937, asserted on that day its power to appoint, and did appoint, appellant as city manager, but that the incumbent, Mr. Benitez Castaño, at -first demurred, perhaps making the claim which appellant now makes on this appeal, that the city manager holds office “during good conduct”. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_interven

C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case. SOUTHERN MARYLAND HOSPITAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Office and Professional Employees International Union, Local 2, Intervenor for Respondent. No. 85-2042. United States Court of Appeals, Fourth Circuit. Argued May 7, 1986. Decided Sept. 18, 1986. Warren M. Davison (Leslie Robert Stell-man, Littler, Mendelson, Fastiff & Tichy, on brief), for petitioner. Nancy B. Hunt, N.L.R.B. and Joseph E. Finley, Gen. Counsel, Office and Professional Employees Intern. Union (Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Peter Winkler, on brief), for respondent. Before WIDENER, HALL, and CHAPMAN, Circuit Judges. CHAPMAN, Circuit Judge: This case comes before us upon the petition of Southern Maryland Hospital Center to review and set aside an order of the National Labor Relations Board (NLRB or Board). The Board has filed a cross-application for enforcement of its order. The Office and Professional Employees International Union, Local No. 2 (OPEIU or the union), the charging party before the Board, has intervened in support of enforcement. The petitioner is a full-service general hospital located in Clinton, Maryland. The hospital opened in 1977 under the direct control of its Chief Executive Officer and principal stockholder, Dr. Francis Chiara-monte. It employed approximately 1300 persons during the time period relevant to this suit. In the spring of 1981, five labor organizations, including intervenor OPEIU, began what would become a thirteen-month organizational effort at the hospital. The effort culminated on June 11, 1982, with a representation election in which no labor organization won a majority. This case arises from union charges filed January 25, 1982, claiming that the hospital committed a long list of unfair labor practices during the organizational campaign in violation of § 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(a)(1), (3) (1982). The administrative law judge found numerous violations of § 8(a)(1) and two violations of § 8(a)(1) and (3). The Board affirmed, in substance, all but one of the AU’s findings and conclusions and issued a remedial order. Southern Maryland Hospital Center and Office and Professional Employees International Union, Local No. 2, AFL-CIO, 276 N.L.R.B. 153 (1985). In reviewing these violations pursuant to 29 U.S.C. § 160(e), (f), we are mindful that we must sustain them and grant enforcement of the order if the findings are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); NLRB v. Kiawah Island Co., 650 F.2d 485, 489 (4th Cir.1981). We find that there is substantial evidence in the record as to most of the § 8(a)(1) violations and grant enforcement on that portion of the order. We deny enforcement as to the two claimed § 8(a)(1) and (3) violations and three other claimed § 8(a)(1) violations. I THE BONUS ISSUE The most significant issue arises from the Board’s finding that the hospital violated § 8(a)(1) and (3) of the Act by “withholding” a year-end bonus in 1981. The Board found that even though the hospital had given just one such bonus in the past, the evidence indicated that the hospital intended to give a bonus in 1981 but chose not to out of anti-union animus. The Board adopted the ALJ’s recommended remedy, requiring the hospital to pay its 1981 employees a bonus similar in amount to the $215,000 bonus of 1980, along with interest. The hospital contends that the 1980 bonus was a one-time gift which it had no intention of repeating in 1981. In particular, Dr. Chiaramonte testified that the 1980 bonus was a spur-of-the-moment gift which he authorized because the cash was on hand and because he wanted to repay the hospital employees for their support in a personal crisis — his sixteen year-old daughter had been fatally injured in an automobile accident and had received care at the hospital. The hospital further contends that its yearly contributions to an employee pension plan illustrate that the hospital preferred this system of employee recognition over a bonus system. The hospital had contributed $195,000 to the plan in 1980 and $175,000 in 1981. Finally, the hospital contends that even if it had intended to give a 1981 bonus, cash flow problems at the time prevented it from paying out funds to the employees. The Board found, contrary to the hospital’s contention, that the 1980 bonus was not a one-time “gift”, that the hospital intended to give a bonus in 1981, that the bonus was withheld out of anti-union animus, and that the cash flow problems put forth as a separate business justification for the hospital’s inability to grant a bonus were pretextual. The Board concluded that the withholding of the bonus was an attempt to coerce and restrain employees into not supporting the union and therefore violative of § 8(a)(1) and (3). See NLRB v. Tamper, Inc., 522 F.2d 781, 785 (4th Cir.1975). A. There is general agreement that when an employer by promises or by a continuous course of conduct has made a particular benefit part of the established wage or compensation system, then the withholding of that benefit during an organizational campaign raises the inference of improper employer conduct. NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 98 (5th Cir.1970); Gossen Company v. NLRB, 719 F.2d 1354, 1356-57 (7th Cir.1983); Plasticrafts, Inc. v. NLRB, 586 F.2d 185, 188-89 (10th Cir.1978); Free-Flow Packaging Corp. v. NLRB, 566 F.2d 1124, 1129 (9th Cir.1978). An employer can avoid the finding of a violation in such a case only if he can separately justify his action with a legitimate business purpose. NLRB v. Otis Hospital, 545 F.2d 252, 256 (1st Cir.1976). On the other hand, when there is no “established practice” of granting benefits, the General Counsel must show that the employers’ withholding of particular benefits was motivated by anti-union sentiment to prove a violation of the Act. Plasti-crafts, 586 F.2d at 188-89. This is so because “in such an ambiguous situation the employee is unlikely to draw a predictable conclusion [that the employer seeks to influence the election] from the employer’s course of conduct.” Id; see also Gossen, 719 F.2d at 1356-58; Free-Flow Packaging, 566 F.2d at 1129-30. B. The initial determination to be made is whether an employer by promises or by a continuous course of conduct has made a particular benefit part of its “established practice.” The focus in such a situation should be upon the employer, who is confronted with the dilemma of deciding whether his past promises or grants of benefits have created a clear status quo that he must maintain during the pre-election period. See Free-Flow Packaging, 566 F.2d at 1129. The standard then is whether it would be clearly apparent to an objectively reasonable employer that his grant or denial of a benefit, at the time the action is taken, conforms to the status quo. Plasticrafts, 586 F.2d at 188. Upon review of the record in this case, we find no substantial evidence to support a conclusion that Southern Maryland Hospital Center had established a practice, through prior promises or conduct, of granting an annual year-end bonus. Turning first to the hospital’s past conduct, we refuse to give any credence to the proposition that a one-time gift such as that given by Dr. Chiaramonte in 1980, standing alone, could in any way establish a policy or practice of yearly bonuses. Christmas bonuses are generally discretionary in nature and must be given over a significant period of time before they can be considered part of the status quo. See, e.g., NLRB v. McCann Steel Co., 448 F.2d 277, 279 (6th Cir.1971); Beacon Journal Publishing Co. v. NLRB, 401 F.2d 366, 367 (6th Cir.1968). The Board found, however, that several publications and conversations between management and employees during 1981 indicate that the hospital intended to give a Christmas bonus that year. Specifically, the Board relies upon a recruiting advertisement for nurses in the Washington Post, two recruiting pamphlets listing hospital employee benefits, and a half-dozen isolated conversations between various members of the hospital management, low-level supervisory staff, and employees. Assuming, as we must, that this evidence is credible and true, we nonetheless hold that it is insufficient as a matter of law to prove that the hospital made the kind of promises that would elevate the year-end bonus in this case to the status of an established practice. At best, the evidence shows that an ambiguity existed as to whether a year-end bonus should be given in 1981. The Board found that the Washington Post ad contained language indicating that nurses were to receive a year-end bonus as an employment benefit. While this is one interpretation, the language of the ad is far from clear and could just as easily be read to refer to another benefit which allowed nurses to take a “bonus” day off if they did not take their five annual sick leave days. The two recruiting pamphlets relied upon by the Board both contained a list of employee benefits, one of which was a “year-end bonus.” There is evidence that the first of the two pamphlets was posted on hospital bulletin boards and distributed to some employees; however, the explicit purpose of this flyer was to persuade some of approximately 100 former nurses to return to work for the hospital. There is evidence that the flyer produced at most seven inquiries. In any event, the employee who drafted the pamphlet testified without contradiction that she published the documents without Dr. Chiaramonte’s approval or authorization. Upon receiving a copy of the first pamphlet, Dr. Chiaramonte reprimanded the employee, explaining that three of the benefits listed, including the year-end bonus, were nonexistent. The second pamphlet, a more polished brochure to be used for recruitment and orientation, was edited before it was released, and there is no evidence that any employee saw the pamphlet in its uncorrected form. The conversations and statements relied upon by the Board are similarly isolated incidents not amounting to the type of authoritative and generally disseminated promises necessary to create an established practice. Most of the conversations occurred during December 1981, a month in which rumors concerning a possible year-end bonus were widespread. The conversations generally consisted of an individual or small group of employees inquiring of supervisors or low-level managers whether there would be a bonus in 1981. While the evidence concerning Comptroller Wesley Melvin indicates that he seemed to think that there might be a bonus, it also plainly shows that he was not the decision maker and that the final decision on whether to give a bonus had not been made. Meanwhile, there is no evidence that the ultimate decision maker, Dr. Chiaramonte, had at any time given any indication that the one-time gift of 1980 was to be continued as a year-end bonus in 1981 and beyond. The doctor made no statements, and more importantly, there was never an authoritative, general announcement of any kind stating that the 1300 hospital employees would receive a 1981 Christmas bonus. This is not a case such as NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir.1976). In that case, the Hospital Administrator issued a general announcement, posted on all bulletin boards, that employees would receive a cost-of-living salary increase. When the union began its organizational drive, the administrator refused to implement the wage increase. The court upheld the Board’s finding of a § 8(a)(1) and (3) violation reasoning, “A clear impression was publicly conveyed to all employees that a wage increase was imminent, and an employee would scarcely expect this employer to renege in such circumstances.” 545 F.2d at 256. The hospital’s actions in the present case could not have conveyed such a “clear impression” to anyone and, at most, evidenced that the bonus issue was mired in ambiguity. Based upon this record, we find that it would not have been clearly apparent to a reasonable employer in the hospital’s situation that the Christmas bonus was such an established employee benefit that its withholding would raise an inference of improper conduct on the part of the hospital. C. Since there was no established practice in this case, the Board may find a violation of the Act only if it is affirmatively shown that the hospital was motivated by anti-union sentiment in withholding the benefit. Plasticrafts, supra; Gossen, supra; Free-Flow Packaging, supra. The Board found anti-union animus based upon (1) a statement by an assistant maintenance supervisor to an employee; (2) a statement by Comptroller Melvin to one employee, overheard by a second employee; and (3) Dr. Chiaramonte’s general anti-union animus and his silence concerning the bonus. We hold that this is insufficient evidence to show the type of coercive and manipulative motivation necessary for a violation of the Act. The statement by Assistant Operations Director Morris to employee Kearney consisted of a cryptic response to a confidential question. According to Kearny, Morris acknowledged that the reason no bonus had been given was because of “union activities at the shop.” This isolated comment made by a low-echelon supervisor during a confidential conversation with an individual employee can hardly be classified as the type of coercive statement proving the anti-union animus of the employer. See NLRB v. Big Three Industrial Gas & Equipment Co., 579 F.2d 304, 310-11 (5th Cir.1978); Federal-Mogul Corp. v. NLRB, 566 F.2d 1245, 1257 (5th Cir.1978). The second statement was made by Comptroller Melvin in response to employee Diggs’ question about the bonus. Employee Westfield testified that she overheard Melvin tell Diggs that there would be no Christmas bonus because of the union, but that “we may receive one after the union election.” Melvin denied making the statement, but the ALT and Board chose to credit Westfield’s testimony. Again, we are struck by the casual and isolated nature of this particular conversation. Melvin was informally answering a question about the bonus from an individual employee, and his response reached the ears of at most three employees. We are also uncertain that the substance of Melvin’s explanation was of such a coercive nature to constitute an unfair labor practice. See Gossen, 719 F.2d at 1356-58; see also NLRB v. Dorn’s Transportation Co., 405 F.2d 706, 715 (2d Cir.1969) (“This is not a situation where the employer has by public announcement specifically advised the employees that the union is causing them to lose a [benefit] they would otherwise have received.”) Finally, the ALT and Board found that Dr. Chiaramonte’s total silence on the bonus matter “sent a message loud and clear [to the employees] that any benefits they might receive would be bestowed by his fiat and not wrung from him by outside coercion.” There is no factual basis for this conclusion. While it is true that Dr. Chiaramonte generally showed no love for the unions in his actions, such dislike is not an unfair labor practice. Instead of being detrimental to his cause, the fact that Dr. Chiaramonte was silent on the bonus issue weighs in his favor. The doctor was confronted with a situation during late 1981 in which a great deal of ambiguity existed as to whether or not he was required to give a Christmas bonus. The usually outspoken doctor chose to say nothing instead of issuing explanatory statements which could later have been viewed as manipulative. There was absolutely no evidence introduced to suggest that Dr. Chiaramonte’s silence was intended to influence or manipulate the votes of the hospital employees. More likely, the doctor’s silence evidences a “good faith effort to conform to the requirements of the law.” Dorn Transportation Co., 405 F.2d at 715; see also J.J. Newberry Co. v. NLRB, 442 F.2d 897, 900 (2d Cir.1971); Free-Flow Packaging, 566 F.2d at 1130. In summary, we find no support for a finding that the hospital committed an unfair labor practice by not giving a 1981 Christmas bonus. There was no evidence to indicate that a yearly Christmas bonus was an established practice, nor was there substantial evidence that the hospital withheld the bonus in an attempt to influence the election. As a consequence, we refuse to enforce the Board order finding violations of § 8(a)(1) and (3) and requiring payment of a 1981 bonus to affected employees. II OTHER CLAIMED VIOLATIONS Beyond the bonus issue, there are three additional unfair labor practice findings which we refuse to enforce: (1) the finding of a § 8(a)(1) violation based upon Dr. Chiaramonte’s “confiscation” of union campaign literature; (2) the finding of a § 8(a)(1) violation resulting from the hospital’s creation of an “Employee of the Month” award; and (3) the finding of a § 8(a)(1) and (3) violation for discriminatory discipline of a union-supporting employee. A. The facts concerning the confiscation issue are uncontroverted. On September 17, 1981, employee Mary Cox was distributing copies of the OPEIU newsletter at the cafeteria entrance. Dr. Chiaramonte came upon her and asked what she was doing. She offered him a copy of the newsletter. The doctor grabbed the eight to ten copies she had in hand and proceeded to the cafeteria kitchen where he offered the newsletters to kitchen workers with the words, “Does anybody want these?” He returned to Cox's table about five minutes later and returned the one copy of the newsletter he had not distributed. During the doctor’s absence, Cox had reached into a nearby box for more copies of the newsletter, which she continued to distribute. The Board found that Dr. Chiaramonte interfered with his employees’ § 7 rights by confiscating union campaign materials. There is no support for this finding. The evidence shows that the doctor distributed to employees most of the eight to ten newsletters he took. He returned to employee Cox the one copy that he did not pass out. Also, Cox had a box full of newsletters available to her to replenish her supply upon the doctor’s departure. There was no finding that Cox or any other employee was intimidated by the incident; indeed, Cox continued to distribute newsletters during the doctor’s absence. We find that the doctor’s conduct in this case was at most a minimal intrusion upon employees § 7 rights and was not violative of the Act. See Graham Architectural Products Corp. v. NLRB, 697 F.2d 534, 541-42 (3rd Cir.1983); NLRB v. First National Bank of Pueblo, 623 F.2d 686, 692 (10th Cir.1980). B. The facts surrounding the creation of an “Employee of the Month” award are similarly undisputed. Hospital Special Projects Director Margaret Greenway testified that when she came to work at the hospital in August 1981 as a special assistant to Dr. Chiaramonte for public relations matters, she discussed with him the desirability of reinstituting a program of employee recognition. She claimed that she was unable to uncover details of the former program since the previous public relations director was no longer employed at the hospital. The record is unclear as to the exact nature of the earlier program, but evidence indicates that the hospital had held annual banquets in past years at which prizes and awards were given to deserving employees. In October 1981, Greenway released a bulletin announcing the “Employee of the Month” program which offered a prize of $100 to the individual winner each month. The AU adopted the presumption that because of its timing, the award was granted for the purpose of influencing employees to vote against the union. The judge went on to dismiss the hospital’s explanation that it was merely reintroducing a previously-established employee recognition program. The Board qualified this finding in a footnote to its order stating that it agreed that there was a § 8(a)(1) violation, but that “we find it unnecessary to rely on the Board’s policy of presuming the unlawfulness of grants of benefits during the pre-election period.” We refuse to enforce the Board’s order on this point. As a technical matter, the Board’s decision not to rely on the presumption of unlawful motivation is fatal to the Board’s finding. Without the presumption, there is absolutely no evidence that the hospital reinstituted this employee recognition program for the purpose of influencing the election. Moreover, even if the presumption were invoked, we are unconvinced that the effect of the award, given the context of its creation, was substantial enough to constitute a violation of the Act. Considering both the length of the organizational drive and the large number of hospital employees, the designation of one individual as employee of the month can not reasonably be said to be so significant as to influence in any way the attitude of the employees or the outcome of the election. C. The Board found that the hospital committed violations of § 8(a)(1) and (3) of the Act by disciplining employee and union supporter Patricia Vass “for conduct it would have ignored were it committed by others.” In particular, the Board found that the hospital discriminatorily applied its no solicitation rule against Vass on two separate occasions because of her known union activism. The first incident occurred on September 30, 1981, when Nurse Elizabeth Wustner observed Nurse Vass, who was not known to Nurse Wustner at the time, looking at a departmental time roster on a desk top at the nurse’s station. When Wustner asked Vass what she was going, Vass replied that she wanted to find out how many registered and practical nurses were on the roster. Vass was wearing a union button, and when asked if she was gathering information for the union, Vass responded that the information was for her personal use. Wustner told Vass to come back later to ask the head nurse for permission to view the list. Subsequently, Wustner reported the incident to Head Nurse McCormick, who recognized the description of Vass, a known union supporter. McCormick asked Wustner to prepare a written statement and submit it to Director of Nurses Margaret Miller. Miller, in accordance with her usual practice in such matters, wrote up a verbal counseling report with the intention of then calling in Vass to discuss it. Miller testified that if Vass had been able to explain satisfactorily her conduct, then Miller would have destroyed the report. Vass, however, refused to meet with Miller, claiming that she had a right to be accompanied by a union representative. Miller told Vass that she had no such right, and when Vass refused again to discuss the matter, Miller let the report stand. The second event occurred in December 1981. According to the record, Pharmacy Technician Hanaa Malaty was serving as a translator for Vass and several other nurses with an Arabic patient. As Vass and Malaty left the patient’s room, Vass asked for a list of telephone numbers of pharmacy employees. Malaty agreed to bring the list, which she delivered to Vass on her next round. Later, a supervisor recognized Malaty’s description of Vass and chastised Malaty for giving the list, which the hospital maintains was confidential, to a union supporter. The Director of Pharmacy Stanley Sherman, sent an incident report to Miller. Miller then drafted an official reprimand in which she noted that this was the second time that Vass had been caught interrupting the work of another employee. The reprimand warned of a possible termination or suspension if Vass’s conduct continued. Miller called Vass to discuss the report, but again Vass claimed a right to the presence of a union representative and refused to discuss the matter in any way. Under the circumstances, Miller had no choice but to let the reprimand stand. The Supreme Court and the NLRB have both recognized a hospital’s right to prohibit solicitation in patient care areas. See Beth Israel Hospital v. NLRB, 487 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978); St. John’s Hospital & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976). The rationale behind this rule is that “the primary function of a hospital is patient care and ... a tranquil atmosphere is essential to the carrying out of that function.” St. John’s Hospital, 222 N.L.R.B. at 1150. In this case, Southern Maryland Hospital Center had such a no solicitation rule for patient areas. The issue before us is whether the hospital’s application of the rule with respect to employee Vass constituted an unfair labor practice. There is no substantial evidence to support such a conclusion. Under the Board rule approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), in order to show a violation of § 8(a)(1) and (3), the General Counsel must prove as part of his prima facie case that an employee’s protected § 7 conduct was a substantial or motivating factor in the adverse action taken against the employee. The employer may then avoid being charged with an unfair labor practice by showing what his actions would have been regardless of his forbidden motivation. Id. 462 U.S. at 401-02, 103 S.Ct. 2474. The Board found that the General Counsel successfully showed anti-union animus as a possible motivating factor in the disciplining of Vass. We defer to the Board’s finding of fact on this motivational issue as it is based upon substantial evidence. The record reveals, however, that the hospital had a rule which explicitly forbade the type of conduct in which Vass engaged. Union solicitation was liberally allowed in various parts of the hospital, but not in patient areas, and if Vass was unaware of this prior to the incident with Nurse Wustner, she was certainly aware of it when she interrupted the work of Technician Malaty to obtain the telephone list. Director of Nurses Miller followed her normal procedure upon receiving the complaints about Vass, writing up a counseling report in the first case and a reprimand in the second case, and then asking Vass to come in to discuss the matters. Vass refused to appear without a union representative, and Miller therefore had to let the reprimands stand. Had Vass agreed to talk to Miller, it is possible that the two reports would have been destroyed and thus would not have been included in Vass’s file. In dismissing the hospital’s explanation for the discipline, the Board relied heavily on evidence that some raffle tickets, Girl Scout cookies and cosmetics were sold by employees without reproach under the hospital’s rule. The Board submits that this proves discriminatory application of the rule. However, to follow the Board’s reasoning to its logical conclusion, the fact that the hospital had allowed some innocuous activity to go unpunished in the past would mean that any subsequent attempt by the hospital to control union solicitation in its patient care areas would have amounted to an unfair labor practice. The care of patients is too important to allow such a result. As a consequence, we refuse to enforce the Board’s order on this point, finding that the hospital undisputedly showed (1) a violation of its no solicitation rule, (2) a failed attempt to resolve the dispute and possibly withdraw the discipline, and (3) final disciplinary actions in proportion to the conduct involved. Ill To summarize, we refuse to enforce paragraphs 1(a), (b), (e), (i) and (j), and 2(a), (b) and (c) of the Board’s order because they were not supported by substantial evidence on the record as a whole. We find, however, that the numerous remaining § 8(a)(1) violations found by the Board are supported by substantial evidence and are entitled to enforcement. ENFORCED IN PART, REFUSED IN PART. . In particular, the Board found that: the hospital violated sections 8(a)(3) and (1) of the Act by failing to grant its approximately 1,300 employees a year-end bonus in 1981; the hospital violated section 8(a)(1) of the Act by various acts and conduct on the part of certain of its managers and supervisors during the period November 1981 through March 1982; the hospital violated section 8(a)(1) of the Act by instituting an "Employee of the Month” award in order to discourage employees’ support for the union; the hospital violated section 8(a)(1) of the Act by soliciting grievances from employees and remedying those grievances in order to discourage their support for the union; the hospital violated section 8(a)(1) of the Act by restricting access of employees to union organizers in the hospital cafeteria; and the hospital violated sections 8(a)(3) and (1) of the Act by issuing disciplinary warnings to former employee Patricia Vass on September 30 and December 23, 1981. . The advertisement read: Excellent working conditions. Benefits include: Fully Paid Life, Disability; Hospitalization, Dental Insurance; vacation; holidays; sick leave & bonus. The Board’s interpretation of this advertisement is not a finding of fact to which we must defer, as courts may engage in legal interpretation of the written word. NLRB v. Big Three Industrial Gas & Equipment Co., 441 F.2d 774, 777 (5th Cir.1971). . The union itself was a leading contributor of grist to the rumor-generating mill. The December 10, 1981 edition of the OPEIU newsletter, Solid Rock, contained the passage, "Rumor has it that Dr. C is not sure if he can pay Christmas Bonuses again this year or not due to ‘union activity’.” . Kearney testified that his question to Morris was: "Jim, between me and you as workers, is the union really — what is the reason that we didn’t get the bonus? Was it the union?” . Vass did not raise before the Board this alleged pre-election right to union representation in a disciplinary matter. The Supreme Court has acknowledged an employee’s right to representation in such matters once a union has been certified. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975). Other circuits have struggled with the question of whether employees have a Weingarten right in non-union situations or prior to union certification. See E.I. du Pont de Nemours and Company, Inc. v. NLRB, 707 F.2d 1076 (9th Cir.1983); Anchortank, Inc. v. NLRB, 618 F.2d 1153, 1161 (5th Cir.1980). This circuit has never recognized a pre-election right to representation in disciplinary matters. Since Vass did not raise the issue before the Board, we assume, without deciding, that Vass had no right to the presence of a union representative in her meetings with Miller. Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case? A. no intervenor in case B. intervenor = appellant C. intervenor = respondent D. yes, both appellant & respondent E. not applicable Answer:

songer_appbus

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. William Raiford PARMENTER and George David Lincoln, Appellants, v. UNITED STATES of America, Appellee. No. 18139. United States Court of Appeals Fifth Circuit. June 17, 1960. Rehearing Denied July 21, 1960. Hal S. Ives, West Palm Beach, Fla., Damon G. Yerkes, Jacksonville, Fla., for appellants. John E. Palmer, Asst. U. S. Atty., Jacksonville, Fla., F. William Reeb, Asst. U. S. Atty., Tampa, Fla., E. Coleman Mad-sen, U. S. Atty., Miami, Fla., for appellee. Before TUTTLE, CAMERON and WISDOM, Circuit Judges. PER CURIAM. The appeal in this liquor conspiracy case is based primarily on the contention of Parmenter that possibly several but not a single general conspiracy was proved and the contention of Lincoln that his contacts with the possession of the nontaxpaid liquor were too fleeting and too tenuous to tie him into any conspiracy whatever. We have stated in Jolley v. United States, 5 Cir., 232 F.2d 83, at page 88: “Under the evidence in this case, we think that it was for the jury to say whether there was any conspiracy and if so, whether one or more than one. If more than one conspiracy was proved, of at least one of which the appellant was guilty, it is clear that there was no variance affecting his substantial rights.” As to Lincoln’s point, we need only say that we have carefully read the testimony to which our attention has been called in the briefs, touching on Lincoln’s actions. We conclude that the evidence clearly shows t-hat his relations with Parmente: and others charged in the indictment and the manner in which he knew exactly how to fit into the part he was to play in receiving and paying for the final load of whiskey on terms which must have been the subject of prior agreement, spoke eloquently and convincingly of an agreement with Parmenter to be an important actor in the illegal possession and sale of the nontaxpaid whiskey. No more was needed to warrant submission of the case to the jury. Its verdict must therefore be sustained. The remaining points urged by appellants do not constitute prejudicial error. The judgment is affirmed. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

songer_constit

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. Robert B. KING, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant-Appellee. No. 83-3516. United States Court of Appeals, Sixth Circuit. Argued May 2, 1984. Decided Aug. 30, 1984. Wellford, Circuit Judge, filed a dissenting opinion. Sanford A. Meizlish, Barkan & Neff Co., L.P.A., Lawrence J. Ambrosio, argued, Columbus, Ohio, for plaintiff-appellant. Joseph E. Kane, Linda Tucker, argued, Asst. U.S. Atty., Columbus, Ohio, for defendant-appellee. Before JONES and WELLFORD, Circuit Judges, and TIMBERS, Senior Circuit Judge. Of the Second Circuit, by designation. TIMBERS, Senior Circuit Judge. Appellant Robert B. King commenced this action in the district court pursuant to § 205(g) of the Social Security Act as amended, 42 U.S.C. § 405(g) (1976 & Supp. Y 1981), to review a final determination of the Secretary of Health and Human Services (Secretary) which denied his application for disability insurance benefits. The court, John D. Holschuh, District Judge, took on submission cross motions for summary judgment. In an opinion filed May 31, 1983, the court granted the Secretary’s motion, denied appellant’s motion, and affirmed the decision of the Secretary. From the judgment entered thereon, this appeal has been taken. We reverse and remand for an award of benefits. I. At the time of filing his application for disability insurance benefits on November 7, 1980, appellant was thirty years of age. He lived in Cambridge, Ohio, with his wife and two children. He had been born in Ohio. He completed his education through the twelfth grade. Since 1968, he had worked at various jobs, including a baker’s assistant, truck driver, grave digger, security guard sergeant, janitor and busboy. His primary work experience had been as a grave digger, in which capacity he had been employed from September 1970 to June 1974; and as a security guard sergeant from June 1977 to October 20, 1980 —just 18 days prior to the filing of his application. The security guard position consisted of filling out reports, supervising other employees, and a substantial amount of standing and walking. Appellant’s claim of disability is based on his assertion of constant and debilitating back pain in the lumbar sacral region resulting from what various medical doctors have diagnosed as degenerative disc disease. Appellant claims that he first injured his back in 1972 when he fell from a truck while unloading a lawn mower. His back was X-rayed at that time, but he sustained no injury that prevented him from returning to work. He experienced no significant back pain again until June 1974, when he ruptured a disc while digging a grave. Appellant at that time was hospitalized at Doctor’s Hospital North, in Columbus, Ohio. His treatment at first consisted of myelography, spinal fluid analysis and traction. Eventually, it was determined that his condition required surgery. Dr. Hawes performed a lumbar laminectomy in July 1974. Appellant did not experience much relief from pain after this first operation. He underwent a second back operation in March 1975, again performed by Dr. Hawes. This operation did relieve some of his pain. Appellant continued to receive various treatments during the next two years to relieve the pain he still experienced. During this time, he received workmen’s compensation benefits since he was temporarily totally disabled. In June 1977, he commenced work as a Pinkerton security guard. In July 1978, appellant slipped and fell on wet grass. This accident aggravated his back condition. After receiving treatment, however, he returned to work. He continued to work until October 20, 1980. At that time, the pain became so acute that he could no longer continue to do the standing and walking that his job required. He was hospitalized on October 24, 1980. He received treatment consisting of supportive analgesics, muscle relaxants, pelvic traction and physical therapy. He was discharged on October 31, 1980. Appellant’s claim for disability insurance benefits, filed November 7, 1980, was denied without a hearing on January 29, 1981 on the grounds that he retained normal muscle strength, sensation and reflexes; he suffered only minor limitation on range of movement; and he therefore could return to his security guard work. He applied on March 20, 1981 for reconsideration of the disallowance of his application. This was denied on March 26, 1981, again without a hearing. On June 19,' 1981, appellant requested a de novo hearing before an administrative law judge (AU). Appellant appeared before an AU on November 13, 1981, at 9:00 a.m. The hearing lasted for one half hour. During the hearing appellant alternately sat and stood, this being necessary to relieve the pain he felt while in any one position for too long. He was the only person who testified at the hearing. Appellant testified that he was “never without pain”, that he could not stand up straight, and that the pain frequently shot through his left leg, occasionally to his right leg. At the time he was suffering from three or four headaches a day, which he was able to relieve only by taking pain killers and lying down. He testified that he could walk only about one half block at a time, and that he required a “Canadian Crutch”. He could neither sit nor stand for more than ten to fifteen minutes at a time. He testified that, during the 85 mile drive with his wife to the hearing, they had to stop more than once to allow him to get out of the car. He testified to having difficulty getting in and out of the bathtub without help, tying shoes, and putting on his trousers. He spent between ten and fourteen hours a day lying down, which he found the least painful position. He did no housework, could not lift anything of any significant weight, and left his house only infrequently. He testified to taking Percodan and Diascephen for the pain. In addition to appellant’s own testimony, several medical reports were submitted to the AU. The first report was that of appellant’s treating physician, Dr. W.A. Larrick, of Cambridge. Dr. Larrick, a general practitioner, had been treating appellant since March 3, 1973. On November 24,1980, when he filled out a Medical Questionaire furnished by the Ohio Bureau of Disability Determination, Dr. Larrick was seeing appellant twice a week. He reported that on October 20, 1980 appellant had sustained an acute relapse of his degenerative disease of the lumbar spine. Further, he reported that appellant suffered from “severe low back pain with muscle spasms.” A second, updated report by Dr. Larrick was submitted to the AU on November 17, 1981 — four days after the hearing. In this report, Dr. Larrick related that he had reclassified appellant as permanently totally disabled for workmen’s compensation purposes in October 1981. He stated that appellant’s spine was frequently spastic and withdrawn. He noted, however, that his bad headaches had subsided in both frequency and intensity. He reported that any relief of appellant’s pain could be only temporary. He concluded that “I have reviewed the listing of impairments and it is my opinion that Mr. King’s disability would be the 105C category. It is my opinion that he is permanently and totally disabled and restricted from performing any gainful employment.” A third medical report submitted to the AU was the Discharge Summary completed by Dr. J. Martz, who reported on appellant’s hospitalization during the last week of October 1980. Dr. Martz found positive leg maneuvers limited by pain to 60 degrees on the right and 45 degrees on the left. He also found that appellant had limitation of motion in the lumbar spine and tenderness to palpatation in the sacroiliac and lumbar joints. He further found that muscle testing was “within normal limits”, distal pulses were “intact”, and “no reflex changes were noted”. Dr. Martz treated appellant with analgesics, muscle relaxants, pelvic traction and physical therapy. His final diagnosis was acute lumbar nerve root irritation due to nerve root adhesions on the left side. The fourth medical report submitted to the AU was that of Dr. M.A. Shahabi of Zanesville, Ohio. He was an electromyographer-physiatrist designated by the Secretary to conduct a consultative examination of appellant. Dr. Shahabi saw appellant on January 22, 1981. His report was dated the following day. He noted appellant’s limping gait, favoring his left leg. He reported that the lumbosacral area was tender to palpation, and that the range of motion in that area was limited by pain to 30 degrees flexion, five degrees hyperextension, and ten degrees lateral rotation and bending. According to Dr. Shahabi, appellant had sustained no muscle wasting or atrophy. He graded appellant’s muscle strength in his upper and lower extremities, on a scale of one low and five high, as a five. Appellant’s deep tendon reflexes were reported to have moderately decreased, down to two-plus (on the same scale). Sensation in appellant’s left leg was decreased to pinprick, not related to dermatomes. In the sitting position, appellant could raise both of his legs up to 60 degrees. In the supine position, he could raise his left leg to 30 degrees, his right to 60. An X-ray report attached to Dr. Shahabi’s report stated that the heights of the vertebral bodies were normally maintained, and that a transitional vertebral body was located at L5 with the L5-S1 disc narrowed. Dr. Shahabi’s diagnosis, like that of the other physicians, was that appellant was suffering from a degenerative disc disease of the lumbosacral spine. He stated that no ambulatory aids were necessary. On December 28, 1981, the AU filed his eight page decision. After reviewing the evidence, he concluded that appellant’s condition did not meet the listed impairment at 1.05(C) of Appendix 1 of the Secretary’s regulations. Turning to a determination of whether appellant had any residual functional capacity to work, the AU conceded, in his section on “Evaluation of the Evidence”, that appellant’s functional capacity had been reduced. He stated, however, that no impairment had been shown that would prevent appellant from sitting most of an eight hour work day. The AU continued: “He can do occasional walking and standing and although he appeared at the hearing with a crutch, Dr. Shahabi indicates no ambulation, aids are required. The claimant has good muscle strength and the lifting of up to 10 pounds in a seated position would not seem to be contraindicated. Therefore, I conclude that at all relevant times the claimant has had the residual functional capacity for at least sedentary work as defined by Regulations 404.1567. I further find that he does not have any non-exertional limitations resulting from his impairment.” On the final page of his decision, under “Findings of Fact and Conclusions of Law”, the AU made the following finding: “3. The medical evidence shows the claimant has low back pain, however, his complaints of constant, severe and disabling pain [are] not found to be credible.” The AU determined, after applying Rule 201.27 of Appendix 2 of the regulations, the so-called “Grid Regulations”, that appellant was not disabled. On January 5, 1982, appellant requested a review of the AU’s decision before the Appeals Council. His request was denied on March 4, 1982. The AU's decision thereby became the final decision of the Secretary. Appellant commenced the instant action in the district court on April 22, 1982. Both parties moved for summary judgment. On May 31, 1983, the court rendered its decision as stated above. The court stated that the AU’s first conclusion — that appellant’s impairment did not meet the condition found in Listing 1.05(C) —was supported by substantial evidence. As for the AU’s finding regarding appellant’s complaints of pain, the court stated that the AU’s “resolution of the conflicting medical evidence, as well as his decision to discount plaintiff’s subjective complaints of severely disabling pain, are both supported by substantial evidence.” Citing precedent in this Court, the district court added that the AU’s opportunity to observe the demeanor of the complainant should not be discarded lightly. On this appeal, appellant contends (1) that his impairment meets or equals the impairment in Listing 1.05(C) of the regulations and that the AU’s conclusion to the contrary was not supported by substantial evidence; (2) that all the medical evidence supported his complaints of severe pain and that the AU’s conclusion to the contrary was without support in the evidence; and (3) that the AU did not give proper weight to the medical opinion of appellant’s treating physician. II. (A) Medical Opinion of Treating Physician Turning first to appellant’s third argument listed immediately above, we believe this is not really an independent argument, but rather is interwoven in the evaluation of the first two arguments. To the extent that appellant contends the AU was bound by Dr. Larrick’s opinion that appellant was “permanently and totally disabled”, appellant is mistaken. A determination of “disability” for the purposes of awarding disability insurance benefits is to be made “only if [the claimant’s] physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A) (1976). This determination obviously involves consideration of many factors, only one of which is medical impairment, and it is reserved exclusively to the Secretary or to various state agencies. Id. § 421. Since it was not Dr. Larrick’s prerogative to make the legal determination of disability, the ALJ was not bound by his conclusory statement. Montijo v. Secretary of Health and Human Services, 729 F.2d 599, 601 (9th Cir.1984) (per curiam); 20 C.F.R. § 404.1527 (1983). This is particularly true where, as here, the ALJ identified good reason for not accepting Dr. Larrick’s determination, i.e., it was not supported by any detailed, clinical, diagnostic evidence. This is not to say, however, that the medical opinions and diagnoses of treating physicians are not entitled to great weight. Indeed, it has long been the law that substantial deference — and, if the opinion is uncontradicted, complete deference — must be given to such opinions and diagnoses. Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1054 (6th Cir.1983); Bowie v. Harris, 679 F.2d 654, 656 (6th Cir.1982); Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980); Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir.1981). We shall apply this standard in evaluating appellant’s two substantive arguments on appeal. (B) Listing At 1.05(C) Section 404.1520(d) of the Secretary’s regulations provides that, if an applicant’s impairment is listed in Appendix 1, or is equal to one of those impairments, the applicant will be found disabled without any consideration of his age, education or work experience. Appellant’s first argument is that his back condition is listed in Appendix 1 at 1.05(C), or, in the alternative, his condition is equal in severity to the impairment listed at 1.05(C). The impairment listed at 1.05(C) is as follows: “C. Other vertebrogenic disorders ... with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2: 1. Pain, muscle spasm, and significant limitation of motion in the spine; and 2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.” In Dr. Larrick’s November 1981 follow-up report, he stated that it was his opinion that appellant’s disability “would be the 105C category.” The ALT did not give this statement full credit because Dr. Larrick had not included in his report the specific findings necessary to support his statement. The ALJ found that there was “no evidence of muscle weakness, sensory or significant reflex loss”, which are necessary symptoms in 1.05(C)(2). In reviewing the record to check the accuracy of the ALJ’s finding in this respect, we note that Dr. Larrick, the treating physician, never discussed appellant’s muscle strength, sensation or reflexes. According to Dr. Martz, who treated appellant during his hospitalization in late October 1980, muscle testing was “within normal limits” and no reflex changes were noted. Dr. Shahabi’s report in January 1981 stated that no muscle weakness was noted (indeed, he rated it as highly as he could), but he reported some sensory loss and a moderate decrease in reflexes. In short, while the ALJ may not have been entirely accurate in finding there was no evidence of sensory loss, he was correct in other respects. There was no evidence indicating any muscle weakness, a symptom which is necessary to meet the impairment listed at 1.05(C) of Appendix 1. Accordingly, the ALJ’s findings that appellant did not meet the impairment at 1.05(C) is supported by substantial evidence. The alternative argument asserted by appellant — that his condition equalled the impairment at 1.05(C) — we dispose of quickly, since it is without support in the facts or the law. Section 404.1526 of the Secretary’s regulations provides that an impairment is considered equivalent to a listed impairment if the medical findings — including symptoms, signs and laboratory findings — regarding the claimant’s impairment, are “at least equal in severity and duration to the listed findings.” 20 C.F.R. § 404.1526(a) (1983). Despite the necessity for a showing of specific alternate medical symptoms, which appellant concedes do not exist in this case, appellant argues, relying on Thompson v. Schweiker, 555 F.Supp. 1282 (W.D.Mo.1983), that specific alternate symptoms (“buzz words”) are not necessary and that instead the Secretary should gauge the overall condition of the claimant. We find Thompson to be inapposite. The doctors in that case could not agree on a reasonably conclusive diagnosis. In view of that, the district court held that it was error to match that claimant’s symptoms against those of any single listed impairment; rather, the combination of impairments was believed to be “equivalent” to the disabling listed impairments “in terms of her ‘total physiological well-being.’ ” Id. at 1290. Even if the generous concept of “equivalence” used in Thompson were consistent with the concept outlined in the regulations, it does not help appellant in the instant case. Here all the doctors essentially agreed that appellant has sustained a vertebrogenic disorder. Hence it was not error to require that appellant establish either the symptoms listed at 1.05(C) or other symptoms that are equally severe. Not having sustained this burden, appellant cannot be said to have an impairment equal to the impairment at Listing 1.05(C). (C) Pain Alone as Disabling We now turn to what we consider the critical issue in this case: whether appellant’s pain alone may be considered disabling. This issue pits the rule that substantial deference must ■ be given to the uncontradicted opinion of the treating physician, see supra, against the rule that an AU’s findings based on the credibility of the applicant are to be accorded great weight. Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383 (6th Cir.1978). It is well settled that pain alone, if the result of a medical impairment, may be severe enough to constitute disability. Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 538 (6th Cir.1981), cert. denied, — U.S. —, 103 S.Ct. 2428 (1983); Beavers, supra, 577 F.2d at 386; Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). The AU concluded that appellant was not disabled because he was capable of performing sedentary work as that is defined in the regulations. He reached this conclusion on the basis of his finding that no medical evidence had shown that appellant was incapable of sitting for most of an eight hour workday and his finding that appellant’s complaints of constant, severe and disabling pain were incredible. The district court held that the ALJ was within his power in weighing the conflicting medical evidence and making his decision after considering also the credibility of appellant. If this were the complete and accurate description of appellant’s case, we would agree with the district court. Significantly, however, we find no conflicting medical evidence in the record on the issue of pain. See Glass v. Secretary of Health, Education & Welfare, 517 F.2d 224 (6th Cir.1975) (per curiam); Noe v. Weinberger, 512 F.2d 588 (6th Cir.1975). Dr. Larrick reported in November 1980 that appellant suffered from “severe low back pain” and in November 1981 that any relief of appellant’s pain through manipulation or traction is only temporary. While it might be said that, without any other data to support these conclusions, the ALJ was justified in not according much deference to them, see Kirk, supra, 667 F.2d at 538, on this record we find that the reports of the other physidans provide ample support for Dr. Larriek’s condusions. Dr. Shahabi, designated by the Secretary to examine appellant, reported that appellant’s pain during the examination was manifest and that the pain significantly restricted appellant’s movement. We do not understand Dr. Shahabi’s statement that ambulatory aids were unnecessary to mean that appellant’s pain was not real, but rather that such aids would have no therapeutic value. Dr. Martz’ hospitalization discharge summary likewise supports the conclusion of substantial pain, manifested in significant restriction of movement. Thus, unlike in Kirk and Beavers, there were no conflicts in the medical evidence regarding appellant’s claim of pain. The expansive lead given to the AUs in those two cases to rely on their findings of credibility is not wholly applicable here. The medical evidence, all consistent with the treating physician’s opinion of severe and essentially constant pain, fully supported appellant’s own testimony regarding his sedentary lifestyle, which included lying down for up to 14 hours during the daytime. Here “documented [is] a long history of fruitless treatment for severe headaches and leg and back pain.” Beavers, 577 F.2d at 386. In light of this uncontradicted and overwhelming medical and lay evidence of appellant’s severe back pain, we decline to give substantial deference to the ALJ’s unexplained credibility finding. It was error for the AU, without any substantial support, to find appellant not disabled. See Marshall v. Heckler, 731 F.2d 555 (8th Cir.1984) (despite AU’s findings that complaints of pain were incredible, court reversed because of uncontradicted medical evidence of impairments leading to pain). We hold on this record that there is but one reasonable conclusion: that due to severe and constant back pain, resulting from two laminectomies and degenerative disc disease, for which he has been receiving treatment providing only temporary relief for almost ten years, and which has caused substantial restriction of movement and curtailment of regular activities, appellant lacks the residual functional capacity to perform any substantial gainful activity. He therefore is disabled. The judgment is reversed and the case is remanded to the district court with instructions to remand to the Secretary for an award of benefits. Reversed and remanded. . The ALJ actually wrote that appellant’s impairment did not "equal" the condition of Listing 1.05(C), but it is clear from the context that he was evaluating appellant’s claim that his impairment "met" the condition of Listing 1.05(C). Neither the ALJ nor the district court actually reached the issue of whether appellant’s impairment was equivalent to the 1.05(C) condition. . In Marcus v. Califano, supra, as well as in Kirk and Beavers, there was conflicting medical evidence which cried out for resolution by the ALJ, a process that would necessitate credibility determinations. In a case in which the medical evidence is entirely consistent, as here, the importance of credibility findings is substantially decreased. Furthermore, this Court recently has indicated that an AU, in making a finding on the issue of pain, may not rely solely on the demeanor of the applicant as observed by the ALJ at the hearing. Martin v. Secretary of Health and Human Services, 735 F.2d 1008, 1010 (6th Cir.1984); Weaver v. Secretary of Health and Human Services, 722 F.2d 310, 312 (6th Cir.1984). It follows that, where all the medical evidence consistently supports the applicant’s complaint of severe back pain, as here, the ALJ’s observation of the applicant at the hearing will not provide the underpinning for denial of Social Security benefits. . For example, the evidence of appellant’s work history, which shows a return to work after his 1978 fall despite his continued pain, does not readily support an inference that appellant is a malingerer. . The Secretary argues that appellant’s pain is purely an exertional impairment, thus justifying the conclusion that appellant is capable of sedentary work. Even if we were to accept the premise, we think it ludicrous, in light of the minimal amount of exertion required to cause the pain, to think of hanging our hats on that distinction. Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:

songer_bank_r1

B

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether or not the first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt. UNITED STATES of America, Plaintiff-Appellee, v. Dennis Keith FRIED, Defendant-Appellant. No. 20340. United States Court of Appeals, Sixth Circuit. Jan. 22, 1971. R. George Crawford, Washington, D. C. (Court-appointed) for defendant-appellant; Carol G. Emerling, Cleveland, Ohio, on brief. Harry E. Pickering, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff-appellee; Robert B. Krupansky, U. S. Atty., Cleveland, Ohio, on brief. Before BROOKS and MILLER, Circuit Judges, and CECIL, Senior Circuit Judge. BROOKS, Circuit Judge. This is an appeal by defendant-appellant from his jury conviction for bank larceny (18 U.S.C. § 2113(b)) and entering a bank for the purpose of committing a felony (18 U.S.C. § 2113(a)). He was indicted with a female accomplice as a result of their scheme to purloin bank funds. Allegedly defendant disguised as a woman entered the bank and went to the teller’s window where his female accomplice worked. He then handed her a passbook from a cancelled account which had robbery instructions in it. The accomplice gave him the money in her cash drawer and following his departure from the bank reported the “robbery.” Defendant’s accomplice was indicted and pled guilty to embezzlement and willful misapplication of bank funds (18 U.S.C. § 656). On this appeal two issues are presented. First, it is contended that an eyewitness in-court identification of defendant was the result of a pretrial photographic identification which was so impermissi-bly suggestive as to make the in-court identification inadmissible. The pretrial identification was from an array of photographs of women and a picture of defendant which was retouched to make him look like a woman (long hair was added to his picture). Defendant relies upon Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) to support his contention. However, Simmons is distinguishable on its facts from those of- this case. Here, unlike in Simmons, the eyewitness was thoroughly cross-examined in the presence of the jury as to the circumstances surrounding her viewing of the photographs, and the array of photographs from which the identification was made were shown to the jury. In addition, while in Simmons there was a positive identification of the suspect, in the instant case the eyewitness could only declare that a similarity existed between the defendant and the person she saw at the “robbed” teller’s window. The only reason she gave for even having had taken notice of this individual, under otherwise ordinary circumstances, was that the “woman” had her blouse on backwards. The District Court concluded, and we agree, that there was nothing unnecessarily suggestive about this identification method. See, United States v. Black, 412 F.2d 687, 690 (6th Cir. 1969), cert. denied 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970). However, even if the method was constitutionally circumspect, there, was other identification evidence which amply corroborated the eyewitness’ testimony (e. g., a positive identification by defendant’s accomplice), and if the pretrial identification method used in this case made admission of the eyewitness’ testimony constitutional error, it was harmless under the standards set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Harrington v. United States, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). See also, United States v. De Bose (6th Cir. decided October 27, 1970); United States v. Satterfield, 410 F.2d 1351, 1354 (7th Cir. 1969), cert. denied. 399 U.S. 934, 90 S.Ct. 2250, 26 L.Ed.2d 806. The second issue raised by defendant is that the District Court erred in not dismissing his conviction for entering the bank for the purpose of committing a felony following his conviction for the actual larceny. The District Court imposed sentence for the larceny conviction and suspended sentence on the entry conviction. Relying upon Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), defendant argues that the crime of entering the bank for the purpose of committing a felony “merged completely” into the larceny when the larceny was completed and, therefore, his conviction for entering the bank with felonious intentions should have been dismissed. A conflict among the circuits exists on the question of what is the proper interpretation of the merger concept established in Prince. Several circuits have construed Prince as holding that there is a “merging of sentences” under the Bank Robbery Act thereby prohibiting pryamiding of sentences. See, Smith v. United States, 356 F.2d 868 (8th Cir. 1966), cert. denied, 385 U.S. 820, 87 S.Ct. 44, 17 L.Ed.2d 58; Sawyer v. United States, 312 F.2d 24 (8th Cir. 1963), cert. denied, 374 U.S. 837, 83 S.Ct. 1888, 10 L.Ed.2d 1058; La Duke v. United States, 253 F.2d 387 (8th Cir. 1958); Kitts v. United States, 243 F.2d 883 (8th Cir. 1957); Brunjes v. United States, 329 F.2d 339 (7th Cir. 1964); United States v. Lawrenson, 298 F.2d 880 (4th Cir. 1962), cert. denied, Lawrenson v. United States Fidelity and Guaranty Co., 370 U.S. 913, 82 S.Ct. 1260, 8 L.Ed.2d 406; Purdom v. United States, 249 F.2d 822 (10th Cir. 1957), cert. denied, 355 U.S. 913, 78 S.Ct. 341, 2 L.Ed.2d 273; while other circuits have interpreted the Prince decision as holding that there is an actual merger of offenses with only one offense in various aggravated forms. See United States v. Welty, 426 F.2d 615 (3rd Cir. 1970); United States v. McKenzie, 414 F.2d 808 (3rd Cir. 1969), cert. denied, 393 U.S. 1117, 89 S.Ct. 994, 22 L.Ed.2d 123; Bayless v. United States, 347 F.2d 354 (9th Cir. 1965); United States v. Tarricone, 242 F.2d 555 (2nd Cir. 1957). A conflict over the question appears to exist in the Fifth Circuit, see Counts v. United States, 263 F.2d 603 (5th Cir. 1959), cert. denied 360 U.S. 920, 79 S.Ct. 1440, 3 L.Ed.2d 1536; United States v. Williamson, 255 F.2d 512 (5th Cir. 1958), cert. denied, 358 U.S. 941, 79 S.Ct. 348, 3 L.Ed.2d 349, contra, Hall v. United States, 356 F.2d 424 (5th Cir. 1966). The effect of the two interpretations is that under the “merging of sentences” approach, the Act is treated as creating separate offenses which will permit separate convictions but not multiple sentences, and under the “merger of offenses” approach, only a single conviction can be allowed to stand. In this Circuit, the two post-Prince cases in point while using language which indicates a merger of offenses approach was being adopted, the actual judgments clearly show that this Circuit has interpreted Prince as holding there is only a merger for sentencing purposes. In United States v. Poindexter, 293 F.2d 329 (6th Cir. 1961), cert. denied, 368 U.S. 961, 82 S.Ct. 406, 7 L.Ed.2d 392, certain defendants pled guilty to indictments charging two counts — entry with intent to commit a larceny and larceny. The Court concluded the defendants’ “conviction on pleas of guilty were in conformity to law * * In United States v. Machibroda, 338 F.2d 947 (6th Cir. 1964), defendant pled guilty to two indictments with two counts — entry with intent to commit a felony and bank robbery. The Court did not upset the convictions, it only vacated the multiple sentences imposed by the District Court. Thus, it appears that this Circuit has tacitly adopted the approach taken by the Fourth, Seventh, Eighth, and Tenth Circuits that the Prince doctrine of merger applies under the Bank Robbery Act only to sentencing and not offenses. Accordingly, we hold that it was proper not to dismiss defendant’s conviction for entering the bank for the purpose of committing a felony once he was convicted of the larceny. There remains one aspect of the District Court’s suspending sentence on defendant’s conviction for entering the bank for the purpose of committing a felony that requires comment. Judgment which suspends sentence without imposing probation is improper and is a nullity. See, United States v. Graham, 325 F.2d 922 (6th Cir. 1963). Therefore, the case is remanded to conform the judgment to the provisions of 18 U.S.C. § 3651. We do not see the prohibition against pyramiding sentences established by Prince to be violated by the suspension of sentence and placing defendant on probation, since suspension of sentence with probation under 18 U.S.C. § 3651 is not a sentence. Zaroogian v. United States, 367 F.2d 959, 963 (1st Cir. 1966). The judgment of conviction is affirmed and the case remanded for further proceedings consistent with this opinion. Question: Is the first listed respondent bankrupt? A. Yes B. No Answer:

songer_counsel2

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Melvin W. KAHLE, Administrator of the Estate of Moses Joiner, Deceased, Appellant, v. John W. ACTON. No. 14844. United States Court of Appeals Third Circuit Argued Nov. 16, 1964. Decided Dec. 1, 1964. James A. Ashton, Pittsburgh, Pa., for appellant. Harold Gondelman, Pittsburgh, Pa. (Jacobson & Gondelman and Herbert Jacobson, Pittsburgh, Pa., on the brief), for appellee. Before MARIS, STALEY and GANEY, Circuit Judges. PER CURIAM. This is an appeal from the judgment of the district court entered on a directed verdict for the defendant in an action for damages for the death of the plaintiff’s decedent, a pedestrian, who was struck by an automobile being driven by the defendant late at night on the Parkway West, an unlighted limited access highway in the City of Pittsburgh, about eight-tenths of a mile west of the Fort Pitt tunnels. In his charge to the jury the trial judge reviewed the evidence and the applicable principles of Pennsylvania law and reached the conclusion that the evidence was insufficient to support a finding of negligence on the part of the defendant. He accordingly directed the verdict on which the judgment appealed from was entered. Our review of the evidence and the law satisfies us that the action of the trial judge was right for the reasons given in his charge, to which we need add nothing. The judgment of the district court will be affirmed. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

songer_usc1sect

741

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 46. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Melba J. KOHL, Individually and as Special Administrator of the Estate of Thomas H. Schlatter, Deceased, Betty E. Doty, Individually and as Special Administratrix of the Estate of Charles Edward Doty, Deceased, and Linda Winters, Individually and as Special Administratrix for the Estate of Terry Lee Winters, Deceased, Plaintiffs-Appellants, v. UNITED STATES of America and Corps of Engineers of the United States Army, Defendants-Appellees. Nos. 82-1371, 82-1381. United States Court of Appeals, Seventh Circuit. Argued March 31, 1983. Decided July 12, 1983. See also, 508 F.Supp. 250. Bernard R. Nevoral, Robert B. Patterson, Chicago, for plaintiffs-appellants. David V. Hutchinson, Dept, of Justice, Washington, D.C., for defendants-appellees. Before PELL and CUDAHY, Circuit Judges, and JAMESON, Senior District Judge. William J. Jameson, Senior District Judge for the District of Montana, is sitting by designation. PELL, Circuit Judge. This lawsuit stems from the unfortunate drowning of three fishermen near Lock and Dam 13 (LD13) on the Mississippi River. Plaintiffs filed under the Suits in Admiralty Act, 46 U.S.C. § 741-52, claiming that the accident was the result of inadequate warnings posted in and around LD13 and misconduct by dam employees, who allegedly opened the dam gates in an attempt to wash decedents downstream. The trial court, sitting without a jury, found that the warnings posted on LD13 were adequate under the circumstances and held that there was insufficient evidence to support the allegation of employee misconduct. The court determined that decedents’ own negligence in fishing near the dam was the sole cause of the accident. Plaintiffs now claim that the court’s findings of fact are clearly erroneous. I. Facts LD13 spans 1066 feet across the Mississippi River, from Illinois on the east to Iowa on the west. On the eastern portion on LD13 there is an operating lock chamber and an inoperable auxiliary lock. The dam is made up of thirteen movable gates that control the flow of water. The middle gates, numbers 5, 6, and 7, are large, “roller” gates. The gates on either side are smaller, “tainter” gates. The gates are separated by concrete “piers” that extend 40 feet into the river from the gates. Ladder rungs are built into the downstream face of the pier, known as the “piernose.” Downstream from LD13 there are a series of “baffle blocks” that are built into the concrete foundations in the river. The baffle blocks are designed to prevent erosion by dissipating water energy. The blocks produce varying amounts of surface and subsurface turbulence, depending on factors such as the gate settings and water level. The surface turbulence may be visible as boiling water or white caps, while the subsurface turbulence is not visible to boaters. The dissipation of water energy also produces a phenomenon known as a “break-line.” A breakline is created when the water near the baffle blocks is raised above the level of the water directly in front of the dam, causing the current to flow back to the dam. The water on the downstream side of the breakline continues to flow away from the dam. As there are several sets of baffle blocks there will be several break-lines. The location of the breaklines will vary according to gate settings and water levels, but anyone fishing near the dam will notice that the back-current is carrying fishing lines and debris toward the dam. Other than the physical design of the dam, the facts were contested. After reviewing the evidence presented by the parties the court made extensive findings of fact. The court found that LD13 is an attractive area for fishing, but is also a hazardous one. Until 1968 the public was advised to stay 300 feet away from the downstream side of the dam. In 1968 the “restricted” area was changed to 100 feet. There was conflicting testimony at trial as to how often fishermen violated the restriction and came within 100 feet of the dam. Plaintiffs presented testimony indicating that boaters frequently entered the restricted area, while dam employees testified that such instances were rare. The court did not resolve this contradiction, but did note that there was no credible proof that anyone had tied up to the pier as decedents did, or had even come as close to the pier as decedents did. The court also noted that the lockmen were supposed to warn boaters observed entering the restricted area, but were under no duty actively to police the area. On the evening of June 22, 1977, decedents went fishing near LD13 in a 16-foot fiberglass boat. All three men were avid fishers, and decedent Schlatter had fished within the 100 foot restricted area in the past. Around 7:00 p.m. decedents approached Charles Munson, who was fishing 200 feet downstream from LD13, and discussed the fishing conditions with him. After trolling behind Munson for awhile, decedents proceeded to the dam. At about 7:30 p.m. Munson observed one of the decedents tie a line from their boat to the ladder on the piernose between gates 6 and 7. Another fisherman, Terry Cram, arrived in the fishing area about 7:30 p.m. and observed decedents fishing 500-600 feet downstream from the dam, indicating that Munson must have observed decedents tie their boat to the piernose sometime after 7:30 p.m. Carolyn and Richard Trude observed decedents fishing after they tied to the pier-nose. Carolyn testified that one of the decedents would pull the boat up to the pier and then let it drift downstream for 10-15 feet. Decedents repeated this maneuver several times while Carolyn watched. The Trudes testified that they heard cries for help around 8:00 p.m., as did another fisherman, John Burman. No witness actually saw decedents’ boat capsize. The first person to see a post-accident occurrence was fisherman Matzen, who immediately began unsuccessful rescue efforts. After reviewing Matzen’s testimony the court concluded that it was consistent with an 8:00 p.m. accident. After being informed of the accident, the lockmen closed the gates. Decedents’ empty boat was caught in the current in front of gate 6 and was being slammed into the gate. The mooring line, trolling motor and part of the gunwale were still attached to the piernose. Decedents’ bodies were recovered three days later. None of the men were wearing life-vests, although the boat was equipped with an ample supply. Trude, Martzen, and Burman all testified that they saw decedents’ heads and arms above water as they were washed downstream. II. Warnings Plaintiffs’ principal contention is that the warnings posted on and around LD13 were inadequate in that they did not warn boaters of the type of danger presented by the dam. The complained of warnings consisted of the following: (1) A sign, eight feet by five feet, posted on the intermediate wall of the auxiliary lock, which read “Restricted. Keep Below This Point.” (2) Three red lights that appear to be aligned when viewed from the 100 foot restriction line, but which lose their alignment when viewed from within the 100 foot restriction. (3) Three orange lights that work the same way as the lights in (2), but warn boaters when they are within 300 feet of the dam. (4) A sign, 20 inches by 28 inches, posted on the downstream face of the river wall next to gate 1 that reads: “Danger. Keep 100 Feet From Dam.” (5) A sign similar to that in (4), posted on the pier between gates 12 and 13, which advises boaters to keep 300 feet from the dam. (6) At two different places across the downstream side of the dam the word Restricted appears, which can be read from the river more than 300 feet downstream. (7) A yellow sign with black letters covers the width of pier 6. Prior to 1968 the sign said: “Restricted. Keep 300 Feet From Dam.” In 1968 the restricted area was reduced to 100 feet and the digit “3” was painted over with white paint. A digit “1”, however, was not painted in, leaving the sign to read “Restricted. Keep 00 Feet From Dam.” Anyone near the sign could see that the “3” had been painted over. Decedents tied their boat to the pier directly below this sign. At trial various witnesses testified that “Restricted” meant “stay out” and was an absolute prohibition rather than simply a warning of danger. One witness, Raymond Wainscott, saw the sign on pier 6 when fishing with decedent Schlatter several weeks before the accident. Wainscott, who also saw the sign on the intermediate lock wall, testified that he understood the signs to mean not to go within 100 feet of the dam. The one witness who did not read the signs this way was plaintiffs’ expert witness, Dr. Casky. Dr. Casky testified that “restricted” meant “stay off” and that the signs could be read as merely prohibiting boaters from climbing on the dam. The trial court did not credit Dr. Casky’s reading as it required one to ignore “Keep 00 Feet From Dam,” which clearly indicated more than that one should not climb on the dam. The court found that it was sufficient that the decedents were warned of an absolute prohibition against entering the 100 foot restricted area and that it was not necessary that the nature of the danger be specified. After the trial in this case had ended this court decided Callas v. United States, 682 F.2d 613 (7th Cir.1982). In Callas decedents allowed their boat to drift into the auxiliary lock chamber on LD8 on the Mississippi River, unaware that they would be swept into a roller gate by the back-current created by the dam. Decedents’ boat was swept into the gate and capsized. LD8 was equipped with only one sign, which read “Danger — Keep 00 Feet Away” because the overlay for the digit “1” had not arrived. LD8 also employed warning lights similar to those at LD13. We agreed with the district court that the warnings were inadequate because they did not reveal the nature of the danger they purported to warn of. “Ultimately, we believe that this was a case in which the government induced reliance on a belief that it was providing something which, in fact, it was not providing — an adequate warning of the dangers posed by the dam.” Id. at 623. The Government, having “lulled [decedents] into a false sense of security” with the sign, was responsible for the fatal consequences. Plaintiffs argue that Callas requires, as a matter of law, that the Government specify the nature of the danger. We do not agree. Callas did nothing more than apply the long recognized rule that when the Government warns the public of a danger, it must do so with due care. 682 F.2d at 622; see also Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). In Callas we agreed with the district court that the Government was negligent in posting the specific sign in issue because it purported to describe the dangers presented without actually doing so. That is not the case here. Unlike a “danger” sign, which merely advises boaters that there are risks attendant upon boating near the dam, a “restricted” sign tells boaters that they may not enter the area under any circumstances. That the other warnings, such as the red and orange lights, may be ineffective is irrelevant. Plaintiffs’ expert witness admitted that it is sufficient either to apprise boaters of the nature of the danger or to describe what action must be taken to avoid danger. In this case the signs indicated that boaters should keep out of the restricted zone. In fact, Dr. Casky was also a witness in Callas, and in that case stated that the problem with the lone sign at LD8 was that it failed to state that boaters should keep away from the dam, a problem not present with the signs at LD13. The Government, having clearly warned boaters to stay away from the dam, was under no further duty to explain the nature of the danger. The remaining issue is whether the sign, sans the digit “1,” was sufficient to inform decedents to stay away from the dam. Dr. Casky testified that the sign, reading “Keep 00 Feet From Dam,” simply meant to keep off the dam. The district court did not accept this reading, and neither do we. The sign clearly meant that boaters were to stay away from the dam, not just off of it, and the only ambiguity was the distance boaters were to keep between themselves and LD13. A reasonable interpretation was that boaters should keep at least 100 feet from the dam. Even assuming that the average boater would not read the sign this way, any ambiguity was cleared up by the sign on the intermediate lock wall, a sign that was visible to anyone in decedents’ position. The district court specifically found that dam employees were not aware that boaters were coming as close to the dam as decedents did and rejected the claim that the lockmen acquiesced in the violations of the restriction. We cannot say that the court’s findings on this are clearly erroneous and must reject plaintiffs’ claim that defendants knew that the warnings were ineffective and were under a duty to take further steps to enforce the 100 foot restriction. Similarly, there was no evidence that any of the lockmen saw decedents tie up the night of the accident. While the lock-men may have been under a duty to warn boaters observed violating the restriction, they were not obliged actively to police the area to protect boaters from their own folly- III. Opening of Gate 6 Plaintiffs’ second claim before the trial court was that the lockmen, observing decedents fishing in front of the dam, opened the gate in an attempt to wash decedents downstream and out of the restricted zone. The resulting surge of water caused the boat to capsize and led to the drownings. In advancing this theory plaintiffs rely upon an unexplained rise in the water level, fisherman Matzen’s testimony regarding decedents floating downstream on a surge of water, and the type of damage done to the boat. In rejecting this claim the trial court did not just adopt the defendants’ proposed findings of fact, but rather reviewed the evidence and made extensive findings on its own. On review we are not empowered to retry the case but are instead limited to determining whether the district court’s determination that plaintiffs failed to carry the burden of proof on their claim was clearly erroneous. Fed.R.Civ.P. 52(a). We may not reweigh the credibility of the witnesses, as plaintiffs would have us do, and we may only reverse the court’s decision if we are “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364,395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); see also Nickerson v. Commissioner, 700 F.2d 402, 405-06 (7th Cir.1983). A recording mechanism located downstream from the dam measured a rise in the water level at 7:42 p.m. The water level did not recede until after the accident was reported and the gates closed around 8:30 p.m. Plaintiffs claim that the rise in the water level was caused by the lockmen opening gate 6, which in turn led to the accident. The linchpin of this claim is, of course, proving that the accident happened contemporaneously with the rise in the water level. The district court considered the testimony of the fishermen near LD13 at the time of the accident, much of which has been set forth in the beginning of this opinion, and determined that the accident occurred at 8:00 p.m., negating any claim that decedents’ boat capsized because of a gate opening. The testimony of various fishermen was not exact. Nobody actually saw the accident and, of necessity, the district court had to rely on estimates provided by the boaters in determining the time of the accident. Most of this evidence consisted of guesses concerning the amount of time spent on activities prior to and after the accident, so it is not surprising that plaintiffs can now point to evidence that contradicts the court’s conclusion. None of the evidence plaintiffs rely on is the type of irrefutable, physical evidence that would compel us to reverse the court’s findings. We see no reason to discuss the conflicting testimony, but suffice it to say that we do not find the court’s conclusion regarding the time of the accident to be clearly erroneous. Because the accident did not occur when the rise in the water level took place, there is no reason to spend much time discussing plaintiffs’ remaining evidence in support of the gate opening theory. We certainly would be going beyond our appellate province to try the case de novo, which to some extent the appellants seem to want us to do. The court was not required to credit Matzen’s testimony that he saw a surge of water, and his claim that he heard of lock-men opening gates on boaters 10-15 years earlier is of minimal value. Similarly, the court was not required to disbelieve the express denials of the lockmen, all of whom were engaged in locking through a vessel during the rise in water level — which may account for the increase. We are equally unconvinced that plaintiffs’ expert established that the damage sustained by decedents’ boat could only have been caused by a surge of water rather than being slammed into the roller gate. Although it is not necessary to review the court’s finding that decedents’ negligence was the sole cause of the accident in light of plaintiffs’ failure to establish any basis for holding defendants liable, we do note that the evidence is clear that decedents, grown men with extensive boating experience, chose to tie their boat in front of the gate of an operating dam despite warning signs and the obvious danger of placing themselves in this position. Decedents’ carelessness was compounded when they failed to take the simple precaution of wearing the life vests that were in the boat, a step that might well have saved their lives. Given decedents’ willingness to take risks with their lives, the resulting tragedy could reasonably have been expected. For the reasons stated herein, the decision of the district court is Affirmed. . In addition to the clear message conveyed by the sign, the court found that the cause of the danger was obvious from the surface turbulence. Plaintiffs argue that the court was not permitted to consider testimony concerning the water conditions on the night of the accident because the parties stipulated that several photographs, taken long after the accident, represented conditions similar to those existing the night of the drownings. Plaintiffs argue that this stipulation required the court to accept that the water was calm the night of the accident. In making this argument plaintiffs ignore that the water depicted in the photographs is not calm, and is in fact quite turbulent near the gates. Furthermore, assuming that the water was calm, this does nothing to negate that decedents, experienced boaters, knew that they had tied their boat in front of the gate of an operating dam and must have known that this involved substantial risk. Witnesses at trial testified that decedents had obviously placed themselves in a dangerous situation and that nobody in the past had been so foolhardy as to tie up to a piemose as decedents did. In addition, from decedents’ position the backcurrent and breakline should have been visible and decedents were undoubtedly aware of the risk they were taking. In short, the facts fully support the court’s determination that the danger was open and obvious and that decedents’ own negligence was the sole cause of the accident. . In Callas the court rejected the Government’s claim that “Keep 00 Feet Away” should be read as indicating a minimum of 100 feet, principally because this interpretation “assumes that boaters would have recognized the operational defect in the sign.” 682 F.2d at 623. In Callas the sole sign was new and was equipped with replaceable digits. The digit “1” had not arrived and there was no indication from the sign itself that a digit was missing. Here, however, the digit “3” had been painted over and it was clear that the sign was incomplete. In this situation it would be unreasonable to read the sign as actually “00 Feet.” Furthermore, the sign was not the only one posted and a reasonable boater would have read it in conjunction with those signs indicating 100 feet. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 46? Answer with a number. Answer:

songer_appbus

2

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. TELE-CONTROLS, INC. and Audio Systems Co., Plaintiffs-Appellants, v. FORD INDUSTRIES, INC., DefendantAppellee. No. 16220. United States Court of Appeals Seventh Circuit. Dec. 21, 1967. Elmer Gertz, Wayne B. Giampietro, Chicago, 111., for plaintiffs-appellants. Robert L. Stern, Roger W. Barrett, Everett L. Hollis, Jack Guthman, Chicago, 111., for defendant-appellee. Before HASTINGS, Chief Judge, and ENOCH, Senior Circuit Judge, and CUMMINGS, Circuit Judge. CUMMINGS, Circuit Judge. In this diversity action, Audio Systems Co. (“Audio”), an Illinois corporation, has sued Ford Industries, Inc., a Washington corporation, for damages and for injunctive relief against Ford Industries’ termination of Audio’s dealership. This appeal is from the District Court’s denial of a preliminary injunction pendente lite. In January 1966, the predecessors of Audio and Ford Industries entered into a dealer agreement making Audio’s predecessor the exclusive sales agent in the Chicago area for Code-a-phones, a telephone-answering device manufactured by Ford Industries’ predecessor. Paragraph 13(b) of the contract provided: “Either party hereto may terminate this Agreement at any time, with or without cause, by giving to the other party a written notice of intention to terminate at least thirty (30) days prior to the effective date of termination specified in such notice. In the event of termination by Code-a-phone, Dealer shall continue to maintain the sales .and service facilities previously maintained until the effective date of the termination.” On February 1, 1967, Ford Industries sent a notice of termination to Audio, effective at the close of business on March 10. On February 13, this suit was filed. Audio’s motion for a preliminary injunction was supported by the affidavit of its president, and his deposition was taken by Ford Industries on March 13, 1967. The motion for preliminary injunction was denied a month thereafter. Audio first argues that the District Court should have issued a preliminary injunction to preserve the status quo in order to prevent irreparable injury. Under Illinois law, a trial court’s decision on a preliminary injunction is reversible only for abuse of discretion. Capitol Records, Inc. v. Vee Jay Records, Inc., 47 Ill.App.2d 468, 477, 197 N.E.2d 503 (1964). In exercising his discretion, the trial judge must consider principally the following standards: the adequacy of a remedy at law (Bour v. Illinois Central R. Co., 176 Ill.App. 185, 198 (1912) ); the relative harm to the parties resulting from the denial or grant of the injunction (Fishwick v. Lewis, 258 Ill.App. 402, 409-410 (1930)); and the likelihood that plaintiff will prevail on the merits (Lipkin v. Burnstine, 18 Ill.App.2d 509, 517, 152 N.E.2d 745 (1958)). Under federal law too, similar standards govern. 7 Moore’s Federal Practice, §§ 65.04[2] and 65.18[3]. Therefore, we need not determine whether state or federal law governs the issuance or denial of an injunction in a diversity case. See Dick v. New York Life Insurance Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 3 L.Ed.2d 935. As to the question of adequacy of remedy at law, Audio stresses the difficulty of computing damages, but the District Court felt that the damages could be sufficiently measured. Both the complaint and the deposition of Audio’s president refer to specific lost dollar amounts, and the amount recoverable as lost profits can be measured on the basis of past performance and present predictions. Therefore, equitable relief was not required. Bour v. Illinois Central R. Co., 176 Ill.App. 185, 198-200 (1912); Tidd v. General Printing Co., 257 Ill.App. 596, 606 (1930); 2 Restatement of the Law of Contracts, § 361. Ellis Electrical Laboratory Sales Corp. v. Ellis, 269 Ill.App. 417 (1933) is not to the contrary. That case dealt with a permanent injunction and plaintiff’s success on the merits had been assured before an injunction was ordered. There, too, it was uncertain how much of plaintiff distributor’s business would be lost by the manufacturer’s competition, whereas here and in Bour, the plaintiff lost all its business, making computation of damages easier. As in Ellis, the case of Madsen v. Chrysler Corp., 261 F.Supp. 488 (N.D.Ill.1966), involved a permanent injunction. Also as in Ellis, the court decided after the trial that the defendant had breached the contract and that plaintiff was entitled to some relief. The termination clause in Madsen was dissimilar to the one at bar. Madsen does not support a reversal. As to balancing the comparative harm to the parties by denying relief, Audio is not precluded from obtaining another telephone-answering device franchise, and Ford Industries is not forced to continue dealing with a dealer it has found to be unsatisfactory. In this connection, the District Court found it should not force Ford Industries to perform this continuous relationship involving many personal contacts. Ambassador Foods Corp. v. Montgomery Ward & Co., 43 Ill.App.2d 100, 105-107, 192 N.E.2d 572 (1963); Almar Forming Machinery Co. v. F. & W. Metal Forming Machinery Co., 308 Ill.App. 151, 164-165, 31 N.E.2d 415 (1941). We cannot say that balancing the equities here compels the issuance of a preliminary injunction. No such showing has been convincingly made. The third factor with respect to the propriety of issuing a preliminary injunction is the likelihood of success on the merits. Plaintiff insists that termination can be made only in good faith. Paragraph 19(a) of the contract provides that it “shall be interpreted and construed according to the laws of the State of Oregon.” The parties’ intention to be governed by Oregon law should be honored. Lauritzen v. Larsen, 345 U.S. 571, 588-589, 73 S.Ct. 921, 97 L.Ed. 1254. However, instead of relying on Oregon decisional law, plaintiff’s reliance is upon opinions from other jurisdictions. Being inapplicable by the express terms of the contract, they need not be discussed herein. Plaintiff’s other reliance is upon the Uniform Commercial Code, which has been adopted in Oregon and Illinois. Section 1-203 of the Uniform Commercial Code provides: “Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement.” This is an overriding provision that applies to the contract termination provisions found in § 2-309(2) and (3) of the Uniform Commercial Code. See 1 Anderson’s Uniform Commercial Code (1961), pp. 38-39. It is unnecessary to decide whether the Uniform Commercial Code governs this entire dealership contract, for Oregon case law requires that termination must be in good faith. Johnson v. School District #12, 210 Or. 585, 312 P. 2d 591, 593-594 (1957); Lumbermen’s National Bank v. Minor, 65 Or. 412, 133 P. 87, 88 (1913); see also 1A Corbin on Contracts, § 265, note 64; cf. BushwickDecatur Motors v. Ford Motor Co., 116 F.2d 675, 677 (2d Cir. 1940). Under Oregon law, if Audio had been able to establish Ford Industries’ bad faith, a preliminary injunction might have been appropriate. However, no sufficient showing of bad faith has yet been made. The record does show that Ford Industries considered Audio to be an unsatisfactory dealer, inadequately capitalized, not selling enough Code-a-phone units, and not maintaining a sufficient inventory. Of course, if Ford Industries’ bad faith can be established at the trial, the District Court might then properly conclude to grant injunctive relief. Since no abuse of discretion has been demonstrated, the District Court’s order denying the plaintiffs’ motion for preliminary injunction is affirmed. . The other plaintiff is Audio’s predecessor, Tele-Controls, Ine., another Illinois corporation. . Audio does not challenge the validity of this clause. A somewhat similar clause was upheld in Buggs v. Ford Motor Co., 113 F.2d 618 (7th Cir. 1940), certiorari denied, 311 U.S. 688, 61 S.Ct. 65, 85 L.Ed. 444; see also 6 Corbin on Contracts, § 1266, note 73. . Ore.Stats. § 71.2030; Ill.Rev.Stats. (1965) ch. 26, § 1-203. . Ore.Stats. § 72.3090(2) and (3); Ill.Rev.Stats. (1965) ch. 26, § 2-309(2) and (3). Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

songer_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. STATE OF MAINE et al., Plaintiffs-Appellees, v. Robert W. FRI, etc., et al., Defendants-Appellants. No. 73-1254. United States Court of Appeals, First Circuit. Argued Oct. 4, 1973. Decided Nov. 2, 1973. William D. Appier, Atty., Dept, of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Peter Mills, U. S. Atty., and Walter H. Fleischer, Atty., Dept, of Justice, were on brief, for defendants-appellants. Lee M. Schepps, Asst. Atty. Gen., for plaintiffs-appellees. Before COFFIN, Chief Judge, MOORE, Senior Circuit Judge, and CAMPBELL, Circuit Judge. Of the Second Circuit sitting by designation. LEVIN H. CAMPBELL, Circuit Judge. For the second time, the Administrator of the Environmental Protection Agency (EPA) appeals from the district court’s interim order of June 29, 1973, requiring him to allot $29,025,000 to Maine in fiscal year 1973 for purposes of the Water Pollution Control Act Amendments of 1972, 33 U.S.C. (Supp. II, 1972) § 1281 et seq. (the “Act”). The order, issued several days before the end of the federal fiscal year, also provides that none of the funds so allotted will be available for obligation until further order of court. We dismissed an earlier appeal for lack of appellate jurisdiction. 483 F.2d 439 (1st Cir. 1973). Several months having passed without further hearing or action in or by the district court, we are now persuaded that the order was or has become an appeal-able preliminary injunction. Id. p. 440. Maine brought the present suit after the then acting Administrator of the EPA, at the express direction of the President of the United States, had allptted among the states, for the purposes of the Act, two billion dollars for fiscal 1973 and three billion dollars for fiscal 1974. Section 207 of the Act provides that “[t]here is authorized to be appropriated to carry out this subchapter . for the fiscal year ending June 30, 1973, not to exceed $5,000,000,000, [and] for the fiscal year ending June 30, 1974, not to exceed $6,000,000,000, . . . ” Maine contends that the President and the Administrator lack authority to reduce the 1973 and 1974 allotments below the sums authorized to be appropriated, especially since § 205 provides: “Sums authorized to be appropriated pursuant to § 207 for each fiscal year . shall be allotted by the administrator . ” [Emphasis supplied.] The merits of Maine’s claim have yet to be heard. The district court has informed the parties that it will expedite their determination. The only question before us is the appropriateness of the preliminary order directing, in effect, a “paper allotment” of the disputed funds. Maine sought the interim relief because of its fear that if the Administrator was not ordered to make a formal allotment — essentially a bookkeeping entry — before the end of fiscal 1973 on June 30, 1973, the funds might irretrievably be lost. Thereafter the court held a hearing on July 6, 1973, on the Administrator’s motion to vacate the temporary order. It denied the motion. We are satisfied that the order was issued in substantial compliance with required procedures, and that the district court did not abuse its discretion in issuing it. The Administrator attacks the order on both procedural and substantive grounds. His procedural attack is that the district court’s order, constituting what is by now a preliminary injunction, should be vacated because it was entered without setting out the factual premises and legal conclusions on which it was based, as required by F.R. Civ.P. 52(a). Although the government’s opportunity to present its side before the order issued may have been cramped by the short notice, it had full opportunity on July 6th when the court heard the government’s motion to vacate the order. The latter opportunity was but little removed from the usual hearing on issuance of a preliminary injunction. On the record, the court stated conclusions which were pertinent to in-junctive relief, i. e. irreparable harm, countervailing harm to the defendant, and the probability of success. As to the factual premises underlying those conclusions, the record shows at the very least an awareness by the court and counsel of the relevant statutory provisions and administrative actions. Since the main purpose of Rule 52 is served in this instance, where the record fully explicates the district court’s material assumptions of fact to the extent necessary for appellate review, and neither side has been misled as to the basic issues involved, we will' accept, without encouraging the practice, what might otherwise constitute an insufficient statement of findings in a temporary restraining order which becomes, through lapse of time, a preliminary injunction. Before granting a preliminary injunction the court must be satisfied, with good reason, that Maine would otherwise suffer irreparable loss, and that it was likely to prevail on the merits. The district court was also required to balance against the possibility of irreparable loss to the plaintiff, if preliminary relief was denied, any harm to defendant that might be caused by the grant of such relief. Whether there would be irreparable loss boiled down to the need, in fiscal 1973, for the Administrator to engage in a formal action called “allotment”. Under the Act, allotment is the first step in a chain of actions required before federal financial aid is available to a particular state project. Maine asserts that if funds authorized to be appropriated in 1973 under § 207 of the Act were not timely allotted by the Administrator under § 205(a), they would cease to be available for obligation during the ensuing fiscal year. See § 205(b)(1). If so, Maine’s primary claim might become academic before it could ever be litigated. The district court concluded that under the statute as drafted Maine’s fears were well-grounded. We need not and do not decide that issue. It is enough that the statutory language renders the court’s determination reasonable and well within its discretion. Section 205(b)(1) makes available for obligation in a subsequent year “[a]ny sums allotted to a State under subsection (a)” [Emphasis supplied.] There is obvious room for the inference that sums not allotted may not be so carried forward. The Administrator takes the position that funds authorized to be appropriated may be carried forward although never allotted in the relevant years. But without questioning his good faith in this particular, or indeed without foreclosing the possibility that on one theory or another unallotted funds might not irretrievably be lost to Maine, we do not see how either Maine or the district court prudently could have failed to take the positions they did. Maine was faced with a possible loss of millions if a timely allotment turned out to be mandatory. On the other hand, if the allotment turned out not to be mandatory, entry of an interim order would do no harm. The Administrator has been unable to persuade us that the order would injure his agency even were Maine to lose on the merits. The allotment ordered, with an express prohibition against obligating the funds until further order of court, does no more than preserve the possibility of effective final relief until the merits of Maine’s claim are decided. If Maine loses, no valid claims against the United States can have been created. As to Maine’s probability of success on the merits, when the district court entered its order on July 6, 1973, it considered the rulings of several other district courts in favor of the position Maine was advocating. Today’s head count on the Water Pollution Control Act Amendments of 1972, if that is the proper way to refer to the situation, is for courts awarding relief and one declining to do so. This demonstrates to us sufficient probability of success on the merits to support a preliminary injunction. Comment, Executive Impounding of Funds: The Judicial Response, 40 U.Chi.L.Rev. 328 (1973); Note, Impounding of Funds, 86 Harv.L.Rev. 1505(1973). We do not intimate that the Administrator’s position may not ultimately prevail. But the Administrator can prevail on appeal from a preliminary injunction only if he can show an abuse of discretion. Meccano, Ltd. v. John Wanamaker, 253 U.S. 136, 141, 40 S.Ct. 463, 64 L.Ed. 822 (1920). The court did not abuse its discretion by concluding that Maine’s prospects were sufficiently bright to justify issuance of an interim order which, at no appreciable cost to the federal government, might forestall irreparable loss to Maine. Order affirmed. . City of New York v. Ruckelshaus, 358 F. Supp. 669 (D.D.C.1973) ; Campaign Clean Water, Inc. v. Ruckelshaus, 361 F.Supp. 689 (E.D.Va.1973) ; Minnesota v. EPA, 5 E.R.C. 1586 (D.Minn.1973) ; Martin-Trigona v. Ruckelshaus, 5 E.R.C. 1665 (N.D.I11.1973). Cf. Note, Protecting the Fisc: Executive Impoundment and Congressional Power, 82 Yale L.J. 1636, 1652 (1973). . Brown v. Ruckelshaus, 364 F.Supp. 258 (C.D.Cal.1973). Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

songer_appfed

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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Gerardeen M. SNYDER as the Executrix of the Succession of Eric Snyder and Charles Keenan, Plaintiffs-Appellants, and Allen Samuels, Inc., Intervenor-Appellant, v. CHAMPION REALTY CORPORATION, Defendant-Appellee. No. 79-2514. United States Court of Appeals, Fifth Circuit. Unit A Dec. 5, 1980. Rehearing Denied Dec. 31, 1980. William F. Wessel, Windhorst, Heisler, De Laup & Wysocki, Frederick P. Heisler, New Orleans, La., for Snyder, et al. Reynolds, Nelson & Theriot, Charles W. Nelson, Jr., New Orleans, La., for defendant-appellee. Before WISDOM, GARZA and REAV-LEY, Circuit Judges. WISDOM, Circuit Judge: The issue in this diversity case is whether the plaintiffs, real estate brokers, are entitled under Louisiana law to recover a commission from the defendant. We agree with the district court that they are not, and we affirm the grant of summary judgment for the defendant. The plaintiffs in this case are Eric Snyder, Allen Samuels, Inc. (“Samuels”), and Charles Keenan, three real estate brokers. The defendant is Champion Realty Corp. (“Champion”). Some time in 1974 Champion engaged Snyder and Samuels as non-exclusive agents for the sale of a large tract of land in Louisiana known as the Garyville tract. Champion offered the land for a minimum cash price of $125 an acre, or a total of $3,950,000, with Champion reserving all oil and gas rights. Champion agreed to pay any excess obtained over $125 an' acre to the brokers as their commission. Champion also agreed to “look at” any other deals that the brokers might arrange. Snyder and Samuels in turn obtained Keenan’s assistance and agreed to split the commission with him. The brokers introduced Champion to a buyer, Brian Investments, Ltd. (“Brian”), willing to pay $150 an acre. The parties reached an agreement and put it into two documents on October 4, 1974. Champion and Brian signed an Agreement to Buy and Sell, calling for sale of the entire tract at $125 an acre, cash, with Champion reserving all gas and oil rights. Champion acknowledged the brokers’ role in arranging the sale but did not promise to pay a commission. At the same time, Brian and the brokers signed a Commission Agreement for $25 an acre. Champion twice tendered title to Brian (on March 27 and April 28, 1975). Brian defaulted both times. Brian has never performed either of the October 4 agreements. Sometime after the second default Champion and Brian opened direct negotiations. As a result, on May 4, 1976, they entered into a new agreement. Again the price was $125 an acre, but Champion reserved only half of the oil and gas rights. Champion also promised to pay a commission of $7.50 an acre to a broker to be designated by Brian. This sale took place on October 1, 1976, on a credit basis. Brian later designated itself as the broker to collect the $7.50 commission. The agreement made no provision for payment of any commission to the plaintiffs, nor were they notified of or invited to participate in the negotiations or agreement. The plaintiffs sued Champion (but not Brian) in Louisiana state court; Champion removed the action to federal district court. The parties made extensive stipulations of fact. On cross-motions for summary judgment, the district court granted judgment for Champion. The plaintiffs concede that they cannot recover from Champion in contract on the original brokerage agreement. Under that agreement, Champion’s liability for any commission was subject to the condition precedent that the sale price exceed the stated net price of $125 an acre. The plaintiffs brought in a buyer willing to pay $150 an acre, but they could not consummate a sale for any such amount. Instead, the plaintiffs base their claim on a theory of unjust enrichment. The Louisiana courts have often invoked such a theory in proper circumstances to award equitable commissions to real estate brokers. The general rule is that when a broker brings a buyer and seller together, he is entitled to a commission on the sale even though (1) the sale takes place after the termination of the broker’s agency agreement; (2) the buyer and seller negotiate the deal themselves in the broker’s absence; (3) the sale price is less than that originally asked by the seller or offered by the buyer; or (4) there is no actual fraud or collusion to deprive the broker of his commission. J. R. Grand Agency, Inc. v. Staring, 1924, 156 La. 1094, 101 So. 723; Grace Realty Co. v. Peytavin Planting Co., 1924, 156 La. 93, 100 So. 62; Gottschalk v. Jennings, 1846, 1 La.Ann. 5; Sleet v. Gray, La.App. 1977, 351 So.2d 286; Hamberlin v. Bourgeois, La.App. 1973, 289 So.2d 358; Slimer v. White, La.App. 1973, 275 So.2d 468; Keating v. Lachney, La.App. 1968, 216 So.2d 906; Saturn Realty, Inc. v. Muller, La.App. 1967, 196 So.2d 321. Assuming that the plaintiffs in this case were instrumental in bringing about this sale, however, it does not follow from these authorities that they may recover in unjust enrichment against Champion. The cases cited all differ from this case in one crucial respect: in every instance there was a promise to pay either a flat sum or a stated percentage of the sale price. In some cases, as in this case, the seller named a minimum net price. But in no case of recovery by a broker or real estate agent was the bargain structured so that the existence and amount of a commission depended directly on the receipt of a sale price exceeding the stated minimum. To restate the distinction: in all the cited cases the sellers were liable for some commission if they sold at any price to buyers procured by the plaintiffs. Those sellers tried to evade that liability by discharging the brokers or by dealing directly with the buyers behind the brokers’ backs. Here, in contrast, the seller agreed to pay a commission only if the brokers brought about a sale for more than $125 an acre. No such sale occurred; Champion received a net price of $117.50 an acre, gave credit instead of receiving cash, and was able to retain only half of the mineral rights. A party is not unjustly enriched because it “evades” a liability that never existed. The plaintiffs assert that there is a fact issue as to whether Champion committed actual fraud, but they do not draw our attention to any facts that would support the accusation. A bare, conclusory assertion cannot defeat a motion for summary judgment. The plaintiffs, somewhat uncertain how to pigeon-hole their claim, argue that, despite the terms of the brokerage contract, Champion is guilty of “legal fault”, a kind of constructive bad faith, under the civilian doctrine of culpa in contrahendo. The doctrine is, in general terms, the civilian equivalent of the common law concept of promissory estoppel. It is used as a basis for compensating one party for his expenses incurred in reliance on another party’s offer to form a unilateral contract where that offer is withdrawn before acceptance. See Comment, Culpa in Contrahendo, in German, French and Louisiana Law, 15 Tul.L. Rev. 87 (1940). It has nothing to do with this case. We recognize that actual fraud is not a necessary element to a broker’s recovery for unjust enrichment. Nevertheless, we cannot agree that, under the Louisiana cases we have cited above, the mere act of selling to the broker’s buyer without cutting in the broker establishes bad faith. Rather, when the cases speak of bad faith, they refer to some active interference with the brokers’ ability to earn their contractual commissions. See J. R. Grand Agency, 101 So. at 724; Grace Realty, 100 So. at 63; Gottsch-aIk, 1 La.Ann. at 6-7. Here the plaintiffs had let the matter drop after Brian’s defaults; there was no continued effort with which Champion could have interfered. Nor do we agree, in the circumstances of this case, that Champion’s failure to notify the plaintiffs of the new negotiations establishes fault. Assuming that Champion had any duty to do so, the plaintiffs suffered no harm from the omission. If Champion could not persuade Brian to pay Champion’s original stated minimum net, it is unlikely that the plaintiffs could have persuaded Brian to pay a price above that minimum. The plaintiffs complain that this result allows a seller, faced with a balky buyer, to make “price concessions” by bargaining away the broker’s commission. That, however, is an inherent feature of the type of brokerage agreement the plaintiffs made. They agreed to accept only the excess money as their commission. They likewise chose to present Brian as a customer; thereby they took the risk that Brian would back away from its promise to pay $150 an acre. To protect their commission they could have extracted a promise from Brian (as in fact they did), or they could have found another, more reliable buyer (as they did not). The plaintiffs were entitled to expect that Champion would not sell at $125 if they produced a buyer willing and able to buy at $150. They were not entitled to expect such abstinence if they did not produce such a prospect. Perhaps it is not the plaintiffs’ fault that the sale they put together did not go through, but certainly it is not Champion’s fault. Since we find that Champion received no unjust enrichment at the plaintiffs’ expense, we conclude that Champion is entitled to judgment as a matter of law. We therefore AFFIRM the judgment of the district court. . Eric Snyder died during pendency of the case in the district court. Gerardeen Snyder was substituted as his Executrix. . The doctrine of unjust enrichment came from Roman law, flourished in France, had an unfriendly reception in England, is well developed in the common law states and, according to the Louisiana Supreme Court, emerged in Louisiana as early as 1814 in Meunier v. Duperron, 3 Mart. (O.S.) 285. Minyard v. Curtis Products, Inc., 1967, 251 La. 624, 205 So.2d 422. Min-yard, the leading case in Louisiana, states that the civil law action de in rem verso is an action for unjust enrichment. 205 So.2d at 427. The negotiorum gestio action offers another avenue. See Comment, Negotiorum Gestio in Louisiana, 7 Tul.L.Rev. 253 (1933). There is no specific codal article on the subject, although the action could be based on three articles. Article 21, which has no corresponding article in the French or Quebec codes, provides, in part, that “In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity”. Article 1965, defining equity, states, in part, that it rests “on the moral maxim of the law that no one ought to enrich himself at the expense of another”. Article 2294, dealing with the concept of quasi-contract, furnishes a third basis for the unjustified enrichment doctrine. See Comment, Actio De In Rem Verso in Louisiana: Minyard v. Curtis Products, Inc., 43 Tul.L.Rev. 263 (1969). See generally Nicholas, Unjustified Enrichment in Civil Law, Part I, 36 Tul.L.Rev. 603 (1962); Part II, 37 Tul.L.Rev. 49 (1962). .To recover on an unjust enrichment theory in Louisiana, a broker must be the “procuring cause” of the final sale. Ordinarily a broker is the procuring cause if he brings the parties together. E. g., Keating, 216 So.2d at 909-10. But if the parties fail to make a sale, part ways, and then come together again on their own initiative after a lapse of time, the broker does not earn a commission on the sale if he has no hand in the renewed dealings. Ford v. Shaffer, 1918, 143 La. 635, 79 So. 172; Cramer v. Guercio, La.App. 1976, 331 So.2d 550; Turner v. Swann, 1919, 11 La.App. 689, 124 So. 717. Here there is a factual dispute as to when Brian and Champion resumed negotiations and whether these were a mere continuation of the earlier negotiations or a new start. This alone is enough to defeat the plaintiffs’ motion for summary judgment, since it creates a genuine issue as to a fact material to their right to recover. Fed.R.Civ.P. 56(c). We nevertheless affirm summary judgment for Champion because we find that it is entitled to judgment as a matter of law even if the plaintiffs were the procuring cause of the sale. . In some cases there was no express agreement as to the amount of the brokers’ compensation. Apparently the courts assumed an implied contract to pay the prevailing percentage rate on realty brokerage agreements. . In the case of percentage commissions, of course, the recovery is the agreed percentage of the actual sale price, even if that price is less than the original asking price. Where the brokerage agreement calls for a commission stated in dollars on a sale for a stated minimum, and the sale takes place at a lower price, the rule is less clear. In Keating the appellate court awarded the full agreed amount, 216 So.2d at 907, .910. In Grace Realty, though, the supreme court in dictum suggested a pro rata share, 100 So. at 63. In any case, the point is that in all cases there existed some liability for a commission despite sale at below the stated minimum. . See Grace Realty, 100 So. at 64. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:

songer_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. Francis Edward KLIMAS, Appellant, v. James MABRY, Commissioner, Arkansas Department of Corrections, Appellee. No. 78-1663. United States Court of Appeals, Eighth Circuit. Submitted Feb. 12, 1979. Decided May 30, 1979. Rehearing and Rehearing En Banc Denied Aug. 13, 1979. See 603 F.2d 158. Richard F. Quiggle, Little Rock, Ark., for appellant. Neal Kirkpatrick, Asst. Atty. Gen., Little Rock, Ark., for appellee; Bill Clinton, Atty. Gen., and James E. Smedley, Asst. Atty. Gen., Little Rock, Ark., on brief. Before HEANEY and McMILLIAN, Circuit Judges, and SCHATZ, District Judge. ALBERT G. SCHATZ, United States District Judge, for the District of Nebraska, sitting by designation. HEANEY, Circuit Judge. Francis Edward Klimas, an Arkansas state prisoner, appeals from the order of the District Court dismissing his petition for a writ of habeas corpus. On appeal, Klimas contends that the writ should have been granted because his cross-examination of a key prosecution witness at his state trial was impermissibly restricted, and because records of seven Missouri convictions, which were silent as to Klimas’s representation by counsel, were considered by the jury in the enhancement of his sentence under the Arkansas Habitual Criminal Act, Ark. Stat.Ann. § 43-2328. We reverse and remand. Klimas was convicted of burglary and grand larceny, in violation of Ark.Stat.Ann. §§ 41-1003 and 41-3907 (repealed 1976), in Jefferson County Circuit Court on April 23, 1975. After the verdicts of guilty were returned, the second part of the information, charging Klimas with being a habitual criminal under Ark.Stat.Ann. § 43-2328, was read to the jury. The prosecution then offered into evidence certified copies of records from the Department of Correction, Missouri State Penitentiary, which indicated that Klimas had been previously convicted of seven felonies in Missouri. The defense objected to the introduction of this evidence on the ground that the records were silent as to whether Klimas had been represented by counsel. This objection was overruled. The prosecution also introduced certified copies of records from the Arkansas State Penitentiary, which indicated that Klimas had pled guilty to three burglary-grand larceny transactions, occurring on February 12, 21 and 26 of 1972, for which he received three concurrent, five-year sentences. No objection to the introduction of this evidence was made. Arguments on the habitual criminal charge were made to the jury by both the prosecution and the defense. The jury was then instructed and sent to deliberate with four verdict forms. The first form provided that if the jury found Klimas guilty of having been convicted of no prior felony offense, his punishment should be fixed at not less than one nor more than twenty-one years for grand larceny, and not less than two nor more than twenty-one years for burglary. The second form provided that if the jury found him guilty of having been convicted of one prior felony offense, his punishment should be fixed at not less than two nor more than twenty-one years for grand larceny, and not less than three nor more than twenty-one years for burglary. The third form provided that if he was found guilty of having been convicted of two prior felony offenses, his punishment for grand larceny should be fixed at not less than four nor more than twenty-one years for grand larceny, and not less than five nor more than twenty-one years for burglary. The fourth form provided that if he was found guilty of having been convicted of three prior felony offenses, his punishment should be fixed at not less than twenty-one nor more than thirty-one and one-half years for grand larceny, and the same for the crime of burglary. The jury found that Klimas had been convicted of three prior felonies and fixed his sentence at thirty-one and one-half years for grand larceny, and thirty-one and one-half years for burglary. The trial judge ordered that Klimas serve these sentences consecutively. Klimas appealed to the Arkansas Supreme Court, raising, among other grounds, the two grounds for reversal urged here. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976), cert. denied, 429 U.S. 846, 97 5. Ct. 128, 50 L.Ed.2d 117 (1976). The Arkansas Supreme Court held that since the records of Klimas’s Missouri convictions were silent concerning his representation by counsel, they were inadmissible in the sentencing enhancement proceeding under Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The Court reversed the judgment and remanded the case for a new trial unless the Arkansas Attorney General, within seventeen calendar days, accepted a reduction of Klimas’s sentence to three years, the minimum sentence which he could have received for the burglary and grand larceny charges. 534 S.W.2d at 207. On rehearing, the Court modified its original order and imposed a sentence of forty-two years, twenty-one years for each offense. The Court reasoned that since the six prior Arkansas convictions (three burglary-larceny transactions) were unchallenged by Klimas in the trial court, the minimum sentence which Klimas could have received would have been twenty-one years, making a total of forty-two years for the two offenses. The Court concluded that any possible prejudice to Klimas would be removed by reduction of his sentence to forty-two years. Id. Klimas’s other grounds for the reversal of his conviction were rejected. The State subsequently agreed to this reduction, sentencing Klimas, in effect, to forty-two years imprisonment for the commission of four petty burglaries, three of which occurred within a fourteen-day period and for which he had previously served one five-year sentence. Klimas then brought this habeas corpus action in federal District Court, raising the same issues which were raised in his state appeal and which he raises now. A hearing was held in the District Court on May 10, 1978. At that hearing, the District Court expressed concern that Klimas had received such a severe sentence for this series of petty crimes. The court believed that it was without jurisdiction, however, both because Klimas’s petition failed to sufficiently allege a violation of a constitutional right and because the United States Supreme Court denied certiorari in his appeal from the decision of the Arkansas Supreme Court. The District Court dismissed Kli-mas’s petition for lack of jurisdiction, and he now appeals. To the extent that the District Court believed that it was without jurisdiction to consider Klimas’s petition because of the United States Supreme Court’s denial of certiorari, it was in error. If, in exhausting state remedies, a state prisoner unsuccessfully seeks Supreme Court review, no weight is to be given to this denial when considering the prisoner’s later petition for habeas corpus. See 28 U.S.C. § 2244(c); Brown v. Allen, 344 U.S. 443, 488-497, 73 S.Ct. 397, 97 L.Ed. 469 (1953); 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 114264 at 631 (1978). We, therefore, turn to the more difficult question presented by this petition: whether Klimas’s pro se petition, liberally construed, sufficiently states the deprivation of a constitutional right which would justify the granting of federal habeas corpus relief. See 28 U.S.C. § 2254; Louis Serna v. Donald Wyrick, 594 F.2d 869 (8th Cir., 1979); DeBerry v. Wolff, 513 F.2d 1336, 1338 (8th Cir. 1975). We agree with the District Court that any error which the state trial court committed in restricting the cross-examination of Arlie Weeks, Klimas’s accomplice and the prosecution’s principal witness against him, did not rise to the level of the deprivation of a constitutional right. Kli-mas’s counsel, in an apparent attempt to show that Weeks expected assistance from the prosecuting attorney in obtaining parole from his current incarceration in exchange for his testimony, asked Weeks whether he was aware that the recommendation of the prosecuting attorney is required before parole is granted in Arkansas. The prosecutor objected to the question; but before the court ruled on the objection, Weeks answered in the negative. The court then sustained the objection. Failure to allow effective cross-examination aimed at eliciting the bias of a prosecution witness can rise to the level of a constitutional violation. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Although the objection here was probably erroneously sustained, since Weeks did answer the question prior to the court’s ruling and since no further attempts were made by Klimas’s counsel to elicit Weeks’ possible bias, we cannot say that this error by the state trial court constituted a violation of Klimas’s constitutional rights which would justify the granting of habeas corpus relief. We find, however, that, under the particular facts of this case, the failure of the Arkansas Supreme Court to follow the sentencing procedure required by the Arkansas Habitual Criminal Act, Ark.Stat.Ann. § 41-1005 or § 43-2330.1, in the resentencing of Klimas after the rehearing of his case resulted in a deprivation of due process which justifies the granting of habeas corpus relief. Generally, the failure of a state court to comply with the provisions of state law in its criminal trials is purely a matter of local concern and is not reviewable by federal courts under the due process clause of the federal Constitution. See Buchalter v. New York, 319 U.S. 427, 429-430, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943); Cox v. Hutto, 589 F.2d 394 at 395 (8th Cir., 1979). The failure of a state to afford a particular defendant the benefit of established procedures under state law may, however, result in a denial of due process when the error made by the state court renders the state proceedings so fundamentally unfair or so fundamentally deficient that they are inconsistent with the rudimentary demands of fair procedure. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Buchalter v. New York, supra, 319 U.S. at 429-430, 63 S.Ct. 1129; DeBerry v. Wolff, supra at 1338; Shirley v. State of N. C., 528 F.2d 819, 822 (4th Cir. 1975). Under the Arkansas Habitual Criminal Act, an individual who is charged with being a habitual criminal is tried for that offense after a verdict of guilty has been returned for the primary felony charge on which he has just been tried. Ark.Stat. Ann. §§ 41-1005, 43-2330.1. Evidence pertaining to the defendant’s previous felony convictions is submitted to the jury and the defendant has the right to controvert such evidence or to submit other evidence in his support. Id. The jury must then retire; and only upon its finding that the defendant has been convicted of prior felonies may a particular enhanced sentence be imposed. Id. Throughout this procedure, the State bears the burden of proving the prior convictions of the defendant, McConahay v. State, 257 Ark. 328, 516 S.W.2d 887, 889 (1974), and the weighing of the evidence and the ultimate factual finding that the defendant is a habitual criminal are for the jury alone. Id. Where a state has provided, by statute, that a habitual criminal charge is to be tried to a jury, we do not believe that the state can abrogate that right in a particular case without violating the notions of fundamental fairness inherent in the due process clause. Where a right to trial by jury has been established under state law, the state cannot deny a particular accused that right without violating even the minimal standards of the due process clause. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Berrier v. Egeler, 583 F.2d 515, 522 (6th Cir. 1978); Wolfs v. Britton, 509 F.2d 304 (8th Cir. 1975); Shirley v. State of N. C., supra; Braley v. Gladden, 403 F.2d 858, 860-861 (9th Cir. 1968). While a habitual criminal proceeding is commonly thought of as a sentence-enhancement proceeding, rather than as a trial for a substantive offense, we believe that the highly penal nature of the Arkansas Habitual Criminal Act requires that the statutory requirements for conviction under that Act be strictly construed. See Cox v. Hutto, supra; Parker v. State, 258 Ark. 880, 529 S.W.2d 860, 863 (1975); McConahay v. State, supra, 516 S.W.2d at 889; Higgens v. State, 235 Ark. 153, 357 S.W.2d 499, 501 (1962). After the Arkansas Supreme Court found that the evidence of Klimas’s seven Missouri convictions were erroneously submitted to the jury, the Court did not remand his case for retrial on the habitual criminal charge. Instead, the court reimposed a sentence under the Habitual Criminal Act on the theory that the evidence of his prior Arkansas convictions, which was also submitted to the jury, could have supported the jury’s finding that he had three prior convictions and, thus, was subject to the harshest penalty available under the habitual criminal law which was in effect at the time of Klimas’s trial. It is impossible to tell from the jury’s verdict, however, which three prior offenses were used by the jury to support its conviction on the habitual criminal charge. There is no way we can assume that the jury found Klimas to be guilty of having been convicted of the prior Arkansas offenses since any three of the Missouri convictions alone would have supported the findings of the jury and the sentence which is imposed. The State, citing Rose v. Hodges, 423 U.S. 19, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975), argues that since the Arkansas Supreme Court modified Klimas’s sentence without affording him a redetermination by jury of the habitual criminal charge, we must assume that such an action was authorized by state law. We do not believe that Rose stands for so broad a proposition. In Rose, whether or not the sentences imposed upon respondents were subject to commutation by the Governor of Tennessee was a disputed question of state law, resolved in favor of commutation by the Tennessee courts. We do not believe that Rose stands for the proposition that where rights under state law are clear, the denial of those rights to a particular accused by the state courts is insulated from federal habeas corpus review. As stated by the Ninth Circuit in Braley v. Gladden, supra : Emphasizing that tfie jury trial in this case arose solely from * * * the Oregon constitution, the appellee insists that the interpretation by Oregon courts as to that which is required by Oregon’s constitution is firmly controlling. * * * Unquestionably, the state courts should have the primary responsibility for determining the application of the state constitutions; however, this principle does not diminish our responsibility to insure that state constitutional interpretations are consistent with the federal Constitution. Id. at 860. See also Ellingburg v. Lockhart, 397 F.Supp. 771, 776 (E.D.Ark.1975). The question which remains is whether the state court’s failure to afford Klimas a redetermination of the habitual criminal charge by jury was, in any event, harmless error since Klimas did not challenge the existence of the Arkansas convictions at the state trial or on appeal. The Arkansas Supreme Court held that since, in view of the unchallenged Arkansas convictions, the minimum sentence which Klimas could have received under § 43-2328(3) would have been twenty-one years on each charge, the reduction of his sentence from sixty-three years to forty-two years would remove any possible prejudice to him. Retrial of a criminal defendant on a habitual criminal charge may be a' futile gesture where evidence of convictions, which was properly submitted to the jury, is unchallenged by the defendant. See, e. g., Roach v. State, 255 Ark. 773, 503 S.W.2d 467, 471 (1973). In this case, however, Klimas’s right to a retrial of the habitual offender charge is of importance since the provisions of the Arkansas Habitual Criminal Act were changed between the time of his state court' trial and the time of the modification of his sentence by the Arkansas Supreme Court. Under Ark.Stat. Ann. § 43-2328(3), in effect at the time of his trial, Klimas’s six Arkansas convictions (three burglary-larceny transactions) would, as the Arkansas Supreme Court indicated, require a sentence of at least twenty-one years on each of his current charges. Under the new provisions of the Habitual Criminal Act, Ark.Stat.Ann. § 41-1001 (effective January 1,1976), each of the Arkansas burglary-larceny transactions, of which Klimas had previously been convicted, would be considered only as a single felony conviction, giving him a total of three prior felony convictions. With this record, under the new law, he would appear to be subject to a sentence of not less than five, nor more than thirty, years on each of his current charges. Since neither the briefs filed by the parties nor our questions at oral argument resolved whether the old or new law would govern a retrial of the habitual criminal charge and the penalty to be assessed thereunder, we cannot say, as a matter of law, that the failure to afford Klimas a jury redetermination of this charge was in no way prejudicial to him. The order dismissing Klimas’s petition is vacated, and the case remanded to the District Court. Upon remand, the District Court shall hold the petition in abeyance in order to afford the State of Arkansas the opportunity to resentence Klimas by jury in accordance with Arkansas law. If the State fails to initiate a resentencing procedure in Arkansas state court within a reasonable time, the District Court shall grant the writ. . Klimas’s petition was brought under 28 U.S.C. § 2254. . Evidence introduced at Klimas’s trial indicated that Klimas and an accomplice, Arlie Weeks, burglarized the Dixie Wood Preserving Company plant near Pine Bluff, Arkansas, and stole a check made out to the Potlatch Corporation, ten walkie-talkie radios and coins from two soft-drink dispensing machines. Weeks testified that the men obtained approximately $58.00 from the machines, which they split between them. . Ark.Stat.Ann. § 43-2328 provides: Second or subsequent convictions — Sentence. — Any person convicted of an offense, which is punishable by imprisonment in the penitentiary, who shall subsequently be convicted of another such offense, shall be punished as follows: (1) If the second offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one (1) year more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for this offense, unless the maximum sentence is less than the minimum sentence plus one (1) year, in which case the longer term shall govern. (2) If the third offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than three (3) years more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for the offense, unless the maximum sentence is less than the minimum sentence plus three (3) years, in which case the longer term shall govern. (3) If the fourth or subsequent offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for the fourth or subsequent offense for a determinate term not less than the maximum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than one and one half (IV2) times the maximum sentence provided by law for a first conviction; provided, that any person convicted of a fourth or subsequent offense shall be sentenced to imprisonment for not less than five (5) years. . These convictions, dating back to 1951, were as follows: grand larceny, sentence — two years, time served — one year; burglary and stealing, sentence — two consecutive two-year terms, time served — two and one-half years; three counts of stealing, sentence — three four-year concurrent terms, time served — more than two years; two counts of robbery, sentence— two concurrent eight-year terms, time served— four and one-half years. . The February 12, 1972, crime involved theft of two television sets, some clothing and a shotgun from a house after entering through an unlocked garage door. The February 21, 1972, crime involved the theft of cigarettes, an undisclosed amount of money and personal property from an open truck. The February 26, 1972, crime involved the theft of approximately $150.00 from a tavern’s vending machines. . The District Court stated: THE COURT: I wish I could find some reason to give this petition consideration. It seems to me like its almost a tentative action taken by the state court on the charge of this nature — forty-two years under Arkansas law. But this Court has no right to disturb the decision of the state court. ****** THE COURT: Well, I simply don’t know if this Court can do anything about it on the charges you bring. The record on which you rely is that the state court sentenced you under the provisions of law. The Supreme Court of Arkansas heard — was in the process of remanding it for you to have a reduction to three years. What was the charge that you were being tried for here? [MR. KLIMAS]: Burglary and larceny, your Honor. THE COURT: Were all cases that you’ve been involved burglary and larceny? [MR. KLIMAS]: Yes, sir. THE COURT: And you just contend that the Court was in error in presenting it to the jury wherein you were convicted. Unless there’s some showing of [a] constitutional right being violated, this Court just doesn’t have any jurisdiction over the matter. * * Then you say that the Court was in error contrary to federal law in not reversing the original conviction, with orders to grant a new trial. Well, what you say here is the Supreme Court of Arkansas was wrong, when on a rehearing it modified its previous decision. And that certainly is not a constitutional question here. I have a great deal of feeling about this because of the sentence. I know the state court probably was trying to carry out the state law and I would suspect that the Supreme Court had in mind that that was a terrible sentence to impose upon .you, and it was looking for some reason to do something about it. * * * I wish I could suggest some action for you to take to try to do something about this rather severe sentence under Arkansas law. * * ****** THE COURT: Well, I sure would make a pitch before the Parole Board, is about all I can suggest to you. I am sorry I can’t do anything for you under the circumstances. An order will be entered accordingly dismissing the petition for lack of jurisdiction. 1 hope you will find another reason that you can get some relief anyway. [MR. KLIMAS]: Thank you, your Honor. Transcript of Proceedings before the Honorable Oren Harris, United States Senior District Judge, May 10, 1978, at 6-9. . The State conceded below that Klimas has exhausted his state remedies, and no claim to the contrary is made in the briefs before us. In any event, the federal rule that a state prisoner’s state-court remedies must be exhausted before federal habeas corpus relief will lie is based on principles of comity, rather than the absence of federal power. Cage v. Auger, 514 F.2d 1231, 1232 (8th Cir. 1975); Smith v. Wolff, 506 F.2d 556 (8th Cir. 1974). Where it is clear that the state courts have had an opportunity to correct the constitutional error, there has been a sufficient vindication of the state’s interests and the federal courts should proceed to entertain the § 2254 proceeding. Cage v. Auger, supra at 1232-1233. We are satisfied that the substance of Klimas’s claims, concerning the restriction of the cross-examination of his accomplice and the imposition of his forty-two year sentence by the Arkansas Supreme Court, have been fairly considered by the Arkansas courts and that no purpose would be served by their presentation once again to the state courts. See Wolfs v. Britton, 509 F.2d 304, 308 (8th Cir. 1975). . At the time of Klimas’s trial on April 23, 1975, trial of habitual criminal charges was governed by Ark.Stat.Ann. § 43-2330.1. An extensive revision of the Arkansas Criminal Code was passed by the Arkansas legislature in 1975 and became effective on January 1, 1976. Under the new Criminal Code, the procedure for imposing an extended sentence on a person found to be a habitual offender is set forth in Ark.Stat.Ann. § 41-1005. This section is taken, almost verbatim, from the previous section. Although the new Criminal Code did not explicitly repeal § 43-2330.1, the “Compiler’s Notes” following § 43-2330.1 state that “[t]his section, or portions thereof, may have been impliedly repealed by the Criminal Code of 1976.” See Notes by the Arkansas Statute Revision Commission, 4A Arkansas Statutes 1947 Annotated, at p. 316. . The definition of a habitual offender and the terms of imprisonment which may be imposed upon habitual offenders are found in Ark.Stat. Ann. § 41-1001 (effective January 1, 1976). The prior provision, which was in effect at the time of Klimas’s trial, is found in Ark.Stat.Ann. § 43-2328. . This case is, therefore, distinguished from those cases where all of the prior convictions submitted to the jury were necessary to support the jury’s findings. See, e. g., Wilburn v. State, 253 Ark. 608, 487 S.W.2d 600 (1972) (evidence of two prior felony convictions submitted to the jury; defendant sentenced by the jury as a “third offender”). . The fact that an accused does not submit evidence contradicting that submitted by the prosecution does not, of course, eliminate the accused’s right to a jury trial. Where a statutory right to trial by jury exists, that right must be honored, “regardless of the heinousness of the crime charged [or] the apparent guilt of the offender * * Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). See also Braley v. Gladden, 403 F.2d 858, 860-861 (9th Cir. 1968). . In Cox v. Hutto, 589 F.2d 394 (8th Cir., 1979), we held that the failure of the state trial judge to inquire into Cox’s knowledge of and consent to a stipulation of his prior convictions, filed by his counsel in a habitual criminal proceeding, deprived him of his constitutional rights. We remanded the case to the District Court for a determination of whether Cox sustained any prejudice from the defective stipulation of prior convictions. Such prejudice would be presumed unless the state could establish that it possessed evidence at the time of trial establishing the three prior convictions necessary to support Cox’s sentence. Cox’s right to a redetermination by jury of his habitual criminal conviction was not raised in that case and, thus, we did not address that issue. . Ark.Stat.Ann. § 41-1001 states: Sentence to imprisonment for felony — Extended term for habitual offender. — (1) A defendant who is convicted of a felony and who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies, may be sentenced to an extended term of imprisonment as follows: (a) not less than ten (10) years nor more than fifty (50) years, or life, if the conviction is of a class A felony; (b) not less than five (5) years nor more than thirty (30) years, if the conviction is of a class B felony; (c) not less than three (3) years nor more than fifteen (15) years, if the conviction is of a class C felony; (d) not exceeding seven (7) years, if the conviction is of a class D felony; (e) upon conviction of an unclassified felony punishable by less than life imprisonment, not less than three (3) years more than the minimum sentence for the unclassified offense nor more than five (5) years more than the maximum sentence for the unclassified offense; (f) upon conviction of an unclassified felony punishable by life imprisonment, not less than ten (10) years nor more than fifty (50) years, or life. # * # # # # (3) For the purpose of determining whether a defendant has previously been convicted or found guilty of two [2] or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt. A conviction or finding of guilt of an offense that was a felony under the law in effect prior to the effective date [January 1, 1976] of this Code shall be considered a previous felony conviction or finding of guilt. Under the new Arkansas Criminal Code, burglary is a class B felony, and larceny is a class B or C felony. See Ark.Stat.Ann. §§ 41-2002, 41-2203. Consideration of a burglary and the felony that was the object of the burglary as a single felony conviction for the purposes of the Habitual Criminal Act was instituted to prevent the precise situation which we find here: Although prior to the Code’s enactment most circuit judges treated convictions for burglary and grand larceny as a single prior conviction for purposes of habitual offender sentencing, a few apparently considered such a disposition to constitute two convictions. To achieve some parity of treatment in calculating the number of prior convictions, subsection (3) consolidates a burglary and the offense that was its object into a single felony conviction for habitual offender purposes. Arkansas Statute Revision Commission, “Commentary," 4 Arkansas Statutes 1947 Annotated, at p. 123. . Section 41-102 of the Arkansas Criminal Code of 1975 provides: Application of provisions. — (1) The provisions of this Code * * * shall govern the prosecution for any offense defined by this Code and committed after the effective date [January 1, 1976] hereof. (2) Unless otherwise expressly provided, the provisions of this Code shall govern the prosecution for any offense defined by a statute not part of this Code and committed after the effective date hereof. (3) The provisions of this Code do not apply to the prosecution for any offense committed prior to the effective date of this Code. Such an offense shall be construed and punished in accordance with the law existing at the time of the commission of the offense. (4) A defendant in a criminal prosecution for an offense committed prior to the effective date of this Code may elect to have the construction and application of any defense to such prosecution governed by the provisions of this Code. * * * (5) When all or part of a statute defining a criminal offense is amended or repealed, the statute or part thereof so amended or repealed shall remain in force for the purpose of authorizing the prosecution, conviction and punishment of a person committing an offense under the statute or part thereof pri- or to the effective date of the amending or repealing act. It is unclear, under this section, whether a charge of habitual criminality is an “offense” and, if so, whether its “commission” in a case such as this would be at the time of the commission of the latest underlying felony (here, prior to the effective date of the Code) or at the time that an individual’s status as a habitual criminal is determined (here, at the time of the retrial of the habitual criminal charge). It is also unclear whether the fact that burglary and the larceny which was its object are considered to be a single offense under the new provisions of the Habitual Criminal Act could be argued to the jury in a retrial of Klimas under the old law, as a mitigation of his record and the degree of habitual criminality which the jury might find. 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:

songer_procedur

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. AMERICAN BANKERS ASSOCIATION and Tioga State Bank, Appellants v. Lawrence B. CONNELL, Jr., Administrator of the National Credit Union Administration, et al. INDEPENDENT BANKERS ASSOCIATION OF AMERICA, a corporation, Appellant v. FEDERAL HOME LOAN BANK BOARD, et al. UNITED STATES LEAGUE OF SAVINGS ASSOCIATIONS, an Illinois not-for-profit corporation, Appellant v. BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, an agency of the United States, et al. Nos. 78-1337, 78-1849 and 78-2206. United States Court of Appeals, District of Columbia Circuit. April 20, 1979. Before McGOWAN, TAMM and WILKEY, Circuit Judges. JUDGMENT PER CURIAM. These causes came on to be heard on their records on appeal from the United States District Court for the District of Columbia, 463 F.Supp. 342, 447 F.Supp. 296, and they were argued by counsel before this panel. It appears to the court that the development of fund transfers as now utilized by each type of financial institution involved herein, commercial banks with “Automatic Fund Transfers,” savings and loan associations with “Remote Service Units,” and federal credit unions with “Share Drafts,” in each instance represents the use of a device or technique which was not and is not authorized by the relevant statutes, although permitted by regulations of the respective institutions’ regulatory agencies. Specifically, the transfer from an interest-bearing time deposit (savings) account to a noninterest-bearing demand (checking) account by the Automatic Fund Transfer system, authorized by the Board of Governors of the Federal Reserve System in 43 Fed.Reg. 20,001 (1978) (to be codified in 12 C.F.R. § 217.5(c)(2) and (3)), is that “indirect[ ] . . . device” prohibited by 12 U.S.C. § 371a (1976); the Remote Service Units utilized by many savings and loan associations, pursuant to Federal Home Loan Bank Board regulations (12 C.F.R. § 545.4-2 (1978)) which permit the withdrawal of funds from an interest-bearing time deposit account by a device functionally equivalent to a check, are in violation of the prohibition against checking accounts contained in Section 5(b)(1) of the Home Owners’ Loan Act of 1933 (12 U.S.C. § 1464(b)(1) (1976)); and the Share Drafts utilized by some federal credit unions, pursuant to National Credit Union Administration regulation (12 C.F.R. § 701.34 (1978)), are the practical equivalent of checks drawn on these interest-bearing time deposits in violation of the provisions of the Federal Credit Union Act, 12 U.S.C. §§ 1751-90 (1976). The history of the development of these modern transfer techniques reveals each type of financial institution securing the permission of its appropriate regulatory agency to install these devices in order to gain a competitive advantage, or at least competitive equality, with financial institutions of a different type in its services offered the public. The net result has been that three separate and distinct types of financial institutions created by Congressional enactment to serve different public needs have now become, or are rapidly becoming, three separate but homogeneous types of financial institutions offering virtually identical services to the public, all without the benefit of Congressional consideration and statutory enactment. This court is convinced that the methods of transfer authorized by the agency regulations have outpaced the methods and technology of fund transfer authorized by the existing statutes. We are neither empowered to rewrite the language of statutes which may be antiquated in dealing with the most recent technological advances, nor are we empowered to make a policy judgment as to whether the utilization of these new methods of fund transfer is in the overall public interest. Therefore, we have no option but to set aside the regulations authorizing such fund transfers as being in violation of statute. We do so with the firm expectation that the Congress will speedily review the overall situation and make such policy judgment as in its wisdom it deems necessary by authorizing in whole or in part the methods of fund transfer involved in this case or any other methods it sees fit to legitimize, or conversely, by declining to alter the language of existing statutes, thus sustaining the meaning and policy expressed in those statutes as now construed by this court. We recognize that enormous investments have been made by various financial institutions in the installation of new technology, that methods of financial operation in the nation have rapidly grown to rely on much of this, and that a disruption of the offered services would necessarily have a deleterious impact on the financial community as a whole, in the absence of the certainty that new procedures are authorized for the foreseeable future, which certainty only a Congressional enactment can give. We recognize that there are arguments that Congress has, at some times and in some measure, tacitly approved part of these regulatory authorizations, but by no means directly, explicitly, or in the whole. We further recognize that the wisdom of the transfer procedures permitted by the regulations of the several agencies is a matter of high public financial policy, involving the financial interests not only of the parties before this court in these proceedings, but also of other large groups in the nation. It is the responsibility of the Congress and not the courts to determine such policy. On consideration of the foregoing, it is ORDERED AND ADJUDGED by this court that the judgments of the district courts under review herein are reversed and the cases are remanded to the respective district courts with instructions to vacate and set aside the applicable portions of the following regulations: (1) 43 Fed.Reg. 20,001 (1978) (to be codified in 12 C.F.R. § 217.5(c)(2) and (3)) of the Board of Governors of the Federal Reserve System; (2) 43 Fed.Reg. 20,222 (1978) (to be codified in 12 C.F.R. § 329.5(c)(2)) of the Board of Directors of the Federal Deposit Insurance Corporation; (3) 12 C.F.R. § 545.4-2 (1978) of the Federal Home Loan Bank Board; and (4) 12 C.F.R. § 701.34 (1978) of the National Credit Union Administration; and it is FURTHER ORDERED, by the Court, that the effectiveness of this Judgment, insofar as it directs that the subject regulations be vacated and set aside, is stayed until 1 January 1980 in the expectation that the Congress will declare its will upon these matters; and it is FURTHER ORDERED, by the Court, that the Clerk is directed to enter copies of this Judgment in each of the captioned cases. . Similarly, the Automatic Fund Transfer system authorized by the Federal Deposit Insurance Corporation in 43 Fed.Reg. 20,222 (1978) (to be codified in 12 C.F.R. § 329.5(c)(2)) is in violation of 12 U.S.C. § 1828(g) (1976), which directs the Board of Directors of the FDIC to prohibit the payment of interest on demand deposits. The court is of the view that the Automatic Fund Transfer system allows, in effect, for interest to be paid on demand deposits. The Automatic Fund Transfer system also, in its effect, violates 12 U.S.C. § 1832(a) (as amended by Pub.L.No. 95-630, § 1301, 92 Stat. 3712, 10 Nov. 1978), which provides that, except in seven New England states, withdrawals from savings accounts may not be made by negotiable or transferable instruments for the purpose of making transfers to third parties. . The Act does not contain an express grant of power to offer share drafts, nor can that power be implied in view of the legislative history of laws regulating financial institutions (see Brief for Appellant in No. 78-1337, at 9-26), which demonstrates an intent on the part of Congress not to authorize federal credit union share draft programs. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_usc1

28

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. METROPOLITAN LIFE INSURANCE COMPANY v. Rhoda J. CHASE, Appellant and Charles W. Chase, Elinor R. Chase Jones, Georgia E. Chase Snell and Lawson W. Chase. No. 13542. United States Court of Appeals Third Circuit. Argued June 5, 1961. Decided Sept. 19, 1961. Raymond Godbersen, Washington, D. C. (William F. Davey, Washington, D. C., on the brief), for appellant. Eugene M. Haring, Newark, N. J. (McCarter & English, Nicholas Conover English, Newark, N. J., on the brief), for plaintiff-appellee. Louis Lebowitz, Elizabeth, N. J. (Bassin & Bassin, Elizabeth, N. J., on the brief), for defendants-appellees. Before MARIS, KALODNER and FORMAN, Circuit Judges. MARIS, Circuit Judge. This interpleader suit was instituted by the plaintiff, the Metropolitan Life Insurance Company, in the District Court for the District of New Jersey to secure an adjudication of the claims of five individuals alleging themselves to be entitled to the proceeds of certain insurance on the life of Lawson W. Chase, deceased, issued under the Federal Employees’ Group Life Insurance Act. 5 U.S.C.A. § 2091 et seq. Under the Act and the policy the insurance was payable to the beneficiary designated by the insured, or, if no beneficiary had been designated, to the widow of the insured or, if none, to his children. No person had been designated by the insured as beneficiary. Named as defendants were Rhoda J. Chase, claiming as the widow of the insured, and Charles W. Chase, Elinor R. Chase Jones, Georgia E. Chase Snell and Lawson W. Chase, claiming as his children by a prior marriage. Defendant Rhoda J. Chase had instituted an action against the plaintiff in the District Court for the District of Columbia to recover the insurance proceeds. Upon deposit of the insurance proceeds into the registry of the district court in the present action the plaintiff secured from the court an injunction restraining the further prosecution of the suit in the District of Columbia. The plaintiff is a New York corporation. Defendants Rhoda J. Chase, Charles W. Chase, Elinor R. Chase Jones and Georgia E. Chase Snell are citizens and residents of New Jersey. Defendant Lawson W. Chase is a citizen and resident of California. The question at issue in the interpleader proceeding was whether defendant Rhoda J. Chase was the widow of the insured. If so, she was entitled to the insurance proceeds but, if not, those proceeds go to the other defendants as children of the insured. Upon consideration of the facts which were stipulated by the parties, together with annexed exhibits and affidavits, the district court found that defendant Rhoda J. Chase was not the widow of the insured and awarded the insurance proceeds to the children. 189 F.Supp. 326. This appeal by defendant Rhoda J. Chase followed. Preliminarily the appellant asserts that the district court did not have jurisdiction to entertain this interpleader suit while litigation involving the same subject matter was pending in the District Court for the District of Columbia. This contention is completely devoid of merit. The suit in the District of Columbia was an ordinary civil action brought to recover the insurance proceeds. It was the type of action the further prosecution of which the district court in the present interpleader suit was expressly authorized by law to enjoin. 28 U.S.C. § 2361. The appellant asserts that the District Court for the District of Columbia -could have acquired jurisdiction by counterclaim filed under Rule 22 of the Federal Rules of Civil Procedure, 28 U.S.C.A., of the interpleader controversy between the appellant and the other defendants to the present lawsuit. We do not agree. For the latter individuals were not amenable to personal service in the District of Columbia, and such personal service upon them in the District would have been a prerequisite to the acquisition by that court of jurisdiction of such a counterclaim under Rule 22. 3 Moore’s Federal Practice, 2d ed., j[ 22.04. A counterclaim for interpleader under Rule 22 is to be distinguished in this respect from an original action of interpleader brought under 28 U.S.C. § 1335 in which latter action process may be served upon defendants in any district as specifically authorized by 28 U.S.C. § 2361. Moreover, the venue of an original action of interpleader could not properly have been laid in the District of Columbia under 28 U.S.C. § 1397 since none of the claimants resides in the District. The district court did not err in enjoining the further prosecution of the District of Columbia action. We turn then to the appellant’s principal contention, which is that the court erred in finding that she was not the widow of the insured. The pertinent facts as stipulated and found by the district court are these: The insured and the appellant, then Rhoda J. Green, went through the form of a ceremonial marriage in the District of Columbia on October 29, 1941, and thereafter lived together and held themselves out as man and wife until the death of the insured on July 9, 1957. During this entire period they were residents and domiciliaries of the State of New Jersey although twice a year or oftener they visited friends in the District of Columbia for a week or longer. During these visits they cohabited in the District and held themselves out as husband and wife there. Prior to 1931 the insured had married Georgia E. Chase. This marriage was still subsisting on October 29, 1941 when he went through the form of a ceremonial marriage with the appellant and it was not terminated until February 19, 1948 when he obtained a decree of divorce from Georgia in the Court of Chancery of New Jersey. At the time of her marriage in 1941, the appellant knew that the insured had previously been married and that four children had been born of that marriage, but she had been given to understand and believed that the marriage had been terminated by divorce. She had no knowledge of the actual divorce in 1948, however, until after his death and no formal ceremonial marriage was entered into by her with him between February 19, 1948 and his death in 1957. It was further stipulated that Georgia E. Chase, the first wife of the insured, had married one Robert R. Dill on March 2, 1931 in the State of New York and in her affidavit for a license to marry had stated that she was divorced in 1928 and that her former husband was dead. It appears to be the law of the District of Columbia that when a ceremonial marriage has taken place which is invalid by reason of the impediment of a prior undissolved marriage, the subsequent removal of the impediment while the parties continue to live together as husband and wife will give rise to a valid common law marriage. Thomas v. Murphy, 1939, 71 App.D.C. 69, 107 F.2d 268; Parrella v. Parrella, 1941, 74 App.D.C. 161, 120 F.2d 728; McVicker v. McVicker, 1942, 76 U.S.App.D.C. 208, 130 F.2d 837. In New Jersey, however, where common law marriages have been abolished by statute since December 1, 1939, N.J.S.A. 37:1-10, the subsequent removal of such an impediment does not have that result and the marriage remains invalid unless and until a subsequent ceremonial marriage takes place. Dacunzo v. Edgye, 1955, 19 N.J. 443, 117 A.2d 508. It is the contention of the appellant that when she and the insured first went to the District of Columbia after the impediment to their marriage had been removed by the 1948 divorce, and there held themselves out as man and wife, the law of the District operated in their case to give rise to a valid common law marriage. She asserts that this result followed even though their presence in the District of Columbia was merely for a temporary visit to friends and that their changed status was entitled to recognition upon their return to their domicile in New Jersey. This is the basis of her claim that she was lawfully married to the insured at the time of his death and is, therefore, entitled to the proceeds of the insurance. The appellees, on the other hand, urge that the local law of New Jersey, the domicile of the parties, is the law which determines the validity of their marriage and that since under that law the alleged common law marriage is not recognized the appellant is not the lawful widow of the insured and is accordingly' not entitled to the insurance proceeds. A choice of law problem is thus presented which must be resolved in accordance with the conflict of laws rules of New Jersey, the State in which the district court sat. Klaxon Co. v. Stentor Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. It is a general rule of conflict of laws that a marriage which is valid under the law of the place where it is contracted is recognized as valid everywhere. Loughran v. Loughran, 1934, 292 U.S. 216, 223, 54 S.Ct. 684, 78 L.Ed. 1219; Restatement, Conflict of Laws, § 121. But where the parties, while retaining their domicile in one state, pay a temporary visit to another state and there enter into a marriage which would not be recognized by the law of the state of their domicile if entered into therein, the latter state does not always look to the law of the place of the marriage to determine its validity. On the contrary, when the state of their domicile has a strong public policy against the type of marriage which the parties have gone to another state to contract, which policy is evidenced by a statute declaring such marriages to be void, the former state as the one most interested in the status and welfare of the parties will ordinarily look to its own law to determine the validity of the alleged marriage. Cunningham v. Cunningham, 1912, 206 N.Y. 341, 99 N.E. 845, 43 L.R.A.,N.S., 355; In re Vetas’ Estate, 1946, 110 Utah 187, 170 P.2d 183; Wilkins v. Zelichowski, 1958, 26 N.J. 370, 140 A.2d 65; Restatement, Conflict of Laws, § 132, Annotation 117 A.L.R. 186. In the Wilkins case it appeared that the plaintiff who was a New Jersey domiciliary under the age of eighteen years went temporarily to Indiana and was there married after which she and her husband returned to New Jersey and lived there. The marriage was valid under the laws of Indiana but the statute of New Jersey expressly prohibited the marriage of persons under the age of eighteen years. The court held that the New Jersey statute expressed a strong public policy of that State against recognizing marriages by persons under eighteen years of age and that accordingly the validity of the marriage was to be determined by the law of New Jersey the domicile of the parties rather than by the law of Indiana where it was celebrated. In so holding the court said: [26 N.J. 370, 375-376, 140 A.2d 65, 67-68] “It is undisputed that if the marriage between the plaintiff and the defendant had taken place here, the public policy of New Jersey would be applicable and the plaintiff would be entitled to the annulment; and it seems clear to us that if New Jersey’s public policy is to remain at all meaningful it must be considered equally applicable though their marriage took place in Indiana. While that State was interested in the formal ceremonial requirements of the marriage it had no interest whatever in the marital status of the parties. Indeed, New Jersey was the only State having any interest in that, status, for both parties were domiciled in New Jersey before and after the marriage and their matrimonial', domicile was established here. The-purpose in having the ceremony take place in Indiana was to evade New Jersey’s marriage policy and we see-no just or compelling reason for permitting it to succeed.” The question upon which the present case turns, therefore, is whether the New Jersey courts will take a similar-view with respect to the determination of the validity of a common law marriage of New Jersey domicilian es alleged to-have been created under the law of another jurisdiction, in this case the District of Columbia. It appears that New Jersey has recognized, since the passage-of its statute abolishing common law marriages, a common law marriage arising after the removal of an impediment to the validity of a ceremonial marriage-when the parties were domiciled at the-time the impediment was removed in a. state having a rule that a common law marriage should result under those circumstances. Tegenborg v. Tegenborg, 1953, 26 N.J.Super. 467, 98 A.2d 105. See the explanation of the Tegenborg case in Danes v. Smith, 1954, 30 N.J.Super. 292, 298-300, 104 A.2d 455, 459-The fact that in the Tegenborg case-Florida was the domicile of the parties, at the time of their alleged common law-marriage as well as the place where that, marriage was claimed to have taken, place, made it unnecessary for the court in that ease to choose between the law of the domicile and that of the place of celebration of the marriage. With respect to parties domiciled im New Jersey, however, the Supreme Court, of that State in Dacunzo v. Edgye, 1955, 19 N.J. 443, 117 A.2d 508, held, as we-have seen, that the New Jersey statute-which abolished common law marriage-prevents the recognition of such a marriage by parties who continue to live together and hold themselves out as husband and wife after an impediment to* their prior ceremonial marriage has been removed. It is true that in the Dacunzo ■case the parties were domiciled in New Jersey and their common law marriage was alleged to have taken place in that State. The defendant in that case could, therefore, not rely upon the law of any other state to support the validity of the alleged marriage. In Winn v. Wiggins, 1957, 47 N.J.Super. 215, 135 A.2d 673, the parties were likewise domiciled in New Jersey but the plaintiff claimed that their common law marriage had taken place in Georgia or Florida, each of which States recognized such marriages. The trial court held the plaintiff’s claim of a common law marriage was totally incapable of belief and found as a fact that a common law marriage had not been created in either State. On appeal this finding was affirmed. Under the circumstances the Appellate Division found it unnecessary to decide whether the law of Georgia or Florida would be recognized to uphold a common law marriage entered into by New Jersey domiciliaries. But the court took occasion to say that, while not finding it necessary to decide the point in view of the decision on the facts, [47 N.J.Super. 215, 224, 135 A.2d 673, 678] “we are of the opinion that the strong public policy evinced by the enactment of the 1939 statute, N.J.S.A. 37:1-10, is best effectuated by declaring that persons domiciled in New Jersey cannot leave this State, enter into a common-law marriage in a state where such marriages are allowed, and then return home and ask our courts to recognize that marriage”. While technically obiter dictum we think that this statement is adequate evidence that the courts of New Jersey in the situation before us, in line with the decision in the Wilkins case, would apply the law of the domicile of the parties at the time their alleged common law marriage took place, i. e. New Jersey law, to determine the validity of that marriage. It was, therefore, right for the district court to do so. The judgment of the district court will be affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

songer_usc1

26

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff-Appellant, v. UNITED STATES of America and Sandra Baker, Revenue Officer, Defendants-Appellees. No. 90-55514. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 5, 1990. Decided Dec. 12, 1990. William T. Drescher, Calabasas, Cal., and Kendrick L. Moxon, Bowles & Moxon, Hollywood, Cal., for plaintiff-appellant. Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, William A. Whitledge, and Teresa E. McLaughlin, Tax Div., U.S. Dept, of Justice, Washington, D.C., for defendants-appellees. Before ALARCON and NORRIS, Circuit Judges, and GEORGE, District Judge. Honorable Lloyd D. George, United States District Judge for the District of Nevada, sitting by designation. ALARCON, Circuit Judge: The Church of Scientology of California (Church) appeals from the denial of its request for a preliminary injunction against the Internal Revenue Service (IRS). The district court concluded it lacked subject matter jurisdiction and, therefore, was precluded from granting this relief by the Anti-Injunction Act, 26 U.S.C. § 7421. The Church contends that the record demonstrates that the district court has the jurisdiction to grant equitable relief pursuant to the judicial exception to the Anti-Injunction Act. We disagree and affirm. I This case arises from an action filed by the Church against the IRS in which it alleged: 1. Wrongful disclosure of taxpayer information under 26 U.S.C. § 6103 by improperly issuing bank levies and individual assessments. 2. Violation of the First Amendment of the United States Constitution by engaging in unlawful and arbitrary actions against the Church motivated “by an impermissible hostility to the Scientology religion.” 3. Violation of the due process clause of the Fifth Amendment by treating the Church and its parishioners differently from other religions. 4. Violation of the due process clause by failing to follow established IRS policy. 5. Violation of the “Taxpayers Bill of Rights” by improperly assessing the bank levies and individual assessments. The Church presented the following version of the facts in its complaint and supporting declarations: On March 9, 1989 the IRS issued a notice of proposed adjustment of Federal Insurance Contribution Act (FICA) and Federal Unemployment Tax Act (FUTA) taxes for the tax years of 1976-1986 based upon a disallowance of the Church’s tax exempt status. On April 7, 1989, the Church filed a protest with the IRS challenging each proposed adjustment. The IRS rejected the protest. A supplemental protest filed on May 22, 1989, was also rejected. Assessments were made by the IRS in July and August of 1989. Thereafter, the Church entered into discussions with Stanley Kong, IRS Examinations Branch Chief. Kong told the Church that if it made a token payment of the FICA and FUTA taxes for one employee for the period in question and submitted claims for refund and abatement the IRS would forbear attempting to collect the balance of the assessment while such claims were being considered. On September 22, 1989, the Church made payment of the FICA and FUTA taxes for one employee for the period in question and submitted claims for refund and abatement. On October 23, 1989, Revenue Officer Sandra Baker contacted Church representatives in order to commence collection of the claimed deficiency. The Church alleges that Baker agreed that pursuant to IRS policy P-5-16, as set forth in the Internal Revenue Manual, she would forbear from attempting to collect additional funds while the administrative refund claims were pending. On January 5, 1990, Baker wrote the Church’s counsel and requested a list of the Church’s officers so that the IRS could make assessments for the asserted tax deficiencies directly against the responsible Church officials as authorized by 26 U.S.C. § 6672. The Church informed Baker that it challenged both the legitimacy of the individual assessments, and the appropriateness of any other tax collection activities while its refund claim was under consideration. On April 4, 1990, Baker served seven notices of levy to selected banks. On April 6, 1990, the IRS mailed assessments against twenty-four individuals, including the late L. Ron Hubbard, for the purported tax deficiencies. The Church requested that the IRS release the levies. The IRS refused to do so. On April 24, 1990, the Church filed this action in the district court. On the same date, the district court granted the Church’s ex parte request and issued a temporary restraining order (TRO) to maintain the status quo of the parties and an order to show cause (OSC). On May 5, 1990, the Government filed its response to the OSC. The Government asserted that the district court lacked subject matter jurisdiction to grant injunctive relief under the Anti-Injunction Act, 26 U.S.C. § 7421. In support of its claim the Government submitted a declaration signed by Baker. Baker declared that all applicable IRS regulations were complied with in making the assessment against the Church. She also declared that the Church was challenging only a part of the asserted deficiency. She declared further that the Church did not dispute that it owed $6,500,000 in taxes and interest to the Government. Baker’s declaration also sets forth the factual basis for levying on each bank and how the identities of the individuals to be assessed were determined. The declaration did not include any discussion of Baker’s representations to the Church concerning forbearance. The district court denied the Church’s request for injunctive relief before the date set for filing of the Church’s reply to the IRS’s response to the OSC. II The Church contends that the Anti-Injunction Act does not apply when the record shows an unlawful or unconstitutional levy and extraordinary circumstances. The Church also asserts that it has met the judicial exception to the Anti-Injunction Act. The Anti-Injunction Act, 26 U.S.C. § 7421(a) provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” The Anti-Injunction Act sets forth specific exceptions which, if present, will support the granting of equitable relief. The Church does not contend that the statutory exceptions are applicable to this case. The Supreme Court has explained that the principal purpose of the Anti-Injunction Act is to preserve the Government’s ability to assess and collect taxes expeditiously with “a minimum of preenforcement judicial interference” and “to require that the legal right to the disputed sums be determined in a suit for refund.” Bob Jones Univ. v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2045, 40 L.Ed.2d 496 (1974) (citing, Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962)). We review de novo the denial of a motion for preliminary injunction for lack of subject matter jurisdiction. Elias v. Connett, 908 F.2d 521, 523 (9th Cir.1990) (citing Jensen v. IRS, 835 F.2d 196, 198 (9th Cir.1987). The district court’s factual findings on jurisdictional issues must be accepted unless clearly erroneous. Id. The Church relies upon Singleton v. Mathis, 284 F.2d 616, 618-19 (8th Cir.1960), Lassoff v. Gray, 266 F.2d 745, 747 (6th Cir.1959), and Monge v. Smyth, 229 F.2d 361, 366 (9th Cir.), cert. denied, 351 U.S. 976, 76 S.Ct. 1055, 100 L.Ed. 1493 (1956) in support of the proposition that an injunction may be ordered if the court finds that an unlawful or unconstitutional levy has been issued and if extraordinary circumstances are shown. The Church’s reliance on the continued vitality of these decisions is misplaced. Each of these cases was decided prior to the 1962 Supreme Court decision in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). Rather than providing a separate and independent exception to the Anti-Injunction Act, the Supreme Court has instructed that these decisions are part of an earlier generation of dissonant case law which was harmonized in the Williams Packing decision. In Bob Jones University, the Supreme Court stated that: the Court’s unanimous opinion in Williams Packing indicates that the case was meant to be the capstone to the judicial construction of the Act. It spells an end to a cyclical pattern of allegiance to the plain meaning of the Act, followed by periods of uncertainty caused by a judicial departure from that meaning, and followed in turn by the Court’s rediscovery of the Act’s purpose. 416 U.S. at 742, 94 S.Ct. at 2048. The Court’s decision in Bob Jones forecloses any reliance on the pre-Williams Packing decisions cited by the Church. In 1964, the Sixth Circuit disavowed its decision in Las-soff v. Gray as being in conflict with the Williams Packing test. Vuin v. Burton, 327 F.2d 967, 970 (6th Cir.1964). Similarly, in United States v. Dema, 544 F.2d 1373, 1376 (7th Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1106, 51 L.Ed.2d 539 (1977), the Singleton case was only cited within the context of requirements of the Williams Packing test. We have not applied that portion of the Monge decision that recognized an exception to the Anti-Injunction Act based on unusual and extraordinary circumstances since the Williams Packing decision was published. The Supreme Court now recognizes a single, narrow judicial exception to the Anti-Injunction Act. [A]n injunction may be obtained against the collection of any tax if (1) it is “clear that under no circumstances could the government ultimately prevail” and (2) “equity jurisdiction” otherwise exists, i.e., the taxpayer shows that he would otherwise suffer irreparable injury. Commissioner v. Shapiro, 424 U.S. 614, 627, 96 S.Ct. 1062, 1070, 47 L.Ed.2d 278 (1976) (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962)). Under the first prong of the Williams Packing test, the district court must determine the possibility of success of the Government’s assessment based upon the information available to the court at the time of the filing of the action. “Only if it is then manifest, under the most liberal view of the law and the facts, that the government cannot prove its claim” is the first part of the test satisfied. Thrower v. Miller, 440 F.2d 1186, 1187 (9th Cir.1971). The burden of showing that the Government’s claim is baseless is on the taxpayer. Schildcrout v. McKeever, 580 F.2d 994, 997 (9th Cir.1978) (citing Shapiro, 424 U.S. at 627-29, 96 S.Ct. at 1070-72.) To meet the second prong of the Williams Packing test, the taxpayer must demonstrate that it is entitled to equitable relief. “The taxpayer must show that he has no adequate remedy at law and that the denial of injunctive relief would cause him immediate, irreparable harm.” Jensen v. IRS, 835 F.2d 196, 198 (9th Cir.1987) (citing Cool Fuel, Inc. v. Connett, 685 F.2d 309, 313-14 (9th Cir.1982)). Both prongs of the test must be met or a suit for injunctive relief must be dismissed. Alexander v. “Americans United” Inc., 416 U.S. 752, 758, 94 S.Ct. 2053, 2057, 40 L.Ed.2d 518 (1974). The limitations imposed by the Anti-Injunction Act also apply to the Church’s attempt to enjoin “wrongful disclosures” in the form of the bank levies and individual assessments claimed to be made in violation of 26 U.S.C. § 6103. In Blech v. United States, 595 F.2d 462 (9th Cir.1979), we stated that where the underlying action was one to enjoin assessment and collection activities, it fell within the scope of the Anti-Injunction Act’s prohibitions. Id. at 466. To hold otherwise would enable ingenious counsel to so frame complaints as to frustrate the policy or purpose behind the Anti-Injunction Statute_ Likewise, this statutory ban against judicial interference with the assessment and collection of taxes “is equally applicable to activities which are intended to or may culminate in the assessment or collection of taxes.” Id. (quoting United States v. Dema, 544 F.2d 1373, 1376 (7th Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1106, 51 L.Ed.2d 539 (1977)). Accord, Lowrie v. United States, 824 F.2d 827, 830 (10th Cir.1987). The Fifth Circuit has also held that an injunction sought under § 6103 was barred by the Anti-Injunction Act. Kemlon Products & Development Co. v. United States, 638 F.2d 1315, 1320 (5th Cir.), modified, 646 F.2d 223 (5th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 320, 70 L.Ed.2d 162 (1981). The Church relies on Husby v. United States, 672 F.Supp. 442 (N.D.Cal.1987) for the proposition that an injunction may issue to prevent further disclosure of tax return information through collection activities. In Husby however, the Government agreed with the taxpayer that no taxes were in fact owing. The Government further admitted in court, prior to the issuance of the injunction, that the assessment and all collection activity pursuant to it were due to computer error. Id. at 444. No challenge under the Anti-Injunction Act was made, and the court expressly stated that “[t]he case at hand presents no problem as to collateral attack of a levy or assessment.” Id. at 445. The only issue before the district court was whether the statutory remedies of 26 U.S.C. § 7431 applied to the erroneous levy. Id. at 442. To avoid the bar of the Anti-Injunction Act, the Church has the burden of establishing that “under the most liberal view of the law and the facts, the United States cannot establish its claim....” Schildcrout v. McKeever, 580 F.2d 994, 998 (9th Cir.1978) (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962)). As noted above, the declaration of Baker is in conflict with that relied upon by the Church concerning the appropriateness of the levy, and whether wrongful disclosures were made, as well as the circumstances surrounding the issuance of the individual assessments. Baker declared that since $6,500,000 in assessed taxes were not challenged by the Church, it was determined that efforts to collect the amount were thought to be appropriate. Where the record presents “material issues of disputed fact” the district court lacks jurisdiction to grant an injunction. Kaestner v. Schmidt, 473 F.2d 1294, 1296 (9th Cir.1973) (Anti-Injunction Act bars jurisdiction where evidence in Government affidavits established material issues of disputed fact.) Accord, Thrower v. Miller, 440 F.2d 1186, 1187-88 (9th Cir.1971) (Anti-Injunction Act barred relief where affidavits of appellee and his attorney conflicted with affidavit of IRS officer.) The Church asserts that because the IRS represented that it would forbear collecting the asserted deficiencies pending IRS determination of the Church’s refund claim, the Government’s attempts to levy an assessment thereafter constituted “fraudulent coercion” or “fraudulent representations” as a means of tax collection. This contention cannot be supported under the most liberal view of the record in favor of the Government. The cases cited by the Church in which injunctive relief was granted based on proof of coercion or fraud are distinguishable from the facts in the record before us. In Mitsukiyo Yoshimura v. Alsup, 167 F.2d 104 (9th Cir.1948) the taxpayer was coerced into signing incriminating documents and falsely threatened with internment. Id. at 105. No showing of similar misconduct appears in the record. The Church has not demonstrated how the representation that the IRS would temporarily forbear collecting the disputed deficiencies coerced or defrauded the Church in any manner. In Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422 (1932), the taxpayer commenced its business acting in reliance upon assurances from the Commissioner of Internal Revenue of the nontaxable nature of its product. Id. at 510, 52 S.Ct. at 263. No showing has been made that the IRS assured the Church that no taxes were owing. Likewise, there has been no showing that the Church relied on the claimed assurance to its detriment. Viewing the facts and law in the most liberal light as required by Williams Packing, the Church has failed to demonstrate that the Government cannot succeed on its claim on the basis of the cited authority. The Church next argues that it has met the first prong of the Williams Packing test because the Government has conceded that it could not prevail on the merits regarding the alleged violations of the rule set forth in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). We find no such concession by the Government in its brief before this court or in the record of the proceedings before the district court. Pursuant to the Accardi doctrine, an administrative agency is required to adhere to its own internal operating procedures. Id. at 268, 74 S.Ct. at 504. The Church alleges that the IRS violated Policy Statement P-5-16, Policies of the IRS Handbook, reprinted in 1 Administration Internal Revenue Manual (CCH) at 1305-11, which states that when a taxpayer raises a question or presents information creating reasonable doubt about the accuracy or validity of an assessment “reasonable forbearance will be exercised with respect to collection provided (1) adjustment of the taxpayers claim is within the control of the service, and (2) the interests of the Government will not be jeopardized.” Id. The Church argues that United States v. Heffner, 420 F.2d 809 (4th Cir.1969) provides that when the IRS publicizes a policy that it has promulgated for the express benefit of taxpayers, the Government must act in compliance with that policy. The Church’s reliance on Heffner is misplaced. Heffner is a criminal case. It does not involve an application of the Anti-Injunction Act. Id. at 810. The IRS regulation applied in Heffner concerned the requirement that Miranda warnings be given to suspects in criminal tax fraud investigations. Id. at 811. The remedy invoked in Heffner was reversal of the criminal conviction. Id. at 814. The Church asserts that it is undisputed that IRS Policy Statement P-5-16, is a “procedural safeguard” which bars any collection activities until its claims for refund are resolved. The Government argues that P-5-16 indicates on its face that collection will be made if it is in the Government’s interest. Accordingly, the policy was not promulgated for the express benefit of taxpayers. The Government further argues that it has not violated the forbearance policy. It is the Government’s position that IRS Policy Statement P-5-16 does not require it to forbear collection of approximately $6,500,000 as to which there is no dispute. These conflicting contentions readily demonstrate that the Church’s representation that the Government has made a concession concerning the application of the Accardi doctrine is without merit. Viewing this conflict of law in the most liberal light, it cannot be said that there is no possibility that the Government will prevail on this issue. Thus, the Church has failed to demonstrate that it has met the burden imposed by the Williams Packing test. Ill The Church argues that the levies violate the establishment clause of the First Amendment and the due process clause of the Fifth Amendment, and that therefore irreparable injury to the Church is presumed as a matter of law. The Church relies on Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) in support of this argument. In Elrod, the Supreme Court stated that the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Id. at 373, 96 S.Ct. at 2689. Elrod did not involve an attempt to restrain tax assessments. Instead, the court was concerned with the free speech rights of public employees threatened with discharge because of political party affiliation. Id. at 349, 96 S.Ct. at 2678. A more important distinction, however, is the different standard that is applicable in granting injunc-tive relief in cases where that remedy is not barred by the Anti-Injunction Act. The test applicable in Elrod was “probability of success on the merits.” Id. at 374, 96 S.Ct. at 2690. As noted above, under Williams Packing, a person seeking in-junctive relief must demonstrate “under the most liberal view of the law and the facts, [that] the United States cannot establish its claim.” Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). The Church also argues that it has established violations of the due process clause of the Fifth Amendment. The Church asserts that when “an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2nd Cir.1984). In Mitchell, in affirming an order granting an injunction preventing a prison closure, the Second Circuit stated: “[g]iven the evidence of increasing overcrowding ... which constitute^] the alleged threat to plaintiffs’ eighth amendment rights, the district judge’s finding of irreparable harm is not clearly erroneous.” Id. at 806. The issuance of an injunction to prevent the closure of a prison is not expressly barred by the Anti-Injunction Act. Furthermore, the Second Circuit concluded an award of damages would be inadequate to remedy the harm that would flow from the closure of a 1000-bed facility and the transfer of its 475 inmates to other over-crowded prisons. Id. at 805. As discussed below, the Church has adequate remedies at law for all of its tax related claims. In Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974), the Supreme Court stated that the Williams-Packing test was applicable to First Amendment and Due Process claims raised by the taxpayer. Id. at 749, 94 S.Ct. at 2052. The Court held that the taxpayer had an adequate remedy at law in an action for a refund. Id. at 746, 94 S.Ct. at 2050. No special consideration is granted to injunctions against tax collection sought on constitutional grounds. “[Decisions of this Court make it unmistakably clear that the constitutional nature of a taxpayer’s claim, as distinct from its probability of success, is of no consequence under the Anti-Injunction Act.” Alexander v. “Americans United” Inc., 416 U.S. 752, 759, 94 S.Ct. 2053, 2058, 40 L.Ed.2d 518 (1974) (claim that statutory prohibition against lobbying by tax exempt organization is unconstitutional); accord, United States v. American Friends Serv. Comm., 419 U.S. 7, 11, 95 S.Ct. 13, 15, 42 L.Ed.2d 7 (1974) (claim that withholding tax interfered with Quaker’s free exercise of religion). The Church also argues that the fact that the assessment exceeds $9,000,-000 demonstrates irreparable harm. Mere allegations of financial hardship are insufficient to support a finding of irreparable harm. Bob Jones Univ., 416 U.S. at 745, 94 S.Ct. at 2050. See, Cool Fuel, Inc. v. Connett, 685 F.2d 309, 314 (9th Cir.1981). The Church further argues that the levies and assessments constitute injuries to the Church’s privacy and reputational interests. The only case cited in support of this proposition is Husby v. United States, 672 F.Supp 442 (N.D.Cal.1987). As discussed above, the applicability of the Anti-Injunction Act was not an issue in Husby. The district court stated in Husby that the “sole question” before it was whether the statutory remedies of 26 U.S.C. § 7431 applied to the erroneous levy. Id. at 442. In Kemlon Products & Development Co: v. United States, 638 F.2d 1315 (5th Cir.), modified, 646 F.2d 223 (5th Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 320, 70 L.Ed.2d 162 (1981), the taxpayer also claimed that an injunction should issue because, without that remedy, it would suffer a “loss of business reputation.” Id. at 1318. The Fifth Circuit rejected the taxpayer’s argument that a mere conclusory allegation of reputational harm demonstrates irreparable harm. Id. at 1322-23. The same result was reached in Church of Scientology Celebrity Centre v. Egger, 539 F.Supp 491 (D.D.C.1982). “As is well settled in the tax field, irreparable injury cannot be established by an allegation of injury to reputation_ [T]o establish irreparable injury, plaintiffs must allege that the financial penalties likely would cause Scientology ministers, churches or members financial ruin or other serious consequences.” Id. at 496 (citations omitted). The courts have repeatedly held that the opportunity to sue for a refund is an adequate remedy at law which bars the granting of an injunction. [Pjetitioner may pay income taxes, or, in the their absence, an installment of FICA or FUTA taxes, exhaust the Service’s internal refund procedures, and then bring suit for a refund. These review procedures offer petitioner a full, albeit delayed, opportunity to litigate the legality of the Service’s revocation of tax-exempt status and withdrawal of advance assurance of deductibility. Bob Jones Univ., 416 U.S. at 746, 94 S.Ct. at 2050; see also Americans United, 416 U.S. at 762, 94 S.Ct. at 2059 (taxpayer has adequate remedy in a refund suit following FUTA payment); American Friend Serv. Comm., 419 U.S. at 11, 95 S.Ct. at 15 (full opportunity to litigate tax liability in a refund suit bars equitable relief); Zimmer v. Connett, 640 F.2d 208, 210 (9th Cir.1981) (“Tax assessments must be contested ... in an action for a refund in the Federal District Courts.... Absent a clear and explicit congressional mandate, we shall not depart from these well marked pathways.”) (citations omitted); Cool Fuel, Inc. v. Connett, 685 F.2d 309, 314 (9th Cir.1981) (“Since the Supreme Court decision in Bailey v. George, 259 U.S. 16, 42 S.Ct. 419, 66 L.Ed. 816 (1922), it has been established law that payment of the tax followed by a suit for refund constitutes an adequate remedy at law.”) The Government challenges the Church’s standing to seek relief for the Church officials who have been assessed under 26 U.S.C. § 6672. The Church argues that the section 6672 claims are derivative from the Government’s main claim against the Church for the FICA and FUTA taxes since the Government may only satisfy the tax liability once. Wollman v. United States, 571 F.Supp. 824, 826 (S.D.Fla.1983). The Church further asserts that, since the individuals assessed can seek indemnity from the Church, standing exists. Reid v. United States, 558 F.Supp. 686, 688-89 (N.D.Miss.1983). Inasmuch as one of the injuries claimed by the Church is the wrongful disclosure of taxpayer information to the third parties who received the assessments, the Church has asserted a direct injury from the issuance of the assessments. Likewise, to the extent that an individual who pays a penalty assessment may be indemnified by the Church, the Church has standing to challenge the validity of the claim because it will be injured economically, albeit indirectly. However, as discussed swpra, the fact that the Church or the individuals may challenge the correctness of the assessment in a court action for refund provides an adequate remedy as a matter of law. Bob Jones Univ. v. Simon, 416 U.S. at 746, 94 S.Ct. at 2050; Cool Fuel, 685 F.2d at 314. Remedies at law for wrongful disclosure in violation of 26 U.S.C. § 6103 are found in 26 U.S.C. § 7431(a). Section 7431(a) provides for damages for knowing or negligent disclosure of tax return information. We have previously stated our “reluctance to imply a judicial remedy for violations of § 6103 given Congress’ explicit provision of a remedy.” United State v. Michaelian, 803 F.2d 1042, 1049 (9th Cir.1986). See also, South Carolina v. Regan, 465 U.S. 367, 374, 104 S.Ct. 1107, 1112, 79 L.Ed.2d 372 (1984) (the Anti-Injunction Act prohibits injunctions in the context of a statutory scheme which provides an alternative remedy). The Church has not met its burden under Williams Packing to demonstrate that it will suffer irreparable injury unless an injunction is issued. Thus, neither prong of the Williams Packing test has been satisfied. IV The Church argues that the district court violated its right to due process of law by dissolving the TRO and denying the preliminary injunction before the Church had the opportunity to file its reply to the Government’s response as permitted by the local rules. The Government argues that there was no violation of due process as the district court must dismiss an action sua sponte if it lacks subject matter jurisdiction, even if the parties do not raise the issue. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). The district court granted the Church’s request for a TRO on April 24, 1990 and issued a minute order setting a hearing date for the OSC for May 21, 1990. The parties were directed to follow the local rules regarding the timely filing of their documents. Simultaneously, the district court ordered that no appearance would be necessary. The Church alleges, and the Government does not contest, that the briefing schedule established by these dates under Local Rule 7 required that the Government file its response to the OSC by May 7, 1990. The Church’s reply was due on May 14, 1990. The district court received the Government’s response to the Order to Show Cause on May 7, 1990. Pri- or to the filing of the Church’s reply, the district court issued its order on May 10, 1990, vacating the TRO and dismissing the request for a preliminary injunction. Whether the district court had subject matter jurisdiction is a question of law which this court considers de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, _ U.S. _, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). The Church has had a full opportunity to present its legal arguments in the briefs filed in this court. The Church does not contend that it was denied the opportunity to present facts showing that the court had subject matter jurisdiction under the Williams Packing test, but rather that, to “the extent that the District Court’s denial of the preliminary injunction was based on ‘the reasons and legal authorities cited in the Government’s response to OSC,’ it relied upon erroneous legal premises.” Appellants Op.Br. at 20. Assuming arguendo that the district court erred in not allowing the Church an opportunity to file a reply to the Government’s response to the OSC, the Church must show that it has been prejudiced. Patel v. I.N.S., 790 F.2d 786, 789 (9th Cir.1986) (“Because the petitioners can demonstrate no prejudice, we reject their due process claim.”) The Church presented its contention that the Anti-Injunction Act was inapplicable in its Memorandum of Points and Authorities in Support of Application for Temporary Restraining Order and Order to Show Cause Re Preliminary Injunction. It does not claim before this court that a remand is required so that it may present additional facts in response to the issues raised by the Government. Because the district court was correct in ruling that it lacked subject matter jurisdiction, the rights of the Church were not prejudiced by the dismissal of the action without permitting it to file its reply to the Government’s response to the OSC. CONCLUSION The Anti-Injunction Act precludes the granting of an injunctive relief unless the requirements of the Williams Packing test are met. The Church has not demonstrated that under no circumstances could the Government prevail. The Church has also failed to establish that it will suffer irreparable harm unless an injunction is issued. Thus, the district court correctly determined that it lacked subject matter jurisdiction to restrain the tax assessments in issue. AFFIRMED. . In 1987, in Church of Scientology of California v. Commissioner of Internal Revenue, 823 F.2d 1310 (9th Cir.1987), cert. denied, 486 U.S. 1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988), we upheld a revocation of the Church's tax exempt status for the years 1970-1972. Among the factual findings in that case were that significant sums of Church money had inured to the benefit of the Church’s founder L. Ron Hubbard and his family during the years in question. These benefits included the transfer of several million dollars in Church funds to a sham corporation controlled by Hubbard and a plan by which 10% of the gross income of all Scientology congregations, franchises and organizations were to be paid directly to Hubbard as "debt repayments.” Id. at 1318-19. . "Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect any such tax, ... or willfully attempts in any manner to evade or defeat any such tax or payment thereof, shall ... be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over." . In Monge, we followed the line of cases which stated that an injunction may be granted where "unusual and extraordinary circumstances appear.” 229 F.2d at 366. While Monge has been cited four times by this court since Williams Packing, it has never been for that proposition. See, Whitney v. United States, 826 F.2d 896, 897 (9th Cir.1987) (whether Form 870-AD standing alone estops taxpayer from seeking a refund); Meridian Wood Prod. Co. v. United States, 725 F.2d 1183, 1186 (9th Cir.1984) (waiver obviated need for sending formal deficiency notice); Wood v. Sargeant, 694 F.2d 1159, 1161 (9th Cir.1982) (inability to pay tax is not a basis for invoking equity jurisdiction); Richmond v. Weiner, 353 F.2d 41, 45 (9th Cir.1965) (court cannot consider issue concerning pleadings that had not been raised in district court), cert. denied, 384 U.S. 928, 86 S.Ct. 1447, 16 L.Ed.2d 531 (1966). . Section 6103(a) states that returns and return information are confidential, "and except as authorized by this title — (1) no officer or employee of the United States, ... shall disclose any return or return information.” It is not disputed that "return information” can include the fact that a taxpayer’s liability is or has been under investigation. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

sc_respondent

076

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. RELIANCE ELECTRIC CO. v. EMERSON ELECTRIC CO. No. 70-79. Argued November 10-11, 1971 Decided January 11, 1972 Thomas P. Mulligan argued the cause for petitioner. With him on the briefs were Patrick J. Amer, Stephen J. Bums, and Kenneth S. Teasdale. Albert E. Jenner, Jr., argued the cause for respondent. With him on the brief were Wesley G. Hall, R. H. McRoberts, and Thomas C. Walsh. Walter P. North argued the cause for the Securities and Exchange Commission as amicus curiae. With him on the briefs were Solicitor General Griswold, Samuel Huntington, Philip A. Loomis, Jr., and Jacob H. Stillman. Whitney North Seymour and John A. Guzzetta filed a brief for Gulf & Western Industries, Inc., as amicus curiae. Me, Justice Stewart delivered the opinion of the Court. Section 16 (b) of the Securities Exchange Act of 1934, 48 Stat. 896, 15 U. S. C. § 78p (b), provides, among other things, that a corporation may recover for itself the profits realized by an owner of more than 10% of its shares from a purchase and sale of its stock within any six-month period, provided that the owner held more than 10% “both at the time of the purchase and sale.” In this case, the respondent, the owner of 13.2% of a corporation’s shares, disposed of its entire holdings in two sales, both of them within six months of purchase. The first sale reduced the respondent’s holdings to 9.96%, and the second disposed of the remainder. The question presented is whether the profits derived from the second sale are recoverable by the Corporation under § 16 (b). We hold that they are not. I On June 16, 1967, the respondent, Emerson Electric Co., acquired 13.2% of the outstanding common stock of Dodge Manufacturing Co., pursuant to a tender offer made in an unsuccessful attempt to take over Dodge. The purchase price for this stock was $63 per share. Shortly thereafter, the shareholders of Dodge approved a merger with the petitioner, Reliance Electric Co. Faced with the certain failure of any further attempt to take over Dodge, and with the prospect of being forced to exchange its Dodge shares for stock in the merged corporation in the near future, Emerson, following a plan outlined by its general counsel, decided to dispose of enough shares to bring its holdings below 10%, in order to immunize the disposal of the remainder of its shares from liability under § 16 (b). Pursuant to counsel’s recommendation, Emerson on August 28 sold 37,000 shares of Dodge common stock to a brokerage house at $68 per share. This sale reduced Emerson’s holdings in Dodge to 9.96% of the outstanding common stock. The remaining shares were then sold to Dodge at $69 per share on September 11. After a demand on it by Reliance for the profits realized on both sales, Emerson filed this action seeking a declaratory judgment as to its liability under § 16 (b). Emerson first claimed that it was not liable at all, because it was not a 10% owner at the time of the purchase of the Dodge shares. The District Court disagreed, holding that a purchase of stock falls within § 16 (b) where the purchaser becomes a 10% owner by virtue of the purchase. The Court of Appeals affirmed this holding, and Emerson did not cross-petition for certiorari. Thus that question is not before us. Emerson alternatively argued to the District Court that, assuming it was a 10% stockholder at the time of the purchase, it was liable only for the profits on the August 28 sale of 37,000 shares, because after that time it was no longer a 10% owner within the meaning of § 16 (b). After trial on the issue of liability alone, the District Court held Emerson liable for the entire amount of its profits. The court found that Emerson’s sales of Dodge stock were “effected pursuant to a single predetermined plan of disposition with the overall intent and purpose of avoiding Section 16 (b) liability,” and construed the term “time of . . . sale” to include “the entire period during which a series of related transactions take place pursuant to a plan by which a 10%' beneficial owner disposes of his stock holdings ” 306 F. Supp. 588, 592. On an interlocutory appeal under 28 U. S. C. § 1292 (b), the Court of Appeals upheld the finding that Emerson “split” its sale of Dodge stock simply in order to avoid most of its potential liability under § 16 (b), but it held this fact irrelevant under the statute so long as the two sales are “not legally tied to each other and [are] made at different times to different buyers . . . .” 434 F. 2d 918, 926. Accordingly, the Court of Appeals reversed the District Court’s judgment as to Emerson’s liability for its profits on the September 11 sale, and remanded for a determination of the amount of Emerson’s liability on the August 28 sale. Reliance filed a petition for certiorari, which we granted in order to consider an unresolved question under an important federal statute. 401 U. S. 1008. II The history and purpose of § 16 (b) have been exhaustively reviewed by federal courts on several occasions since its enactment in 1934. See, e. g., Smolowe v. Delendo Corp., 136 F. 2d 231; Adler v. Klawans, 267 F. 2d 840; Blau v. Max Factor & Co., 342 F. 2d 304. Those courts have recognized that the only method Congress deemed effective to curb the evils of insider trading was a flat rule taking the profits out of a class of transactions in which the possibility of abuse was believed to be intolerably great. As one court observed: “In order to achieve its goals, Congress chose a relatively arbitrary rule capable of easy administration. The objective standard of Section 16 (b) imposes strict liability upon substantially all transactions occurring within the statutory time period, regardless of the intent of the insider or the existence of actual speculation. This approach maximized the ability of the rule to eradicate speculative abuses by reducing difficulties in proof. Such arbitrary and sweeping coverage was deemed necessary to insure the optimum prophylactic effect.” Bershad v. McDonough, 428 F. 2d 693, 696. Thus Congress did not reach every transaction in which an investor actually relies on inside information. A person avoids liability if he does not meet the statutory definition of an “insider,” or if he sells more than six months after purchase. Liability cannot be imposed simply because the investor structured his transaction with the intent of avoiding liability under § 16 (b). The question is, rather, whether the method used to “avoid” liability is one permitted by the statute. Among the “objective standards” contained in § 16 (b) is the requirement that a 10% owner be such “both at the time of the purchase and sale ... of thé security involved.” Read literally, this language clearly contemplates that a statutory insider might sell enough shares to bring his holdings below 10%, and later — but still within six months — sell additional shares free from liability under the statute. Indeed, commentators on the securities laws have recommended this exact procedure for a 10% owner who, like Emerson, wishes to dispose of his holdings within six months of their purchase. Under the approach urged by Reliance, and adopted by the District Court, the apparent immunity of profits derived from Emerson’s second sale is lost where the two sales, though independent in every other respect, are “interrelated parts of a single plan.” 306 F. Supp., at 592. But a “plan” to sell that is conceived within six months of purchase clearly would not fall within § 16 (b) if the sale were made after the six months had expired, and we see no basis in the statute for a different result where the 10% requirement is involved rather than the six-month limitation. The dissenting opinion, post, at 442, reasons that “the 10% rule is based upon a conclusive statutory presumption that ownership of this quantity of stock suffices to provide access to inside information,” and that it thus “follows that all sales by a more-than-10% owner within the six-month period carry the presumption of a taint, even if a prior transaction within the period has reduced the beneficial ownership to 10% or below.” While there may be logic in this position, it was clearly rejected as a basis for liability when Congress included the proviso that a 10% owner must be such both at the time of the purchase and of the sale. Although the legislative history affords no explanation of the purpose of the proviso, it may be that Congress regarded one with a long-term investment of more than 10% as more likely to have access to inside information than one who moves in and out of the 10% category. But whatever the rationale of the proviso, it cannot be disregarded simply on the ground that it may be inconsistent with our assessment of the “wholesome purpose” of the Act. To be sure, where alternative constructions of the terms of § 16 (b) are possible, those terms are to be given the construction that best serves the congressional purpose of curbing short-swing speculation by corporate insiders. But a construction of the term “at the time of . . . sale” that treats two sales as one upon proof of a pre-existing intent by the seller is scarcely in harmony with the congressional design of predicating liability upon an “objective measure of proof.” Smolowe v. Delendo Corp., supra, at 235. Were we to adopt the approach urged by Reliance, we could be sure that investors would not in the future provide such convenient proof of their intent as Emerson did in this case. If a “two-step” sale of a 10% owner’s holdings within six months of purchase is thought to give rise to the kind of evil that Congress sought to correct through § 16 (b), those transactions can be more effectively deterred by an amendment to the statute that preserves its mechanical quality than by a judicial search for the will-o’-the-wisp of an investor’s “intent” in each litigated case. III The Securities and Exchange Commission, participating as amicus curiae, argues for an interpretation of the statute that both covers Emerson’s transaction and preserves the mechanical quality of the statute. Seizing upon a fragment of legislative history — a brief exchange between one of the principal authors of the bill and two members of the Senate Committee during hearings on the bill — the Commission suggests that the sole purpose of the requirement of 10%' ownership at the time of both purchase and sale was to exclude from the statute’s coverage those persons who became 10% shareholders “involuntarily,” as, for example, by legal succession or by a reduction in the total number of outstanding shares of the corporation. The effect of such an interpretation would be to bring within § 16 (b) all sales within six months by one who has gained the position of a 10%' owner through voluntary purchase, regardless of the amount of his holdings at the time of the sale. We cannot accept such a construction of the Act. In the first place, we note that the SEC’s own rules undercut such an interpretation. Recognizing the interrelatedness of § 16 (a) and § 16 (b) of the Act, the Commission has used its power to grant exemptions under § 16 (b) to exclude from liability any transaction that does not fall within the reporting requirements of § 16 (a). A 10% owner is required by that section to report at the end of each month any changes in his holdings in the corporation during that month. The Commission has interpreted this provision to require a report only if the stockholder held more than 10% of the corporation’s shares at some time during the month. Thus, a 10% owner who, like Emerson, sells down to 9.96% one month and disposes of the remainder the following month, would presumably be exempt from the reporting requirement and hence from § 16 (b) under the SEC’s own rules, without regard to whether he acquired the stock “voluntarily.” But the SEC’s argument would fail even if it were not contradicted by the Commission’s own previous construction of the Act. As we said in Blau v. Lehman, 368 U. S. 403, 411, one “may agree that . . . the Commission present [s] persuasive policy arguments that the Act should be broadened ... to prevent 'the unfair use of information’ more effectively than can be accomplished by leaving the Act so as to require forfeiture of profits only by those specifically designated by Congress to suffer those losses.” But we are not free to adopt a construction that not only strains, but flatly contradicts, the words of the statute. The judgment is Affirmed. Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case. Section 16 (b) provides: “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) within any period of less than six months . . . 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 purchased or of not repurchasing the security sold for a period exceeding six months. . . . 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 involved, or any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection.” 15 U. S. C. §78p (b). The term “such beneficial owner” refers to one who owns “more than 10 per centum of any class of any equity security (other than an exempted security) which is registered pursuant to section 12 of this title.” Securities Exchange Act of 1934, § 16 (a), 15 U. S. C. §78p (a). The Court of Appeals for the Second Circuit has held that an exchange of shares in one corporation for those of another pursuant to a merger agreement constitutes a “sale” within the meaning of § 16 (b). Newmark v. RKO General, Inc., 425 F. 2d 348, 354. “[A] person who owns 15 percent and wants to sell down to 5 percent should sell 5-plus percent in one transaction and then, after he becomes a holder of slightly less than 10 percent, sell out the remainder.” 2 L. Loss, Securities Regulation 1060 (2d ed. 1961). “[T]he intention of the language was to exclude the second sale in a case where 10% is purchased, 5% sold within three months and the remaining 5% a month later. This latter construction of the Act is, it is believed, the only safe one to rely upon.” Seligman, Problems Under the Securities Exchange Act, 21 Va. L Rev. 1, 20 (1934). See, e. g., Adler v. Klawans, 267 F. 2d 840 (one who is a director at the time of sale need not also have been a director at the time of purchase). In interpreting the terms "purchase" and "sale," courts have properly asked whether the particular type of transaction involved is one that gives rise to speculative abuse. See, e. g., Bershad v. McDonough, 428 F. 2d 693 (granting of an option to purchase constitutes a "sale"). And in deciding whether an investor is an "officer" or "director" within the meaning of § 16 (b), courts have allowed proof that the investor performed the functions of an officer or director even though not formally denominated as such. Colby v. Klune, 178 F. 2d 872, 873; cf. Feder v. Martin Marietta Corp., 406 F. 2d 260, 262-263. The various tests employed in these cases are used to determine whether a transaction, objectively defined, falls within or without the terms of the statute. In no case is liability predicated upon "considerations of intent, lack of motive, or improper conduct" that are irrelevant in § 16 (b) suits. Blau v. Oppenheim, 250 F. Supp. 881, 887. That exchange was as follows: “Senator Carey. Suppose this stock passed to an estate, and the estate had to raise money? “Mr. Corcoran. I do not think, in that case, sir, the statute would apply. “Senator Kean. Why not? “Senator Carey. The estate is the beneficiary. “Mr. Corcoran. I do not believe it would. Certainly the intention was that it should not apply to that sort of a situation.” Hearings on Stock Exchange Practices before the Senate Committee on Banking and Currency pursuant to S. Res. 84, 56, and 97, 73d Cong., 1st and 2d Sess., pt. 15, p. 6558. It was sometime after this exchange that the bill was revised to add the exemptive provision. SEC Rule 16a-10, 17 CFR § 240.16a-10. Form 4, Securities Exchange Act Release No. 6487 (Mar. 9, 1961). 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_appel1_1_3

E

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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. CONTINENTAL AIR LINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Western Air Lines, Inc., Hughes Air Corporation, d/b/a Hughes Airwest, United Air Lines, Inc., Trans World Airlines, Inc., City of Kansas City, Missouri and Chamber of Commerce of Greater Kansas City, City and County of Denver, Colorado, Public Utilities Commission of the State of Colorado, San Diego Unified Port District, the City of San Diego, San Diego Chamber of Commerce, Interve-nors. No. 74-1651. United States Court of Appeals, District of Columbia Circuit. Argued April 11, 1975. Decided Sept. 22, 1975. Thomas D. Finney, Jr., Washington, D.C., with whom Lee M. Hydeman and James T. Lloyd, Washington, D.C., were on the brief for petitioner. Glen M. Bendixsen, Associate Gen. Counsel, Civ. Aeronautics Bd., Thomas J. Heye, Gen. Counsel, O. D. Ozment, Deputy Gen. Counsel and David E. Bass, Atty., Civ. Aeronautics Bd., were on the brief for respondent. Robert L. Toomey, Atty., Civ. Aeronautics Bd., also entered an appearance for respondent. Emory N. Ellis, Jr., Washington, D.C., with whom Gerald P. O’Grady, Los An-geles, Cal., was on the brief for inter-venor Western Air Lines, Inc. Howard L. Culver, Los Angeles, Cal., also entered an appearance for intervenor Western Air Lines, Inc. William M. Dickson, Chicago, 111., was on the brief for intervenor United Air Lines, Inc., Henry L. Hill, Chicago, 111., also entered an appearance for interve-nor United Air Lines, Inc. John P. Moore, Atty. Gen. of Colorado and Tedford Dees, Asst. City Atty., Denver, Colo., were on the brief for interve-nors City and County of Denver, Colo, and The Public Utilities Commission of the State of Colorado. Aaron A. Wilson, City Atty., Kansas City, Mo., and Nordahl E. Holte, Asst. City Atty., were on the brief for interve-nors City of Kansas City, Missouri and the Chamber of Commerce of Greater Kansas City. Joseph D. Patello, San Diego, Cal., was on the brief for intervenors San Diego Unified Port District, City of San Diego and San Diego Chamber of Commerce. Richard A. Fitzgerald, San Mateo, Cal., and John W. Simpson, Washington, D.C., entered an appearance for intervenor Hughes Air Corporation, d/b/a Hughes Aiiwest. Edmund E. Harvey, New York City, entered an appearance for intervenor Trans World Airlines, Inc. Laurence K. Gustafson and Howard E. Shapiro, Attys., Dept, of Justice, filed a brief on behalf of the United States of America as amicus curiae urging reversal. Before WRIGHT and LEVENTHAL, Circuit Judges, and WEIGEL, United States District Judge for the Northern District of California. Sitting by designation pursuant to 28 U.S.C. § 292(d). LEVENTHAL, Circuit Judge: Continental Air Lines, Inc. petitions for review of two orders of the Civil Aeronautics Board (CAB) entered in the Board’s Additional Service to San Diego Case. The challenged orders — Order 72-12-29, December 8, 1972, and Order 74r-5 — 17, May 3, 1974 — rejected the recommendations of the Administrative Law Judge (ALJ) that competitive nonstop authority be certificated between San Diego and Denver. The ALJ had selected Continental to provide the competitive service. Petitioner contends that the Board’s order should be set aside on the ground that the CAB “failed to give adequate weight to the statutory mandate favoring competition” and “failed to engage in reasoned decision-making.” The Board responds that its orders were adequately supported by the need for caution at a time when the industry was “plagued by retrenchment and lagging traffic growth” and by the “crucial problem of diminished fuel supplies.” We find that, as a general matter, § 102 of the Federal Aviation Act requires the Board to foster competition as a means of enhancing the development and improvement of air transportation service on routes generating sufficient traffic to support competing carriers. We are cognizant that in some circumstances the other considerations set forth in § 102 may conflict with and predominate over the public interest in competition. The Board urges in effect that here the need to foster sound economic conditions in view of the industry’s financial posture and the fuel situation overrides the benefits of competition. After a careful examination of the record, we conclude that the Board’s position is not supported by substantial evidence and that its rejection of competitive nonstop service in the San Diego-Denver market is not in accord with the public interest considerations set forth in § 102 of the Act. Accordingly, we remand the case for further proceedings consistent with Part IV of this opinion. I. Background We begin with a summary of the seven years of administrative proceedings culminating in the orders under review. The challenged orders are the last of a series of CAB rulings entered in the Additional Service to San Diego Case. That proceeding arose out of an application filed by United Air Lines on January 12, 1967, requesting permission to provide nonstop service in several San Diego markets. On May 26, 1967, the CAB issued a show cause order which rejected United’s San Diego-Denver nonstop request, but proposed to give United nonstop authorization for the San Diego-New York and San Diego-Chicago routes. In response to the City of Denver’s petition for reconsideration, the Board sua sponte issued a second order to show cause why Western Air Lines, the primary San Diego-Denver carrier, should not be permitted to provide nonstop service in that market. The Board’s proposals prompted numerous objections and competitive filings from other airlines. By order of April 3, 1968, the CAB instituted the Additional Service to San Diego Case, setting a consolidated hearing on applications for nonstop authority between San Diego and New York/Newark, Washington/Baltimore, Chicago and Denver. Following the submission of briefs by numerous carriers and local groups and three days of hearings, the ALJ issued his initial decision on September 4, 1969. The ALJ recommended that competitive nonstop authority be authorized in all four markets under consideration. With regard to the San Diego-Denver market, he adopted the Bureau of Operating Rights’ forecast that there would be “not less than 100,335 passengers in 1970.” Based on this “conservative” estimate he found “ample traffic to support two carriers on an economic basis without regard to the support of through traffic flowing over the route.” The ALJ selected Western and Continental to provide the competing nonstop service. Western was a “logical choice” because it carried the great bulk of the San Diego-Denver passengers on its one stop flights routed via Phoenix. Continental was chosen ahead of United, TWA and Air West as the second carrier because of United’s past “record of neglect and indifference” toward the market and because of Continental’s superior proposed pattern of service; attractive fare schedules; substantial beyond market benefits; and history as “an extremely vigorous, aggressive, and efficient carrier." The CAB exercised its right of discretionary review of the ALJ’s initial decision, issuing its opinion on April 9, 1970. The Board adopted the ALJ’s findings regarding the need for competitive nonstop service in the Chicago, New York/Newark, and Washington/Baltimore markets but decided, by a vote of 3 — 2, to certificate only one nonstop carrier, Western, in the San Diego-Denver market. This departure from the ALJ’s determination rested primarily on the majority’s view that “the examiner’s forecast may be too optimistic” given “the recent lag in nationwide traffic growth.” Although the CAB noted that a competitive authorization would provide a spur to better service and significant benefits to beyond segment markets, it concluded that Western’s possible “sizeable operating loss if competitive service is instituted” in conjunction with the adequacy of Western’s proposed service to meet the needs of the market rendered a denial of a competing nonstop carrier certification “more consistent with the goal of fostering sound economic conditions in air transportation. ” The dissenting Board members emphasized that the projection of 100,335 passengers (275 per day) in 1970 was “a very conservative estimate” which did not include either “true San Diego passengers who are reported as Los Angeles passengers (because they traveled from Los Angeles to San Diego by surface transportation or intrastate airlines) or “the substantial number of passengers carried between these points who will move beyond Denver to points on the routes of both Western and Continental.” In addition, the dissent noted that within the past year the Board had made grants of competitive nonstop service in a number of substantially smaller markets. A number of parties, including Continental, sought reconsideration of the Board’s determination. Petitioner claimed that the majority lacked substantial evidence to support its determination that the traffic forecast of the ALJ and the Bureau of Operating Rights was too optimistic. It noted that the lag in national traffic had not affected the market at issue — the San Diego-Denver market had grown 34% between 1967 and 1968 and both San Diego and Denver experienced an increase in total traffic well in excess of the national average. Continental reinforced its argument by pointing out that the traffic estimates of three other carriers paralleled or exceeded the ALJ’s forecast and that the ALJ’s figure was significantly understated because of the factors noted by the dissenting members. The CAB, by order of June 5, 1970, deferred action on the petitions to reconsider certification of a second nonstop carrier between San Diego and Denver. In its Supplemental Opinion and Order on Reconsideration of March 23, 1971, the Board, by an identical 3 — 2 vote, reaffirmed its previous denial of competitive service. The majority conceded that the San Diego-Denver market “maintained a healthy growth rate in calendar year 1968,” but argued that 1969 traffic data demonstrated that “the market is by no means an exception to the nationwide slowdown.” Using more recent traffic figures and a 1971 forecast year, the majority calculated that “Continental’s certification would produce an operating loss of about $84,000 for Western in 1971. . . ” The Board concluded that harm to Western “at a difficult period for the industry as a whole and Western in particular” outweighed the “significant factors” favoring certification such as substantial beyond segment benefits and profitable operation for Continental. The dissenters claimed that “[tjhere can be no serious question that this market is large enough to support competition,” emphasizing that the majority’s projection for 1971 yielded a larger traffic volume than the ALJ had found sufficient to support competition using a 1970 target year. They found that the possibility of a temporary loss by Western in 1971 was overshadowed by public benefits from improved service which Continental’s competitive flights would provide in the San Diego-Denver market and in other related markets. Shortly after issuance of its supplemental opinion, the Board discovered that its financial calculations had erroneously rested on fiscal rather than calendar 1971 traffic estimates and consequently had underforecast 1971 traffic volume. Corrected estimates revealed that, in competition with Continental, Western’s 1971 profits would range from slightly below to somewhat above the break-even level. The CAB stated: “These revised figures render extremely close the balance of decisional criteria— harm to Western under existing economic conditions weighed against public benefit factors favoring competition and improved beyond service — in determining whether such competition should be authorized.” Under these circumstances, the Board, by order of April 16, 1971, remanded the competition question to the ALJ for an analysis of “the most recent traffic and cost data and Western’s actual experience with nonstop service in the market.” The remand proceeding culminated in a 92-page Supplemental Initial Decision issued on March 20, 1972. The decision found a second nonstop carrier warranted by the size of the market in the 1972 and 1973 forecast years, the serious deficiencies and omissions in Western’s service, and Western’s ability “to achieve a substantial operating profit” in each of the forecast years in competition with another nonstop carrier. The ALJ accepted as reasonable the Bureau of Operating Right’s traffic estimate of 118,-520 passengers in 1972 and 127,409 in 1973 and its related projection of an operating profit for Western of $417,000 in 1972 and $325,000 in 1973. The supplemental decision faulted Western’s San Diego-Denver service for scheduling inadequacies and high load factors. The ALJ selected Continental to compete with Western for substantially the same reasons contained in his initial decision. The Board, 3 — 2, again reversed the ALJ and declined to authorize competitive nonstop service. The majority members expressed concern that, “during a period of lagging traffic growth and retrenchment within the industry, and during the subsequent period of recovery before an adequate upward trend has been assured,” the agency “must be more than usually careful to avoid impeding the industry’s opportunities for full recovery.” It concluded that certification of competition would be imprudent since Western’s service had been “reasonably responsive to the needs of the market” and since competitive service was “likely to produce, at best, only marginal financial results.” The Board found the ALJ’s and the Bureau’s traffic forecast “too optimistic” and set forth a number of adjustments in their growth and stimulation percentages which reduced the 1973 traffic estimates by 29,000 passengers. Although the Board made no profit or loss calculations of its own, it concluded that “the prospect for profitable two-carrier operation is tenuous at this time.” Continental’s detailed petition for reconsideration took issue inter alia with the Board’s adjustments to the ALJ’s traffic forecast. In particular, it questioned the majority members’ reliance on experience during recession years to support its forecast of a 3 percent growth rate for 1972 and 1973, in view of the Board’s earlier finding that the recession was a “temporary phenomenon.” As proof of the Board’s error, Continental noted that, as a result of substantial growth, Western’s traffic figures revealed that the market was significantly larger at the end of 1972 than the Board had predicted it would be a year later. On May 3, 1974, fifteen months after the opinion following the remand, the Board issued an Opinion and Order on Reconsideration reaffirming, by a 2-1 vote, its denial of a competitive nonstop certification. This final opinion in these extended proceedings reiterates the Board’s “policy of caution” and expresses its “resolve to avoid making unnecessary awards of competitive authority on routes which are adequately served. Noting recent traffic growth data, the Board conceded “that the prospects for profitable competitive operations are far stronger than earlier believed” and that “competitive service would be more profitable than originally anticipated — although not as profitable as Continental claims.” However, without further explication, it stated that “the Board’s original decision did not turn on profitability alone. . . . ” Despite the improved financial outlook for competition and the benefits it offered, the Board determined that, given the general state of the industry and the recent onset of the fuel shortage, “a competitive authorization is unnecessary and undesirable at this time.” The dissenting member emphasized that traffic data indicated that the ALJ’s 1973 forecasts “were on sound ground, indeed if anything conservative” and that there would likely be “well over 150,000 annual passengers” for fiscal 1975, the earliest possible first year of competitive operations. He commented: “Overall, it is hard to avoid the impression that the majority is not really interested in whether competitive service would be profitable, and has effectively eliminated this as a decisional factor.” Nor did he find any warrant for a denial of competitive service in the fuel situation. In view of Western’s scheduled four and a half nonstop roundtrips, the dissent noted that “competitive service in this market is possible today without materially increasing overall jet fuel consumption or reducing service in other, perhaps more essential markets.” On June 25, 1974, Continental filed a petition for review of the Board’s 1972 order and its 1974 order on reconsideration. II. Competition and the Public Interest Standard of the Federal Aviation Act Continental urges that the challenged orders must be set aside in part because the Board failed to give adequate weight to the governing statute’s mandate favoring competition. Petitioner’s contention rests both on an assessment of the general importance of competition in the statutory scheme and an- analysis of the Board’s treatment of the record in view of that scheme. As shall be seen, these two aspects of petitioner’s argument implicate distinct questions of statutory interpretation and substantial evidence. We turn first to an examination of the role of competition, in order to develop a framework for evaluating the record to determine whether the Board’s decision is supported by substantial evidence and evinces a “fidelity to the functions assigned to the regulatory agency by the Congress.” “Competition to the extent necessary” is one of the six public interest factors set forth in § 102 of the Federal Aviation Act to guide the CAB “[i]n the exercise and performance of its powers and duties.” The parties present divergent interpretations of § 102 and its competition subsection, § 102(d). Continental contends that the Act creates “a ‘strong presumption’ in favor of competition.” The CAB’s brief argues that the statute “contemplates that competition may or may not be ‘necessary’ ” and that competition is not per se favored “where it endangers other policy goals in the public interest, such as the achievement of efficient, economical service or the fostering of sound economy of operations.” Intervenor Western opines that in view of the origin of the Act “it is apparent Congress contemplated that as to Section 102(d) the emphasis would be, not on the word ‘competition,’ but on the remainder of the phrase: to the extent necessary to assure the sound development of an air transportation system properly adapted to the needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense.” An examination of the origins of the statute and of its “contemporaneous construction” by persons “charged with the responsibility of setting its machinery in motion” clarifies the intended meaning of § 102(d) and the relationship between competition and the other public interest factors. Congress first established a comprehensive system for regulation of air transportation through the Civil Aeronautics Act of 1938. The legislative history of that act makes clear that the statute was designed to correct the abuses of unrestrained competition among carriers. The Senate Report on the proposed legislation warned that “[cjompetition among air carriers is being carried to an extreme, which tends to jeopardize and render unsafe” air transportation and urged the “immediate enactment” of the bill to “promote an orderly development of our Nation’s civil aeronautics” and to “prevent the spread of bad practices and of destructive and wasteful tactics resulting from the intense competition now existing within the air-carrier industry.” In floor debates, Congressman Randolph cited “rate war, cutthroat devices, and destructive and wasteful practices” as evidence that “[t]he industry has reached the point where unbridled and unregulated competition is a public menace.” However, Congress made it clear that while it was moving to safeguard against the excesses of destructive and unrestrained competition, it was in favor of the competitive principle and opposed to a policy of monopoly. In the debates, Senator McCarran stressed that the Act established a “nonpolitical agency” that would focus on the public interest of avoiding destructive competition where e. g., United Air Lines already serves Chicago to Salt Lake City, and the agency rejects another applicant who wants to serve the route, “because if you do both lines will fail. . . . ” He added: [This] is not to say that any line may be “frozen” nor that any line may be ■perpetuated, nor that any monopoly over any terrain may be established to the exclusion of the necessity which the public may present. Other speakers likewise evinced a clear intent to protect against the evils of monopoly. Senator Borah, for example, stated: “I have no doubt of the intent of the framers of this proposed legislation to inhibit or prohibit monopoly. . . . ” And Senator Copeland, Chairman of the pertinent committee, pointed to the “competition to the extent necessary” language in the declaration of policy section — § 2 of the 1938 Act which was reenacted in 1958 as § 102 of the Federal Aviation Act — as one of “five places in the pending bill where the question of monopoly is dealt with in one way or another with the view to its control and prevention.” The central point is that this was one of an emerging group of statutes that did not regulate the so-called “natural monopolies” that identified conventional public utility regulation, but instead called for “regulated competition,” achieving the benefits of competition without the evils of unrestrained entry or under-cost rate wars. It is significant that Congress, addressing itself to the air transport industry, deliberately fashioned this 1938 law so as to identify competition in express language as a key element of the public interest. During the Senate debate it was emphasized that both of the 1938 bills — the McCarran bill and the Administration substitute — altered the general declaration of policy contained in earlier bills to take “explicit recognition of the importance of competition to the extent necessary to assure the sound development of air transport.” Numerous early CAB opinions provide insight into the intended role of competition in the new regulatory scheme. In one of its first decisions the Board stated: “Reference to both the legislative history and to the text of the act demonstrates the congressional intent to safeguard an industry of vital importance to the commercial and defense interests of the Nation against the evils of unrestrained competition on the one hand, and the consequences of monopolistic control on the other.” The CAB read the inclusion of an express reference to competition in § 2 to render inapplicable doctrine developed under other transportation regulatory schemes that competition should not be authorized where an existing carrier was furnishing adequate service and stood ready to meet any additional service needs of the public. The Board stated explicitly that when “competition will be neither destructive nor uneconomical. the Board is directed to implement competition” because it generally promotes the other public interest factors set forth in § 2. Thus the CAB concluded in the Additional North-South California Services Case: While no convenient formula of general applicability may be available as a substitute for the Board’s discretionary judgment it would seem to be a sound principle that, since competition in itself presents an incentive to improved service and technological development, there would be a strong, although not conclusive, presumption in favor of competition on any route which offered sufficient traffic to support competing services without unreasonable increase of total operating cost. And it further explained in the Hawaiian Case: The greatest gain from competition . is the stimulus to devise and experiment with new operating techniques and new equipment, to develop new means of acquiring and promoting business, including the rendering of better service to the customer and to the Nation . . . . Competition invites comparison as to equipment, costs, personnel, methods of operation, solicitation of traffic, all of which tend to assure the development of an air transportation system as contemplated by the Act. The legislative history and the early CAB decisions indicate that there is no presumption in favor of competition per se because competition may prove uneconomical and destructive of the healthy development of the industry if the relevant market is too small to support competing carriers. But when sufficient traffic exists to support competition, certification of competing carriers is mandated by the Act as providing the best means of effectuating the other public interest goals contained in § 102. We place substantial reliance on this view of the role of competition both because of the particular respect due a “contemporaneous construction of a statute by men charged with the responsibility of setting its machinery in motion” and because the Board “has from the outset consistently taken” that position. Although Continental and the Department of Justice, as amicus curiae, charge that this case is indicative of the Board’s recent unannounced abandonment of this view and adoption of a route freeze policy, we need not address that claim in view of the Board’s failure to articulate its actions as a fundamental change in policy. “In our reviewing role, it is peculiarly appropriate for us to take the Board at its own word as to what it was doing, and to scrutinize the result in terms of that process.” We thus proceed to an examination of the Board’s treatment of the record to determine whether there is substantial evidence indicating either that the San Diego-Denver market lacks sufficient traffic potential for healthy competition or that another public interest consideration outweighs the significant benefits afforded by competition. III. Lack of Substantial Evidence to Support Rejection of Competition The post-remand orders under review in this case ^set forth two justifications for rejecting the ALJ’s reeommen-dation that competitive nonstop service be certificated for the San Diego-Denver market — maintenance of the economic health of the industry and the fuel shortage. Although a comprehensive analysis would pinpoint a number of shortcomings in the CAB’s opinions, we find that a focused examination of the evidence supporting these two core rationales is entirely sufficient to demonstrate the lack of substantial evidence to underpin the Board’s rejection of competition. A. Promotion of Sound Economic Conditions In its initial orders culminating in a remand for further proceedings on the issue of competitive nonstop service, the Board concentrated on the economic threat to Western posed by authorization of a competing carrier. Although the ALJ had found that the market would be large enough to support competition in 1970, the initial forecast year, the Board concluded that the projection was too optimistic “[i]n view of the recent lag in nationwide traffic growth” and credited Western’s “gloomy forecast” of “a sizeable operating loss if competitive nonstop service is instituted.” When Continental petitioned for reconsideration on the basis that the record showed substantial growth in the San Diego-Denver market contrary to the national trend, the Board responded that “more recent O & D data demonstrates [sic] that the market is by no means an exception to the nationwide slowdown.” The CAB went on to project an $84,000 operating loss for Western in 1971 under competition with Continental and to conclude that “Continental’s advantages” were outweighed “by the harm the carrier would cause to Western’s operations at a difficult period for the industry as a whole and for Western in particular.” When discovery of an error erased the $84,000 loss projection, the Board altered its analysis of the competition issue. It remanded the question for further proceedings, stating that “[t]hese revised figures render extremely close the balance of decisional criteria — harm to Western under existing economic conditions weighed against public benefit factors favoring competition and improved beyond service. . . . ” Significantly, by the time of the last CAB order in May, 1974, the Board had abandoned its reliance on the threat of competition to the profitability of Western’s San Diego-Denver service. The AU and the CAB’s Bureau of Operating Rights again found that there would be substantial growth in the market in both the 1972 and 1973 forecast years and projected that both Western and Continental would achieve sizeable profits in each of those years. The Board again deemed the ALJ and Bureau of Operating Rights’ traffic forecast “too optimistic”, making numerous downward revisions in the ALJ’s forecasting assumptions and concluding that the competitive service was “likely to produce, at best, only marginal financial results.” In contrast to its pre-remand orders, the Board did not make the key bottom line profit and loss calculation in its 1972 order or include any reference to the financial status of Western and Continental. Implicit in the Board’s decision was its belief that any doubts as to the profitability of competition should be resolved against certification of a second carrier “to avoid impeding the industry’s opportunities for full recovery.” The CAB argues that its analysis of traffic projections and balancing of public interest factors involve a “specialized task” that is “within the Board’s special province” and that the court should defer to the agency’s expertise in these technical matters. In response, Continental identifies a number of danger signals that serve to alert the court to the Board’s failure to engage in a reasoned application of its expertise — a predicate to restrained and deferential judicial review of an agency’s actions. It points to the ever-shifting basis of the Board’s decisions, the inexplicable delay in preparation of agency orders, and the persistent conservative downgrading of the ALJ’s and staff’s traffic forecasts in the teeth of data revealing significant growth as danger signals indicating that the Board’s adjustments and conclusions are a product of “result-oriented” rationalization. We are not required to rule on this contention, to evaluate the strength of these danger signals or to consider whether they undercut the deference normally accorded to agency analyses of technical traffic matters. These matters have been obviated by the Board’s May, 1974 Opinion and Order on Reconsideration, which concedes the need for adjustment of its forecast and states that competition would be profitable. Subsequent additions to the traffic data that were before the Board prior to its 1972 order convincingly demonstrated that the majority members severely underestimated the size of the market. Faced with these figures, the Board acknowledged what could not fairly be denied— “the prospects for profitable competitive operations are far stronger than earlier believed” and “competitive service would be more profitable than originally anticipated.” But then the Board brushed these developments aside, stating that its “original decision did not turn on profitability alone. . . . ” Since the profitability of Western was the crucial reason for the original remand, we do not see how this fairly could be discarded without explication of why the change in this factor did not alter the conclusion The only factor identified in the Board’s April, 1971 order authorizing the remand of the competition question was profitability — “harm to Western under existing economic conditions. . . . ” The March, 1971 Supplemental Opinion and Order on Reconsideration had pointed to the related factor of “a difficult period . . . for Western in particular,” but by May, 1974, Western’s financial situation had brightened with earnings in excess of the 12% level found “reasonable” by the Board in its Domestic Passenger-Fare Investigation. The only remaining factor mentioned in the CAB’s prior decision in this matter was the financial condition of the industry as a whole. But that consideration had been relied upon solely in terms of justifying a “more than usually careful” approach to evaluating the competition question in the San Diego-Denver market. That approach may have validity, if not carried to extremes, for it still leads up to an ultimate' decision focused on the subject market. But we are unable to discern on what basis the Board can glean any support from this factor of general conditions once it has recognized, as it now apparently has, that the particular market will sustain competition and still be profitable. If an air transport market is substantial and thriving, we do not see how the fact that other markets are over-served, can justify leaving this market under-served, of depriving it of the public-interest benefits of competition. Is the Board obliquely saying that monopoly profits are needed in this market to sustain overall industry earnings when shaky? This would not only raise serious questions of Congressional intent, and adequacy of articulation of reasoning, but present the question whether there is evidence to show that competition in this market will not maintain overall profits, by enhancing efficiency, quality of service, and the size of this and connecting-beyond markets. In the end we are left with the conviction that the Board’s reference to general industry conditions is “local color” to gain an atmosphere of acceptability for the result, rather than a novel, independent ground of decision resting on substantial evidence. We have not ignored the passage, in the Board’s opinion denying reconsideration, which says that the industry’s faltering in its effort to achieve recovery “fortifies our resolve to avoid making unnecessary awards of competitive authority on routes that are adequately served.” The structure of this sentence suggests that the general faltering of industry factor (which we have already discussed and found wanting) was taken in conjunction with, and as fortifying, a separate regulatory notion that competition is “unnecessary” when existing (monopoly) service is “adequate.” Such a concept would not only constitute a fundamental change in doctrine that requires a more direct address and reasoned analysis than this elliptical reference but more important would conflict with the intent of Congress as we discern it. B. The Fuel Shortage We come, finally, to the fuel shortage issue to which the Board referred in ultimately denying reconsideration. The onset of the oil embargo in late 1973 diminished the fuel supplies available for air transportation. The Board’s May, 1974 opinion grasped the fuel problem as an independent reason for rejecting competitive service. As the Justice Department brief remarks, since fuel shortages are a permanent fixture of American life, this is tantamount to writing § 102(d) out of the act. Moreover, the Justice Department aptly comments that there is no support for the Board’s alleged fear that certificating competitive service would increase fuel consumption at the expense of more “essential service elsewhere” to the “overall detriment of the public interest.” The crisis of late 1973 may have justified temporary orders to preserve the status quo pending analysis, but not an indefinite abdication by CAB. We have recently noted in another context that the existence of an energy crisis does not excuse a regulatory agency’s “failure to seek answers” pertinent to the exercise of its duties or its “abdication of its duty to ‘indicate fully and carefully the methods by which, and the purposes for which, it has chosen to act.’ ” The CAB contends that its reference to the Remanded Atlanta/Detroit/Cleveland/Cincinnati Investigation was sufficient since “there was no reason for the Board to repeat in this case what it had already said in a companion case issued on the same day.” However, in the companion case the Board found that the proposed competitive flights “would consume well over 10 million gallons of fuel annually.” In addition, it noted that the markets under consideration there were experiencing load factors “only moderately if at all above the Board’s rate-making standard of 55 percent.” Here, by contrast, additional fuel was not required to institute competition. At the time of the final order, Western was planning to run four and a half nonstop trips in the San Diego-Denver market. This exceeded the two round trip flights each which the carriers had proposed to institute in the remand proceedings. Moreover, the monthly on board coach load factors on Western’s San Diego-Denver flights were repeatedly well in excess of the 55% level during the 14 months ending with July, 1973. In this context, the Board’s bare reference to the fuel shortage rationale set forth in the Atlanta-Detroit case is not sufficient to constitute reasoned decisionmaking for the disparate conditions of the San Diego-Denver market. Section 102 sets forth six public interest factors to guide the CAB in the exercise of its statutory duties. We are cognizant that in reviewing agency orders “[t]he court’s responsibility is not to supplant the [Board’s] balance of these interests with one more nearly to its liking,” but the state of the record establishes that the Board recited the public benefits to be derived from competition, and did not itself accord them any real weight in the balance, dismissing them, in effect, as overborne by considerations, of the health of the industry and the fuel situation, which lacked any support in substantial evidence. Accordingly, the challenged orders are set aside and the record is remanded for further proceedings. IV. Remand Proceedings The agency proceedings eventuating in Continental’s petition for review were commenced over 8V2 years ago. Two complete evidentiary hearings have been conducted and the ALJ has issued two thorough initial decisions detailing the characteristics of the market, analyzing traffic forecasts, and comparing the strengths of carriers seeking certification. The record before us contains ample evidence of the need for competing nonstop service. We agree with Interve-nor Western Air Lines that “[p]ublic policy dictates that the case be brought to an end.” We thus contemplate that the CAB will proceed expeditiously on remand with selection of a competing nonstop carrier. To avoid any unnecessary delay, we note that if the Board should invoke the procedure of petitioning this court to modify its mandate to permit taking of additional evidence on the pendency of this appeal, it should set forth with particularity the matters involved and their relationship to the desirability and feasibility of implementing competition. Turning finally to the question of carrier selection, we note that this issue has also been fully fleshed out in the previous hearings. The ALJ has twice selected Continental over the other carriers seeking nonstop authorization to compete with Western. The Board has repeatedly noted the substantial beyond market benefits offered by Continental and has spoken in terms of the advantages provided by Continental in addressing the related competition question. Nonetheless, as Intervenor United Air Lines, points out, the Board has not squarely examined the ALJ’s findings on the carrier selection issue. On remand the CAB should review the record and render a supplemental order either adopting the ALJ’s determination or setting forth its separate reasons for accepting or rejecting the ALJ’s selection. In view of the comprehensive record before the agency and the public interest in a prompt determination, we trust that the Board will proceed with expedition in completing carrier selection. The case is remanded for further proceedings in accordance with this opinion. So ordered. . The challenged orders are set forth at JA 83-98 and JA 100-24, respectively. . Brief for Petitioner at 18, 31. . Order 74-5-17, May 3, 1974, at 2, 13, JA 101, 112. . See text accompanying notes 44-61 infra. Section 102 of the Federal Aviation Act, 49 U.S.C. § 1302 (1970), states: § 1302. Consideration of matters in public interest by Board. In the exercise and performance of its powers and duties under this chapter, the Board shall consider the following, among other things, as being in the public interest, and in accordance with the public convenience and necessity: (a) The encouragement and development of an air-transportation system properly ■ adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense; (b) The regulation of air transportation in such manner as to recognize and preserve the inherent advantages of, assure the highest degree of safety in, and foster sound economic conditions in, such transportation, and to improve the relations between, and coordinate transportation by, air carriers; (c) The promotion of adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discrimi-nations, undue preferences or advantages, or unfair or destructive competitive practices; (d) Competition to the extent necessary to assure the sound development of an air-transportation system properly adapted to the needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense; (e) The promotion of safety in air commerce; and (f) The promotion, encouragement, and development of civil aeronautics. (Pub.L. 85-726, Title I, § 102. Aug. 23, 1958, 72 Stat. 740.) . See United States v. CAB, 167 U.S.App.D.C. 313, 320, 511 F.2d 1315, 1322 (1975) (“the statute would appear to contemplate that the factor of competition could be outweighed by one or more of the other factors”). . See Initial Decision of Hyman Goldberg, Hearing Examiner, September 4, 1969, at 2, JA 373. . Order to Show Cause, Order No. E-25202, May 26, 1967, at 4, JA 24. . Order to Show Cause, Order No. E-25727, September 22, 1967, at 1 & n. 1, JA 27 & n. 1. . Order No. E-26608, April 3, 1968, at 4, JA 33. . See Initial Decision, supra note 6, at 64 & n. 115, JA 435 & n. 115. The ALJ deemed the Bureau’s forecast conservative because its base year traffic figures did not include “online connecting passengers” and its stimulation factor — growth attributed to new, improved service — did not take account of Continental’s attractive fare proposals. . See id. at 65, JA 436. . See id. at 66-76, JA 437-17. Continental proposed three “conveniently timed” round trips a day and offered “not only first-class and coach service, at substantial reductions in fares, but also . the economy service for which the carrier is well-known, at considerably reduced fare levels.” In contrast to TWA, it offered 3-2 seating in coach and economy sections instead of less comfortable 3-3 seating. Continental’s selection would also provide a substantial number of passengers in four beyond markets either first single-plane or first single-carrier service — a factor of prime importance. The ALJ considered Continental’s efficiency and aggressiveness important in view of Western’s “long-entrenched” position in the market. Finally, in addition to service, scheduling, and beyond market advantages over TWA, Continental was given a plus as a far smaller carrier to which the award would “be more important” than to TWA. Air West was passed over because its shaky financial position made it doubtful that it could offer Western “effective, dynamic competition.” . See 14 CFR §§ 385.50-.54 (1975) (delineating the discretionary review procedure). . Opinion 70-4-46, April 9, 1970, at 2, 4, JA 39, 41. . Id. at 4 & n. 6, JA 41 & n. 6. The Board also noted that the examiner had relied in part on Western receiving new revenue from San Diego-New York/Newark and San Diego-Washington/Baltimore awards which the Board decided to grant to United. Id. at n. 7. . Concurring and Dissenting Opinion of Members Murphy and Minetti in Opinion 70-4 — 46, at 1, JA 49. . Id. at 1-2 & n. 1, JA 49-50 & n. 1. A partial list of such awards showing O & D plus interline connecting traffic projected for the forecast year included: Houston-Seattle/Portland _ _ 150 Denver-San Antonio _ _ 194 Denver-Portland .. 220 Salt Lake Clty-Seattle 222 Salt Lake Clty-Portland 138 Houston-St. Louis __ 272 San Antonio-Washlngton __ 176-224 New Orleans-Tampa (3 carriers .. 206 Houston-Miaml 280 Dallas-Tampa _. 158 Albuquerque-Las Vegas __ 206 Albuquerque-San Francisco . . 190-330 Memphis-New Orleans __ 246 . Petition of Continental Air Lines, Inc., for Reconsideration of Order 70 4 46, May 4, 1970, at 2, 5-6, JA 211, 214-15. Party Annual Dally Air West 98,870 271 Continental 101/222 277 TWA 117,240 320 Western 94,216 258 Bureau 100,335 275 Since Western’s forecast assumed monopoly service, it would have to be increased to obtain an estimate for the size of a competitive market. . Order 71-3-135, March 23, 1971, at 2, JA 68. . Id. at 4-5, JA 70-71. . Dissenting Opinion of Members Murphy and Minetti in Order 71-3-135, at 1, JA 72. The majority forecasted 103,124 passengers in 1971 as compared with the ALJ’s 1970 forecast of 100,335. See Order 71-3-135, March 23, 1971, Appendix A, at 2, JA 78. . Dissenting Opinion, supra note 21, at 4, JA 75. The dissenters also challenged the majority’s loss projection on the basis of its underestimation of passengers by ignoring surface and intrastate Los Angeles-San Diego traffic and using atypical 1969 growth rate figures and its overestimation of costs. . Order on Remand, Order 71 — 4-112, April 16, 1971, at 1, JA 79. . Supplemental Initial Decision of Hyman Goldberg, Hearing Examiner, March 20, 1972, at 55, JA 585. . Id. at 56, 75, JA 586, 605. . See id. at 59-65, JA 589-95. Among the “many serious inadequacies” were findings that the carrier did not provide prime time departures in both directions, that there were significant service gaps, that Western served the market only as part of long-haul flights, and that load factors indicated “unresponsive scheduling on Western’s part.” Although Western had proposed to provide three nonstop round trips, it had never flown more than two daily nonstop round trips. . See id. at 77, JA 607 — 17; note 12 supra. . Opinion 72-12-29, December 8, 1972, at 2, JA 85. . See id. at 3, JA 86. . See id. at 8-10, JA 91-93. . Id. at 8, JA 91. . Petition of Continental Air Lines, Inc. for Reconsideration of Order 72-12-29, January 29, 1973, at 20, JA 313, quoting Domestic Passenger Fare Investigation, Order 71 — 4-54, at 28. . Petition, supra note 32, at 20, JA 313. . Opinion and Order on Reconsideration, Order 74-5-17, May 3, 1974, at 2, JA 101. . Id. at 3, 13, JA 102, 112. . Id. at 3, JA 102. . Id. at 8, JA 107. . Dissent of Member Minetti in Order 74-5-17, at 2, JA 121. . Id. at 3 n. 4, JA 122 n. 4. . Id. at 4-5, JA 123-24. . The following carriers and local representatives intervened in the action: Western Air Lines, Inc., Hughes Air Corp. d/b/a Hughes Air West, United Air Lines, Inc., Trans World Airlines, Inc., City of Kansas City, Missouri and Chamber of Commerce of Greater Kansas City, City and County of Denver, Colorado, Public Utilities Commission of the State of Colorado, San Diego Unified Port District, The City of San Diego, and the San Diego Chamber of Commerce. Western filed a brief in support of the CAB and the local interests filed briefs urging competitive service. The court granted leave to the Department of Justice to file an amicus brief. Amicus supported petitioner’s challenge to the CAB’s order. . Brief for Petitioner at 18-31. Petitioner also argued that the Board’s orders must be set aside for failure to engage in reasoned de-cisionmaking. Id at 31^18. We believe that this case, is most naturally treated as presenting a question of the existence of substantial evidence to support the CAB’s rejection of the statutory interest in the promotion of competition. . See Public Service Comm’n, State of N. Y. v. FPC (Texas Gulf Coast Area Rate Cases), 159 U.S.App.D.C. 172, 208-09, 487 F.2d 1043, 1079-80 (1973), vacated and remanded sub nom. Shell Oil Co. v. Public Service Comm’n, 417 U.S. 964, 94 S.Ct. 3166, 41 L.Ed.2d 1136 (1974). . Section 102 is set forth at note 4 supra. . Reply Brief for Petitioner at 2. . Brief for Respondent at 20, 22. . Brief for Intervenor Western Air Lines at 30. . Power Reactor Development Co. v. International Union of Electrical Workers, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961), quoting Norweigian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 77 L.Ed. 796 (1933). . 52 Stat. 973 (1938). . S.Rep.No. 1661, 75th Cong., 3d Sess. 2 (1938); see H.R.Rep.No. 911, 75th Cong., 1st Sess. 19 (1937). . 83 Cong.Rec. 6507 (1938). . 83 Cong.Rec. 6852 (1938). Senator McCar-ran was the author of the original Senate bill. . 83 Cong.Rec. 6730 (1938). . Id. Senator Copeland was chairman of the Senate Commerce Committee which conducted the hearings on the bill. . 83 Cong.Rec. 6726 (1938) (comparison of bills submitted by Senator Truman). . Acquisition of Western Air Express Corp., 1 CAA 739, 749-50 (1940) (a § 408 case), cited with approval in Additional North-South California Services Case, 4 CAB 373, 374 (1943) (interpreting § 2 in a route award proceeding). . See American Export Airlines, Inc., 2 CAB 16, 29-31 (1940). Subsequent CAB decisions have firmly established that, in, considering the extent to which competition is necessary to the sound development of the air transportation system, the Board “has not been guided by the negative concept of determining first whether the existing services met minimum standards of legal adequacy.” Southwest Northeast Service Case, 22 CAB 52, 60 (1955). Although inadequacy of existing service is a factor to be weighed heavily in assessing the need for a competitive spur, the presence of adequate service by a monopoly carrier does not supplant the statutory recognition of the desirability of competition. See, e. g., Domestic Passenger-Fare Investigation, Order 71-4-54, April 9, 1971, at 27 (“We have stated that major markets require competition regardless of the quality or quantity of service provided by monopoly carriers.”); Syracuse-New York City Case, 24 CAB 770, 790 (1957) (“as to the principal criteria for authorizing competing service; the size, importance, and potential are the prevailing factors — not adequacy of service”); Hawaiian Case, 7 CAB 83, 103 (1946); Additional North-South California Services Case, 4 CAB 373, 375 (1943). . See, e. g., Domestic Passenger-Fare Investigation, Order 71-4-54, April 9, 1971, at 27; Seaboard & Western Airlines, Inc., Mail Authorization, 29 CAB 49, 85 (1959); Southern Service to the West Case, Reopened, 18 CAB 790, 799-800 (1954); Trans-Pacific Airlines, Ltd., 12 CAB 900, 901 (1951); IATA Agency Resolutions Proceeding, 12 CAB 493, 509 (1951); Colonial Airlines, Inc., et ai, Atlantic Seaboard Operation, 4 CAB 552, 555 (1944). . 4 CAB 373, 375 (1943). . 7 CAB 83, 103-04 (1946). . The CAB has repeatedly noted the unique advantages to improved service offered by competition. See, e. g., North Atlantic Route Case, 6 CAB 319, 326 (1945) (“No effective substitute for healthy competition as a stimulus to progress and efficiency can be found in monopoly.”); Colonial Airlines, Inc., et at, Atlantic Seaboard Operations, 4 CAB 552, 555 (1944) (“The improvements which flow from competitive service cannot be obtained by administrative fiat. There is no regulation conceivable which could assure courtesy by a carrier’s employees, for example, and it would be extremely difficult to attempt to dictate many other matters affecting the quality of service rendered.”). In the present proceeding, the Board noted that “competition ultimately holds the greatest potential for vigorous development of air transportation.” Order 72-12-29 at 3, JA 86. . Power Reactor Development Co. v. International Union of Electrical Workers, 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961), quoting Norweigian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 77 L.Ed. 796 (1933); see NRDC v. Train, 166 U.S.App.D.C. 312, 326, 510 F.2d 692, 706 (1974). . Trans-Pacific Airlines, Ltd., 12 CAB 900, 901 (1951); see Southern Tier Competitive Nonstop Investigation, Order 69-7-135, July 24, 1969,. quoted in Continental Air Lines, Inc. v. CAB, 143 U.S.App.D.C. 330, 338, 443 F.2d 745, 753 (1971) (“The Board has always taken the view that competition in markets which can sustain it is the best guarantee of good service to the traveling public.”); Domestic Passenger-Fare Investigation, Order 71 — 4-54, April 9, 1971, at 27 (“One of our principal policies has been that the traveling public is entitled to the benefit of competition whenever it is justified by existing and projected market traffic.). . See Reply Brief for Petitioners at 13-16; Brief for United States as Amicus Curiae at 31-34. . Continental Air Lines, Inc., supra note 63, at 341, 443 F.2d at 756. . The CAB’s counsel at oral argument on appeal stated that the Board recognized “the prime value of competition” and asserted that “the Board’s interpretation of the statute would be that competition would be mandated” where two carriers could achieve a profit and a reasonable return and absorb the new route without adverse impact on their system-wide operations. Accordingly, Board counsel stated that “the question would turn on the evidence in the record as to the projections going to traffic growth and the projections going to revenues that would be received if competition were instituted.” . Opinion 70 4 46, April 9, 1970, at 4, JA 41. . Order 71-3-135, March 23, 1971, at 2, JA 68. . Id. at 4 — 5, JA 70-71. The Board relied solely on 1969 growth figures in projecting 1971 traffic. The CAB did not distinguish earlier decisions refusing to base determinations on short-term, recession traffic data. See New York-San Francisco Nonstop Service Case, 29 CAB 811, 815 (1959). . Order 71-4-112, April 16, 1971, at 1, JA 79. . See text accompanying notes 24-25 supra. . Opinion 72-12-29, December 8, 1972, at 3, 8-12, JA 86, 91-95. The Bureau’s forecast had used a 7.5% annual growth rate, a 15% stimulation figure, and estimated that 30% of the San Diego-Twin cities traffic would travel on Western via Denver. Using 1968-71 figures, and discounting for presumed stimulation from Western’s commencement of nonstop flights, the Board selected a 3% growth rate for 1972 and 1973. Yet, at the time the Board adopted its 3% figure based on recession experience, it had Western’s projection of a 10% growth rate and Western’s traffic data through April, 1972, showing a 12% increase for the first four months of 1972 over the first four months of 1971. See Brief for Petitioner at 39 — 40. The Board also failed to note or to explain adequately the result that its 1973 forecast of 98,409 (the ALJ’s forecast of 127,409 minus the reduction of 29,000 passengers resulting from the Board’s adjustments; JA 93) was substantially lower than its corrected projection of 106,851 passengers for 1971. . Opinion 72-12-29, at 2, JA 85. . Brief for Respondent at 22, 38-39. . See Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). . See Brief for Petitioner at 16-18, 47-49. . See Order 74-5-17, May 3, 1974, at 3, 10, 13, JA 102, 109, 112. . Continental’s petition for reconsideration pointed to Western’s traffic data showing a 23.9% growth in the market during" the first eleven months of 1972 over the same period in 1971. See Petition of Continental Air Lines, Inc. for Reconsideration of Order 72-12-29, January 29, 1973, Appendix 10, at 1, JA 329. . Order 74-5-17, May 3, 1974, at 3, 13, JA 102, 112. . Id. at 3, JA 102. . See Greater Boston Television Corp. v. FCC, supra note 75, at 394, 44 F.2d at 852. . Order 71-4-112, April 16, 1971, at 1, JA 79. . See Domestic Passenger-Fare Investigation, Order 71-4-58, April 9, 1971, at 2. Western’s 1973 rate of return was 12.3% and its profit for the fiscal year ending March 31, 1974 was 14.1%. See Brief for Petitioner at 15. . Under previous Board opinions, the important issue is not maintenance of existing profit levels, but the more fundamental concern that carriers derive some profit from the market. See Southern Tier Competitive Nonstop Investigation, Order 73-2-89, February 23, 1973, at 7-8 (The Board noted that, once applicants “can be expected with reasonable assurance to operate their proposals at a profit,” “[t]he relative profitability of their various operations is therefore not nearly as important a decisional factor as the public benefits they can provide.”). In the present case, the ALJ noted that the Board “traditionally does not look beyond the estimated operating profit or loss on a proposed operation” to consider rate of return. Supplemental Initial Decision, supra note 24, at 80 n. 140, JA 610 n. 140. . The Board in 1971 had viewed the prospect of new profitable operation by Continental in the instant and connecting beyond segments as a “significant” positive factor. See Order 71-3-135, March 23, 1971, at 4, JA 70. . Order 74-5-17, May 3, 1974, at 2, JA 101. . See Greater Boston Television Corp. v. FCC, supra note 75, at 394, 44 F.2d at 852; Northeast Airlines, Inc. v. CAB, 331 F.2d 579, 589 (1st Cir. 1964) (Aldrich, J., concurring). . We approve the initial construction of the Act adopted by the Board concerning the relevance of the monopolist’s service to the need for competition. See text accompanying note 57 and note 57 supra. . See Order 74-5-17, May 3, 1974, at 1-2, 13, JA 100-01, 112; Brief for Respondent in No. 74-1664, Eastern Air Lines, Inc. v. CAB, at 24. . Brief for United States as Amicus Curiae at 31 n. 16. . Id. at 30; Dissent of Member Minetti on Order 74-5-17, May 3, 1974, at 4-5, JA 123-24. . See United States v. CAB, 167 U.S.App.D.C. 313, 323-25, 511 F.2d 1315, 1325-27. . See Public Service Comm'n v. FPC, 167 U.S.App.D.C. 100, 108, 511 F.2d 338, 346 (1975). . Brief for Respondent at 36. . Opinion 74-5-18, May 3, 1974, at 4 & n. 6, JA 129 & n. 6. . See Supplemental Initial Decision, supra note 24, at 28, 43 n. 9, JA 558, 573 n. 91. . See Order 74-5-17, May 3, 1974, at Appendix A, JA 115 (6 months with load factors in excess of 60% and 3 additional months with load factors in excess of 70%). We express no opinion on the merits of the petition to review the companion case relied on by the CAB in the instant proceeding. That case is pending in this court, Eastern Air Lines, Inc. v. CAB, No. 74-1664 (D.C.Cir., filed June 28, 1974). . See Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). . Brief for Intervenor Western Air Lines at 25. 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_search

E

What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" 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". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case. Gloria CONWAY, Individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants, v. Patricia HARRIS, et al., Defendants-Appellees. No. 78-1473. United States Court of Appeals, Seventh Circuit. Argued Sept. 25, 1978. Decided Nov. 13, 1978. Lawrence G. Albrecht and Thomas P. Donegan, Milwaukee, Wis., for plaintiffs-appellants. Bruce G. Forrest, Civil Div., Dept, of Justice, Washington, D. C., for defendants-appellees. Before CASTLE, Senior Circuit Judge, and TONE and WOOD, Circuit Judges. HARLINGTON WOOD, Jr., Circuit Judge. Plaintiff-appellant Gloria Conway appeals from the district court’s dismissal of her complaint for failure to state a claim for which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On behalf of herself and all other persons similarly situated, plaintiff alleged in her complaint that she was unlawfully denied assistance and service benefits provided by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601, et seq. (Uniform Relocation Act or URA). The facts of this case are not contested. The plaintiff was a tenant in a small apartment building in Waukesha, Wisconsin, and on March 15, 1977, she and other tenants received a 60-day eviction notice from their landlord. On March 30, 1977, the tenants received another letter from another private party, Architektur-80, advising them that this firm had optioned the property on which the tenants’ residences were situated and that financing for the development of a senior citizens’ housing project had been approved. Apparently Architektur-80 and the Wisconsin Housing Finance Agency (HFA) had already signed an agreement, which was later approved by the Department of Housing and Urban Development (HUD), wherein the parties contracted that the new owner would receive Section 8 housing assistance payments following completion of the new housing construction. Some time after the plaintiff moved, the apartment building was taken down and a new 43-unit, Section 8 housing project for the elderly was constructed. Counsel for plaintiff requested in a May, 1977, letter to the Milwaukee Area Department of Housing and Urban Development that full URA benefits be granted the tenants who were being displaced by construction of the Section 8 project. Shortly thereafter the HUD Milwaukee Area Director responded that persons displaced due to a private Section 8 project were not eligible to receive benefits under the Uniform Relocation Act. The Section 8 program was established by Congress as part of the omnibus Housing and Community Development Act of 1974, 42 U.S.C. § 1437, et seq., and was created to alleviate the acute shortage of decent, safe and sanitary dwellings for lower income families. To fulfill the mandate of this Act, Congress authorized the Secretary of the Department of Housing and Urban Development to provide financial assistance to owners or prospective owners who agree to construct or substantially rehabilitate housing for lower income families. Relying on the recommendations of HUD, Congress designed the Section 8 program to provide a profit incentive for private developers to participate in the construction and management of lower income housing by using monthly housing assistance payments. S.Rep.No.93-693, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 4273, 4275. One means, and the one used here, by which HUD furnishes rental subsidies directly to housing owners on behalf of the tenants is contracting with a State Housing Finance Agency (HFA) for the HFA to administer the program throughout its jurisdiction. The intermediary HFA then contracts with private owners. In the district court plaintiff sought declaratory relief establishing her right to relocation assistance and services under the Uniform Relocation Act. She also asked for injunctive relief enjoining defendants from following those provisions of the Code of Federal Regulations which precluded the plaintiff from receiving benefits under URA. Contending that the purposes of the Uniform Relocation Act were contravened, plaintiff specifically objected to the regulations set forth in 24 C.F.R. § 880.113(b) and 24 C.F.R. § 883.210(b) which require that relocation and assistance payments be provided if the owner of a new project is a Public Housing Authority (PHA). The regulations, however, contain no comparable requirement in the case of either a privately owned project or a private owner/PHA project. Relying on statutory construction, legislative history, and case law, the district court, found that persons displaced by real property acquisition undertaken by private parties for projects which receive federal assistance are not entitled to the benefits established in the Uniform Relocation Act. We affirm. On appeal the issue presented is whether a person dispossessed from real property by a private acquisition, which leads to the construction of a Section 8 housing project that upon completion is aided by federal financial assistance through rent subsidy payments, is a “displaced person” under 42 U.S.C. § 4601(6) entitled to Uniform Relocation Act benefits. I. In 1971, Congress enacted the Uniform Relocation Act and declared: The purpose of this subchapter is to establish a uniform policy for the fair and equitable treatment of persons displaced as a result of Federal and federally assisted programs in order that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole. 46 U.S.C. § 4621. In following that far-reaching policy statement, plaintiff urges that we afford her benefits as a “displaced person” who in 42 U.S.C. § 4601(6) is defined as “any person who moves from real property . . . as a result of the acquisition of such real property . . . or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance . . . .” Under this section plaintiff claims that she was forced to move from her apartment as a result of the acquisition of real property for a program or project undertaken either by a federal agency or with federal financial assistance. We disagree with the plaintiff as we cannot disregard the plain meaning of the Act’s operational sections that govern the scope of eligibility. The Eighth Circuit in Moorer v. Department of Housing and Urban Development, 561 F.2d 175 (8th Cir. 1977), cert, denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978), considered the same issue of statutory construction that we face here. Discussing the operational sections of the Act in regard to a Section 236 housing project of the National Housing Act, the Moorer court stated: The statute mandates that benefits shall be extended to persons displaced by real property acquisition when the real property is acquired “for a program or project undertaken by a Federal agency” (§ 4622(a)) or “[w]henever real property is acquired by a State agency . . . .” (§§ 4627, 4628). Under § 4630 benefits inure when a person is displaced by action of a State agency operating with a grant “under which Federal financial assistance will be available . . . .” We are therefore drawn to the conclusion that the plain statutory language indicates that the URA benefits are available to displaced persons only on projects undertaken by federal agencies or by state agencies receiving federal financial assistance. This conclusion is supported by other sections of the statute. Section 4633(a) provides that the heads of federal agencies concerned with federal projects “or programs or projects by State agencies receiving Federal financial assistance shall consult together on the establishment of regulations and procedures for the implementation of [programs for relocation assistance].” Section 4633(b)[8] provides that any person aggrieved by a determination as to eligibility for a payment authorized by this chapter, or the amount of a payment, may have his application reviewed by the head of the Federal agency having authority over the applicable program or project, or in the case of a program or project receiving Federal financial assistance, by the head of the State agency. In addition, § 4625(b) provides: (b) Federal agencies administering programs which may be of assistance to displaced persons covered by this chapter shall cooperate to the maximum extent feasible with the Federal or State agency causing the displacement to assure that such displaced persons receive the maximum assistance available to them. 561 F.2d at 178-79 (footnotes omitted) (emphasis added). Clearly, no section provides that benefits should be extended to a person such as the plaintiff who was displaced by the acquisition of real property by a private party who would receive federal assistance in the future. Parlane Sportswear Co. v. Weinberger, 381 F.Supp. 410, 412 (D.Mass.1974), aff'd 513 F.2d 835 (1st Cir.), cert, denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252 (1975). In the present case a federal agency such as HUD neither acquired the real property nor gave the plaintiff written notice of her eviction for the construction of a federal housing project. See 381 F.Supp. at 411. Furthermore, this is not a case where the Wisconsin Housing Finance Agency acquired the property or gave written notice of eviction to the plaintiff for the construction of a state housing project for which the state received federal financial aid. Id. This court is not deciding those cases today. From the language of the implementing sections of the Act, we agree with the Eighth Circuit that Congress intended to provide URA assistance only to persons displaced by projects undertaken by federal agencies or by state agencies receiving federal financial assistance. Moorer, 561 F.2d at 176-77. We will leave any extension of the statute to Congress. II. Plaintiff argues this case is one of first impression and not governed by other judicial decisions interpreting the coverage of the Uniform Relocation Act. We cannot accept that contention. Although this is the first time this court has considered the circumstances where a person was displaced by a Section 8 housing project, the question of law presented here is not novel as other courts have already determined the applicability of the Uniform Relocation Act to similar privately developed housing projects. The Eighth Circuit in Moorer v. Department of Housing and Urban Development held that tenants, who were dispossessed from their apartment buildings by private acquisitions of real property, were not “displaced persons” entitled to benefits under the Uniform Relocation Act. Through HUD’s Project Rehab, the defendant American Development Corporation (ADC) was rehabilitating existing structures to provide adequate housing for low and moderate income persons and was aided by federal financial assistance in the form of rent subsidy and interest payments and mortgage insurance under Section 236 of the National Housing Act. 561 F.2d at 177. The court of appeals found that the emphasis in the legislative history “was on the acquisition of real property by federal or federally assisted programs through eminent domain procedures.” Id. at 181. The court concluded: The URA was intended to benefit those displaced in public agencies with coercive acquisition power, such as eminent domain. It was intended to benefit individuals who were not willing sellers. Project Rehab played a significant role in procuring Section 236 benefits for ADC. However, as mentioned elsewhere in this opinion, ADC acquired the property by negotiation with the sellers. ADC is a private entity without power of eminent domain. Therefore, we conclude the appropriate inquiry in determining whether URA benefits attach in this case is: Was the real property acquired by a governmental entity with the power of eminent domain. The focus is not on the degree of involvement by a federal or state agency, or a program of such agency, which results in the acquisition, but is instead on whether the person involved was displaced by governmental action either acquiring the property or issuing an order to vacate the property. Neither situation is present in this case. 561 F.2d at 182-83 (footnote omitted) (emphasis added). See also Dawson v. Department of Housing & Urban Development, 428 F.Supp. 328 (N.D.Ga.1976). The First Circuit in Parlane Sportswear Co. v. Weinberger, 513 F.2d 835 (1st Cir.), cert, denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252 (1975), also decided the issue of whether the Uniform Relocation Act provides benefits to persons displaced by a private entity receiving federal financial assistance. In that case the Department of Health, Education and Welfare (HEW) provided Tufts University, a private institution, with large federal grants for a Cancer Research Center. A manufacturer who was evicted by the project brought suit seeking relocation assistance under the Act. From the district court’s dismissal of the complaint, the court affirmed on appeal declaring: The statute extends assistance to persons displaced by the acquisition of real property “for a program or project undertaken by a Federal agency," 42 U.S.C. § 4622(a). HEW’s regulations refer to “direct projects of the Department,” 45 C.F.R. 515.5(a), and deny aid to persons displaced by federally assisted projects of private entities, 45 C.F.R. § 15.6. We find no compelling indications that HEW’s contemporaneous construction of the statute is wrong. 513 F.2d at 836-37 (emphasis added). In this case the private entity Architektur-80 acquired the property from a private party, and a private entity issued the plaintiff a written order to vacate the premises. Thus plaintiff plainly fails both the acquisition and notice tests of 42 U.S.C. § 4601(6). Architektur-80 negotiated with the Wisconsin Housing Finance Authority so that following the completion of the new housing project for the elderly, Architektur-80 would receive Section 8 rental assistance payments from HUD. These facts demonstrate a series of private, not governmental, decisions. Although there is some degree of federal and state involvement, we must reject plaintiff’s fanciful causation theory that the federal government somehow acquired the property. For the above reasons, the decision of the district court is affirmed. . Federal financial assistance is defined by 42 U.S.C. § 4601(4) as “a grant, loan, or contribution provided by the United States, except any Federal guarantee or insurance and any annual payment or capital loan to the District of Columbia.” . “Owner” as defined in 42 U.S.C. § 1437f(f)(4) includes an entity, a public housing agency or a private person. . Basically these payments subsidize the owner with the difference between the fair market value of the rental unit and approximately 25 percent of the renter’s monthly income. 42 U.S.C. § 1437f(b)(2) and (c)(3); 24 C.F.R. §§ 883.204, 883.205, 883.206. Federal assistance does not begin until the satisfactory completion of housing rehabilitation or construction. From the record, the developer was to receive only this form of federal assistance. . Plaintiff contends displaced persons who qualify for relocation assistance are entitled to the following benefits: (1) actual reasonable moving expenses, 42 U.S.C. § 4622(a), or a moving expense allowance not exceeding $300 and a dislocation allowance of $200, id. § 4622(b); (2) payment of an amount not to exceed $4,000 up to a four-year period to compensate the displaced person for any increase in rent she pays for her replacement dwelling, id. § 4624(1), or the amount necessary to make a downpayment on a replacement dwelling not to exceed $4,000, id. § 4624(2); (3) a relocation advisory service to aid her to locate comparable replacement housing, id. § 4625; and (4) if none of the previous provisions succeed in assuring a replacement dwelling, HUD must act as the houser of last resort, id. § 4626. . 42 U.S.C. § 4601(6) reads in full: The term “displaced person” means any person who, on or after January 2, 1971, moves from real property, or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance; and solely for the purposes of sections 4622(a) and (b) and 4625 of this title, as a result of the acquisition of or as the result of the written order of the acquiring agency to vacate other real property, on which such person conducts a business or farm operation, for such program or project. . Plaintiff argues that Moorer’s eminent domain eligibility test is disputed by our recent decision in Alexander v. U. S. Department of Housing and Urban Development, 555 F.2d 166 (7th Cir. 1977), cert, granted, — ■ U.S.----, 98 S.Ct. 3087, 57 L.Ed.2d 1132 (1978). In that case, however, we decided that URA benefits were inapplicable to the closing of a failed public housing project and we noted: Several cases have discussed the eligibility aspects of URA. . Further, a person displaced by a project undertaken by a private institution receiving federal financial assistance for that project was found ineligible to receive relocation benefits. Parlane Sportswear Co. v. Weinberger . 555 F.2d at 168 69. Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

songer_numappel

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Jack D. BROCKSMITH, Defendants-Appellant. No. 91-2208. United States Court of Appeals, Seventh Circuit. Argued Nov. 6, 1992. Decided May 5, 1993. Rehearing and Rehearing In Banc Denied July 15, 1993. Patrick J. Chesley and Rodger A. Heaton (argued), Asst. U.S. Attys., Office of the U.S. Atty., Springfield, IL, for plaintiff-appellee. Kenneth A. Kozel (argued), LaSalle, IL, for defendant-appellant. Before POSNER and FLAUM, Circuit Judges, and WILLIAMS, District Judge. The Honorable Ann Claire Williams, District Judge for the Northern District of Illinois, sitting by designation. FLAUM, Circuit Judge. Jack D. Brocksmith owned several agencies in Quincy, Illinois, that specialized in selling insurance and annuities to the elderly. Unfortunately for his customers, Brocksmith began playing a shell game with their accounts. Brocksmith would receive premium payments from individuals who wanted to purchase insurance policies. He would delay submitting their insurance applications for six to eight weeks, in the meantime drawing on their money to pay for his personal expenses. If the customers complained that they were not receiving their policies, Brocksmith would say there was a problem with the insurance company; to handle things on that end, he would omit the date on the applications he forwarded, or white-out the real date and replace it with a later one. Eventually, when premiums from other customers came in, he would send their money to the carriers to cover the earlier applications, and repeat the cycle again. In late 1986, Brocksmith sold several large policies or annuities issued by Fidelity Bankers Life Insurance Company. To Mary and Paul Sill, he sold two $25,000 single-premium deferred annuities. The $50,000 in premium checks were deposited into the general operating account of Brocksmith’s business. Brocksmith used the money to pay for all the insurance policies he had delayed up to that point and to pay his office expenses. That left only $18,000 remaining in the account. In November of 1986, Brocksmith sold Jean and Irvin Klingler each a $50,000 single-premium life insurance policy. The Klinglers gave Brocksmith a $30,000 check up front, made out to his business rather than the insurance company. That way, Brocksmith explained, they would receive their interest immediately. In fact, Fidelity’s application form contained a tear-off receipt for the purchaser stating that the premium check should be made out to Fidelity, not the agent, and that Fidelity would decide within sixty days whether to issue the policy. This receipt was already torn off before the application reached the Klinglers. On December 1, Brocksmith sent a letter to the Klinglers indicating that he was forwarding their medical examination forms. He encouraged the Klinglers to take their time completing them, which they were forced to do anyway since Brock-smith did not actually mail the forms until four weeks later. On December 4, Brocksmith sold Willade-an and Carl Sattman each a $50,000 single-premium life insurance policy. They gave Brocksmith a check for $25,000 as a down payment. He used this money to cover the Sills’ annuities. Later in the month, the Sattmans sent in the rest of their premium payment. At the beginning of January 1987, the Klinglers mailed a check for the $70,000 balance they owed. Brocksmith used these funds to pay for the Sattmans’ policies. Now all of his customers were accounted for, except the Klinglers, whose account (after all of Broeksmith’s machinations) was $78,000 short of the amount needed to complete their applications. On February 6, the Klinglers mailed in their medical forms. Jean Klingler became worried because she had not received their policies. She tried several times, unsuccessfully, to reach Brocksmith on the phone. Eventually, on March 23, Brock-smith sent a postcard announcing that he would visit the Klinglers during April. When that date arrived, he sent a letter stating that due to an illness in his family he could not meet them until May. After a few more attempts to set up a meeting, Brocksmith sent another postcard to confirm a date of May 25. During this time, Brocksmith was engaged in a last-ditch effort to avoid disaster. He conceived a plan to fake a robbery of his office — or, more precisely, of the Klinglers’ premium checks. Brocksmith told William Ratcliff, a former employee and current brother-in-law of his, that a large sum of money was missing from his account and was causing trouble between him and his wife. Brocksmith offered to pay Ratcliff if he would leave town and write a letter to his sister saying that he had taken the money. Ratcliff agreed. Brocksmith drove him to the train station in Burlington, Iowa, and bought him a ticket; from there, Ratcliff sent the deceitful letter to Mrs. Brocksmith. Accompanied by his attorney, Brock-smith sat down with the Klinglers in late May to tell them the sad news that someone had broken into his office and stolen their premium checks. He confessed that he had endorsed the checks and left them in his office, and, showing them Ratcliff’s letter, speculated that his former employee was the thief. He tried to comfort the Klinglers with an offer to pay back $10,000 at once and $1000 a month thereafter. To show his good faith, he handed the Klin-glers a check for $10,000. Incredulous at his story, Jean Klingler refused to accept the offer. In the end, it would not have mattered if she had. The check bounced, and a replacement $10,000 money order sent via Federal Express had payment stopped on it a few days later. Brocksmith called his insurance practice “rob[bing] Peter to pay Paul,” Tr. 130-31; a jury called it mail fraud. Brocksmith was convicted of five counts of violating 18 U.S.C. § 1341. Count 1 alleged that the Klinglers mailed a $70,000 check to Brock-smith; count 2 alleged that they mailed medical exam forms to him; count 3 alleged that Itatcliff mailed a letter to Brock-smith's wife; and counts 4 and 5 alleged that Brocksmith mailed two postcards to the Klinglers. Brocksmith was sentenced to three consecutive sentences of five years on counts 1 through 3, and suspended sentences on counts 4 and 5. He was also ordered to pay restitution to the Klinglers in the amount of $7100. Brocksmith raises sixteen different arguments on appeal, some containing as many as eight subparts. He challenges the sufficiency of the evidence on all counts and the length of his sentence, objects to five witnesses' testimony, claims his trial attorney was ineffective and should have been disqualified, alleges prejudicial comments and ex parte communications by the district judge, and criticizes the jury instructions and voir dire questions. Many of these arguments were not made before the district court, are barely a page long in Brocksmith's oversized brief, and are wholly unsupported with case authority. Counsel bears responsibility for narrowing the issues presented on appeal from the entire universe of possible objections to the proceedings below to the small set of arguments that offer a legitimate chance for success. A client is disserved when the most meritorious arguments are drowned in a sea of words. "The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them." United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (Scalia, J.)), cert. denied, - U.S. -, 112 S.Ct. 141, 116 L.Ed.2d 108 (1991). Undeveloped and unsupported claims are waived. See id. Brocksmith's first argument is that his federal prosecution violated the Double Jeopardy Clause of the Fifth Amendment. Two years before this prosecution, the Assistant State's Attorney charged him with knowingly exerting unauthorized control over the Klinglers' assets. Brocksmith was found not guilty of this charge. He now contends that successive prosecutions for the same offense violate the Fifth Amendment. This argument, however, ignores the dual sovereignty doctrine, under which two sovereigns (such as the states and the federal government, see Heath v. Alabama, 474 U.S. 82, 89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985)) may prosecute an individual for the same conduct if it violates the laws of each. "The dual sovereignty doctrine has been a fixture of constitutional law for decades." United States v. Bafia, 949 F.2d 1465, 1478 (7th Cir.1991) (citing United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922)), cert. denied, - U.S. -, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992). Brocksmith contends that the district court should at least have held an eviden-tiary hearing to determine whether his federal prosecution was a "sham." The case of Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), supposedly recognized an exception to the dual sovereignty doctrine in situations where one sovereign's prosecution serves as a tool for a second sovereign that previously prosecuted the defendant. See id. at 123-24, 79 S.Ct. at 678. We have questioned whether Bartkus truly meant to create such an exception, and we have uniformly rejected such claims. See United States v. Paiz, 905 F.2d 1014, 1024 (7th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991). In any event, conversations and cooperative efforts between state and federal investigators of the kind Brocksmith alleges are “undeniably legal” and are, in fact, “a welcome innovation” in law enforcement techniques. See id. at 1024 (quotation omitted). Relatedly, Brocksmith argues that his federal prosecution was barred under the doctrine of collateral estoppel. The Double Jeopardy Clause has been held to embrace principles of issue preclusion, such that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970); United States v. Bailin, 977 F.2d 270, 273-74 (7th Cir.1992). Collateral estoppel cannot apply here because it holds only between the same parties, whereas the United States was not represented in the prior case. See United States v. Sherman, 912 F.2d 907, 909 (7th Cir.1990). Brocksmith’s next set of arguments challenge the sufficiency of the evidence used to prove him guilty of mail fraud. Brocksmith makes several claims that apply to one or another, or all, of the five counts: he argues (1) that the particular mailing occurred after the scheme to defraud had reached fruition; (2) that the particular mailing was not itself unlawful or fraudulent, and thus cannot form the basis of a mail fraud violation; and (3) that no pecuniary loss resulted from the mailing. Brocksmith can only succeed on these claims by demonstrating that no rational trier of fact could find the essential elements of the crime proved beyond a reasonable doubt. See United States v. Johnston, 876 F.2d 589, 593 (7th Cir.), cert. denied, 493 U.S. 953, 110 S.Ct. 364, 107 L.Ed.2d 350 (1989). Brocksmith has, however, misconceived the elements of mail fraud. To establish a violation, the government must prove that a defendant “knowingly caused the mails to be used in furtherance of a scheme to defraud or to obtain money through false or fraudulent pretenses.” United States v. Kuzniar, 881 F.2d 466, 472 (7th Cir.1989). The use of the postal service need not be indispensable to the success of the scheme; a mailing may be merely “incident to an essential part of the scheme” or “a step in [the] plot.” Schmuck v. United States, 489 U.S. 705, 711, 109 S.Ct. 1443, 1448, 103 L.Ed.2d 734 (1989) (quotations omitted). The Schmuck Court held that an individual who purchased cars, turned back their odometers, and then sold them, committed mail fraud when the dealers sent the title-application forms to the state department of transportation. The Court distinguished the defendant’s ongoing fraud in Schmuck from other cases in which the pertinent mailings involved mere “accounting among the potential victims” of the scheme, occurring after the fraudulent scheme had reached fruition. Id. at 714, 109 S.Ct. at 1449. In Schmuck, by contrast, sending the registration forms to the transportation department was a key step in the successful passage of title — “a failure of this passage of title would have jeopardized Schmuck’s relationship of trust and goodwill with the retail dealers upon whose unwitting cooperation his scheme depended.” Id., 489 U.S. at 714-15, 109 S.Ct. at 1450. Each of the mailings for which Brock-smith was indicted constituted a “step in the plot.” Receiving the $70,000 check was surely instrumental to Brocksmith’s scheme; indeed, it was his scheme. The mailing of the medical forms was also instrumental because it allowed Brocksmith to hold onto Klinglers’ money for a longer time; if the Klinglers failed to submit the forms, they would be entitled to a refund of their premiums. Paying Ratcliff to fabricate a story that he stole the Klinglers’ checks was plainly motivated by Brock-smith’s desire to buy time and, more importantly, an excuse for the missing money. Finally, the postcards were used to put the defendants at ease about the delays, as well as to gain more time for himself, and to conceal his misappropriation of the funds. Use of the mails to lull victims into a false sense of security, we have held, violates the mail fraud statute, even if it occurs after the money has been fraudulently obtained. United States v. Chappell, 698 F.2d 308, 311 (7th Cir.), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983). It does not matter that some of these mailings contained no false or misleading information, and individually caused no pecuniary loss; routine and innocent mailings can also supply an element of the offense of mail fraud. See Schmuck, 489 U.S. at 714-15, 109 S.Ct. at 1450 (citing Parr v. United States, 363 U.S. 370, 390, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960)). Brocksmith levels several charges against his appointed trial attorney, Ronald J. Stone. To begin with, Brocksmith alleges that Stone should have been disqualified due to a conflict of interest, because he occasionally acted as a Special Assistant Attorney General for the state of Illinois, representing state agencies in civil rights cases. Brocksmith says he wrote a letter to the clerk of the district court requesting that Stone be released, and a hearing on the matter was held before the district court, but all to no avail-the judge told Stone to continue representing him. Brocksmith neglects to mention one crucial fact in this story: he decided at the hearing to have Stone remain his lawyer. The district court advised Brocksmith that "[i]t would be very simple, very easy for the Court to relieve Mr. Stone of further providing representation to you and appoint another attorney to take over immediately and proceed ahead," Tr. 16, should Brock-smith so desire. Brocksmith responded that he was satisfied with Stone. Tr. 17. This argument is therefore waived. See United States v. Cirrincione, 780 F.2d 620, 624 (7th Cir.1985). Brocksmith also accuses Stone, for the first time in this appeal, of rendering ineffective assistance of counsel. We have explained that ineffective assistance claims are better addressed at the district court level than on appeal, through a motion for new trial or collateral relief, due to the trial judge's superior opportunity to observe counsel's performance firsthand. See United States v. Limehouse, 950 F.2d 501, 503 (7th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1962, 118 L.Ed.2d 563 (1992). In the interest of judicial efficiency, however, we will resolve an ineffective assistance claim "if the issue is sufficiently clear-cut." Johnson v. United States, 805 F.2d 1284, 1290 (7th Cir.1986). That is the case here. As discussed above, Brocksmith has waived any claim of conflict of interest on the part of his attorney. Brocksmith's other allegations are meritless. He complains that fifty-two out of the fifty-five exhibits offered by the government were irrelevant, and that his attorney should have objected to their introduction. Brock-smith cites no cases in support of his argument, nor elaborates on why the exhibits were irrelevant. Because he has shown neither cause nor prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this argument fails. The final challenges Brocksmith raises relate to his sentence. Brocksmith protests the district court's order that he pay restitution of $7100, claiming that the court did not consider the factors listed in 18 U.S.C. § 3580(a), such as the defendant's financial resources, needs, and earning ability. We have ruled that a sentence will be reversed when the defendant can show that it was "not improbable" that the judge failed to consider the requisite statutory factors and that the sentence was affected by this failure. See United States v. Studley, 892 F.2d 518 (7th Cir.1989). Brocksmith has made no such showing here. The one case he cites in support of reversal, United States v. Mahoney, 859 F.2d 47 (7th Cir.1988), involved a restitution order of $288,000 entered against a defendant who earned $30,000 a year. In those circumstances, we were persuaded that the district court had overlooked the defendant's financial capabilities when arriving at a dollar figure for restitution. An order to repay $7100, on the. other hand, does not invite the same inference. Brocksmith also complains that three consecutive terms of 5 years yielded an excessive sentence. In this case, however, five separate violations of the mail fraud statute occurred. We have held that each mailing is a separate offense even if there is only one fraudulent scheme encompassing all the acts. See United States v. Ledesma, 632 F.2d 670, 679 (7th Cir.), cert. denied, 449 U.S. 998, 101 S.Ct. 539, 66 L.Ed.2d 296 (1980). The Sentencing Guidelines do not apply in this case because Brocksmith’s offenses occurred before November 1, 1987. See United States v. Stewart, 865 F.2d 115, 118 (7th Cir.1988). In the absence of the Guidelines’ mandatory penalty scheme, the district court retains great discretion to mete out punishments. 18 U.S.C. § 1341 authorizes a term of imprisonment of up to 5 years for each violation. Since Broeksmith’s sentence was within the statutory range, even if at the upper end, his total term of imprisonment was not improper. Brocksmith’s conviction and sentence are Affirmed. . For example, argument number fifteen states that 18 U.S.C. § 1341, the mail fraud statute, is unconstitutionally vague. It is disturbing enough that Brocksmith ignores the cases in which we have held expressly to the contrary. See, e.g., United States v. Suter, 755 F.2d 523, 527 n. 5 (7th Cir.), cert. denied, 471 U.S. 1103, 105 S.Ct. 2331, 85 L.Ed.2d 848 (1985); United States v. Feinberg, 535 F.2d 1004, 1010 (7th Cir.), cert. denied, 429 U.S. 929, 97 S.Ct. 337, 50 L.Ed.2d 300 (1976). But the real puzzle is why this argument does not appear until page 47 of Brocksmith's appellate brief, since it would moot all the other claims. . The amount of restitution was only $7100 because Fidelity Bankers Life Insurance Company reached a settlement with the Klinglers whereby they received $92,900 in annuities. During her direct examination, Jean Klingler recalled the meeting when Brocksmith told her and her husband that their premium checks had been stolen. Jean Klingler testified that she told the defendant she could not accept his repayment offer because "it was our [life] savings. I was going to live on it for old age.” Tr. 182. Brock-smith did not object at the time, but argued later that he should be allowed to elicit on cross-examination the fact that the Klinglers obtained reimbursement from Fidelity. The district court refused to allow the question. We find no error. The amount of loss sustained by a victim is relevant and admissible evidence in a mail fraud prosecution. See United States v. Elliott, 771 F.2d 1046, 1051 (7th Cir.1985). The fact that a victim received partial reimbursement from another party is not ordinarily relevant. Even if the original testimony was prejudicial because it led the jury to believe, incorrectly, that the Klinglers never recovered their loss, counsel waived the argument by failing to object at the proper time. See United States v. Wynn, 845 F.2d 1439, 1442 (7th Cir.1988). Question: What is the total number of appellants in the case? Answer with a number. Answer:

songer_two_issues

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Anthony PANCI, Appellant, v. UNITED STATES of America, Appellee. No. 16892. United States Court of Appeals Fifth Circuit. June 3, 1958 Thomas M. Brahney, Jr., Edw. J. Boyle, Clem H. Sehrt, New Orleans, La., for appellant. Rene A. Pastorek, Asst. U. S. Atty., Jack C. Benjamin, Asst. U. S. Atty., New Orleans, La., M. Hepburn Many, U. S. Atty., New Orleans, La., for appellee. Before HUTCHESON, Chief Judge, and RIVES and CAMERON, Circuit Judges. HUTCHESON, Chief Judge. This appeal is from a conviction and sentence imposed upon a verdict of guilty, on two counts charging substantive violations of the narcotic laws, and one count charging a conspiracy to violate them. By it appellant seeks to test whether a conviction, which, as he claims, because of the admission of highly prejudicial hearsay testimony and the denial of the motion to acquit for want of evidence to convict but keeps the promise of due process to the ear while it breaks it to the hope, may stand. Urging upon us: that extrajudicial inadmissible hearsay statements were erroneously admitted over his objection; that without them the record is devoid of evidence tending to establish his guilt, and the conviction was one of guilt by association, resting entirely on inadmissible hearsay, and supported by no substantial admissible evidence; the defendant thus earnestly concludes his brief: “This case and the evidence adduced at the trial thereof demonstrates very vividly the abuses which arise when the Government uses a conspiracy count and the evidentiary abuses which are permitted thereunder to seek a conviction. It is cases such as this that has prompted the Supreme Court of the United States to criticize its use and various commentators to deplore the abusive use of the conspiracy charge. “It is conceivable that a conviction could be or rather should be had in a case such as this where not one witness could be cross-examined as to the statements testified to, as involving the defendant, for each and every one of those statements were hearsay? Is it American justice to sentence a man to the penitentiary, to deprive him of his liberty when not one witness testified that they knew the defendant, that they ever spoke to the defendant, that they ever heard anyone speak to the defendant, or that they saw or, personally of their own knowledge, knew the defendant to have committed a violation of the law? Counsel beHeves, as does every law abiding citizen, that the vicious narcotic traffic should be stamped out and that narcotie violators should be dealt with, harshly but counsel does not concede,, that the sacred and fundamental' principles of a fair and impartial trial, which is guaranteed to every citizen, should be violated even in a narcotic case. Counsel sincerely beHeves that if this case had been anything but a case involving narcotics that a judgment of acquittal would have been granted and, if not, the iury would have returned a verdict °t n°t guilty as to all counts.” Here, presenting under six numbered specifications, three grounds of error: (1) the denial of his motion for bill of particulars; (2) the admission over objection of prejudicial hearsay testimony; and (3) the refusal to direct a verdict acquittal for want of evidence; appellant urges upon us that the judgment must be reversed with directions to ac-h™1- Emphasizing that the government did not produce a single witness who could or would testify: that he had spoken to defendant or heard him speak to anyone; that he had purchased, or seen anyone purchase, heroin from him; that he saw him transfer heroin to anyone or have any heroin in his possession; that he saw the defendant in possession of marked and identified money used to purchase heroin or saw him sell or deliver heroin to anyone; appellant insists that it was error to deny his motion for acquittal, In further support of his claim, he points to the undisputed, indeed the admitted fact that the only testimony relied on at the trial as tending to implicate defendant in the crimes charged was the hearsay statements, admitted over defendant’s repeated objections, of the co-defendant Giardina who pleaded guilty and of Lena and Carol Giardina, who. were named but not indicted as co-conspirators, none of whom testified at the trial and therefore could not be cross-examined. We agree with the appellant that, under the rule established and prevailing in this court, it was error to overrule his objections to the hearsay testimony of the Giardinas, and that it was error on this record not to direct a verdict in his favor. In Montford v. United States, 5 Cir., 200 F.2d 759, 760, this court thus correctly laid down the rule governing the trial of cases where, as here, it was sought to prove a defendant’s connection with a conspiracy or his complicity in a crime by the hearsay statements and declarations of persons named or charged as co-conspirators or accomplices, but not otherwise proven to be such: “The declarations of one conspirator made in furtherance of the objects of the conspiracy, and during its existence, are admissible against all members of the conspiracy. Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. But a defendant’s connection with a conspiracy cannot be established by the extra-judicial declarations of a co-conspirator, made out of the presence of the defendant. There must be proof aliunde of the existence of the conspiracy, and of the defendant’s connection with it, before such statement becomes admissible as against a defendant not present when they were made. Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680, 701; Minner v. United States, 10 Cir., 57 F.2d 506; May v. United States, 84 U.S.App.D.C. 233, 175 F.2d 994; United States v. Nardone, 2 Cir., 106 F.2d 41, reversed on other grounds 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307.” Under that rule we think it clear beyond question that the admission of the hearsay testimony fatally impregnated the case with prejudicial and reversible error. In addition, with this evidence ex-eluded and eliminated from the record, the case was completely circumstantial and there was no evidence pointing, with the degree of clarity required for conviction in such cases, to appellant’s guilt. U was error’ therefore, not to direct an acquittal and because of this error the Judgment must be reversed with directions to acquit. The United States, in an attempt to demonstrate that the evidence was sufficient to convict appellant, undertakes, as it declares, “to set out without including therein any of the hearsay matters, a statement of the evidence in the case”, A reading of this statement, as its brief sets H out> wdb we think, demonstrate that it has not done, it cannot do, this. Leaving the hearsay testimony out of consideration destroys the case in fact. Taking it into consideration destroys it in law. To see that this is so, it is only necessary to look at the case as the gov-eminent sets it ^ out on page 13 of its brie There it is stated: “It was established, and appellant made no issue that the goods reeeived by Gjertsen, Sansone and Picini was heroin and appellant had no authority to transfer the narcotics, The issue presented to the Court below and the jury was principally that °I appellant’s criminal connection with the transfer of heroin and the conspiracy for that purpose, “It should be noted that in the summary of the evidence just presented all of the hearsay statements complained of by appellant have not been mentioned.” Unfortunately for the government’s case, this is not, it cannot on this record be, so. It is true, as the government points out on page 10 of its brief: that there was testimony that an agent saw Giardina go into a place where he spoke to Panci; that he saw Panci and Giar-dina leave the store; that he saw them sit on stools next to each other at the Toddle House cafe; that while they were sitting there drinking coffee, the defendant withdrew his left hand from his pocket and passed a small brown paper bag behind his back to Giardina; and that they thereafter left the Toddle House and returned to the barbecue stand. It is true, too, that there was If ^°”y: *hat PÍdnÍ ga? Giardina $1,050 for the purchase of three ounces of heroin; and that sometime afterward Giardina went into his own house and to* one ounce of heroin from the total of three in a brown paper bag. The record does not support the government s contention that the brown paper bag from which the heroin was taken was identified by anyone as the^ one given Giardina by defendant. If it did, this would not be important. What is important here is that no one testified that the brown paper bag given Giardina by defendant had narcotics in it when it was given to him. In short, the testimony of the government agent that Giardina was seen with Panci and that Panci passed a paper bag to him was wholly insufficient to establish his guilt. While, therefore, the testimony of the government witness well served its purpose of smearing Panci because he was seen associating with Giardina, no evidence whatever was offered to support its claim . that Giardina or anyone else obtained , . „ „ heroin from Panci. Giving the evidence its fullest force, it amounts to no more than that Panci was seen associating with characters of low repute, and, if this conviction is allowed to stand, the result would be to convict him on suspicion. There is a proverb that a man is known by the company he keeps, and another one, “Give a dog a bad name and kill him”, but these are not legal principles which will serve to convert inadmissible hearsay into admissible testimony or support a conviction on testimony merely that a defendant is seen in bad company. Kassin v. United States, 5 Cir., 87 F.2d 183. In that case and in other circumstantial evidence cases this court has without wavering declared that the test to be applied is whether the j'ury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt, and equally without wavering has applied it. Cf. Vick v. United States, 5 Cir., 216 F.2d 228, and Lloyd v. United States, 5 Cir., 226 F.2d 9, at page 13. The government might have made Qut a case if> in the ordinary way g0 often SUCCessfully used in informer type cases, the agents had given the informer marked Qr otherwise identified money, had searched him carefully before he left on hig miggion to ingure that ^e kad no narcotics concealed on or about him> had kept him in gight at all times so ag £0 exclude his having obtained the narcotics elsewhere, and then made the arregt to find the identified money in the possession of the defendant and the narcoticg in that of the informer. Nothing of that kind wag done here. Instead the government brought and testified to its cage wjth no more real support in the evidence íor a finding of guilt than there wag |or ^.ke f^ndjng that a ghost had been geen |n the story of the man who said, «My friend gaw a ghogt eating off a plate at hig houge lagt night> and if you don>t believe it, here is the plate he says he saw the ghost eating from”. „ .. For the failure of the court to grant , „ . ,, defendant s motion to direct a verdict, the . , . . judgment is reversed with directions to acquit him. . The indictment brought against the appellant and one Giardina, who pleaded guilty and was not therefore tried, contained nine counts. The first eight counts charged substantive violations of the narcotic laws in respect of three alleged quantities of heroin; the ninth was laid under the conspiracy section of the code. Counts one, two, and five, respectively, charged the illegal obtaining, the illegal selling, and the illegal concealing on or about December 22, 1955, of 360 grains of heroin in violation of Secs. 4704(a) and 4705(a), Title 26 U.S.C.A. and Sec. 174, Title 21 U.S.C.A. Counts three and four charged the illegal obtaining and the illegal selling on Dec. 24, 1955, of 31 grains of heroin. Counts six, seven, and eight, charged illegal purchase, the illegal concealment and the illegal selling on Dec. 29, 1955, of 3 ounces 68 grains of heroin. Count nine, the conspiracy count, charged that, beginning about Dec. 20, 1955, and continuing thereafter until the date of the indictment, Nov. 29, 1956, the defendant and Giardina with John San-sone, Lena Giardina and Carol Giardina, who were named but not indicted, conspired to unlawfuly acquire, conceal and transfer to the said John Sansone, an admitted addict and paid government informer, John Gjertsen and Michael Pi-cini, also a government agent, and to one Lena Giardina, in violation of Sec. 371, Title 18 U.S.C.A., the narcotics referred to in the substantive counts. Twenty-seven overt acts which covered a period from Dec. 20, 1955 to April 30, 1956, were alleged to have been committed in furtherance of the alleged conspiracy. Upon completion of the Government’s case in chief and at the end of the case, defendant moved for a judgment of acquittal. Both motions were denied. The jury returned its verdict acquitting appellant on counts one through five and finding him guilty on charges 6 through 9, and the court denied defendant’s motion for a new trial, but granted his motion for judgment of acquittal as to count seven. Sentenced to imprisonment for a period of three years on each of counts six and eight, to run concurrently, and five years on count nine, the execution of the sentence imposed on count nine suspended, and appellant placed on probation for ° period of five years to commence after the completion of the sentence on counts six and eight, he appealed. Question: Are there two issues in the case? A. no B. yes Answer:

songer_usc1sect

2000

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Luba S. Kowalyszyn De MEDINA, Appellant, v. John E. REINHARDT, Director, United States International Communication Agency, et al. Carolee Brady HARTMAN, Individually and on Behalf of All Other Persons Similarly Situated, et al. Rose Kobylinski and Luba Medina, Appellants, v. John REINHARDT, Director United States International Communication Agency. Toura KEM, Luba Medina and Rose Kobylinski, Appellants, v. John REINHARDT, Director United States International Communication Agency. Nos. 81-1909 to 81-1911. United States Court of Appeals, District of Columbia Circuit. Argued March 25, 1982. Decided Aug. 27, 1982. As Amended Aug. 27, 1982. Bruce A. Fredrickson, Washington, D. C., for appellants. Robert E. L. Eaton, Jr., Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., at the time the brief was filed, Royce C. Lamberth and Kenneth M. Raisler, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees. Before WRIGHT and WALD, Circuit Judges and ANTHONY J. CELEBREZZE, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit. Opinion for the Court filed by Circuit Judge WALD. Opinion concurring in part and dissenting in part filed by Senior Circuit Judge CELE-BREZZE. Sitting by designation pursuant to 28 U.S.C. § 294(d). WALD, Circuit Judge: These appeals contest the district court’s dismissal of consolidated individual and class sex discrimination claims against the Director of the United States International Communication Agency (“ICA” or “Agency”), formerly the United States Information Agency. Appellants contend that the district court (1) evaluated under inappropriate legal standards the statistical and testimonial evidence of a pattern and practice of discrimination in hiring, (2) failed to make required fact findings on the class promotion discrimination and retaliation claims, (3) improperly dismissed an individual claim for failure to exhaust administrative remedies, and (4) misapplied the requirements for a prima facie showing of discrimination to another individual claim. We find merit in certain of appellants’ objections and therefore remand the class claims and the individual claim of Rose Kobylinski for further consideration. We affirm, however, the district court’s dismissal of Luba Medina’s individual claim. I. Background In March 1977, Luba Medina, a former Agency employee, filed an individual claim for damages and declaratory and injunctive relief under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e-2000e-17. Her complaint alleged that, since 1974, the Agency had refused to rehire her in retaliation for her own prior charges of sex discrimination and her husband’s work on behalf of Agency minority employees. She also claimed that she had personally suffered from the Agency’s discriminatory practices against the foreign-born and women. In late 1977, another job applicant, who had been denied employment by the Agency earlier in the year, filed a Title VII class claim on behalf of female applicants and employees against whom the Agency had discriminated in hiring and promotion. In April 1978, the class was conditionally certified “to include all women who have applied for employment with or are currently employed by the United States Information Agency and who have been or continue to be adversely affected by the discriminatory employment practices of the defendant.” Joint Appendix (“J.A.”) at 22. Later that month, an Agency contract employee filed a complaint charging that she had been denied a permanent Agency position on account of sex. In November the three cases were consolidated. In the interim, the district court had permitted Medina and two Agency employees, Josefina Martinez and Rose Kobylinski, to intervene as named plaintiffs and had allowed plaintiffs to supplement the class complaint to include a claim that the Agency maintained “a practice of reprisals against women who have filed sex discrimination charges against the Agency.” J.A. at 28. On April 19, 1979, plaintiffs filed a motion for preliminary injunction to enjoin the defendant “from taking any retaliatory action against individuals who oppose the defendant’s discriminatory practices or otherwise exercise their rights under Title VII.” On May 16, the motion was denied orally without prejudice. The parties agreed to bifurcate trial of the class claims into “liability” and “remedial” stages, and a bench trial on liability was conducted from May 29, 1979 through June 5, 1979. On October 24, 1979, the district court issued an opinion and order which redefined the class to exclude women in clerical positions and dismissed the class claims. Medina v. Reinhardt, Nos. 77-0360, 77-2019 & 78-0762 (D.D.C. Oct. 24, 1979) (Medina I), J.A. at 68. Plaintiffs filed appeals on December 21, 1979, but on September 19, 1980, this court dismissed the appeals under Fed.R.Civ.P. 54(b) because the residual individual claims remained to be heard. Three of the named plaintiffs voluntarily dismissed their individual claims, and trial of Medina’s and Kobylinski’s claims was conducted on December 15 and 16, 1980. On June 15, 1981, the district court rendered its decision dismissing Medina’s claim on the merits and Kobylinski’s claim because she had failed to exhaust her administrative remedies. Medina v. Reinhardt, Nos. 77-0360, 77-2019 & 78-0762 (D.D.C. June 15,1981) (Medina II), J.A. at 118. This appeal followed. II. The Class Claims Although the district court’s “Findings of Fact” discussed rebuttal evidence as well as evidence introduced by plaintiffs to establish their threshold case, the court ruled in its “Conclusions of Law” that the plaintiff class had failed to establish “a prima facie case of discrimination on the basis of sex,” Medina I at 13, J.A. at 80. The court’s conclusion .rested primarily on rejection of both parties’ statistical studies on hiring patterns as “misleading due to a failure to define adequately the relevant labor market from which the Agency draws for qualified personnel,” id. at 3, J.A. at 70. The court’s objection was that the Census occupational categories used for comparison “with the jobs in issue at the Agency simply do not match.” Id. at 6, J.A. at 73. We find, however, that the district court’s opinion reflects a basic misperception of the relevancy and role of statistical evidence in the plaintiffs’ prima facie showing; hence, we remand for a redetermination of whether plaintiffs can make out a prima facie case of sex discrimination. Further, we must remand because the court made no findings or comment on plaintiffs’ evidence of Agency reprisals against women asserting their rights under Title VII. Had the court credited either appellants’ or appellee’s definition of the relevant labor market, it would have found “disparities between the women employed at the Agency and the external labor pool of (1) Electronic Technicians, (2) Radio Broadcast Technicians, (3) Writers/Editors, and (4) Foreign Information Specialists.” Id. at 8, J.A. at 75. In 1977, when the class action was initiated, these four categories accounted for a major part of the Agency’s nonclerical positions. See, e.g., United States Information Agency FY-1978 Affirmative Action Report (Plaintiff’s Exhibit No. 22(b)). Consequently, on remand, the district court should reconsider whether these disparities alone or in combination with testimonial evidence are sufficient to raise an inference of discrimination in hiring and, if so, whether that inference was adequately rebutted. Upon remand, the court should also address the class retaliation claim. A. Relevant Labor Market The 1972 amendments to the Civil Rights Act of 1964 came in response to the “persistence of discrimination” and the consequent need for more effective enforcement, H.R.Rep.No.238, 92d Cong., 1st Sess. 3 (1971), U.S.Code Cong. & Admin.News 1972, p. 2137. The legislative history particularly focused on the seriousness of sex discrimination, id. at 4-5, and explicitly recognized the need “[t]o correct . . . entrenched discrimination in the Federal service.” Id. at 24, U.S.Code Cong. & Admin.News 1972, p. 2159. It is noteworthy that Congress itself relied on “statistical evidence” to prove the existence of sex discrimination in higher level government jobs. Statistical evidence shows that minorities and women continue to be excluded from large numbers of government jobs, particularly at the higher grade levels. This disproportionate distribution of minorities and women throughout the Federal bureaucracy and their exclusion from higher level policy-making and supervisory positions indicates the government’s failure to pursue its policy of equal opportunity. Id. at 23, U.S.Code Cong. & Admin.News 1972, p. 2158. See S.Rep.No.415, 92d Cong., 1st Sess., 421-23 (1971). Congress thus extended to federal employees the right to bring individual and class actions under Title VII. In a Title VII suit, the claimant “carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that . .. the employer is treating ‘some people less favorably than others because of their race, color, religion, sex or national origin.’ ” Furnco Const. Corp. v. Waters, 438 U.S. 567, 576-77, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977)). When a plaintiff submits sufficient evidence to permit such an inference, Title VII gives it the status of a “legally mandatory, rebuttable presumption.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 n.7, 101 S.Ct. 1089, 1094 n.7, 67 L.Ed.2d 207 (1981). Because unlawful discriminatory intent is typically elusive of direct proof, Congress has deemed it appropriate to then require an explanation of the defendant. In a sex discrimination class action charging disparate treatment, appropriate statistical comparisons may be used to indicate whether similarly situated men and women have been treated similarly, see, e.g., Valentino v. United States Postal Serv. (USPS), 674 F.2d 56, 69 (D.C.Cir.1982) (quoting Valentino v. United States Postal Serv., 511 F.Supp. 917, 940 (D.D.C.1980)), and, if not, whether the difference in treatment shown supports an inference of discriminatory intent. See, e.g., Teamsters, 431 U.S. at 325 n.15, 97 S.Ct. at 1854 n.15. Where specialized skills are legitimately required for employment, “[t]he proper comparison is between the composition of the [employer’s] work force and the qualified population.” Davis v. Califano, 613 F.2d 957, 963 (D.C.Cir.1979) (As Amended Feb. 14, 1980). See Valentino v. USPS, 674 F.2d at 68. (“When the job qualifications involved are ones that relatively few possess or can acquire, statistical presentations that fail to focus on those qualifications will not have large probative value.”) We have recently restated, however, that not every conceivable qualification for every separate job must be taken into account in making out a prima facie class claim of discrimination: “[T]he qualifications a Title VII plaintiff must grapple with .. . are threshold or ‘minimum objective’ qualification.” Id. at 71 n.24 (quoting Davis v. Califano, 613 F.2d at 964)). Thus, plaintiffs must identify the population likely to possess the minimum objective qualifications required of Agency employees (the relevant labor pool) and compare the proportion of women in that population with the proportion of women employed in the Agency. The comparisons in turn must show disparities of sufficient magnitude that they are statistically unlikely to have occurred by chance. We are then entitled to assume that “absent discriminatory employment practices, the proportion of the protected group in each of the job classifications and grade levels would approximate the proportion of the protected group with the minimum necessary qualifications . . . . ” Id. at 964. See, Teamsters, 431 U.S. at 339 n.20, 97 S.Ct. at 1856 n.20. Thus, statistically significant disparities between the composition of an employer’s work force and the labor pool from which the employer draws indicate that similarly situated people have been treated differently and “alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.” Hazelwood School Dist. v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977). Here, because the district court did not reach the issue, we have no occasion to consider whether the magnitude of the statistical disparities shown was adequate to infer discriminatory motive. We are concerned in this appeal only with whether there is “a basis for a reasonable assumption” that the comparison population was qualified for Agency positions. Metrocare v. Washington Metropolitan Area Transit Auth. (WMATA), 679 F.2d 922, 930 (D.C.Cir.1982). In this case, the experts testifying on both sides proceeded through trial on the assumption that the population sufficiently well-qualified to be employed in Agency occupational categories was the population employed in those same occupations outside the Agency. We think this is a reasonable threshold assumption which follows from the Supreme Court’s reasoning in Hazelwood School Dist. v. United States. In Hazelwood, a school district was charged with racial discrimination in teacher hiring, and United States Census data recording employment in the relevant occupational categories were used to calculate the disparities that formed the basis for plaintiffs’ prima facie case. The Supreme Court specifically approved the technique, noting that “[t]he comparative statistics . . . were properly limited to public school teachers, and therefore this is not a case ... in which the racial-composition comparisons failed to take into account special qualifications for the position in question.” 433 U.S. at 308 n.13, 97 S.Ct. at 2742 n.13. Thus, Hazel-wood established that the proportion of a protected group actually employed elsewhere in the relevant occupation(s) is a meaningful measure of the proportion of the protected group qualified for employment by the defendant. The district court’s opinion here, however, raises the question whether there is too much diversity within the occupations involved in this case to permit reliance on the Hazelwood assumption as a basis for the plaintiffs’ prima facie showing. The district court concluded that the Census data used by the experts on both sides here was not sufficiently reflective of the qualifications required for Agency positions. The court insisted on “statistical data which matches those job categories at the Agency and the specific requirements thereof,” Medina I at 7, J.A. at 74 (emphasis supplied), and concluded in its “Findings of Fact”: 10. ... The job categories used by the parties’ experts do not correspond with the jobs in the defendant Agency. Neither do plaintiffs’ nor defendant’s experts adequately explain that the tasks actually performed by the employees at the Agency, in the job categories analyzed, correspond in any more than a very general and speculative way to those utilized by the parties’ experts. 11. Cross-mapping of actual employee activities for purposes of comparison with statistics concerning available labor pools is appropriate and useful where the inquiry is of general non-specialized skills. While statistics are helpful and useful in many cases, it must be understood that it cannot be argued or found in this case that precise labor pool availability figures can be derived to determine the number of females available for employment in such specialized fields as, for example, Cambodian language news analyst/writer/broadcaster. Id. at 8-9, J.A. at 75-76 (footnote omitted) (emphasis supplied). While definition of the relevant labor market is normally reviewable under the “clearly erroneous” standard as an “essentially factual matter within the special competence of the district court,” Castaneda v. Pickard, 648 F.2d 989, 1003 (5th Cir. 1981); see Hazelwood, 433 U.S. at 312-13, 97 S.Ct. at 2744, “if the trial court bases its findings upon a mistaken impression of applicable legal principles, the reviewing court is not bound by the clearly erroneous standard.” Inwood Laboratories, Inc. v. Ives Laboratories, Inc., - U.S. -, - n.15, 102 S.Ct. 2182, 2189 n.15, 72 L.Ed.2d 606 (1982). A close scrutiny of the legal underpinnings of the district court’s fact finding is appropriate here because the court’s decision was expressly based on its interpretation of the standard of proof enunciated in Hazelwood and Teamsters. The district court observed that Hazelwood “indicated that statistics comparing the employer’s work force and the relevant labor market must be based on the labor pool truly relevant to the employer’s potential work force,” and concluded that “the statistics suffer from the following deficiency, as noted by the Supreme Court in Teamsters : Imprecise definitions of the relevant labor market when particular qualifications are required for the job(s) in question.” Medina I at 12, J.A. at 79. We conclude, however, based on our examination of these cases, that the standard of precision the district court demanded, far from being mandated by these cases, is unprecedented and unjustifiable, insofar as it results in a total rejection of the Census data as a basis for statistical comparisons to establish a prima facie case. The methods employed in this case by the experts on both sides to identify Census categories comparable to Agency positions, in fact, closely track that adopted in Hazel-wood and by other courts, see, e.g., Rivera v. City of Wichita Fails, 665 F.2d 531 (5th Cir. 1982); Croker v. Boeing Co. (Vertrol Div.), 437 F.Supp. 1138 (E.D.Pa.1977), aff’d, 662 F.2d 975 (3d Cir. 1981). Both experts subdivided the Agency work force into occupational categories and sought to translate each Agency category into Census terminology (“cross-map”) by reference to the U. S. Department of Commerce, Bureau of the Census, Alphabetical Index of Industries and Occupations (1971) (Defendant’s Exhibit No. 2) which lists “approximately . . . 23,000 occupation titles in alphabetical order.” Id. at iii. The Alphabetical Index explains the design of the Census classification system which groups those titles under some 440 occupational categories. Each category includes all the titles considered to be part of the same occupation. To organize and make understandable the information relating to the many thousands of industries and occupations, a system of homogeneous grouping or classification must be used. Homogeneous titles are grouped together to form the various categories which comprise the system .... In this Index each title is identified by the code for that category to which it is assigned. For example, plaintiffs’ expert explained the composition of the Census category “Editors and Reporters.” Census Code 184, covering editors and reporters, is a list of about 100 titles which all fit into a journalistic type of occupational group, including just, for example, editor, feature writer, foreign correspondent, newspaper writer, and newspaper editor. Trial Transcript (“Tr.”) at 82 (May 29,1979) (testimony of M. Rosenblum). The defendant’s expert testified that in the “overwhelming majority of occupations” cross-mapping is accomplished by looking up the Agency position title in the Index and identifying the Census category to which it belongs. Tr. at 19 (June 1,1979) (testimony of S. Wolfbein). Where relevant Agency job titles were not included in the Alphabetical Index, defendant’s expert testified that he translated Agency categories into Census terminology based on job descriptions provided by the Agency. Tr. at 23 (June 1, 1979) (testimony of S. Wolfbein). Plaintiffs’ expert testified that he consulted job descriptions in order to cross-map all the relevant positions. I consulted the 118 Manual to read the job description, as published by Civil Service, covering those Civil Service titles and codes that are used by all federal agencies. In a number of these instances I also consulted material published by the Agency, itself, to augment and fill in additional descriptions. So that I got a better sense in my own mind of specifically which Census occupational category would be appropriate for this cross-mapping exercise. Tr. at 83 (May 29, 1979) (testimony of M. Rosenblum). Plaintiffs’ expert testified that he also consulted an Office of Personnel Management (“OPM”) study that translated white collar civil service jobs into Census terms, although he disagreed with OPM’s cross-mapping in one instance. Because the Census has fewer occupational categories (approximately 440) than the more detailed Civil Service system (over 1,000), the cross-mapping necessarily involved fitting some Agency occupational categories at issue in the class action into broader Census categories. For example, based on Census coding, the defendant’s expert placed both the Agency positions entitled “Radio Broadcast Technician” and “Electronic Technician” in the Census category entitled “Electrical and electronic engineering technicians.” Tr. at 20, 93-94 (June 1, 1979) (testimony of S. Wolfbein). He also placed both “Writers/Editors” and “Foreign Information Specialists” in the Census category “Editors and Reporters.” Id. 103-04. We are satisfied that comparing Agency occupational categories to the broader Census categories is appropriate because all types of jobs the Census includes within any given Census occupational category are sub-specialties of that occupation; thus, such aggregations retain “generally similar job skills” in common. Valentino v. USPS, 674 F.2d at 68. (“The burden of comparing appropriate groups in terms of minimum objective qualifications, onerous here because of the disparate occupational categories involved, is far more tractable when all members of the class are professional, administrative or technical employees with generally similar job skills and seek [employment in or] advancement to positions involving those same skills.”). Our conclusion is supported in this case by the more refined cross-mapping attempted where Agency occupations involved skills arguably reflected in more than one Census occupational category. As we have pointed out, the experts agreed on the basic methodology involved in identifying the relevant labor pool although they disagreed as to which Census occupational category more properly encompassed certain Agency positions. As these disagreements came only in fine-tuning the comparisons, however, they do not deprive the statistics of probative value, but, in fact, enhance it since the disagreements caused the experts to focus on specific Agency job requirements and tasks and thus accomplish the cross-mapping with considerable attention to detail. To the extent that the experts disagreed on the appropriate Census category to which Agency categories should be compared, we of course defer under the “clearly-erroneous” standard, see Fed.R.Civ.P. 52(a), to the district court’s judgment as to which comparison has the greater probative value. And, we would not second-guess the district court as to other areas of disagreement between the experts which the court did not decide, e.g., whether 1970 Census data or 1978 Labor Department data provided the appropriate set of figures. We decide only that the cross-mapping by both experts here provided an adequate basis from which to derive meaningful disparity figures in order to decide if a prima facie case of discrimination in hiring was made out. A review of the statistical comparisons sanctioned in Hazelwood bolsters our conclusion that the district court imposed an inappropriately high standard of precision between Agency and Census job categories. The Hazelwood Court was satisfied with data that limited the relevant labor pool to those in the general Census occupational category of secondary school teachers although this data aggregated diverse teaching positions not subdivided on the basis of subject matter taught. Thus, the district court mistakenly relied on Hazel-wood for authority that plaintiffs must provide data comparing the labor market for every combination of skills required in every one of the more than 2,000 Agency jobs at issue. We do not believe a plaintiff is required to prove that each individual in the comparison pool is qualified in every way for a particular Agency position. The objective is to define “a population that closely approximates the characteristics of those who would be likely to apply” and “meet legitimate threshold qualification requirements.” D. Baldus & J. Cole, Statistical Proof of Discrimination 120 (1980) (emphasis supplied). The focus thus should be on whether the Census statistics give us a meaningful estimate of the proportion of women in the labor market reasonably likely to possess the minimum qualifications needed for the Agency jobs in question. We agree with the district court that the ICA positions at issue are properly treated differently from the bulk of federal government jobs which are generally professional, administrative and managerial positions for which no differentiated training or educational standards are imposed as minimal qualifications. And we agree as well that the test was not met in a case like Valentino, where the statistics “did not group employees by job category,” 674 F.2d at 70, nor “hone in on the wide variety of minimum objective qualifications required of applicants for the diverse ... positions” at issue. Id. at 61. In Valentino, where discrimination in promotion was charged, it would indeed have been “irrational to assume ‘equal qualifications’ to fill engineering or secretarial vacancies,” as the plaintiffs urged, simply because employees were “educated the same number of years and employed by the government for the same length of time.” Id. at 71. See also Metrocare v. WMATA, 679 F.2d at 980 (no showing that “persons now holding secretarial or clerical jobs are qualified for [promotion to] managerial positions”). The data in this case, however, did hone in on the basic technical skills — “the minimum objective qualifications," Valentino v. USPS, 674 F.2d at 68 (quoting Davis v. Califano, 618 F.2d at 964) — prerequisite to employment in particular Agency occupational categories. The expert testimony reveals the comparisons of Agency and Census occupational categories were based on common job requirements and were accomplished in some instances with much greater precision than in Hazel-wood. It should be noted again that in Hazelwood the comparison pool included public school teachers whether they taught, for example, natural science or a foreign language. Therefore we do not deem it fatal to plaintiffs’ prima facie case that the Census occupational data failed to take account of foreign language skills prerequisite to employment in certain Agency positions. “[N]ot every conceivable factor relevant to [an employment] decision must be included in the statistical presentation . . . . ” Davis v. Calif ano, 613 F.2d at 964. See, e.g., Trout v. Hidalgo, 517 F.Supp. 873 (D.D.C.1981): Certainly, plaintiffs’ expert did not, in his analysis, account for each of the factors that the government suggests should have been considered. It is also true that a model which incorporated additional potentially relevant factors (such as type or quality of education and experience) would form a more perfect foundation for determinations regarding allegations of discrimination. However, defendants have furnished no evidence that inclusion of the missing variables or refinement of others would have altered rejection of the hypothesis of no discrimination. Indeed, they failed to offer any evidence indicating that type of education and experience or quantity of experience per age was distributed unequally among . . . women and men in the .. . population. 517 F.Supp. at 881 (emphasis supplied). Here, many, if not most, of the jobs involved do not require foreign language skills at all. Thus, to the extent that the district court rejected the statistics for failure to account for such skills, the court imposed an additional and unnecessary requirement for a large number of Agency positions. Further, with respect to positions which include specific foreign language skills among the minimum objective qualifications (e.g., “Cambodian language news analyst/writer/broadcaster”), the court articulated no basis for the assumption that such skills are in fact unevenly distributed between men and women generally or in the particular occupations involved. The more logical assumption, barring proof to the contrary, is that equal numbers of men and women possess skill in any given language; thus, the proportion of women qualified for Agency positions would not necessarily change if this variable were included in the occupational data. And, practically, statistical data, so far as we can tell from the record, are simply not available correlating 440 Census occupational categories with several dozen foreign language skills; in their absence, we think it appropriate here to afford plaintiffs the benefit of a rebuttable presumption of an equal distribution of the relevant language skills. We underline that we are dealing here with the showing necessary for a prima facie case only. “In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Dept of Community Affairs v. Burdine, 450 U.S. at 225 n.8, 101 S.Ct. at 1094 n.8 (emphasis supplied). Exactness is not required at the prima facie stage. As a consequence, in rebuttal, a defendant need only raise “a genuine issue of fact as to whether it discriminated” and need not even “persuade the court that it was actually motivated” by nondiscriminatory reasons. Id. at 254,101 S.Ct. at 1094. The defendant here is certainly entitled to rebut plaintiffs’ showing with evidence, more readily available to it than to plaintiffs, that, as to certain jobs with foreign language requirements, there are disproportionately fewer qualified women candidates available or even that bona fide recruitment efforts have resulted in a proportionately lower number of qualified female applicants than men. Cf. EEOC v. Radiator Specialty Co., 610 F.2d 178, 185 n.8 (4th Cir. 1979) (“Requiring the defendant to show the inappropriateness of general population statistics in such situations follows the principle of allocation of proof to the party with the most ready access to the relevant information.”). We find it significant here, however, that the defendants themselves did not argue to the trial court that failure to control for language invalidated the occupational comparisons. We therefore cannot accept the district court’s total rejection, as too imprecise, of both experts’ comparisons of Agency occupational categories with Census occupational categories. Were trial courts to apply Hazelwood and Teamsters as the court did here, statistical evidence would rarely be acceptable in Title VII class actions because statistical evidence is virtually always lacking in the degree of precision demanded by the district court. “[I]n most cases, conditions are far from ideal, with incomplete qualification data and non-random samples being the rule rather than the exception,” D. Baldus & W. Cole, supra, at 26-27. And yet the Supreme Court’s “cases make it unmistakably clear that ‘[statistical analyses have served and will continue to serve an important role’ in cases in which the existence of discrimination is a disputed issue.” Teamsters, 431 U.S. at 339, 97 S.Ct. at 1856 (quoting Mayor of Philadelphia v. Education Equality League, 415 U.S. 605, 620, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974)). Thus relevant labor pool statistics are commonly used although it is rarely possible to be exact in the definition of the relevant labor pool. Sometimes imprecision works to the detriment of plaintiffs as well as defendants. For example, a comparison labor pool based on Census employment statistics does not include all those qualified. “[Census statistics analyzing the population by job skill include[] in each skill category only people actually employed in those skill categories. People qualified for, but not employed in, such positions [are] omitted from the statistics quantifying the proportion of the population eligible for the type of employment in question.” Rivera v. City of Wichita Falls, 665 F.2d at 544 n.19. Certain defects in statistical evidence may, of course, be fatal to a plaintiff’s case, as in Valentino where comparisons were grossly imprecise or in a case, hypothesized in Va lentino, where the sample size is inordinately small. Valentino v. USPS, 674 F.2d at 66 n.12 (citing Wilkins v. University of Houston, 654 F.2d 388, 409 n.37 (5th Cir. 1981)) (“[T]he breakdown of highly specialized workplaces into occupational categories for the purpose of examining the treatment of similarly qualified employees may yield numbers too small to conduct certain types of statistical analyses relied upon to show discrimination in workplaces less specialized.”) But because “statistical measures are necessarily imperfect in differing ways and varying degrees,” the courts generally “accept what figures are available; allow for imperfections, skewing factors, and margins of error; and then take the figures for what they are worth. Sometimes this is much, sometimes little.” Phillips v. Joint Legislative Committee on Performance and Expenditure Review, 637 F.2d 1014, 1025 (5th Cir. 1981), cert. denied,- U.S. -, 102 S.Ct. 2233, 72 L.Ed.2d 845 (1982). In the usual case, statistics are not intended to “conclusively prove intentional discrimination. ... In recognition of [the] limits on the potential of statistics as a basis for an inference, the courts have given statistical proofs a question-raising, burden-shifting function.” D. Baldus & W. Cole, supra, at 26-27. We find the base data here to be sufficiently precise and consistent with statistical and legal norms to permit an inference of discrimination if statistically significant disparities exist. We therefore remand for reconsideration of whether plaintiffs made a prima facie showing of Agency discrimination in hiring. B. Required Findings Plaintiffs also protest on appeal that, with respect to the class claims of promotion discrimination and retaliation, the district court’s opinion was deficient under Fed.R.Civ.P. 52(a) which requires that a court sitting without a jury “find the facts specially and state separately its conclusions of law thereon.” It is established that the requirement of fact findings cannot be met by a “statement of ultimate fact without the subordinate factual foundations for it which must be the subject of specific findings.” O’Neill v. United States, 411 F.2d 139, 146 (3d Cir. 1969). Further, the fact findings must touch all material issues. “For this court to exercise adequately its power of review, the district court must make specific findings about the nature and truth of [plaintiffs’] allegations.” Borrell v. ICA, 682 F.2d 981 at 992 (D.C.Cir.1982). Because the district court’s opinion is bereft of reference to the retaliation claim, we must remand for findings on this issue. We are satisfied, however, with the court’s findings on the promotion discrimination claim. To support an inference of discriminatory promotion practices, the plaintiffs introduced undisputed government statistics showing the small percentage of women in higher level Agency positions. E.g., the Agency’s FY-1978 Affirmative Action Plan, Sec. C, Table 3 (Plaintiffs’ Exhibit No. 22(b)); U. S. Civil Service Commission, Report on Review of Personnel Management in the United States Information Agency (Plaintiffs’ Exhibit No. 23). The plaintiffs’ proposed findings of fact with respect to the promotion claim were based on this statistical evidence and they object on appeal that the district court’s opinion failed to include any reference to the data or the inferences to be drawn therefrom. We, too, find it troubling that, while the district court devoted five pages of fact findings to the statistical evidence related to the hiring discrimination claims, the court ignored the statistical evidence presented on the promotion claims. The court, however, acknowledged the allegation of promotion discrimination, stating the issue before it as “[w]hether the defendant’s hiring, promotion and salary practices constitute patterns or practices of discrimination. . . . ” Medina I at 3, J.A. at 70. And, although the court did not specifically discuss the statistical evidence on promotion practices, it made findings based on defendant’s testimonial evidence, concluding: In addition to [defendant’s witnesses] very credible testimony, the fact that these women have attained the positions they now occupy, and have done so by rapid and consistent advancement, is dis-positive of the absence of any pattern or practice of discrimination based on sex at the Agency at all relevant periods in this litigation. Medina I at 11, J.A. at 78. The “ultimate fact,” that there existed no pattern or practice of discrimination, was thus supported by the specific finding of instances of accelerated promotion of women and the credible testimony of women defense witnesses regarding the absence of discrimination in “the advancement of women in any manner.” Id. at 11. While this court would have been aided by an explicit statement of the district court’s reasons for rejecting the inference plaintiffs urged be drawn from the statistics, the district court provided findings “sufficient for a clear understanding of the basis of the decision.” 9 C. Wright & A. Miller, Federal Practice and Procedure § 2577 at 697 (1971). In contrast, the district court’s opinion failed to acknowledge the class retaliation claim. The court’s recitation of the procedural history does not refer to the supplemental complaint alleging retaliatory practices nor do the “Findings of Fact” or “Conclusions of Law” address the claim. Because a retaliation claim does not depend on whether the challenged employment practices are determined to be unlawful, see Parker v. Baltimore & O. R. Co., 652 F.2d 1012, 1018-19 (D.C.Cir.1981), the court is required to address the retaliation issue independently. III. The Individual Claims The individual discrimination claims of Luba Medina and Rose Kobylinski were the subject of a separate trial and a second opinion in which the court dismissed Medina’s claim on the merits and denied jurisdiction over Kobylinski’s claim because she had not filed a charge with the Equal Employment Opportunity Commission (EEOC), and thus had failed to exhaust her administrative remedies as required by 42 U.S.C. § 2000e-16. Since the trial, however, the Supreme Court has decided that the requirement of timely filing is akin to a statute of limitations and is not a jurisdictional prerequisite, Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), and this court has held that “the critical factor in determining whether an individual Title VII plaintiff must file an EEOC charge, or whether he may escape this requirement by joining with another plaintiff who has filed such a charge, is the similarity of the two plaintiffs’ complaints.” Foster v. Gueory, 655 F.2d 1319, 1322 (D.C.Cir.1981). We reverse the district court’s dismissal of Kobylinski's claim because we find that her claim was so similar to that made by Martinez, who had filed an EEOC charge and with whom Kobylinski intervened as a named plaintiff, “that it can fairly be said that no conciliatory purpose would be served by filing separate EEOC charges.” Id. We affirm, however, the court’s dismissal of Medina’s claim as based on fact findings that are not “clearly erroneous.” A. Exhaustion of Administrative Remedies In Foster v. Gueory, this court reversed the district court’s denial of a motion to intervene in a pending employment discrimination suit. The motion had been denied on the ground that the parties who sought intervention had failed to exhaust their administrative remedies, but this court concluded that the purposes of the exhaustion requirement had been served by the initial plaintiffs’ filing. The “principal functions of the EEOC filing requirement” are to enable “the EEOC to provide the alleged wrongdoer with notice and to permit possible conciliation.” Id. at 1323. The Foster court concluded that separate filing is required of co-plaintiffs if there exists “a real possibility that one of the claims might be administratively settled while the other can be resolved only by the courts.” Id. at 1322. But the court held that where two plaintiffs allege that they were similarly situated and received the same discriminatory treatment, the purposes of the exhaustion requirement are adequately served if one plaintiff has filed an EEOC complaint. Here, the claims of Martinez and Kobylinski are virtually identical. Each claimed intentional sex discrimination (as opposed to disparate impact). Each was a GS-11 Agency employee who based her claim on defendant’s failure to promote her (as opposed to a failure to hire). Each also charged that they performed like services for less pay than men of similar qualifications and experience. Thus, we find sufficient similarity between these claims to doubt the likelihood that conciliation would prove successful as to one where it had failed as to the other. As the district court found in its order granting the motion to intervene, Hartman v. Reinhardt, No. 77-2019 (D.D.C. Sept. 18, 1978), J.A. at 23, plaintiff Martinez had exhausted administrative remedies with regard to her claims. See Notice of Final Decision of Agency (Aug. 30, 1978) (from EEO officer to Martinez). We therefore hold that Kobylinski was not required to file an EEOC charge, and remand her case to the district court for a decision on the merits. B. Medina’s Claim Appellant Medina protests that the dismissal of her individual claims was based on the district court’s misinterpretation of the standard of prima facie proof enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). However, in dismissing Medina’s claim, the court ultimately relied on the adequacy of defendant’s rebuttal evidence. As the court’s findings are not “clearly erroneous,” we affirm the court’s disposition of Medina’s claim. Medina claims that the Agency discriminated against her both on the basis of sex and in retaliation for her previous EEOC complaints and her husband’s representation of minorities in EEOC actions. At trial she presented evidence regarding three separate instances of alleged discrimination: (1) the denial of the opportunity to retest for a newsroom position following an unsatisfactory test performance several months earlier; (2) the Agency’s rejection of her application for a radio production position; and (3) the Agency’s rejection of her application for a position as a foreign language broadcaster. The district court found that Medina was entitled to retake the test and ordered the Agency to allow a retest, but the court further found that the Agency’s denial of Medina’s right to retest was a mistake rather than discrimination. As to the Agency’s rejection of both job applications at issue, the court found that Medina’s proof failed to satisfy the last of the four prerequisites to a prima facie showing enumerated in McDonnell Douglas. The court understood McDonnell Douglas to require that a discrimination plaintiff show: (1) he or she is a minority group member; (2) he or she applied for a job with the defendant and was qualified for the position; (3) he or she was rejected despite his or her qualification; and (4) after the rejection, the job remained open, and the defendant sought other applications. Medina II at 8, J.A. at 125. To the extent that the court treated these factors as delineating the only circumstances that might give rise to an inference of unlawful discrimination, the court erred. In fact, McDonnell Douglas defines but one “model” of such circumstances. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 & n.6, 101 S.Ct. 1089, 1093 & n.6, 67 L.Ed.2d 207 (1981). But the district court’s error is not dispositive because the court further stated that even if a prima facie case had been made out, the Agency had articulated legitimate nondiscriminatory reasons for its actions and that defendant’s proof showed these reasons were not pretextual. This conclusion rested on the court’s finding that “other qualified individuals were selected in lieu of Ms. Medina.” Medina II at 10-11, J.A. at 127-28. In reviewing the court’s findings that the challenged personnel actions resulted from mistake in one instance and reflected legitimate employment decisions in the others, we are bound to give “due regard ... to the opportunity of the trial court to judge the credibility of the witnesses,” and we may not set aside these findings unless they are “clearly erroneous.” Fed.R. Civ.P. 52(a). While, again, we would have been aided on review by discussion of the specific evidence upon which the court relied, we find, in the record, evidence that supports the court’s findings. In assessing the qualifications of the man selected in lieu of Medina as Radio Production Specialist, the court relied on the application he submitted to the Agency which described a long career as a “News Director/Announcer.” Defendant’s Exhibit No. 38, J.A. at 409. The court based its findings as to the qualifications of persons selected as foreign language broadcasters upon the testimony of the Chief of the Ukranian Service of the Voice of America, who specifically identified her reasons for selecting the other candidates over Medina. Tr. at 200-01 (Dec. 16, 1980) (testimony of O. Dragan). We find no reason to abandon the presumption that the trial court correctly assessed the evidence and the witnesses’ credibility. Finally, the court did not explain its conclusion that Medina was denied a retest by mistake rather than due to discrimination. We note, however, that the testimony about the incident recounts only that Medina was told there would be “no point” to a retest, Tr. at 102 (Dec. 15, 1980) (testimony of L. Medina), and that her initial performance had received “fairly severe ratings,” EEOC Report of Investigation, Attachment F-l (Affidavit of Bernard Kamenske (Nov. 29, 1976)), Defendant’s Exhibit No. 39 (Pt. II). The district court could infer from this evidence that, while Medina ought to have been allowed to retest, which the court ordered, she was discouraged from doing so because of the extreme unlikelihood of her improving her performance sufficiently to meet the Agency’s standards rather than because of discriminatory intent. Accordingly, we affirm the court’s dismissal of Medina’s claims of discrimination. In view of the foregoing, the case is remanded to the district court for proceedings not inconsistent with this opinion. So Ordered. . At the initial, “liability” stage of a pattern-or-practice suit the [plaintiff] is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer’s discriminatory policy. [Plaintiffs’] burden is to establish a prima facie case that such a policy existed.... If an employer fails to rebut the inference that arises from the [plaintiffs’] prima facie case, a trial court may then conclude that a violation has occurred and determine the appropriate remedy.... [A] court’s finding of a pattern or practice justifies an award of prospective relief.... When the [plaintiff] seeks individual relief for the victims of the discriminatory practice, a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief. International Bhd. of Teamsters v. United States, 431 U.S. 324, 360-61, 97 S.Ct. 1843, 1867, 52 L.Ed.2d 396 (1977). . Judgment upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. 28 U.S.C. rule 54(b). . Plaintiffs introduced two types of testimonial evidence: (1) witness accounts of Agency rejection of their job applications upon which they sought to raise an inference of discriminatory motive, and (2) direct evidence of discriminatory motive (e.g., testimony that an interviewer told a job applicant that “he wanted to fill the position with a man,” Tr. at 35; J.A. at 137). Appellants protest that the court improperly focused on witness job qualifications in evaluating the second type of testimony. We do not read the opinion that way. The court held that “the evidence of individual instances of discrimination had [not] been made clear. While several of plaintiffs’ witnesses may have been well-qualified for the positions for which they applied (e.g., Ms. Kobylinski), the qualifications of most of them are very debatable at best.” Medina I at 9, J.A. at 76. The court thus did not infer a pattern or practice of discrimination from the evidence that these women had been denied employment or promotion. To the extent that a witness attempts to establish that an Agency decision not to hire or promote her was motivated by sex discrimination (the first type of testimonial evidence), the qualifications of the witness bear on whether the Agency personnel decision was based on legitimate rather than discriminatory reasons. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44, 97 S.Ct. 1843, 1866 n.44, 52 L.Ed.2d 396 (1977); Presseisen v. Swarthmore College, 442 F.Supp. 593, 601 (E.D.Pa.1977), aff’d, 582 F.2d 1275 (3d Cir. 1978). The court dealt with the second type of testimony by observing that the “testimony concerning the atmosphere of discrimination at the Agency” had been controverted by testimony of defendant’s witnesses that “they had neither perceived, nor experienced, employment practices which were designed to discriminate against, or preclude, the advancement of women in any manner.” Medina I at 10-11, J.A. at 77-78. . Plaintiffs’ expert, for example, testified that he disagreed with defendant’s expert on the classification of “Radio Broadcast Technician.” Q ... [I]n the category “Civil Service Code 3940,” which is listed as radio-broadcast technician, according to your Exhibit 35, you put it in the Census Code 171, radio operator. Is that correct? A That is correct. Q Did you consider the category 153, electronic technician? A I reviewed that category and did not believe that it as accurately represented the appropriate cross-mapping as the category I used. A number of the categories contain multiple references to occupations that are similar. The weight must fall on a more detailed analysis of the job descriptions and the related categories that entail similar work. The difference between those categories essentially would fall into the idea that the Category 153, which its full title is “Electrical and Electronic Engineering Technician,” is a more technical and more skilled occupation than the radio operator. And an examination of the definition in the Handbook of Blue-Collar Occupational Families put out by the Civil Service Commission, the Agency’s own qualification sheet for radio-broadcast technician, and the Standard Occupational Classification Manual, would, in fact, lead one to the conclusion, as it did me, that the appropriate cross-map for radio-broadcast technician is radio operator, rather than the engineer. I could read to you the entire list within the classified index of occupations coming under the categories both electronic and electrical-engineering technicians 153 and radio operators 171. But, just briefly, under radio operator 171, it includes broadcast engineer, control-records and tape-recordings engineer, field engineer, transmission engineer. That is several of them. And if we look at the radio-operator group in the Standard Occupational Classification Manual, the description for that job family “includes occupations involving operating and maintaining radio equipment for communications with aircraft ships and other ground stations and transmitting radio and television broadcasts.” I would also suggest that the job description of the Agency’s own qualifications sheet for radio-broadcast technician and the detailed descriptions described for category 3940, radio-broadcast technician, in the Handbook of Blue-Collar Occupations, published by the U. S. Civil Service Commission, would clearly indicate that we are talking about a radio operator, and not the more detailed and highly skilled electronic-engineering technician, which is Census Code 153. By Ms. Futch: Q Is it then your testimony that, as a matter of professional judgment, you selected category 171 versus 153? A Well, any time there is a difference in this kind of classification, it obviously would entail some professional judgment. I believe a close reading of all of the evidentiary sources suggests that the category that I have selected is appropriate. If we are looking at radio operator 171, let me read further from the Handbook of Blue-Collar Occupational Families, published by the Civil Service Commission, relating to radio-broadcast technician. Some of these descriptions include duties of supervising or performing tasks associated with transmitters and antennas, broadcast studio consoles, radio and TV broadcasts, including starting up and shutting down the transmitter, adjusting tone and volume, monitoring through loudspeakers, headphones, or video, observing volume indicators, making minor repairs and changing parts, and keeping an operating log of the station. That sounds to me pretty much like a radio operator. Tr. 128-31 (May 29, 1979) (testimony of M. Rosenblum). . See Talev v. Reinhardt, 662 F.2d 888, 893 (D.C.Cir. 1981) (ICA’s Worldwide English Division broadcasts for many more hours each day than foreign-language programs). In fact, one of the named plaintiffs applied for a Writer/Editor position which did not require foreign language skills. Tellingly, the defendant has not pointed to evidence, easily accessible to him, of the number of positions that would require specific foreign language skills. . In contrast, in Valentino, the plaintiffs’ expert did not submit qualification data that were available. Valentino v. United States Postal Serv. (USPS), 674 F.2d 56, 71 n.23 (1982) (“Valentino’s statistical analyst had the occupational codes for USPS Headquarters employees at level 17 and above; he did riot explain why he did not pursue analyses utilizing them.”). . The potential for injustice to the claimant argues for a reduced level of proof when relevant qualification data are unavailable; on the other hand, lowering the claimant’s burden of proof increases the risk that the disproportionate impact observed in the record may be improperly attributed to the defendant’s bias when it was caused by the application of legitimate selection criteria. Nevertheless, even if relevant variables are not accounted for in a plaintiffs proof, the disparities in treatment may be sufficiently large to raise legitimate questions about their cause. Both equitable considerations and, in Title VII cases, the policy of the statute, support a rebuttable presumption of an equal distribution of qualifications between minority and majority group applicants when data are unavailable. The presumption should place on the defendant the burden of producing evidence from which it is possible to evaluate the likelihood that the disproportionate impact was caused by unequal qualifications. Possible sources of evidence include: (a) the defendant’s recollection of prior applicants, (b) a random sample of potential applicants or the defendant’s current applicants, (c) data on the qualifications of applicants processed by similarly situated decision makers, and (d) published work force or census data. The justification for placing this burden on the defendant is threefold. First, it was the defendant’s selection process that produced the observed disproportionate impact, and it is he who is alleging that it is the product of differential qualifications among the applicants. Moreover, the defendant has better access to data on the qualifications of applicants than does the plaintiff. Second, the equal qualifications assumption is often reasonable since many unqualified people are deterred from applying by knowledge of qualifications requirements. Third, in Title VII cases, the logic of the Act’s underlying purpose, which places on an employer the burden of justifying an adverse impact produced by a neutral selection rule, suggests that an employer whose discretionary selection process produces a substantial disproportionate impact, whose proof takes into account all relevant qualifications on which data are reasonably available, should shoulder a similar burden of coming forward with evidence that explains those results or suffer the inference that it was intentionally caused. D. Baldus & J. Cole, Statistical Proof of Discrimination 194-95 (1980). . The dissent would affirm on this issue because of “plaintiffs’ failure to adjust their definition of the relevant labor market to account for” the requirement of foreign language skills. Diss. Op. at 1015. We believe the dissent’s analysis to be flawed. First, neither party raised such an objection to the relevant labor pool data at trial; it was raised by the district court in its findings. And then the only reference in those findings to language skills is the one example of a “Cambodian language news analyst/writer/broadcaster.” Medina I at 9, J.A. at 75-76. Second, the dissent would appear to require Title VII plaintiffs in an agency like the ICA to introduce, as part of their prima facie case, applicant flow data to demonstrate the distribution of language skills in the pool of those otherwise qualified. Diss. Op. at 1016 n.3. We cannot agree. Cf. Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977) (“There is no requirement ... that a statistical showing of disproportionate impact must always be based on analysis of the characteristics of actual applicants.”). Applicant-flow data may be “relevant,” Hazelwood School Dist. v. United States, 433 U.S. 299, 308 n.13, 97 S.Ct. 2736, 2742 n.13, 53 L.Ed.2d 768 (1977), but “has to be carefully assessed in light of the particular situation in issue.” Patterson v. American Tobacco Co., 634 F.2d 744, 753 (4th Cir. 1980) (en banc), rev’d on other grounds, - U.S. -, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982). Actual discrimination or the appearance of discrimination may discourage qualified women from applying; also, “[discriminatory recruiting practices may skew the . .. composition of the applicant pool.” Castaneda v. Pickard, 648 F.2d 989, 1003 (5th Cir. 1981) (citing B. Schlei & P. Grossman, Employment Discrimination Law 445 (1976)). Cf. Dothard v. Rawlinson, 433 U.S. at 330, 97 S.Ct. at 2727 (“The application process itself might not adequately reflect the actual potential applicant pool, since otherwise qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory.”). Thus, plaintiffs cannot be required to rely on data that, if their contentions even appear to be true, may be biased against them. But, even in the absence of reliable data, the dissent would punish “plaintiffs’ failure to produce evidence on the matter,” Diss. Op. at 1016 n.3, by refusing to make the logical inference that as many women as men speak any given language either as their mother tongue or as a second language. The dissent hypothesizes that factors not a matter of record, “such as the relative rate of immigration,” id., might affect the distribution of certain language skills. Of course evidence not in the record may also show women more likely than men to be fluent in a second language. See, e.g., Department of Commerce, Statistical Abstract of the United States 1970, at 131 (14,-201 women earned bachelors degrees in foreign languages and literature compared with 5,321 men; 2,794 women, 2,071 men earned master’s; 204 women, 503 men earned doctorates). The real point, however, is that the Census data on which plaintiffs relied did not correlate language with occupational skills, and, for want of this correlation, plaintiffs should not be thrown out of court. Finally, and most importantly, we cannot accept the dissent’s acceptance of the district court’s perception of the prima facie case: “[t]he district court seemed to require proof to a mathematical certainty, but there is no such requirement.” Detroit Police Officers’ Ass'n v. Young, 608 F.2d 671, 687 (6th Cir. 1979), cert. denied, 452 U.S. 938, 101 S.Ct. 3079, 69 L.Ed.2d 951 (1981). Although “[deficiencies in the data base ‘may, of course, detract from the value of such evidence,’ .. . [they] ordinarily would not obliterate its evidentiary value.” Id. (quoting Teamsters, 431 U.S. at 340 n.20, 97 S.Ct. at 1856 n.20). Even so, the Teamsters caveat, echoed in Hazelwood, that labor pool statistics should reflect the qualified population should be understood in the context of a case in which general population figures were submitted. Courts have since questioned whether “general population and work force data [are] appropriate as the basis for statistical comparison” where special qualifications exist, Patterson v. American Tobacco Co., 634 F.2d at 753-54 (emphasis supplied), but “Hazelwood did not entirely rule out [their] use [even] in ‘special qualification’ cases.” Id. at 754 n.15. Here, the base data were not general work force data, but occupation -specific data. The dissent would require job -specific data, but the source of this requirement is unclear. Neither this court nor the Supreme Court has ever required Title VII class action plaintiffs to present nonexistent data on the population qualified for each position, as opposed to particular occupational categories. As we have observed, if such a requirement had been imposed, the statistics used in Hazelwood would have been inadequate for purposes of estimating the qualified population. . Plaintiffs’ retaliation claim was brought under 42 U.S.C. § 2000e-3(a): It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. . Appellants argue that Rule 52(a) also required the court to make findings of fact upon denial of their motion for a preliminary injunction. We regard this issue to be moot. . The court relied in part on a line of cases that establish that only one member of a class need file an EEOC charge. The rationale of this line of cases was explained by Judge Griffin Bell: It would be wasteful, if not vain, for numerous employees, all with the same grievance, to have to process many identical complaints with EEOC. If it is impossible to reach a settlement with one discriminatee, what reason would there be to assume that the next one would be successful. (Emphasis added.) Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968). In class actions this rationale is invariably applicable, for the very fact that the suit is a class action means that the plaintiffs’ claims not only share common questions of law and fact, but those claims are such that representative plaintiffs will fairly and adequately protect the interests of all plaintiffs of the class. Fed.R.Civ.Pro. 23(a)(3) & (4). Foster v. Gueory, 655 F.2d 1319, 1322 (D.C.Cir. 1981). We do not rely on that line of cases here because recent Supreme Court precedent suggests that the class certified here may have been overbroad, General Telephone Co. v. Falcon, - U.S. -, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (employee claiming promotion discrimination was not properly representative of interests of applicants claiming hiring discrimination), and thus we do not presume from the mere fact of Kobylinski’s class membership that there existed shared questions of law and fact. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number. Answer:

songer_casetyp1_5-3

H

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "privacy". Kathleen STRANG, Appellant, v. UNITED STATES ARMS CONTROL AND DISARMAMENT AGENCY. No. 88-5098. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 2, 1988. Decided Jan. 10, 1989. George A. Lehner, for appellant. Robert E. L. Eaton, Jr., Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, for appellee. Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and GIBSON, Senior Circuit Judge. Of the United States Court of Appeals for the Eighth Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d). Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG. RUTH BADER GINSBURG, Circuit Judge: Kathleen Strang is a foreign affairs officer at the United States Arms Control and Disarmament Agency (ACDA). In June 1985, ACDA security officer Berne M. In-dahl began an internal investigation into allegations that Strang had breached security procedures by improperly storing, transporting, and disclosing classified documents. On the basis of Indahl’s findings and the report of a special security panel, Strang was suspended in December 1986 for six months without pay and deprived of her clearance to view Sensitive Compart-mented Information, or “codeword” documents. Strang has since been restored to her position with Top Secret, but not “codeword,” security clearance. In this civil action, Strang seeks, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982 & Supp. IV 1986), and the Privacy Act, id. § 552a, the following relief: release of nine memoran-da generated during Indahl’s investigation and withheld in their entirety by ACDA; amendment of twelve other allegedly inaccurate memoranda in ACDA’s records; and damages for her suspension and loss of codeword clearance, which she claims are the result of ACDA’s intentional or willful maintenance of inaccurate records. The district court, on February 25, 1988, granted summary judgment to ACDA on all counts and Strang now appeals. For the reasons stated herein, we affirm the district court’s grant of summary judgment except as to Strang’s request for the amendment of records concerning her alleged transmission, without proper clearance, of classified information to Japanese officials; we remand that issue for further proceedings in the district court. I. Strang first contends that summary judgment was inappropriate because she was not afforded an adequate opportunity to conduct discovery. Strang, however, did not state with sufficient particularity to the district court—or, for that matter, to this court—why discovery was necessary. We therefore reject this opening argument. Federal Rule of Civil Procedure 56(f) provides that a court may deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion adequately explains why, at that timepoint, it cannot present by affidavit facts needed to defeat the motion. See, e.g., Londrigan v. FBI, 670 F.2d 1164, 1175 (D.C.Cir. 1981); see generally 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2740, at 530-31 (1983). Strang never offered the requisite explanation. She did state generally that discovery “would be invaluable in this case” and would give her “an opportunity to test and elaborate the affidavit testimony already entered.” Joint Appendix (J.A.) at 76. But she never stated concretely why she could not, absent discovery, present by affidavit facts essential to justify her opposition to ACDA’s summary judgment motion. Without some reason to question the veracity of affiants such as Indahl, whom Strang sought to depose in May 1986, Strang’s desire to “test and elaborate” affiants’ testimony falls short; her plea is too vague to require the district court to defer or deny dispositive action. In sum, Strang offered no specific reasons demonstrating the necessity and utility of discovery to enable her to fend off summary judgment; the district court, therefore, acted within the bounds of its discretion in not granting a continuance for Strang to conduct discovery. Strang also objects on appeal to ACDA’s inclusion of two additional affidavits in the agency’s district court reply brief in support of summary judgment; those affidavits, she now maintains, should be regarded as a separate or supplemental motion. Because the affidavits were served on the day of the hearing, she contends, their introduction violates Rule 56(c), which provides that a motion shall be served ten days prior to the hearing. This claim is insubstantial. First, the affidavits merely supported the existing motion and did not constitute a new motion for summary judgment on additional issues or grounds. Cf. Laningham v. United States Navy, 813 F.2d 1236, 1240-41 (D.C.Cir.1987). Second, by her silence in the district court, Strang waived any valid objection she may have had to the late introduction of additional affidavits. She neither objected to the district court’s consideration of the additional affidavits, nor asked for time to respond to them. See Woods v. Allied Concord Financial Corp., 373 F.2d 733, 734 (5th Cir.1967); cf CIA. Petrolera Car-ibe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 409-10 (1st Cir.1985). II. Strang next argues that the district court should not have granted summary judgment to ACDA on her claim for the release of nine memoranda because there are genuine issues of material fact regarding whether the sources of information in those memoranda were promised confidentiality. We reject Strang’s contention, and affirm the district court’s decision, because Indahl’s affidavit provides adequate assurance that the sources were expressly promised confidentiality. FOIA and the Privacy Act both provide for the fullest possible disclosure of agency records to the public, subject to certain exceptions. ACDA asserts that the memo-randa sought by Strang are exempt from the disclosure requirements by FOIA section (b)(7)(D) and Privacy Act sections (k)(2) and (k)(5). FOIA section (b)(7)(D) exempts records or information compiled for law enforcement purposes, but only to the extent that the production of such records or information ... could reasonably be expected to disclose the identity of a confidential source, ... and, in the case of a record or information compiled by ... an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source. 5 U.S.C. § 552(b)(7)(D). Section (k)(2) of the Privacy Act provides that an agency may promulgate rules exempting from the disclosure requirements investigatory material compiled for law enforcement purposes, ... Provided, however, That if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence. Id. § 552a(k)(2). Privacy Act section (k)(5) allows the agency to establish rules exempting investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment ... or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence. Id. § 552a(k)(5). ACDA’s implementing regulations mirror the terms of the statutory exemptions. See 22 C.F.R. §§ 602.-31(g)(4), 603.8(a)(2H3) (1988). As a preliminary matter, we reject Strang’s assertion that the memoranda were not “compiled for law enforcement purposes” within the meaning of section (k)(2). First, Strang did not dispute the applicability of section (k)(2) before the district court. It is firmly established that “issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal.” District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C.Cir.1984); see also id. at 1078. Second, even if this issue were properly preserved for appellate consideration, we do not interpret “law enforcement” as limited to criminal law enforcement, as Strang would have us do; rather, we read the term as encompassing the enforcement of national security laws as well. Although Strang has not been subject to criminal prosecution, her suspension and loss of codeword security clearance resulted from her undisputed breach of national security regulations. See J.A. at 49-53 (letters to Strang from ACDA Director Kenneth Adelman and Administrative Director William Montgomery); id. at 106-09 (memorandum of ACDA special security panel). Because all three exemptions are applicable, the real bone of contention is whether the sources of the information in the nine withheld memoranda were expressly promised confidentiality. ACDA relies on Indahl’s affidavit, which describes the procedures Indahl followed when interviewing individuals about Strang: In each case, at the outset, either I asked whether the source desired confidentiality or I received requests that I understood to be requests for confidentiality. In some instances, the requests were made specifically in terms of “confidentiality.” In others, the requests were cast in such terms as: “this is just between you and me” or “this is not for attribution.” In all cases, I responded with words of agreement such as “this will be treated as confidential” or “O.K.” or “your name will not be used.” The foregoing applies to all sources whose identities have been protected by withholding in whole or in part the particular documents .... I can positively assert that with respect to each source identified in these documents, express promises of confidentiality were given by me under the circumstances just described. In all cases, the requests for and promises of confidentiality were made prior to the origin of the communications that have been withheld in whole or in part.... I have re-examined each of the documents withheld in whole or in part with a view to releasing more information. I have concluded, however, that release of more information would run the risk of disclosing the identities of those to whom express promises of confidentiality were given.... [TJhis is largely because ACDA is such a small organization and several of the sources are or were co-workers. Id. at 44-46. Strang offers no evidence that effectively contradicts this affidavit; the district court did not err, we conclude, in counting it sufficient to support summary judgment. Although the affidavit does not recite a precise verbal formula used in each case, or refer to tangible evidence such as Indahl’s notes, see Brief for Appellant at 24; Reply of Appellant at 5-7, the affidavit is definite enough to assure the court that Indahl expressly promised confidentiality to each individual. This court’s decision in Londrigan v. FBI (Londrigan II), 722 F.2d 840 (D.C.Cir.1983), supports our conclusion. In that case, this court directed the district court to grant summary judgment to the FBI on a section (k)(5) claim. Two kinds of submissions presented in the district court prompted this court’s direction: first, affidavits from six agents, each of whom “affirmed that he conducted all interviews with the understanding that the information furnished and the identity of the interviewee would remain confidential,” even though none of the agents specifically recalled the twenty-year-old investigation at issue; second, “several contemporaneous official communications stating the [FBI]’s confidentiality policy.” Id. at 843. Because Londrigan II involved an investigation that antedated the Privacy Act, the FBI needed to prove only that sources were given an implied promise of confidentiality, a “less strict” standard. Id. In-dahl’s affidavit, however, in contrast to the ones in Londrigan II, recounts the Strang investigation itself and specifically states that Indahl expressly promised confidentiality to all of the sources of information in the withheld documents. It thus satisfies the stricter standard, which calls for proof of an express promise. We therefore affirm the district court’s grant of summary judgment to ACDA on Strang’s claim for release of the nine withheld memoran-da. III. Strang also seeks amendment of three sets of memoranda that she alleges violate section (e)(5) of the Privacy Act; that provision requires an agency to “maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.” 5 U.S.C. § 552a(e)(5). We conclude that the district court properly granted summary judgment with regard to two sets of memoranda, but that summary judgment was premature with respect to the third set. Two memoranda in the investigative file state that Strang “compromised” classified material by leaving her office safe open overnight. J.A. at 12, 17. Strang questions the use of the word “compromise.” She contends that the references to “compromise” present a genuine issue of material fact whether the memoranda are sufficiently accurate to assure fairness. She bases this claim on her assertion that the meaning of the term is not uniform in the record. In some parts of the record, she argues, “compromise” seems to refer to the actual viewing of classified information by unauthorized personnel, see, e.g., id. at 108 (special security panel memorandum stating that “ ‘compromise’ ... can occur where persons not authorized access ... view sensitive information for which they are not cleared”), whereas in other parts the term refers to the exposure of classified information to possible unauthorized access, see id. at 12, 17. Strang then states, without explanation, that the former definition is the “best.” Brief for Appellant at 27. Use of “compromise” therefore violates section (e)(5), she concludes, because ACDA has offered no evidence that any unauthorized person actually viewed the classified information in Strang’s safe. We agree with the district court that in the context of the two memoranda Strang seeks to amend, “compromise” clearly refers to the potential for unauthorized access; i.e., any document that is exposed to possible viewing by unauthorized persons is, for security reasons, presumptively considered compromised: Four co-workers ... and her former supervisor ... stated [that Strang] repeatedly left her safe open overnight in a nonsecure area. This placed codeword material within easy access for compromise _ Consequently she compromised extremely sensitive classified information. Id. at 12. Security violations resulting from open safes where the material was not secured for a short period of time after the close of business until discovery by a guard can result in a finding of remote compromise. However sources disclosed that Ms. Strang had numerous open safe violations over a long period. Id. at 17. Because “compromise” in the context of the relevant memoranda clearly refers to potential unauthorized access to classified information, and because Strang does not dispute the memoranda’s account of her leaving classified documents in an open safe overnight, the memoranda are sufficiently accurate to assure fairness to Strang. Strang’s second amendment request concerns eight undated memoranda in the investigative file compiled by Indahl. Id. at 12-13, 16-22. As the district court pointed out, Indahl has supplied approximate dates for the memoranda and ACDA has made those dates part of the investigative file. See id. at 115. Although Indahl did not recall the precise day he composed each memorandum, his list does provide a close approximation for each, e.g., “early August 1985.” Id. These dates are sufficiently accurate and timely to satisfy section (e)(5). Strang’s third amendment request is more substantial. It involves two memo-randa charging that she transmitted to foreign officials a document containing information not properly cleared for dissemination. Id. at 21, 22. The memoranda refer to Korean officials, but ACDA later found, upon notification from Strang, id. at 89 (Strang affidavit), that the incident in question actually involved Japanese officials. Id. at 73 (note amending memoranda); id. at 135-36 (affidavit of Mary Elizabeth Hoinkes, ACDA Deputy General Counsel). Strang disputes that the document at issue contained uncleared information and argues that there was insufficient evidence of the lack of clearance to support summary judgment for ACDA. In her affidavit, moreover, Strang avers specifically that the information had been cleared for release by five named government officials. Id. at 90. The only proof ACDA presented to the district court that the information was uncleared was the affidavit of Mary Elizabeth Hoinkes, ACDA’s Deputy General Counsel, id. at 131-37, and a letter from ACDA Director Adelman to Strang responding to Strang’s amendment requests, id. at 140-41. Both the Hoinkes affidavit and the Adelman letter merely state the investigation’s conclusion that the information was uncleared; neither submission presents any evidence to support that conclusion. Id. at 136, 140-41. Moreover, neither Hoinkes nor Adelman reveals exactly what information in the document was uncleared: Hoinkes states generally that the document Strang passed to the Japanese officials “contained material which had not been cleared for use in diplomatic channels,” id. at 136, while Adelman claims that “three items in the document” had not been cleared, without specifying what those three items were, id. at 140. The Privacy Act requires that a court consider de novo an agency’s refusal to amend its records. 5 U.S.C. § 552a(g)(2)(A). The lack of evidence before the district court supporting ACDA’s conclusion that some information was uncleared and the court’s Memorandum Opinion make it evident that the court failed to consider this matter de novo: [Defendant concluded after a lengthy investigation that although plaintiff had good and sufficient reason to assume that she was authorized to transmit a properly cleared document, the document that she did transmit had not been properly cleared. Defendant decided to retain this material in the file because it concluded that plaintiff was careless in failing to ensure the necessary clearances. J.A. at 144. ACDA argues that the Act does not require the agency or the court, in its de novo review, to determine whose view is correct, as long as the records generally assure fairness to the individual. Brief for Appellees [sic] at 12. ACDA cites as support for this proposition Doe v. United States, 821 F.2d 694 (D.C.Cir.1987) (en banc). In Doe, the district court had held that the State Department had assured fairness to the plaintiff by including in its records conflicting reports of what she had said in an interview, without stating whose account — Doe’s or the interviewing agent’s —the Department believed. On appeal, this court affirmed, but emphasized that the case was “atypical.” Id. at 699. The presence of only Doe and the agent at the interview made what occurred “unknowable” to third persons. Id. at 700. Under those special circumstances, we held, the agency and the district court, on de novo review, were not required to “find and record ‘truth’ ”; instead, it sufficed to “adjust [the] file equitably to reveal actual uncertainty.” Id. at 701. Doe was thus a narrow decision. See id. at 701-02 n. 20. It surely does not support the broad proposition advanced by ACDA that the district court need not determine definitively the accuracy of the agency’s records, as long as the agency somehow can be said to have acted fairly. The Doe court stated that “ ‘de novo’ ... has no different, diminished meaning in the context” of section (e)(5), but requires “here, as it ordinarily does, a fresh, independent determination of ‘the matter’ at stake; the court’s inquiry is not limited to or constricted by the administrative record, nor is any deference due the agency’s conclusion.” Id. at 697-98. “In the typical Privacy Act case,” the court continued, “it is feasible, necessary, and proper for the agency and, in turn, the district court to determine whether each filed item of information is accurate.” Id. at 699 (emphasis added). This case fits the “typical” mold; it differs from Doe in two key respects. First, the records of the Strang investigation are not ambivalent about what happened; they conclude that Strang passed uncleared information to foreign officials. The agency thus made a final judgment about the occurrence. The court, in turn, must review the evidence de novo to ensure that the agency’s judgment is sufficiently accurate to ensure fairness. Second, the facts at issue here are susceptible of proof. The court can determine what information in the document is actually in question by reviewing the document itself and asking ACDA to point out the items it claims were not cleared. The court can then receive evidence from both sides to determine whether those items were properly cleared. The court might, for example, entertain affidavits from the five individuals Strang claims cleared the document, and receive evidence from ACDA showing what individuals’ clearances were required for the information at issue. If, after reviewing the parties’ submissions, the court determines that a genuine issue of material fact exists as to whether the information received the requisite clearance, the court should deny ACDA’s motion for summary judgment on that issue. In light of the record’s erroneous original assertions that Strang passed information to Korean officials, see supra p. 865, the need for independent, undeferential judicial review is apparent. If, as the Hoinkes affidavit claims, the supporting evidence contains extremely sensitive information, J.A. at 136, the district court can take up Ms. Hoinkes’ offer to present a detailed, classified declaration for in camera review. Id. IV. Finally, Strang asserts a claim for monetary damages under sections (g)(1)(C) and (g)(4) of the Privacy Act; these sections provide that an agency shall be liable for actual damages or no less than $1,000 plus costs and attorneys fees where the agency intentionally or willfully fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual. 5 U.S.C. § 552a(g)(1)(C), (g)(4). Thus, Strang must show, to qualify for damages, that ACDA’s determination to suspend her and revoke her codeword clearance was caused by its intentional or willful failure to maintain accurate records. The district court granted summary judgment on this claim because “there is no suggestion that [ACDA] acted ‘without grounds for believing [its actions] lawful’ or that it flagrantly disregarded the rights guaranteed under the Privacy Act,” J.A. at 145 (quoting Laningham v. United States Navy, 813 F.2d at 1242 (citations omitted)), and because Strang admitted to numerous security violations. Id. We affirm the district court’s grant of summary judgment to ACDA on Strang’s damage claim. The only records whose accuracy is still in question are the memo-randa that deal with the transmission of information to Japanese officials. Even if these memoranda are inaccurate, and even if we indulge the assumption that the agency acted intentionally or willfully, there is ample evidence in the record that the mem-oranda played no part in Adelman’s suspension of Strang and revocation of her codeword clearance. In his December 29, 1986 letter to Strang, Adelman stated that the “suspension is based upon your uncontested violations of security regulations .... This suspension is not based on any information which you have challenged as being inaccurate or incomplete or on any information which has not been fully disclosed to you.” J.A. at 52. Adelman was more specific in his May 6, 1987 letter responding to Strang’s appeal: The matter of transmittal of a document to officials of a foreign government on the occasion of the trip to Seoul and Tokyo in 1984 did not come to our attention until after the August “cutoff” date we had agreed upon with respect to the investigation then being undertaken. In light of this fact, it formed no part of my decision regarding your clearance or suspension from ACDA for six months. Id. at 60. Finally, a note attached to the two memo-randa stating that the alleged incident occurred in Tokyo, not Seoul, and involved Japanese, not Korean, officials repeated another portion of the May 6, 1987 letter: I find no excuse for the carelessness with which the matter was handled. However, after reviewing this matter and after consultation with other interested agencies and taking into consideration the sanctions which have been imposed as a result of the prior investigation, I have decided to take no further action with respect to the document transmitted in Tokyo. Id. at 73; see also id. at 72 (Dec. 10, 1987 letter repeating Adelman’s decision to retain the two memoranda in the record “but to take no further action”). In light of Adelman’s numerous statements that his decision to suspend Strang and revoke her codeword clearance was unrelated to the only two memoranda still at issue, there is no basis on which a reasonable trier could find that the sanctions were causally connected to the memoranda. We therefore affirm the district court’s grant of summary judgment to ACDA on Strang’s damage claim. CONCLUSION For the reasons stated in this opinion, we reverse the district court’s grant of summary judgment to ACDA on Strang’s request to amend the records concerning her transmission of allegedly uncleared information to foreign officials; we remand that issue for de novo review of the parties’ evidence, in camera if and to the extent necessary. In all other respects, we affirm the district court’s grant of summary judgment to ACDA. IT IS SO ORDERED. . On December 16, 1986, the district court had denied ACDA’s summary judgment motion on Strang’s claim for release of documents because there then appeared to be a genuine issue of material fact as to whether the sources of the information in the documents were given express promises of confidentiality; the district court simultaneously had denied ACDA's motion to dismiss Strang’s record amendment claims for failure to exhaust administrative remedies. Following that decision, ACDA granted some of Strang’s amendment requests and supplemented the record with Indahl’s affidavit attesting that he expressly promised confidentiality to the sources. See Joint Appendix (J.A.) at 142 (Feb. 25, 1988 Memorandum Opinion). . Vymetalik v. FBI, 785 F.2d 1090 (D.C.Cir.1986), does not contradict our interpretation of section (k)(2). In that case, this court held that section (k)(2) did not apply to records compiled during an investigation of an FBI job applicant. The court stated that such records fell clearly within the scope of section (k)(5) because they were gathered for the purpose of determining the applicant’s ‘"suitability, eligibility, or qualifications for Federal'" employment. Id. at 1095 (quoting 5 U.S.C. § 552a(k)(5)). “To hold that all employment investigation records fall within the law enforcement records exemption,” the court reasoned, "would read subsection (k)(5) ... out of the statute.” Id. at 1096. Unlike Vymetalik, this case involves not a job applicant undergoing a routine check of his background and his ability to perform the job, but an existing agency employee investigated for violating national security regulations. Thus, sections (k)(2) and (k)(5) are both by their terms fully applicable. . Although FOIA section (b)(7)(D) refers to “confidential source” rather than express promises of confidentiality per se, we see no reason— and neither party offers any—to treat that section’s reference to confidentiality differently from Privacy Act sections (k)(2) and (k)(5) in this case. . We are not persuaded by Strang’s attempts to show that Indahl had a “clear bias” against her. See Brief for Appellant at 25. Moreover, we fail to see how her allegations show that Indahl did not promise confidentiality. Strang features statements made by ACDA Director Adelman in a letter to Administrative Director Montgomery that ”[t]he investigation ... was conducted with insufficient attention given to the employee’s side of the case” and "[tjhere was an effort by some co-workers to cast Ms. Strang in the worst possible light.” J.A. at 85. These observations, however, do not materially support Strang’s claim that Indahl did not promise confidentiality to his sources. See Brief for Appellant at 24. The fact that Indahl contacted the sources after the investigation to ask whether they still desired confidentiality, see J.A. at 45, does not prove that Indahl did not promise confidentiality to the sources before they provided information. See Brief for Appellant at 24. Finally, Indahl’s initial failure to date other disclosed memoranda containing negative statements from unidentified sources in no way proves that Indahl did not promise confidentiality to the sources of the withheld memoranda. See id. at 25. . In Londrigan v. FBI (Londrigan I), 670 F.2d 1164 (D.C.Cir.1981), an earlier consideration of the same case, this court held that something more was necessary than the affidavit of an FBI FOIA-Privacy Act administrator who was not involved in the investigation at issue and had not even sought information from ,the investigating agents, and who averred merely that "all information compiled by the agency [during the period of the investigation] was acquired pursuant to implied pledges of [confidentiality].” Id. at 1173; see also Nemetz v. Department of Treasury, 446 F.Supp. 102, 105 (N.D.Ill.1978) (holding that general allegations of agency’s policy of promising confidentiality were insufficient to trigger (k)(5) exemption). Upon remand, the FBI offered the affidavits of agents involved in the Londrigan investigation and the agency’s routine instructions, operative during the investigation, concerning confidentiality. See Londrigan II, 722 F.2d at 843. . In her brief, Strang presses the additional argument that the district court should have examined the withheld documents in camera to determine de novo whether ACDA could release any portions without disclosing the identity of confidential sources. Brief for Appellant at 37-38. As Strang's counsel made evident at oral argument, however, and as our review of the transcript of the district court hearing shows, see J.A. at 147-78, Strang did not raise this issue below and therefore did not properly preserve it for appeal. See District of Columbia v. Air Florida, 750 F.2d 1077, 1078, 1084 (D.C.Cir.1984). . In her brief, Strang also requests that the names of the sources of unattributed statements be added to the file. Brief for Appellant at 19, 31. Yet again, however, Strang did not properly preserve this issue for appeal because she never raised it before the district court. Question: What is the specific issue in the case within the general category of "privacy"? A. abortion rights B. homosexual rights where privacy claim raised C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502) D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits) E. mandatory testing (for drugs, AIDs, etc) F. mandatory sterilization G. right to die or right to refuse medical help H. other Answer:

songer_appel2_1_2

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". FIGGE AUTO CO., a Co-Partnership, and Greg Figge, Individually, and Lloyd H. Strand, Administrator of the Estate of Cyril R. Figge, Deceased, Appellants, v. David James TAYLOR, by Mrs. Arlene Taylor, His Mother and Next Friend, Appellee. No. 17393. United States Court of Appeals Eighth Circuit. Jan. 7, 1964. Arthur H. Jacobson, Waukon, Iowa, James D. Bristol, Waukon, Iowa, Jacobson & Bristol, Waukon, Iowa, of counsel, for appellants. Ira J. Melaas, Jr., Decorah, Iowa, Frank R. Miller and Floyd S. Pearson, Decorah, Iowa, Miller, Pearson & Melaas, Decorah, Iowa, for appellee. Before VOGEL, BLACKMUN and RIDGE, Circuit Judges. VOGEL, Circuit Judge. David James Taylor, by his mother and next friend, brought this action against Figge Auto Company, a co-partnership, and Cyril R. Figge and Greg Figge, co-partners, individually, defendants, and Lloyd H. Strand, Administrator of the estate of Cyril R. Figge, deceased, substituted defendant. All parties will be designated here as they were in the court below. Plaintiff sought money damages because of personal injuries sustained by him as the result of an automobile accident. Diversity of citizenship and amount meet federal court jurisdictional requirements. The case was tried to a jury and resulted in a verdict in plaintiff’s favor in the amount of $22,509. Defendants appealed from the judgment based upon the jury verdict. Error is predicated upon: 1. The District Court’s overruling defendants’ motions for directed verdict and for judgment notwithstanding the verdict. 2. The District Court’s overruling defendants’ motion to clarify a pre-trial order with reference to $1,509 medical expense and the inclusion of such amount in the jury’s verdict. It is defendants’ contention that because plaintiff was a minor, the right to recover for medical expenses would be owned by his parents and testimony regarding such expense was therefore irrelevant in this action. The first claim of error is based mainly upon defendants’ contention that the plaintiff was guilty of contributory negligence as a matter of law, that he therefore failed to sustain the burden of proving freedom from contributory negligence (a requirement under the law of Iowa) and, further, that the driver of the defendants’ car was not guilty of negligence. As in practically all tort cases, there are here conflicts in the evidence and disputes between witnesses and parties, from which tangled web it was the duty of the jurors, as the finders of the facts, to ascertain and to declare the truth. This they have done as they saw it. That was their responsibility. This as an appellate court, in ruling upon the correctness of the trial court’s overruling a motion for a directed verdict and a motion for judgment notwithstanding the verdict, must view the evidence in the light most favorable to sustaining the jury’s findings. We must also give to the prevailing party the benefit of every reasonable inference that may be drawn from the evidence. MacDonald Engineering Co. v. Hover, 8 Cir., 1961, 290 F.2d 301; Clinton Foods, Inc. v. Youngs, 8 Cir., 1959, 266 F.2d 116, 117-118; Nesei v. Willey, Iowa, 1956, 247 Iowa 621, 75 N.W.2d 257, 259; Gowing v. Henry Field Co., 1938, 225 Iowa 729, 281 N.W. 281, 283; and Goman v. Benedik, 1962, 253 Iowa 719, 113 N.W.2d 738, wherein the Supreme Court of Iowa stated, at page 739 of 113 N.W.2d: “ * * * It is not disputed by appellant, that we must view the evidence in the light most favorable to plaintiff; that it is only the exceptional case in which the issue of freedom from contributory negligence should not be submitted to the jury — only where such negligence is so palpable, flagrant and manifest that reasonable minds may fairly reach no other conclusion; that if there is any evidence tending to establish plaintiff’s freedom from contributory negligence, the question is one of fact for the jury and doubts should be resolved in favor of such submission.” As Judge John Sanborn said in Glawe v. Rulon, 8 Cir., 1960, 284 F.2d 495, 497: “It must be kept in mind that this Court will not concern itself with doubtful issues of fact which were for the jury nor with doubtful issues of local law as to which the trial court has reached a permissible conclusion. Webb v. John Deere Plow Co., Inc., 8 Cir., 260 F.2d 850, 852. In that case we said (at page 852): ‘Personal injury eases such as this are essentially fact cases, and it is rarely that a party aggrieved by the verdict of the jury can, on appeal, successfully visit his grievance against the jury upon the trial court.’ See, also, Greene v. Werven, 8 Cir., 275 F.2d 134, 137-138. It seems safe to say that as a general rule the verdict of the jury marks the end of such a case.” See Minnesota Mutual Life Ins. Co. v. Wright, 8 Cir., 1963, 312 F.2d 655; Gulf, Mobile & Ohio R. Co. v. Thornton, 8 Cir., 1961, 294 F.2d 104; Hanson v. Ford Motor Co., 8 Cir., 1960, 278 F.2d 586; and Greene v. Werven, 8 Cir., 1960, 275 F.2d 134. Having these rules in mind and notwithstanding that there is evidence to the contrary, the record indicates and the jury could have found and undoubtedly did find the following: The accident occurred on August 14, 1960, at about 12:30 in the morning on a highway between the towns of Calmar and Ossian, Winneshiek County, Iowa. The main traveled portion of the highway was concrete pavement eighteen feet in width and running in an east-west direction. There was an asphalt strip on the south shoulder of the concrete some twelve to eighteen inches wide. The grass shoulder on the south side of the highway measured from eight to eight and one-half feet. The shoulder on the north side of the highway measured approximately seven and a half feet in width. There was a slight drizzle of rain at the time. The plaintiff, then 17 years of age, (20 years old at the time of trial), accompanied by his father, the owner of the car, his mother and four younger sisters and a brother, was driving in an easterly direction on the highway when the left tire on a trailer the family ear was pulling went flat. Plaintiff drove the car and trailer off onto the south shoulder of the highway two to three feet from the main traveled portion of the road. Plaintiff and his father unhooked the trailer from the automobile and the plaintiff prepared to change the tire on the trailer. In the meantime, his father took the car, drove on farther east to a point where he could turn around, which he did, returned to the scene of the accident, and parked his car on the south shoulder of the highway facing west with the headlights shining upon the trailer. The lights were on low beam. Plaintiff began working on the wheel and tire of the trailer. While he was doing so, at least three cars approached from the west going east and passed them safely without any incident whatsoever. At this time Cyril R. Figge, accompanied by his wife, minor son and two minor daughters, was enroute home to Ossian, Iowa, having left Pine Bluff, Wyoming, the morning of August 13, 1960. He was traveling in an easterly direction. There is credible evidence supporting the view that he was traveling at a high rate of speed estimated at 60 to 70 miles per hour; that as he came over a slight rise in the highway approximately 700 feet west of the Taylor vehicles, he saw the headlights of the Taylor car and said to his wife, “I just can’t understand what is ahead of us.” As he approached the Taylor vehicles, he swung to his right onto the south shoulder, striking the plaintiff, the parked and disabled trailer and knocking the Taylor car backward across the highway and into the ditch on the north side. There is substantial evidence in the record supporting the jury’s finding that Cyril R. Figge was guilty of negligence which was a proximate cause of the accident. It requires no detailed discussion. Under the law of Iowa the plaintiff in such a case as this must plead and prove freedom from contributory negligence before he may recover. Scott v. Chicago, Rock Island & Pacific R. Co., 8 Cir., 1952, 197 F.2d 259, 260; Fort Dodge Hotel Co. of Fort Dodge, Iowa, v. Bartelt, 8 Cir., 1941, 119 F.2d 253, 258; Paulsen v. Haker, 1959, 250 Iowa 532, 95 N.W.2d 47, 55. It is also the law of Iowa, and so conceded by counsel for the defendants, that the negligence of the father is not attributable to his minor child, so that here, if the plaintiff’s father was guilty of negligence, that fact in itself does not establish that the plaintiff was guilty of negligence by imputation. See Wheatley v. Heideman, 1960, 251 Iowa 695, 102 N.W.2d 343, at page 353 of 102 N.W.2d; Primus v. Bellevue Apartments, 1950, 241 Iowa 1055, 44 N.W.2d 347, 25 A.L.R.2d 565; Ives v. Welden, 1901, 114 Iowa 476, 87 N.W. 408. The main, if not the only question regarding liability is whether the jury’s finding that plaintiff was not guilty of contributory negligence is supported by the evidence or if such finding is so contrary to the conclusion which would be reached in the minds of reasonable men that it must be set aside as a matter of law. Plaintiff himself has no recollection of the collision. He does recall three cars approaching from the west and passing him without interference as he worked on the tire. His last recollection is of turning around and attempting to wash some grease from one of his hands. He was on the shoulder of the highway. While aside from general rules of law which have been referred to, these cases generally speaking must be determined on a case-to-case basis. Nevertheless, the Supreme Court of Iowa, by whose decisions we are herein bound, has had occasion to pass upon fact situations not too dissimilar from that with which we are here concerned and in doing so has laid down guide lines to assist in determining this one. Such a case is Hanson v. Manning, 1931, 213 Iowa 625, 239 N.W. 793. The accident there occurred on an east-west highway at about 5:30 p. m. November 20, 1929. It was dark. Plaintiff was a guest in a car which had been headed east and was stopped on its right or south side of the highway about one and one-half feet from the south edge of the main traveled portion thereof and so stopped in order to repair a left rear tire. A service car, facing west, was backed within ten to fifteen feet of the disabled car. The road was dry and straight. A light from the rear of the service car furnished light between the two cars where the repairmen were working. Defendant’s car came from the west, passed the service car on the south side, striking the open front door of the disabled car and hitting the plaintiff as he was facing north and about to get into the car from the right side. Defendant’s was the only car that evening that tried to pass to the south of the vehicles. All other traffic had passed on the north side without incident. Because of erroneous instructions, the Supreme Court reversed a jury’s verdict and judgment for the defendant and directed a new trial. In doing so, the court stated at pages 796 and 797 of 239 N.W.: “Negligence is a relative term. Both plaintiff and defendant were bound to exercise ordinary or reasonable care. Whether either or both have done so depends on the circumstances of the case. When from the facts and circumstances reasonable minds might come to different conclusions as to whether ordinary care was exercised or not, the question is for the jury. Wine v. Jones, 183 Iowa, 1166, 162 N.W. 196, 168 N.W. 318; Vass v. Martin, 209 Iowa, 870, 226 N.W. 920; Spiker v. Ottumwa, 193 Iowa, 844, 849, 186 N.W. 465. “Plaintiff, or rather the owner of the car, had the right to stop, using reasonable care, and the owner and his employees had the right to make repairs and to use the highway in reasonable manner, exercising reasonable care, for that purpose. They were not trespassers, though they might have been negligent. Schacht v. Quick, 178 Wis. 330, 190 N.W. 87, 25 A.L.R. 130. Presence on one side of the street or the other is not per se negligence. Dickeson v. Lzicar, 208 Iowa, 275, 225 N.W. 406; Simrell v. Eschenbach, 303 Pa. 156, 154 A. 369; Billingsley v. McCormick Transfer Co., 58 N.D. 913, 228 N.W. 424, 426; Schacht v. Quick, 178 Wis. 330, 190 N.W. 87, 25 A.L.R. 130. ****** “The defendant in argument assumes that the lights of the repair truck blinded or deceived defendant, and that defendant did not know that the repair truck was standing still and was deceived into thinking that the repair truck was a moving car. Defendant assumes that defendant did not see the truck or tower light or observe that a car was stationed in the rear of the truck, and assumes that defendant did not know, and in the exercise of reasonable care would not have known, that persons were or might be standing about the truck and car and in peril from his automobile. These matters were for the jury, not fpr the court. “Plaintiff was not required as matter of law to keep a constant lookout for approaching vehicles. He was only required to exercise ordinary care. Whether he did so or not is a question of fact for the jury. Wine v. Jones, 183 Iowa, 1166, 1170, 162 N.W. 196, 168 N.W. 318; Spiker v. Ottumwa, 193 Iowa, 844, 849, 186 N.W. 465; Smith v. Spirek, 196 Iowa, 1328, 1333, 195 N.W. 736; 42 C.J. 1135. (Emphasis supplied.) ****** “ * * * Plaintiff was not required to anticipate negligence on the part of the drivers of approaching vehicles. Id.; Shields v. Holtorf, 199 Iowa, 37, 201 N.W. 63; Pixler v. Clemens, 195 Iowa, 529, 532, 191 N.W. 375; 45 C.J. 954.” Another such case is Janes v. Roach, 1940, 228 Iowa 129, 290 N.W. 87. There a stalled Chevrolet was parked facing west on the north shoulder of a generally east-west highway, with the left rear tire on the pavement. Plaintiff was driving a truck in the opposite direction. He passed the Chevrolet and then parked his truck on his right or gouth shoulder of the pavement, leaving the headlights lighted. Plaintiff left his truck, crossed the highway and was standing in front of the stalled Chevrolet. Defendant, traveling in the same direction as that in which the Chevrolet had been traveling and opposite to that in which plaintiff’s truck had been traveling, ran into the rear of the Chevrolet, which struck the plaintiff, causing injuries which were the basis of his cause of action. In sustaining a judgment based on a verdict of the jury in plaintiff’s behalf, the Supreme Court of Iowa said, at page 90 of 290 N.W.: “The contention that appellee was guilty of contributory negligence as a matter of law is without merit. He was not standing upon the travel-led portion of the highway and was not required, as a matter of law, to keep a constant lookout for vehicles approaching upon the pavement or to anticipate that another automobile would be driven against the rear of the Chevrolet. He was only required to exercise ordinary care. Whether or not he did so was a question for the fury. Hanson v. Manning, 213 Iowa 625, 239 N.W. 793; Townsend v. Armstrong, 220 Iowa 396, 260 N.W. 17. The court also instructed the jury that the parking of appellee’s truck on the opposite side of the highway unattended, with motor running and without proper flares, would constitute negligence and submitted to the jury the question of whether or not such negligence contributed to the accident. No reversible error appears in either of said instructions.” (Emphasis supplied.) See, also, Marts v. John, 1949, 240 Iowa 180, 35 N.W.2d 844, 846, and Engle v. Nelson, 1935, 220 Iowa 771, 263 N.W. 505, citing with approval the Hanson case, supra, and stating at page 508 of 263 N.W.: “ * * * In that case we held that the ‘plaintiff was not required * * * to keep a constant lookout for approaching vehicles. He was only required to exercise ordinary care. Whether he did so or not is a question of fact for the jury.’ ” The principle that it is for the jury to determine whether or not the plaintiff exercised the standard of care required of him was recently reiterated by the Supreme Court of Iowa in Mundy v. Olds, 1961, 252 Iowa 888, 109 N.W.2d 241, 242: “ * * * Whether or not appellee, in view of the conflict in the testimony, exercised due care under the circumstances for his personal safety, presents a question upon which reasonable minds might well differ. There is substantial proof in the record supporting each party in his contention. It was clearly a fact question for the jury and this Court on appeal will not reweigh the evidence and substitute its opinion for that of the jury. Schoonover v. Fleming, 239 Iowa 539, 32 N.W.2d 99; L. & W. Const. Co. v. Kinser, 251 Iowa 56, 99 N.W.2d 276.” Defendants rely heavily on Denny v. Augustine, 1937, 223 Iowa 1202, 275 N.W. 117, and Fortman v. McBride, 1935, 220 Iowa 1003, 263 N.W. 345. Each is clearly distinguishable on the facts and is of no help to defendants herein. Other cases cited have been considered and found not to be applicable. We conclude that on defendants’ first point, a jury question as to contributory negligence was presented and that the trial court properly overruled the motion for a directed verdict and the motion for judgment n. o. v. Defendants’ second point questions the propriety of allowing the jury to include in the verdict the amount of the plaintiff’s medical expense. In plaintiff’s complaint, he sought recovery for medical and hospital expense attributable to his injuries in the amount of $1,693.37. No particular point of the fact that the plaintiff was a minor was made in the defendants’ answer. After a pre-trial conference held on September 18, 1961, before the Honorable John W. Delehant, United States District Judge sitting by assignment, the following order was made: “The admissions of fact or of documents which will avoid unnecessary proof: “b) After discussion between counsel, counsel for the defendants agreed to waive the foundation for the introduction in evidence upon the trial of statements or bills for items of expense for which claim is made by the plaintiff but with the understanding that the defendants reserve the right to object to the admission of any such statement or bills in evidence on the ground of relevancy or materiality.” On November 21, 1962, the attorneys for the parties reported to the court on what apparently was a “preliminary pre-trial conference”, in which they stated: “11. The following medical and hospital bills have been identified in pencil as preliminary pre-trial exhibits : “Preliminary Pre-Trial Exhibit Numbers 1. French’s Funeral Home, ambulance service .... $ 15.00 2. Smith Memorial Hospital, hospital expense 1,191.87 3. Garfield Miller, M. D., medical ............. 390.00 4. D. W. Wright, M. D. .. 10.00 5. E. R. S. Wyatt, medical 50.00 6. Kitchener-Waterloo Hospital ............ 44.00 “Defendants agree to waive the foundation for the introduction in evidence upon the trial of the above exhibits but with the understanding that the defendants reserve the right to object to the admission of any such exhibit on the ground of relevancy or materiality. Defendants agree that the amounts stated in the various exhibits above set forth are fair and reasonable values for the services for which the charges are made. The foregoing exhibits are retained in the file of the plaintiff’s attorney and will be produced upon pre-trial conference. “29. The parties call the Court’s attention to the pre-trial conference report made by the Hon. John W. Delehant on September 18, 1961.” On January 31, 1963, the Honorable Edward J. McManus, to whom the preliminary pre-trial conference report had been presented, made the following “Final Pre-Trial Order”: “1. * * * It is further stipulated that as a result of injuries received in the collision, plaintiff sustained damages for medical and hospital expenses in the total sum of $1,509.00 and that a person the age of plaintiff at the time of trial has a life expectancy of 50.37 years. It is further stipulated that plaintiff sustained hospital and doctor expenses in the sum of $191.87 as a result of mononucleosis, but the defendant objects to its causal connection with the collision.” (Emphasis supplied.) On April 22, 1963, the day the case opened for trial before a jury, defendants’ counsel filed a motion to clarify the final pre-trial order entered January 31, 1963, supra. The motion was resisted by plaintiff’s counsel. Judge McManus overruled defendants’ motion, stating, inter alia: “In view of the stipulation and the final pre-trial order of January 31, 1963, the Court is going to, and does, overrule the motion to clarify the final pre-trial order with the feeling that the interest of justice dictates the decision under the circumstances of the case.” During trial and just before the plaintiff rested, plaintiff’s counsel, without objection by the defendants, read the following stipulation into the record before the jury: “Mr. Melaas: The parties stipulate and agree that on August 14, 1960, at 12:30 Á.M., a collision occurred between an automobile being driven and operated by Cyril R. Figge and certain motor vehicle equipment with which the plaintiff was working, and that as a direct result of such collision plaintiff was injured. It is further agreed that at such time and place the Corvair automobile operated by Cyril R. Figge was owned by the Figge Auto Company, a partnership consisting of Cyril R. Figge and Gregg Figge as co-partners, and that at the time of the collision the defendant, Cyril R. Figge, who is now deceased, was driving the automobile with the consent of its owner. “It is further stipulated — I should read about the medical. “The Court: Now this paragraph of the stipulation covers the matters in your medical and hospital bills, Exhibits Q to U, inclusive, and this will be for the particular benefit of the jury as far as the totals involved are concerned. “Mr. Melaas: It is further stipulated that as a result of the injuries received in the collision, plaintiff sustained damages for medical and hospital expense in the total sum of $1509.00, and that a person the age of the plaintiff at the time of trial has a life expectancy of 50.37 years. “It is further stipulated that plaintiff sustained hospital and doctor expenses in the sum of $191.87 as a result of mononucleosis, but the defendants object to its causal connection with the collision. The Court has sustained defendants’ objection to the hospital and doctor expenses in the sum of $191.87 that are attributable to the mononucleosis. The Court has admitted into evidence the bills totalling $1509.00 for the medical and hospital expense as stipulated to by the parties.” (Emphasis supplied.) In charging the jury, the trial court stated: “Plaintiff alleges that by reason of his claimed injuries, proximately resulting from the accident involved in this case, he has sustained general damages in the sum of $75,000.00 and has lost an additional sum of $1,693.37 on account of medical and hospital expenses.” No exception was taken to such charge. During their deliberations the jurors sent a note to the trial judge as follows: “Does the amount to be placed on the face of the verdict include the medical expenses. “Example: of his recovery at $40,000.00 or $41,509.00. “This is just an example attach no significance to figures. “Mr. A. P. DeLong, Foreman.” The court gave the following supplemental instruction, to which no exception was taken: “In answer to your request for supplemental instruction, you are instructed that the amount to be placed on the form of the verdict should include the medical expense, if the jury finds the plaintiff is entitled to recover.” The verdict was for $22,509, obviously giving the plaintiff $1,509 medical expense incurred by reason of the accident and excluding the $191.87 medical ex-' pense attributed to mononucleosis, to which defendants had particularized objections while stipulating that “ * * * plaintiff sustained damages for medical and hospital expenses in the total sum of $1,509.00.” We think the following matters are supportive of our opinion that no error has been committed: (1) The failure of defendants’ counsel to object to the reading of the stipulation before the jury during the trial of the case; (2) the failure of defendants’ counsel to object to the court’s charge with reference to the medical expense; and (3) the failure of the defendants’ counsel to object to the supplemental instruction with reference to medical expense. Under Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A., no party may assign as error -the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. With reference to possible exceptions to the applicability of Rule 51, Federal Rules of Civil Procedure, 28 U.S.C.A., Vol. 2B, Barron and Holtzoff, Federal Practice and Procedure, 1961 edition, states at page 475: “ * * * if there is to be a plain error exception to Rule 51 at all, it should be confined to the exceptional case where the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings.” We do not consider this such a case but, rather, that if there was error at all, it was harmless error within the provisions of Rule 61, Federal Rules of Civil Procedure, 28 U.S.C.A. Additionally, it should be pointed out that at the time of trial plaintiff was earning $67 a week as a technician for the Naugatauk Chemicals; that he was also operating the family farm; and that he was raising rabbits commercially. It may well be that he had himself paid the medical expenses or had promised to pay for them. Furthermore, under Section 599.2 of the Iowa Code Annotated there could well be a secondary liability on the plaintiff even though he was a minor at the time of trial. In any event, the stipulation entered into by the parties through their counsel to the effect that “ * * * plaintiff sustained damages for medical and hospital expenses in the total sum of $1,509.00” (emphasis supplied) and their particularization in the stipulation with reference, to their objections to the $191.87 expense for mononucleosis because it was not connected with the accident, may-very well have led counsel into believing,, as we think it did, that no proof of payment or obligation to pay or further establishment of personal liability on the part of the plaintiff himself was necessary. For all of the reasons given, we believe that the inclusion in the general verdict of the stipulated $1,509 medical expense as damages sustained by the plaintiff “as a result of injuries received in the collision” was not error but was substantial justice. Affirmed. . Both plaintiff’s father and Cyril R. Figge, driver of the Figge car, became deceased subsequent to the accident and before trial in the Distinct Court. Neither death is connected with this accident. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:

sc_issue_2

41

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. LOEFFLER v. FRANK, POSTMASTER GENERAL OF THE UNITED STATES No. 86-1431. Argued January 11, 1988 Decided June 13, 1988 Blackmun, J., delivered the opinion of the Court, in which BRENNAN, Marshall, Stevens, and Scalia, JJ., joined. White, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor, J., joined, post, p. 566. Kennedy, J., took no part in the consideration or decision of the case. Lisa S. Van Amburg argued the cause and filed briefs for petitioner. Charles A. Rothfeld argued the cause for respondent. With him on the brief were Solicitor General Fried, Deputy Solicitor General Ayer, John F. Daly, and Stephen E. Alpem. Julius LeVonne Chambers, Gail J. Wright, and Charles Stephen Ralston filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal. Justice Blackmun delivered the opinion of the Court. This case presents the question whether prejudgment interest may be awarded in a suit against the United States Postal Service brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. I Petitioner Theodore J. Loeffler was discharged from his position as a rural letter carrier for the United States Postal Service. Petitioner appealed his termination to the Merit Systems Protection Board and, when his discharge was affirmed there, sought administrative relief from the Equal Employment Opportunity Commission. This, also, was without success. Contending that his discharge resulted from sex discrimination, petitioner subsequently brought this suit against the Postmaster General of the United States in his official capacity, pursuant to § 717 of Title VII, as amended, 42 U. S. C. §2000e-16. After a bench trial, the United States District Court for the Eastern District of Missouri concluded that petitioner was a victim of discrimination and ordered his reinstatement with backpay. App. to Pet. for Cert. A-26. Relying on a decision of its controlling court, Cross v. USPS, 733 F. 2d 1327, 1332 (CA8 1984) (en banc), cert. denied, 470 U. S. 1051 (1985), the District Court refused to award prejudgment interest. App. to Pet. for Cert. A-21. (In Cross, an equally divided Court of Appeals had affirmed the same District Judge’s conclusion that sovereign immunity barred an award of prejudgment interest in a Title VII suit against the Postal Service.) The United States Court of Appeals for the Eighth Circuit affirmed the denial of prejudgment interest. Loeffler v. Carlin, 780 F. 2d 1365, 1370-1371 (1985). Concluding that the District Court’s reliance on Cross was “understandable and proper,” id., at 1370, the court stated: “If the question of prejudgment interest is to be reconsidered, it should be reconsidered by the Court en banc.” Id., at 1371. Subsequently, the Eighth Circuit undertook that en banc reconsideration, and, by a 6-to-5 vote, affirmed the judgment of the District Court. Loeffler v. Tisch, 806 F. 2d 817 (1986). The majority adopted the reasoning of the majority of the original panel in Cross, 733 F. 2d 1327, which concluded that Congress had not waived the sovereign immunity of the Postal Service with regard to prejudgment interest in a Title VII suit. The majority found its conclusion “strongly reinforced” by this Court’s recent decision in Library of Congress v. Shaw, 478 U. S. 810 (1986), which the majority interpreted as “holding that Congress, in enacting Title VII, did not waive the Government’s immunity from interest.” 806 F. 2d, at 818. In the majority’s view, Congress’ provision in the 1970 Postal Reorganization Act, 39 U. S. C. § 401(1), that the Postal Service may “sue and be sued” was irrelevant to the question before it, because “a sue-and-be-sued clause does not expand the obligations of a federal entity in a suit brought pursuant to another statute that is itself a waiver of immunity and which constitutes an exclusive remedy.” 806 F. 2d, at 819. The 5-judge dissent adopted the reasoning of the dissent in the Cross panel submission. That dissent had concluded that “limits on prejudgment interest have been imposed solely because of the barrier of sovereign immunity,” 733 F. 2d, at 1332, and that the sue-and-be-sued clause in the Postal Reorganization Act had eliminated that barrier in actions against the Postal Service. The dissent noted this Court’s observation in Shaw: “ ‘The no-interest rule is . . . inapplicable where the Government has cast off the cloak of sovereignty and assumed the status of a private commercial enterprise.’” 806 F. 2d, at 822, quoting Shaw, 478 U. S., at 317, n. 5. In the dissent’s view, the Postal Service fits within this exception and, therefore, “an award of prejudgment interest against the Postal Service under Title VII is not barred by sovereign immunity.” 806 F. 2d, at 823. Because of a conflict with the views of the Eleventh Circuit expressed in Nagy v. USPS, 773 F. 2d 1190 (1985), we granted certiorari to decide whether, in a Title VII suit, prejudgment interest may be awarded against the Postal Service. Sub nom. Loeffler v. Tisch, 483 U. S. 1004 (1987). H > The question of statutory interpretation here presented, involving the interaction of the Postal Reorganization Act and Title VII, lends itself to straightforward resolution. Absent a waiver of sovereign immunity, the Federal Government is immune from suit. United States v. Sherwood, 312 U. S. 584, 586 (1941). Congress, however, has waived the sovereign immunity of certain federal entities from the times of their inception by including in the enabling legislation provisions that they may sue and be sued. In FHA v. Burr, 309 U. S. 242, 245 (1940), the Court explained: “[S]uch waivers by Congress of governmental immunity . . . should be liberally construed. . . . Hence, when Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to ‘sue and be sued,’ it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general authority to ‘sue and be sued’ is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the ‘sue and be sued’ clause in a narrow sense. In the absence of such showing, it must be presumed that when Congress launched a governmental agency into the commercial world and endowed it with authority to ‘sue or be sued,’ that agency is not less amenable to judicial process than a private enterprise under like circumstances would be.” (Footnote omitted.) Accord, Franchise Tax Board of California v. USPS, 467 U. S. 512, 517-518 (1984); Reconstruction Finance Corporation v. J. G. Menihan Corp., 312 U. S. 81, 84-85 (1941); see also Keifer & Keifer v. Reconstruction Finance Corporation, 306 U. S. 381 (1939). Encompassed within this liberal-construction rule is the principle “that the words ‘sue and be sued’ normally include the natural and appropriate incidents of legal proceedings.” J. G. Menihan Corp., 312 U. S., at 85. In accord with this approach, this Court has recognized that authorization of suits against federal entities engaged in commercial activities may amount to a waiver of sovereign immunity from awards of interest when such awards are an incident of suit. For example, in Standard Oil Co. v. United States, 267 U. S. 76 (1925), the Court reviewed a suit brought under § 5 of the Act of September 2,1914, ch. 293, 38 Stat. 711, on insurance claims issued by the Bureau of War Risk Insurance. The Court concluded: “When the United States went into the insurance business, issued policies in familiar form and provided that in case of disagreement it might be sued, it must be assumed to have accepted the ordinary incidents of suits in such business.” 267 U. S., at 79. Accordingly, interest was allowed. Ibid. See also National Home for Disabled Volunteer Soldiers v. Parrish, 229 U. S. 494 (1913) (interest allowed against eleemosynary agency that Congress had authorized “to sue and be sued”). Cf. Library of Congress v. Shaw, 478 U. S., at 317, n. 5. When Congress created the Postal Service in 1970, it empowered the Service “to sue and be sued in its official name.” 39 U. S. C. § 401(1). This sue-and-be-sued clause was a part of Congress’ general design that the Postal Service “be run more like a business than had its predecessor, the Post Office Department.” Franchise Tax Board of California v. US PS, 467 U. S., at 520. In Franchise Tax Board, this Court examined, in the context of an order issued by a state administrative agency, the extent to which Congress had waived the sovereign immunity of the Postal Service. After noting that “Congress has ‘launched [the Postal Service] into the commercial world,”’ ibid., the Court held that the sue-and-be-sued clause must be liberally construed and that the Postal Service’s liability must be presumed to be the same as that of any other business. Because the order to the Postal Service to withhold employees’ wages had precisely the same effect on the Service’s ability to operate efficiently as did such orders on other employers subject to the state statute that had been invoked, and because the burden of complying with the order would not impair the Service’s ability to perform its functions, the Court concluded that there was no basis for overcoming the presumption that immunity from the state order had been waived. See id., at 520, and n. 14. Our unanimous view of the Postal Service expressed in Franchise Tax Board is controlling here. By launching “the Postal Service into the commercial world,” and including a sue-and-be-sued clause in its charter, Congress has cast off the Service’s “cloak of sovereignty” and given it the “status of a private commercial enterprise.” Shaw, 478 U. S., at 317, n. 5. It follows that Congress is presumed to have waived any otherwise existing immunity of the Postal Service from interest awards. None of the exceptions to the liberal-construction rule that guides our interpretation of the waiver of the. Postal Service’s immunity operates to overcome this presumption. Subjecting the Service to interest awards would not be inconsistent with the Postal Reorganization Act, 39 U. S. C. § 101 et seq., the statutory scheme that created the Postal Service, nor would it pose a threat of “grave interference” with the Service’s operation. FHA v. Burr, 309 U. S., at 245. Finally, we find nothing in the statute or its legislative history to suggest that “it was plainly the purpose of Congress to use the ‘sue and be sued’ clause in a narrow sense,” ibid., with regard to interest awards. To the- contrary, since Congress expressly included several narrow and specific limitations on the operation of the sue-and-be-sued clause, see 39 U. S. C. § 409, none of which is applicable here, the natural inference is that it did not intend other limitations to be implied. Accordingly, we conclude that, at the Postal Service’s inception, Congress waived its immunity from interest awards, authorizing recovery of interest from the Postal Service to the extent that interest is recoverable against a private party as a normal incident of suit.' B Respondent concedes, and apparently all the United States Courts of Appeals that have considered the question agree, that Title YII authorizes prejudgment interest as part of the backpay remedy in suits against private employers. This conclusion surely is correct. The backpay award authorized by § 706(g) of Title VII, as amended, 42 U. S. C. §2000e-5(g), is a manifestation of Congress’ intent to make “persons whole for injuries suffered through past discrimination.” Albemarle Paper Co. v. Moody, 422 U. S. 405, 421 (1975). Prejudgment interest, of course, is “an element of complete compensation.” West Virginia v. United States, 479 U. S. 305, 310 (1987). Thus, since Title VII authorizes interest awards as a normal incident of suits against private parties, and since Congress has waived the Postal Service’s immunity from such awards, it follows that respondent may be subjected to an interest award in this case. Ill A In order to address respondent’s arguments, it is necessary to explain briefly the manner in which Title VII provides a cause of action to federal employees. As originally enacted in 1964, Title VII, by excluding federal entities from its definition of employer, see § 701(b) of Title VII, 42 U. S. C. §2000e(b), did not provide a cause of action to federal employees. Brown v. GSA, 425 U. S. 820, 825 (1976). In 1972, Congress amended Title VII by adding its § 717, which brought federal employees, including employees of the Postal Service, within the ambit of Title VII. Equal Employment Opportunity Act of 1972, 86 Stat. 111, 42 U. S. C. §2000e-16. In so doing, Congress intended to provide federal employees with “‘the full rights available in the courts as are granted to individuals in the private sector under Title VIL’ ” Chandler v. Roudebush, 425 U. S. 840, 841 (1976), quoting S. Rep. No. 92-415, p. 16 (1971). Section 717(a) mandates that all personnel actions affecting federal employees covered by that section “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U. S. C. § 2000e-16(a). Section 717(b) provides a detailed administrative enforcement mechanism, and § 717(c) permits an aggrieved employee to file a civil action in federal district court, provided the employee has met certain requirements regarding exhaustion of administrative remedies. Thus, in enacting § 717, Congress simultaneously provided federal employees with a cause of action under Title VII and effected a waiver of the Government’s immunity from suit. See Library of Congress v. Shaw, 478 U. S., at 319. The waiver of sovereign immunity effected by § 717, however, was a limited one. “In making the Government liable as a defendant under Title VII, . . . Congress did not waive the Government’s traditional immunity from interest.” Id., at 323. Based on this background, respondent channels his attack into two principal arguments. First, respondent contends that the waiver of sovereign immunity effected by the “sue- and-be-sued” clause of the ^Postal Reorganization Act, 39 U. S. C. §401(1), has no bearing here, regardless of its scope. In respondent’s view, the only waiver of sovereign immunity relevant to a Title VII suit against the Postal Service is the waiver of sovereign immunity found in Title VII itself. Second, respondent argues that, even if the waiver of sovereign immunity provided by § 401 does control, the cause of action that § 717 affords to a Postal Service employee is distinct from the cause of action afforded a private-sector employee and does not provide a basis for an award of prejudgment interest. We examine these contentions in turn. B In support of his argument that the sue-and-bé-sued clause of the Postal Reorganization Act, 39 U. S. C. § 401(1), has no force in this case, respondent initially relies on Congress’ failure, at the time it created the Postal Service in 1970, to extend Postal Service employees a cause of action under Title VII. In respondent’s view, this failure constituted a decision to leave intact what respondent characterizes as the “explicit” decision of the Congress that enacted Title VII in 1964 to preserve the sovereign immunity of federal employers in Title VII suits. But the history of the Postal Reorganization Act discussed in n. 7, supra, with its emphasis on the availability of strong remedies for discrimination in the federal employment context, makes clear that Congress’ failure to extend Title VII protections to Postal Service employees did not reflect an intent to circumscribe the waiver of sovereign immunity effected by the sue-and-be-sued clause, but, rather, was a determination that a Title VII cause of action was unnecessary in light of these alternative remedies. The reason Postal Service employees could not bring an employment discrimination suit under Title VII in 1970 — indeed, the reason that federal employees generally could not do so— stemmed not from the Postal Reorganization Act, but from a restriction in Title VII itself: the exclusion of federal entities from the definition of the term “employer.” The Postal Reorganization Act is utterly silent as to Title VII. We reject the notion that Congress’ silence when it creates a new federal entity, with regard to a cause of action that is generally unavailable to federal employees, can be construed as a limitation on the waiver of that entity’s sovereign immunity effected by the inclusion of a sue-and-be-sued clause. Respondent would find further support for his argument that the sue-and-be-sued clause is irrelevant to this case in the manner in which Congress extended a Title VII cause of action to federal employees in 1972. Specifically, respondent relies on a distinction between causes of action that may be asserted against commercial entities generally, as, for example a state garnishment statute, see Franchise Tax Board of California v. USPS, 467 U. S. 512 (1984), and causes of action, such as § 717 of Title VII, that contain special procedures and limitations applicable only to federal defendants. Respondent contends that while a sue-and-be-sued clause may apply to a suit against a federal entity in the former class of actions, it has no bearing in the latter. We are not persuaded by this argument for two reasons. First, this is an argument for an implied exception to the waiver of sovereign immunity effected by a sue-and-be-sued clause. Yet respondent offers no reason for concluding that Congress intended his implied exception to be added to those that this Court articulated in FHA v. Burr, 309 U. S., at 245, and we see no reason why we should do so. Second, when Congress intends the waiver of sovereign immunity in a new cause of action directed against federal entities to be exclusive, —in effect, to limit the force of “sue- and-be-sued” clauses — it has said so expressly. Congress’ waiver of the sovereign immunity of the United States for certain torts of federal employees, in the Federal Tort Claims Act (FTCA), 28 U. S. C. §§ 1346, 2671-2680, provides an example. Prior to the FTCA’s enactment, certain federal agencies were already suable in tort. Although Congress enacted the FTCA to allow suits against many agencies that previously had been immune from suits in tort, it also wished to “place torts of ‘suable’ agencies of the United States upon precisely the same footing as torts of ‘nonsuable’ agencies.” H. R. Rep. No. 1287, 79th Cong., 1st Sess., 6 (1945). Accordingly, Congress expressly limited the waivers of sovereign immunity that it had previously effected through “sue- and-be-sued” clauses and stated that, in the context of suits for which it provided a cause of action under the FTCA, “sue- and-be-sued” agencies would be subject to suit only to the same limited extent as agencies whose sovereign immunity from tort suits was being waived for the first time: “The authority of any federal agency, to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.” 28 U. S. C. § 2679(a). In contrast, neither the language of § 717 of Title VII nor its legislative history contains an expression that the waiver of sovereign immunity it effected was intended also to narrow the waiver of sovereign immunity of entities subject to sue- and-be-sued clauses. Accordingly, we reject respondent’s contention that 39 U. S. C. §401(1) has no application here. c Respondent next argues that, even if the waiver of sovereign immunity effected by § 401(1) is controlling, an award of prejudgment interest is inappropriate because the statute that provides petitioner with his cause of action, § 717 of Title VII, does not authorize interest awards. Respondent starts from the premise that had Congress expressly stated that prejudgment interest is unavailable in actions under §717, the outcome of this case would be beyond dispute. Therefore, it is claimed, “[t]he fact that the ‘no-interest’ rule is not made explicit in the statute, but rather is a conclusion drawn by this Court in Shaw . . . , does not make the rule any less binding.” Brief for Respondent 16. This argument, in our view, misunderstands both the nature of the remedy § 717 affords and the basis of our holding in Shaw. Without doubt, petitioner’s cause of action in this case is derived from §717. We do not disagree with respondent that, had §717 explicitly stated that the cause of action it provided did not include prejudgment interest, such interest would be unavailable in this case. But Congress made no express statement of that kind. To the contrary, Congress expressly incorporated in §717 provisions of Title VII that allow an interest award. Specifically, § 717(c), 42 U. S. C. § 2000e-16(c), provides that, after pursuing various mandatory administrative remedies, an unsatisfied §717 plaintiff “may file a civil action as provided in section 2000e-5 of this title,” which governs enforcement actions against private employers. Thus, although petitioner’s cause of action under § 717 is circumscribed by mandatory administrative prerequisites that are distinct from the prerequisites for a civil suit brought against a private employer, a § 717 suit, once commenced, is delineated by the same provisions as a suit against a private employer. Most importantly for the purposes of this case, § 717(d) explicitly incorporates § 706(g) of Title VII into the cause of action provided. Section 706(g) allows a court to “order such affirmative action as may be appropriate, . . . including]. . . back pay ... , or any other equitable relief as the court deems appropriate.” 42 U. S. C. §2000e-5(g). This provision thus governs the remedies available in both a Title VII suit brought against a federal employer under § 717 and a Title VII suit brought against a private employer. Cf. Chandler v. Roudebush, 425 U. S., at 843-848. And, just as this section provides for prejudgment interest in a Title VII suit against a private employer, it provides for prejudgment interest in a Title VII suit brought under § 717. Respondent’s view that Shaw stands for the proposition that § 717 implicitly states that prejudgment interest is unavailable in all suits brought under that section misunderstands the basis of our holding in that case. In Shaw, the Court faced the question whether § 706(k) of Title VII, 42 U. S. C. § 2000e-5(k), which provides that a party prevailing against the United States may recover attorney’s fees from the United States, waived the sovereign immunity of the Library of Congress with respect to interest on an attorney’s fees award. Unlike the Postal Service, the Library of Congress was not a “sue-and-be-sued” agency that Congress had “‘launched . . . into the commercial world,’” and thereby broadly waived sovereign immunity. Franchise Tax Board of California v. USPS, 467 U. S., at 520, quoting FHA v. Burr, 309 U. S., at 245. Thus, the starting point for our analysis was the “no-interest rule,” which is to the effect that, absent express consent by Congress, the United States is immune from interest awards. See Shaw, 478 U. S., at 314. The dispositive question was not whether Title VII provided a cause of action that would allow recovery of interest, but, rather, whether Title VII contained an express waiver of the Library of Congress’ immunity from interest. Because no such waiver is contained within Title VII, the no-interest rule barred recovery of interest from the Library of Congress on the plaintiff’s attorney’s fees award. This conclusion had nothing to do with the scope of a § 717 cause of action. The Court expressly noted in Shaw: “The no-interest rule is . . . inapplicable where the Government has cast off the cloak of sovereignty and assumed the status of a private commercial enterprise.” 478 U. S., at 317, n. 5. In creating the Postal Service, Congress did just that, and therefore, the no-interest rule does not apply to it. Thus, the search for an express waiver of immunity from interest within Title VII, which is all that Shaw was about, is unnecessary in this case. As discussed above, §401 of the Postal Reorganization Act provides the waiver of sovereign immunity from interest awards against the Postal Service, and § 717 of Title VII provides the cause of action under which petitioner may recover interest. IV Accordingly, we conclude that interest may be awarded against the Postal Service in a Title VII suit. The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. Justice Kennedy took no part in the consideration or decision of this case. Petitioner’s discharge arose from his practice of casing boxholder mail. “Boxholder” mail is third-class mail that does not bear the name and address of a particular individual but is given to the postal carrier in a single bundle for delivery to each current resident or possessor of a rural-delivery mailbox. The District Court explained: “ ‘Casing’ is the practice of inserting the boxholders in each separation of the delivery case in the post office work area prior to delivery, and then inserting the first or second class mail inside the boxholders so that the boxholders form a convenient sleeve for the rest of the pieces of mail and thus make delivery quicker and easier. The alternative to easing the boxholders is to carry them as separate bundles and insert them into each individual post box during delivery.” App. to Pet. for Cert. A-28. In 1979, pursuant to directives from Postal Service headquarters in Washington, D. C., all five rural carriers at the Chesterfield, Mo., Post Office, including petitioner, were instructed not to case the boxholders. The rule against casing was openly violated by petitioner and by two female rural carriers. Although all three carriers repeatedly ignored the rule, only petitioner was discharged, while the two female carriers were disciplined mildly or not at all. At the time this suit was filed, William F. Bolger, then Postmaster General, was the named defendant. While the case was pending on appeal, Bolger was succeeded as Postmaster General and as defendant by Paul N. Carlin and, subsequently, by Preston R. Tisch. After oral argument before this Court, Tisch was succeeded by Anthony M. Frank. General Frank has been substituted as respondent pursuant to this Court’s Rule 40.3. In Shaw, the Court held that sovereign immunity bars the payment of interest on attorney’s fees awarded against the Library of Congress under Title VII. The Court’s holding came “against the backdrop of the no-interest rule,” Shaw, 478 U. S., at 319, which provides: “Apart from constitutional requirements, in the absence of specific provision by contract or statute, or ‘express consent ... by Congress,’ interest does not run on a claim against the United States.” United States v. Louisiana, 446 U. S. 253, 264-265 (1980), quoting United States v. N. Y. Rayon Importing Co., 329 U. S. 654, 659 (1947). Section 409 provides in part: “(b) Unless otherwise provided in this title, the provisions of title 28 relating to service of process, venue, arid limitations of time for bringing action in suits in which the United States, its officers, or employees are parties, . . . shall apply in like manner to suits in which the Postal Service, its officers, or employees are parties. “(c) The provisions of chapter 171 and all other provisions of title 28 relating to tort claims shall apply to tort claims arising out of activities of the Postal Service.” See Brief for Respondent 9. See also Conway v. Electro Switch Corp., 825 F. 2d 593, 602 (CA1 1987); Green v. USX Cory., 843 F. 2d 1511, 1530 (CA3 1988); United States v. Gregory, 818 F. 2d 1114, 1118 (CA4), cert. denied, 484 U. S. 847 (1987); Parson v. Kaiser Aluminum & Chemical Corp., 727 F. 2d 473, 478 (CA5), cert. denied, 467 U. S. 1243 (1984); EEOC v. Wooster Brush Co. Emyloyees Relief Assn., 727 F. 2d 566, 578-579 (CA6 1984); Taylor v. Philips Industries, Inc., 593 F. 2d 783, 787 (CA7 1979); Washington v. Kroger Co., 671 F. 2d 1072, 1078 (CA8 1982); Domingo v. New England Fish Co., 727 F. 2d 1429, 1446 (CA9), modified on other grounds, 742 F. 2d 520 (1984); Nagy v. USPS, 773 F. 2d 1190 (CA11 1985). Cf. EEOC v. County of Erie, 751 F. 2d 79, 82 (CA2 1984) (interest allowed on backpay award under Equal Pay Act); Shaw v. Library of Congress, 241 U. S. App. D. C. 355, 361, 747 F. 2d 1469, 1475 (1984) (interest allowed on Title VII attorney’s fees award), rev’d on other grounds, 478 U. S. 310 (1986). Indeed, to ensure that victims of employment discrimination would be provided complete relief, Congress also gave the courts broad equitable powers. See § 706(g) of Title VII, as amended, 42 U. S. C. §2000e-5(g); see generally Albemarle Paper Co. v. Moody, 422 U. S., at 418-421. When the Senate was considering its version of the Postal Reorganization Act, Senator Cook proposed a floor amendment “to give postal service employees the equal employment opportunity rights provided by title VII of the Civil Rights Act of 1964, that employees in private industry have benefited from since 1964.” 116 Cong. Rec. 22279 (1970). The Senate approved the amendment by a 93-0 vote. See id., at 22279-22280. The Cook amendment was deleted in conference, however, because the conferees were persuaded that the “present law affecting all Federal employees, including employees under the new Postal Service, guarantee® antidis-crimination provisions ... of greater benefit . . . than the provisions of title VII of the Civil Rights Act of 1964.” Id., at 26953 (remarks of Sen. McGee); see also, id., at 26956, 26957 (remarks of Sen. McGee); id., at 27597 (remarks of Rep. Daniels). Senator McGee, who presented the Conference Report to the Senate, “guarantee®” that if the current bill did not “achieve the laudable purpose that the Cook amendment intended,” the Senate would immediately enact appropriate legislation. Id., at 26957 (remarks of Sen. McGee). Respondent also seeks comfort from the concededly technical distinction that this suit, in accordance with the provisions of § 717(c) of Title VII, 42 U. S. C. § 2000e-16(c), named the head of the Postal Service as defendant, while 39 U. S. C. § 401(1) makes the Postal Service amenable to suit “in its official name.” In FHA v. Burr, 309 U. S. 242, 249-250 (1940), however, we found such a distinction between a suit against the head of an agency and a suit against the agency itself irrelevant to the force of a “sue- and-be-sued” clause. In Burr, the “sue-and-be-sued” clause in § 1 of the National Housing Act, 48 Stat. 1246, as amended by § 344 of the Banking Act of 1935, 49 Stat. 722, applied to the Administrator of the Federal Housing Authority acting in his official capacity. The Court concluded that this waiver of sovereign immunity permitted actions against the Authority itself, because under the terms of the Act, all the powers of the Authority were exercised through the Administrator. This case presents the inverse situation: the “sue-and-be-sued” clause authorizes suits against the agency, and the defendant before the Court is the head of the agency acting in his official capacity. However, the same logic applies. Whenever the head of the Postal Service acts in his official capacity, he is acting in the name of the Postal Service. Thus, here, as in Burr, the acts of the named defendant are always chargeable as acts of the person or entity subject to the sue-and-be-sued clause. We therefore are not persuaded by respondent’s procedural distinction. 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_district

H

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". UNITED STATES of America, Plaintiff-Appellee, v. Laszlo SZABO, Defendant-Appellant. No. 85-1686. United States Court of Appeals, Tenth Circuit. May 12, 1986. Robert N. Miller, U.S. Atty., and Raymond P. Moore, Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee. Richard W. Bryans, Denver, Colo., and Michael F. Morrissey, Denver, Colo., for defendant-appellant. Before McKAY, ANDERSON and TA-CHA, Circuit Judges. ANDERSON, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 10(e). The cause is therefore submitted without oral argument. The defendant, Laszlo Szabo, appeals his conviction by a jury on one count of interstate transportation of falsely made checks, in violation of 18 U.S.C. § 2314 (1982), and one count of conspiracy to commit such offenses, in violation of 18 U.S.C. § 371 (1982). He contends his confrontation rights under the Sixth Amendment were violated when the trial judge allowed a coconspirator to give damaging testimony against the defendant at trial without first holding a hearing to determine if the anticipated testimony bore adequate “indicia of reliability.” We conclude that no error was committed, and affirm. The disputed testimony in this case was given at trial by Burton Vishno, who admitted to involving the defendant in a scheme to negotiate bogus certified checks. Vish-no testified that he was introduced to the defendant in late 1982 while the latter was in New Haven, Connecticut. Among other things, the two of them discussed financing for a racetrack defendant wanted to establish in Colorado. Vishno told the defendant that he had a source who could provide falsely certified checks for fifty percent of the face value. Defendant requested such a check in the amount of $20,000 and asked that it be made payable to his company, Great American Financial, Inc. Thereafter, Vishno obtained the check from his source, “Tommy” Gamble, and delivered it to defendant at his office in Denver, Colorado, on January 10, 1983. Two days later defendant paid Vishno $6,000. By other testimony, it was established that defendant had deposited the $20,000 to his business account and made use of the funds. Over the next two weeks, additional parties were introduced into the scheme by defendant. Daniel Powers, Glen Dial and Michael Allred, later charged as co-defendants, and Timothy Watts, (collectively referred to by defendant as his “wrecking crew,” R. Vol.IV, at 26), met with Vishno upon defendant’s initiative. The initial meetings of Dial and Watts with Vishno were in defendant’s presence. Vishno’s first contact with Powers was from a telephone in defendant’s office, in defendant’s presence, and at his instance. Vishno then testified to a number of subsequent meetings with the various individuals at which the unlawful scheme was discussed and substantially pursued. The defendant was present at some, but not all, of the meetings. To facilitate the expected additional transactions, Vishno’s source, Gamble, and Gamble’s associate, Vincent Edo, came to Denver and established themselves at the hotel where Vishno was staying. At various times during this several day period, and upon the request of each recipient, falsely certified checks were obtained from Gamble by Vishno and delivered as follows: a check for $500,000 to Powers; a check for $300,000 to Allred and Dial; and three checks in the respective amounts of $100,-000, $100,000, and $50,000 to Watts. Watts, Vishno, Gamble, and Edo then left town. They met again in Philadelphia approximately one week later to divide the proceeds of checks Watts had cashed in Baltimore, Maryland, and were arrested by the F.B.I. After Vishno had testified to the foregoing, a bench conference was requested by the government. Here, the government advised that it intended to elicit some co-conspirator statements from Vishno for the first time. The court responded that it would receive such testimony conditionally and reserve ruling on admissibility under Fed.R.Evid. 801(d)(2)(E) until the close of the government’s case. Defendant was granted a continuing objection to the hearsay nature of the proposed coconspirator statements. Thereafter, the government elicited three brief instances of coconspirator statements which added some detail to the previous testimony of Vishno. The only reference made to the defendant in those statements was to identify him as being present during one of the conversations in question. It was established that the defendant was not present at another conversation which was described. The coconspirator statements were fully received at the close of the government’s case after the court had heard testimony from P.B.I. agents and other witnesses, both corroborating Vishno’s testimony and independently establishing defendant’s unlawful activities. The court’s finding of admissibility under Fed.R.Evid. 801(d)(2)(E) (inclusive of the necessary quantum of proof, and the following required elements: independent evidence, membership, during the course, and in furtherance of the conspiracy) is clearly supported by the record. It is not an issue on this appeal. See United States v. Pilling, 721 F.2d 286 (10th Cir.1983); United States v. Du-Friend, 691 F.2d 948 (10th Cir.1982), cert. denied, 459 U.S. 1173, 103 S.Ct. 820, 74 L.Ed.2d 1017 (1983); United States v. Petersen, 611 F.2d 1313 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2986, 64 L.Ed.2d 854 (1980). In fact, much of what defendant argues on appeal is based on his premise that the Rule does apply. Anticipating the damaging nature of Vishno’s testimony, defendant’s counsel filed a motion in limine prior to trial asking that the court: [Determine that the witness Vishno’s, (sic) statements are crucial and devastating, and whether or not there are any particularized guarantees of trustworthiness. In the event the government fails to demonstrate both of the above and foregoing, the statements be held inad-missable at the trial of the defendant Szabo. R. Vol. I, at 12. The grounds stated in support of the requested relief were: “1. That the witness Vishno’s, testimony against the defendant Szabo, spoken as a co-conspirator, was both crucial and devastating to the defendant, Szabo. “2. Albeit the government may have established a conspiracy which the defendant does not confess, there was insufficient showing, in fact no showing, of any guarantees of trustworthiness as required by law and F.R.E. Rule 801(b)(2)(e) (sic). “3. That the witness Vishnó, is a convicted felon who has, through arrangements made with the government, avoided trial of at least two additional felonies and is currently awaiting sentence. “4. That the statements of the witness Vishno, have no indicia of reliability and do not provide the functional equivalent of cross-examination. “5. That the government must be required to demonstrate why the witness Vishno’s, statement has any particularized guarantee of trustworthiness.” R. Vol. I, at 11. In arguing his motion to the trial judge, counsel for the defendant summed up his position as follows: So, that is the purpose of this. Primarily, we feel that Vishno’s testimony, merely because it comes in under the Rule, is not trustworthy, and the trustworthiness is one of the prongs that is set forth in citations (sic) of authorities that must be met. R. Vol. IV, at 3. The motion in limine was denied. Even assuming a Sixth Amendment issue was raised in that motion, defense counsel made no further objection at any time during trial on stated constitutional grounds. “Ordinarily, a confrontation clause objection cannot be raised on appeal unless it was also raised sometime during the trial court proceedings.” United States v. Roberts, 583 F.2d 1173, 1175 (10th Cir.1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 49 (1979) (citing Nolan v. United States, 423 F.2d 1031, 1041 (10th Cir.1969), cert. denied, 400 U.S. 848, 91 S.Ct. 47, 27 L.Ed.2d 85 (1970)). The government has argued defendant’s lack of proper and timely objection below (Brief of Appellee at 11). However, in view of the fact that a violation of an important constitutional right is alleged, and that the constitutional issue was at least arguably raised at one time during the proceedings below, by way of the motion in limine, we elect to exercise our discretion in favor of review. Because defendant’s arguments reflect a lack of clarity on the point, we note at the outset that the bulk of Vishno’s testimony was admissible without regard to the hearsay rules and satisfied beyond question defendant’s Sixth Amendment right of confrontation. That testimony consisted of Vishno’s own statements made while testifying at trial subject to cross-examination by the defendant. As we pointed out in United States v. Smith, 692 F.2d 693, 697-98 (10th Cir.1982): Rule 801(d)(2)(E) and the cases construing it are irrelevant to the direct testimony of a coconspirator. By definition, hearsay is ‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’ Fed.R.Evid. 801(c) (emphasis added.) There is absolutely no need to fit [the witness’] in-court statements into the coconspirator provision of Rule 801(d)(2)(E). See Laughlin v. United States, 385 F.2d 287, 292 (D.C.Cir.1967) (rule requiring independent evidence of a conspiracy before admitting coconspirator out-of-court statements ‘does not exclude proof of a conspiracy by the direct testimony under oath of a party to it’), cert. denied, 390 U.S. 1003, 88 Sup.Ct. 1245, 20 L.Ed.2d 103 (1968). (Emphasis in the original.) There is no constitutional requirement that such testimony be examined for trustworthiness before being placed before the jury. Rather, the Confrontation Clause, in its optimum application, envisions: [A] personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895), cited in Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531, 2537-38, 65 L.Ed.2d 597 (1980). Most of the other parts of Vishno’s disputed testimony were also admissible without regard to the hearsay exemption of Fed.R.Evid. 801(d)(2)(E), and without implicating the Confrontation Clause. For example, coconspirator statements of Watts to the effect that he had excellent banking relationships in the Cayman Islands and in Hong Kong, and similar declarations, would be admissible not to prove the truth of the matters asserted, but as “background for the conspiracy or to explain the significance of certain events.” Inadi, — U.S. -, 106 S.Ct. 1121, 1128 n. 11, 89 L.Ed.2d 390 (1986); see also United States v. Green, 600 F.2d 154 (8th Cir.1979). “Admission of non-hearsay ‘raises no confrontation clause concerns.’ Tennessee v. Street, — U.S. -, 105 S.Ct. 2078 [85 L.Ed.2d 425] (1985). Cross-examination regarding such statements would contribute nothing to Confrontation Clause interests.” Inadi, — U.S.-, 106 S.Ct. 1121, 1128, n. 11, 89 L.Ed.2d 390 (1986). Commenting on the admissibility of testimony similar to that given by Vishno in this case, the United States Supreme Court in Dutton v. Evans, 400 U.S. 74, 88, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970), stated: Neither a hearsay nor a confrontation question would arise had [the witness’] testimony been used to prove merely that the statement had been made. The hearsay rule does not prevent a witness from testifying as to what he has heard; it is rather a restriction on the proof of fact through extrajudicial statements. Additionally, defendant’s own declarations recounted by Vishno obviously raised no Confrontation Clause issue since defendant was able to “confront” his own alleged statements when he took the witness stand, by admitting, explaining or denying them. We consider the few brief coconspirator statements admitted under Fed.R.Evid. 801(d)(2)(E), and defendant’s claims of Confrontation Clause infringement, within the context of settled law in this circuit. In United States v. Roberts, 583 F.2d at 1176, we referred to the established general principle that the Confrontation Clause and the hearsay rules do not perfectly overlap. We adopted the view that declarations admitted under the coconspirator exemption do not automatically satisfy the Sixth Amendment. We stated: “In the case of a coconspirator’s extrajudicial declarations, Sixth Amendment compliance is tested on a case by case basis by examining all the circumstances to determine whether ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ California v. Green, 399 U.S. at 161, 90 S.Ct. at 1936; see Dutton v. Evans, 400 U.S. at 89, 91 S.Ct. 210 [at 219]; United States v. King, 552 F.2d 833, 845 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977); United States v. Rogers, 549 F.2d 490, 500 (8th Cir.) cert. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 229 (1976). “Numerous factors may be relevant in applying this test. These include: (1) what opportunity the jury had to evaluate the credibility of the declarant, (2) whether the statements were crucial to the government’s case or devastating to the defense, (3) the declarant’s knowledge of the identities and roles of the other coconspirators, (4) whether the extrajudicial statements might be founded on faulty recollection, (5) whether the circumstances under which the statements were made provide reason to believe the declarant misrepresented defendant’s involvement in the crime, (6) whether the statements were ambiguous, (7) what limiting jury instructions, if any, were given, (8) whether prosecutorial misconduct was present, etc. See Dutton v. Evans, 400 U.S. at 88-89, 91 S.Ct. 210 [at 219]; United States v. Rogers, 549 F.2d at 501; United States v. Kelley, 526 F.2d 615, 621 (8th Cir.1975), cert. denied, 424 U.S. 971, 96 S.Ct. 1471, 47 L.Ed.2d 739 (1976); United States v. Snow, 521 F.2d 730, 734 (9th Cir.1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 883, 47 L.Ed.2d 101 (1976); United States v. Baxter, 492 F.2d at 177....” Id. at 1176; see also United States v. Alfonso, 738 F.2d 369, 372 (10th Cir.1984). We reaffirm those views, including the implicit holding that while constitutional reliability exists as a substantive consideration, constitutional procedures for determining reliability do not. The latter point brings us to defendant’s central argument. Defendant contends that constitutional error was committed when the district court refused “to conduct a hearing on the trustworthiness of the testimony and oral statements of the unindicted coconspirator Burton L. Vishno.” (Appellant’s Opening Brief at 2). Defendant shows us no authority. We know of none, which imposes a constitutional requirement upon the trial court to hold a separate hearing, or even to make separate findings, on the subject of reliability. In that regard, defendant has simply confused procedure with substance. Further analysis of defendant’s appeal discloses yet another fundamental error. Constitutional reliability inquiries in cocon-spirator cases focus on the out-of-court de-clarant and that declarant’s statements. Defendant’s focus in this case has from the beginning been on Vishno, the in-court de-clarant. He argues that Vishno’s testimony was not trustworthy because he was a convicted felon testifying pursuant to a plea bargain agreement. Defendant has at no time contended that the coconspirator statements themselves, as attributed to the out-of-court declarants Dial, Watts, and Powers, were unreliable on any of the grounds listed by this court in Roberts, or by the Supreme Court in Dutton, or that those declarants were unreliable. The stated ground for a Confrontation Clause violation is that Vishno was unreliable. In Dut-ton, a witness, Shaw, testified in court about what a fellow prisoner had told him concerning the defendant, Evans. The Court found no Confrontation Clause violation because the statements themselves bore indicia of reliability. As to the testifying witness and his role in relating the out-of-court declaration, the Court observed that “the witness was vigorously and effectively cross-examined by defense counsel” Dutton, 400 U.S. at 87, 91 S.Ct. at 219, and: “From the viewpoint of the Confrontation Clause, a witness under oath, subject to cross-examination, and whose demeanor can be observed by the trier of fact, is a reliable informant not only to what he has seen but also as to what he has heard. $ $ * # $ * “Evans exercised, and exercised effectively, his right to confrontation on the factual question whether Shaw had actually heard Williams make the statement Shaw related. And the possibility that cross-examination of Williams could conceivably have shown the jury that the statement, though made, might have been unreliable was wholly unreal.” Id. at 88-89, 91 S.Ct. at 219. Finally, though not urged by the defendant to do so, we examine the virtually invisible coconspirator statements, which form the minute residue of this inquiry, for indicia of reliability, including whether or not they were crucial or devastating. See Dutton, 400 U.S. at 74, 91 S.Ct. at 210; United States v. Roberts, 583 F.2d at 1176. Vishno related a few statements by Powers regarding a technique he proposed for moving his checks, R. Vol. IV, at 49-50; and, perhaps, a few other comments by Dial and Watts which could fit within this category. None of the testimony directly involved the defendant, made accusations against him, or attributed purported admissions or incriminating statements to him. No extended discussion of the coconspir-ator testimony is necessary. It obviously was not crucial to the government’s case against the defendant or devastating to the defense. Other testimony, including defendant’s own admissions to F.B.I. Agent John Larsen, who testified at trial, and copies of the bad checks, abundantly established the defendant’s involvement in the scheme and his knowledge of the identities of the coconspirators, as well as their active participation. The statements involved no possibility of faulty recollection by the out-of-court declarant, recitation of past events, ambiguity, or misrepresentation as to the defendant’s involvement in the crime. The trial judge specifically cautioned the jury, both during the trial and in his instructions, about the trustworthiness of Vishno’s testimony. Moreover, no pros-ecutorial misconduct is alleged. Clearly, “the trier of fact had á satisfactory basis for evaluating the truth of the prior statement.” California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970). Having gone through the foregoing exercise, we now observe that this is one of those cases where the correct determination of admissibility under Fed.R.Evid. 801(d)(2)(E) carried within it a full overlap of Sixth Amendment Protection. Affirmed. . Defendant's statement of the question presented for review is as follows: The question presented is, whether statements that satisfy Federal Rules of Evidence 801(d)(2)(E), which provides for the admissibility of statements of co-conspirators necessarily satisfies the requirement of the confrontation clause of the Constitution of the United States. Brief of Appellant at 1. Defense counsel objected to coconspirator statements at trial on the ground that the evidence did not show a conspiracy had been established, R. Vol. IV, at 45; R. Vol. V, at 109-111; but, as just indicated, he has abandoned that position. . Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 heavily relied upon by the defendant, was further explained, and confined to its facts by the Supreme Court in its recent decision in United States v. Inadi, — U.S.-, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986). . Likewise, the statement attributed to Dial that he "could put some people together to move checks," R. Vol. IV, at 48; and Watts’ alleged statements about his ability to move checks, and his need for money to put the plan “in shape,” id. at 48; and alleged statements by Powers that "the F.B.I. was all over his lawyer’s office [and that] [t]hey wanted him for questioning," R. Vol. V, at 31, were all admissible for purposes other than to prove the truth of the matters stated. . The circuits are divided on this point, a circumstance commented upon by Justice Marshall in his dissent in Inadi, 106 S.Ct. 1121 (1986). See Weinstein & Berger, Weinstein’s Evidence, Vol. 4, ¶ 801(d)(2)(E) [01], at 801-255. However, even in some circuits which reject the view that admissibility under Fed.R.Evid. 801(d)(2)(E) automatically satisfies the Confrontation Clause, it is stated that there is no violation "absent unusual circumstances.” United States v. DeLuna, 763 F.2d 897, 910 (8th Cir.), cert. denied sub nom, — U.S.-, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985). Likewise, the "case by case” review of Sixth Amendment compliance in this circuit is not meant to imply that constitutional admissibility of extrajudicial statements, and admissibility under the federal coconspirator rule of evidence involve entirely separate inquiries. To the contrary, the exacting procedure and findings necessary for evidentiary compliance contain within them much, and frequently all, the safeguards required by the Confrontation Clause. . Refusal to "conduct an in camera hearing concerning the second prong of the test mentioned in Ohio v. Roberts....constitutes error on the part of the trial court.” (Appellant’s Opening Brief at 5). . The only case cited by the defendant in support of the procedural argument that a determination on reliability must be made initially by the court "as a matter of law” (Appellant’s Brief at 8) dealt solely with procedures for determining admissibility under the hearsay rule. Carbo v. United States, 314 F.2d 718 (9th Cir.1963), cert. denied, sub nom, 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498 (1964). . See, e.g., United States v. Green, 600 F.2d at 158: “We reject appellants’ claim that an on-the-record finding of compliance with the Confrontation Clause must be made at the time of trial.” Even the most enthusiastic advocates of strict guarantees of reliability have acknowledged that "the kinds and the quantity of guarantees that will suffice are questions left to the laboratory of the lower courts.” Hinde, Federal Rule of Evidence 801(d)(2)(E) and the Confrontation Clause: Closing the Window of Admissibility for Coconspirator Hearsay, 53 Fordham L.Rev. 1291, 1308 (1985). . See defendant’s Motion in Limine, and associated arguments to the trial court (page 1486, supra). . The search for "indicia of reliability” does not consist of a checklist of fixed tests applicable as a matter of necessity to each case. As we stated in United States v. Roberts, 583 F.2d at 1176, "[njumerous factors may be relevant." The search for whether "the trier of fact had a satisfactory basis for evaluating the truth of the prior statement," California v. Green, 399 U.S. at 161, 90 S.Ct. at 1936, will involve different considerations depending upon the case. Examples of significantly different fact situations include: prior cross-examined testimony given under oath, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597; tape recorded conversations, Inadi, — U.S. -, 106 S.Ct. 1121, 89 L.Ed.2d 390; and in-court testimony attributing oral statements to an out-of-court declarant, Dutton, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213. Moreover, the availability to the defendant of compulsory process by which out-of-court declarants may be brought to court for cross-examination, provides further protection against unreliable statements. Although reserving questions of reliability, the Supreme Court’s general comments in Inadi with respect to compulsory process emphasize its importance to defendants for guarantees of reliability since "availability," which is the question addressed in that case, is important only because of considerations of reliability. 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_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 in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AUTOMOTIVE LODGE LOCAL 777 and District No. 9, International Association of Machinists, AFL-CIO. No. 16459. United States Court of Appeals Eighth Circuit. April 22, 1960. Thomas J. McDermott, Assoc. Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., for petitioner. PER CURIAM. Order of National Labor Relations Board enforced, on petition for enforcement and stipulation filed with Board. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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. Nathaniel J. JACOBS, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee. No. 9564. United States Court of Appeals Fourth Circuit. Argued April 6, 1965. Decided Oct. 7, 1966. John H. Ditto, Jr., Baltimore, Md. (Court-assigned counsel), for appellant. R. Randolph Victor, Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on the brief), for appellee. Before HAYNSWORTH, Chief Judge, and BRYAN and J. SPENCER BELL, Circuit Judges. HAYNSWORTH, Chief Judge. Convicted on a plea of guilty to a charge of armed robbery in a state court, this Maryland prisoner seeks habeas corpus relief upon the ground that his plea was involuntary. The contention depends in large part upon a finding of involuntariness in the confession of a co-defendant which supplied the cause for the arrest, without a warrant, of this appellant, which in turn, it is said, led to his almost spontaneous confession. We affirm the denial of relief. Jacobs, an employee of a department store, had been filching clothing. Allegedly, he expanded his operation by masterminding an armed robbery. The store was robbed by three men. When one of them, Kelly, was arrested, he signed a confession which, implicated Jacobs as the ringleader. Armed with this information, police officers went to the store and arrested Jacobs. In the presence of the store manager, he did not deny the charge, and, within twenty-five minutes of his arrival at the police station, he admitted his guilt. A few minutes later, he signed a written confession. Later, all participants initialed a joint confession. Kelly had been arrested without a warrant on the basis of information received from two informants. • The police had not recorded the information they had received and, at the time of the hearing, could not identify the informants beyond general references to their sex. The officers could not vouch for the reliability of those informants. On that account, the District Court held that there was no probable cause for Kelly’s arrest and that his subsequent confession was the involuntary product of the illegal arrest, though otherwise uncoerced. Jacobs contends that, since Kelly’s confession has been held involuntary as the technical product of his illegal arrest, it could not furnish probable cause for a belief that Jacobs was a participant in the crime which the officer knew had been committed. He concludes that his arrest must also have been unlawful and his confession the product of the unlawful arrest. The contention draws the thread too fine. The connection between Kelly’s illegal arrest and his confession is sufficiently close that the latter may be said to be dependent upon the former. The connection between Kelly’s illegal arrest and Jacobs’ confession is far more attenuated. The fruit-of-the-poisonous-tree doctrine need not be extended to its seedlings. The District Court found, with abundant justification that Kelly’s confession was truthful and trustworthy. Its invalidation as a basis for Kelly’s conviction, because of the technical defect in Kelly’s arrest, was not found to have infected its apparent reliability. At the time the policemen moved to effect the arrest of Jacobs, they had every reason to believe that Kelly’s confession in its implication of Jacobs was reliable information. Its subsequent suppression as support for Kelly’s conviction because of uncertainty of the sources of information which led to Kelly’s arrest cannot gainsay its reliability, apparent at the time to the officers, which all subsequent events have confirmed. An arrest of one of multiple offenders upon improbable cause, or upon cause which years after the event cannot be documented, may invoke rules of exclusion for the protection of the victim of the illegal arrest, but it does not deprive the victim’s statement of the inherent and apparent reliability it convincingly and undeniably bore then and now. There is no greater merit in the alternative contention that the confession was the tainted product of Kelly’s. The victim of an unlawful seizure may be able to object successfully to the use of his confession, when the confession is the direct result of confrontation with the fruits of the seizure. Similarly, the victim of an unlawful search cannot be compelled to produce evidence upon process dependent upon information obtained in the course of the search. In some instances, such a rule may be the only effective sanction against an unlawful search and seizure, and a refusal to apply it may deprive the prohibition of its substance. That rule, however, has been applied only to the protection of the victim of the search from its immediate, if collateral, consequences. Its purpose is to restore the victim to the position he would have been in had his right to be secure from an unlawful search been observed. It has never been extended to cloak strangers to the unlawful search with absolute or conditional immunities. The District Court, here, applied a similar rule to redress the wrong done Kelly when he was arrested without probable cause. Refusal to permit use of Kelly’s confession against him, however, is an entirely sufficient recompense. The protection of Kelly’s right does not require that others, who have suffered no deprivation of their rights, be made the beneficiaries of the exclusionary rule. Again, Kelly’s confession had all of the hallmarks of trustworthiness. If now it must be held unusable against Kelly because the police, who kept no records to prod their memories after the lapse of time, are now unable to identify their informants and justify Kelly’s arrest, there was no unfairness of constitutional proportion in confronting Jacobs with the information Kelly had furnished the police. Jacobs does not show that his own confession was involuntary by establishing its responsiveness to word of Kelly’s. In the District Court, on the habeashearing, Jacobs claimed other coercive practices. The District Court did not believe his testimony. It found that he was not refused permission to telephone a lawyer. He was not denied access to a telephone. He did call his wife. No pressure was brought upon him. A rather equivocal admission of guilt was made upon his arrest in the store; a full confession had been made and completed within half an hour after his arrival at the police station. The District Court’s finding that the confession was voluntary is abundantly supported by the record. This 1961 case is not subject to Escobedo’s or Miranda’s standards. Affirmed. . The District Court treated Kelly’s and Jacobs’ cases in one opinion. Kelly v. Warden, D.C., Md., 230 F.Supp. 551. . See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. . Cf. Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. . Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171. . Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L. Ed. 319. . Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. . Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694. . Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. 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_applfrom

L

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). KROPP FORGE COMPANY, Petitioner, v. SECRETARY OF LABOR and Occupational Safety and Health Review Commission, Respondents. No. 80-2160. United States Court of Appeals, Seventh Circuit. Argued April 13, 1981. Decided Aug. 14, 1981. Robert D. Moran, Washington, D. C., for petitioner. John A. Bryson, Acting Sol. of Labor, U. S. Dept, of Labor, Washington, D. C., for respondents. Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and JAMESON, Senior District Judge. The Honorable William J. Jameson, Senior District Judge of the District of Montana, is sitting by designation. CUMMINGS, Chief Judge. Kropp Forge Company has filed a petition to review an order of the Occupational Safety and Health Review Commission holding that Kropp violated 29 U.S.C. § 654(a)(2) because of noncompliance with an occupational safety and health standard, codified at 29 C.F.R. § 1910.95(b)(3), that provides in full: “In all cases where the sound levels exceed the values shown herein, a continuing effective hearing conservation program shall be administered.” The citation against Kropp charged, and after a hearing the Administrative Law Judge (AU) found that noise levels generated by forging hammers at Kropp’s Chicago steel forging plant continuously exceeded 90 decibels and that Kropp’s hearing conservation program lacked six elements necessary to constitute an effective program as required by the above-quoted standard. The AU further found that the violation was “willful-serious” as charged and assessed a penalty of $5000. The Commission declined Kropp’s petition for discretionary review so that the ALJ’s July 2, 1980, opinion became the final order of the Commission on August 7, 1980, pursuant to 29 U.S.C. § 661(i). We conclude that the standard under which Kropp was cited is unenforceably vague and therefore reverse. As a preliminary matter, we reject Kropp’s contention that all evidence gathered during two December 1978 Occupational Safety and Health Administration (OSHA) inspections should have been suppressed on the ground that it was obtained pursuant to a warrantless search in violation of the Fourth Amendment. Kropp concedes that it granted OSHA permission to enter its premises on these occasions to verify an employee complaint, unrelated to the present charges, concerning excessive exposure to carbon monoxide fumes from fork-lift trucks. At the time of her first visit to the plant, on December 5, 1978, the OSHA compliance officer stated that her inspection would not go beyond the area of the complaint, i. e., the plant’s “KFA Building” where the fork-lift trucks were located. However, after making an initial walk around the building, the compliance officer determined that sampling of noise levels generated by forging hammers located in the KFA Building was also required. Accordingly, the inspection was continued on December 13 and 19, at which times sampling for both carbon monoxide and noise levels was conducted. Kropp argues that its consent was limited specifically to the carbon monoxide investigation so that the noise level samples were taken unlawfully. The record shows, however, that at all times on December 13, the compliance officer was accompanied by Kropp’s Safety Director and that on December 19, she and a second compliance officer were accompanied by the Safety Director and Kropp’s General Manager. Both men had been informed that noise sampling would be conducted, and they raised no objections to the approximately five hours of sampling conducted on each day. Moreover, the Safety Director requested and received the results from the noise sampling taken on both days. While it is true that Kropp refused entry to a compliance officer seeking to continue the noise inspection in January 1979, the only surveys attacked by Kropp are those that took place on December 13 and 19. Since Kropp’s representatives were present at all times during those inspections and did not raise any objections when informed of the intended sampling, any Fourth Amendment objection to those surveys was waived. Marshall v. Western Waterproofing Co., Inc., 560 F.2d 947, 950-951 (8th Cir. 1977); Dorey Electric Co. v. OSHRC, 553 F.2d 357, 358 (4th Cir. 1977). Kropp next argues that the standard which it is said to have violated does not provide “fair warning” of what is required or prohibited and is therefore unenforceably vague under United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, and its progeny. We agree. The rationale of Cohen Grocery has been applied in a number of decisions under the Occupational Safety and Health Act. In Dravo Corporation v. OSAHRC, 613 F.2d 1227, 1234 (3d Cir. 1980), for example, an employer was held not to be subject to sanctions for non-compliance with safety standards “without adequate notice in the regulations of the exact contours of his responsibility.” The court applied the traditional rule that the applicability of penal sanctions in regulations is to be narrowly construed by the judiciary and stated that OSHA regulations must “be written in clear and concise language so that employers will be better able to understand and apply them,” quoting from Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 650 (5th Cir. 1976). See also Bethlehem Steel Corporation v. OSAHRC, 573 F.2d 157, 161-162 (3d Cir. 1978); 4 Davis, Administrative Law Treatise § 301.2. The regulation in issue here, providing only that “a continuing effective hearing conservation program shall be administered,” misses the mark considerably. Kropp, as noted, was cited for non-compliance because its program lacked the following six elements: 1. Annual audiometric tests. 2. Referral of employees to a physician. 3. Re-tests of employees with significant threshold shifts. 4. Selection and use of hearing protection. 5. Training in use of hearing protectors. 6. Enforcement of proper wearing of hearing protectors. However, the standard does not give any warning to employers that their conservation programs must contain these six elements. Indeed, in proposing a change in the standard in 1974, the Secretary of Labor stated: “The current standard * * * does not explicitly require monitoring of the sound level of the employee’s surroundings nor measurement of the individual employee’s resulting exposure” (39 Fed.Reg. 37,-774 (1974)). Also a 1972 document that the Labor Department published as “A Guide to OSHA Standards,” notes that “[s]ince audiometric tests are not specifically mentioned in the regulations, they are not specifically required” (App. 136). That publication defined “hearing conservation program” in the regulatory standard as referring to “audiometry — periodic checks on the hearing ability of individual employees — and to noise surveys — periodic checks of the noise level in the area in which employees are working” (Idem.). This official definition, which was satisfied by Kropp, does not contain the six elements Kropp was cited as failing to provide. Similarly, an OSHA Field Information Memorandum in 1974 provided that OSHA’s official policy was “not requiring] audiometrie testing” (App. 161; emphasis in original), again contradicting the present citation. Even the compliance officer who conducted the December 1978 inspections of Kropp’s plant testified that the six elements listed in the citation were not required by the then controlling regulation (App. 165-166) nor thought by her to be included in the standard (Tr. 490), and had not been included in a Field Operations Manual until April 20, 1979 (App. 40, 64), whereas the alleged violations here occurred in December 1978. Furthermore, on January 16, 1981, too late for this case, OSHA removed the one-sentence standard at issue in this case and replaced it with a new regulation which, like the 1974 proposal, contains all six elements listed on the citation at issue in this case (46 Fed.Reg. 4162-4164), thus acknowledging that these elements were not previously included in the standard before us. Finally, it is noteworthy that in Secretary of Labor v. B. W. Harrison Lumber Company, 4 BNA OSHC 1091 (1976), an Administrative Law Judge held that 29 C.F.R. § 1910.95(b)(3), the regulation involved here, was unenforceably vague. His vacation of the OSHA noise citation was affirmed by the Commission by a 2 — 1 vote. One of the two majority members affirmed the ALJ on the vagueness ground, whereas the other majority member affirmed the disposition because the citation did not conform to the statutory criteria. Although the Fifth Circuit affirmed the Commission because of the invalidity of the citation, the 1978 opinion of the court held that the citation reference to 29 C.F.R. § 1910.-95(b)(3) was deficient because it merely parroted the words in the regulation that the employer failed to provide “a continuing effective hearing conservation program” and did not inform the employer of what was charged. 569 F.2d 1303, 1309. After this 1978 opinion of Judge Godbold, the Secretary had ample opportunity to amend the regulation, so that it would give proper notice to an employer and finally did so in January 1981. More recently, in Secretary of Labor v. Kraft Food, Inc., 9 BNA OSHC 2040 (March 17, 1981), an ALJ again found 29 C.F.R. § 1910.95(b)(3) unenforceably vague. This decision, in direct conflict with the result in this case, became a final order of the Commission on May 18, 1981. The ALJ rejected Kropp’s vagueness argument because “The standard does not involve criminal or First Amendment activity and if the regulation affords reasonable warning of the proscribed conduct in light of common understanding, it is not constitutionally vague” (App. 5). His decision is erroneous because the pertinent parts of the OSH Act and regulations do impose “penal sanctions,” and the regulation in issue does not give reasonable notice of the conduct said to be prohibited “in light of the common understanding.” Indeed, the ALJ himself acknowledged that the six elements of the hearing conservation program upon which this citation is based were not shown to be the custom and practice in the forging industry, and there was in fact no evidence of the “common understanding.” As in In the Matter of: Establishment Inspection of: Metro-East Manufacturing Company, 655 F.2d 805, 810-812 (7th Cir. 1981), involving a similar OSHA regulation, we find the regulation under which Kropp was charged to be unconstitutionally vague. Therefore, it is unnecessary to consider Kropp’s other arguments as to why the Commission’s order was defective. The order appealed from is reversed. . 29 U.S.C. § 654(a)(2) provides as follows: “(a) Each employer— * * * * * * “(2) shall comply with safety and health standards promulgated under this Act.” Kropp had also been charged with violations of 29 U.S.C. §§ 666(a) and (b) through violations of 29 C.F.R. § 1910.95(b)(1) and 29 C.F.R. § 1910.1001(f)(1). The first of these citations was withdrawn by the Secretary, and the second was vacated by the Administrative Law Judge (App. 16). The petition for review challenged only the Commission’s decision that Kropp had violated 29 U.S.C. § 654(a)(2) by not complying with 29 C.F.R. § 1910.95(b)(3). . The reference is to Table G-16 of 29 C.F.R. § 1910.95 which permits a level of 90 decibels of noise when averaged over an 8-hour work day with higher levels permitted for lesser periods of time. . The six elements listed in the citation were: (a) Regular, annual audiometric tests of employees exposed to sound levels in excess of Table G-16; (b) Employees with a 20 db or greater hearing loss, at any frequency, must be referred to an otolaryngologist or qualified physician; (c) Re-tests must be conducted of employees whose audiograms are considered unreliable or who show significant threshold shifts of 20 db or more at any frequency; (d) Appropriate and adequate hearing protection, as required by 29 C.F.R. § 1910.95(a), must be selected or used based on the noise spectrum present in a working environment in which the sound levels exceed Table G-16; (e) Employees exposed to sound levels exceeding Table G-16 must be trained in the proper use and care of hearing protection; (f) The employer must enforce the use of proper wearing of hearing protection for those employees who are exposed to sound levels exceeding Table G-16. . The noise level samples were obtained by placing audio dosimeters on the hammermen, helpers and other KFA Building employees, who wore the devices while they performed their duties. Sound level meter readings were also taken at the employees’ ear levels to confirm the accuracy of the dosimeter readings. The samples showed that noise levels were at all times above 90 decibels. . Although Kropp moved to suppress all evidence gathered during the December 5, 1978, through May 21, 1979, OSHA investigation of its premises, the Fourth Amendment objection now pressed concerns only evidence gathered during the December 13 and 19 inspections. Kropp did not move to suppress the results of the January 8-9, 1979, inspections showing that noise levels remained in excess of 90 decibels. . See also American Textile Manufacturers Institute, Inc. v. Donovan, — U.S. —, —, 101 S.Ct. 2478, 2505-06, 69 L.Ed.2d 185, where the Supreme Court struck down the wage guarantee provision in OSHA’s cotton dust standard partly because, as here, post-hoc rationalizations of the agency “cannot serve as a sufficient predicate for agency action.” . The Secretary, of course, knew how to promulgate a proper regulation before then, as shown by his detailed 1976 standard for employee exposure to coke oven emissions. American Iron & Steel Institute v. OSHA, 577 F.2d 825, 827 (3d Cir. 1978). If such a technique had been employed in promulgating this sound level regulation, no fatal vagueness problem would have occurred. . The ALJ also relied on the fact that the regulation in dispute had been upheld by an ALJ in a prior OSHA case. See Secretary of Labor v. Boise Cascade Corp., 5 OSHC 1242, 1977-78 OSHD para. 21,714 (1977), appeal filed, No. 77-2201 (9th Cir. May 31, 1977), appeal vacated (9th Cir. September 27, 1979). But see Secretary of Labor v. B. W. Harrison Lumber Company, supra, and Secretary of Labor v. Kraft Food, Inc., supra, with which we agree. . Dravo Corporation, supra, 613 F.2d at 1232; see also Hoffman Construction Co. v. OSAHRC, 546 F.2d 281, 283 (9th Cir. 1976); Diamond Roofing Co. v. OSAHRC, supra, 528 F.2d at 649; Marshall v. Anaconda Company, 596 F.2d 370 (9th Cir. 1979); Continental Can Co., U.S.A. v. Marshall, 455 F.Supp. 1015, 1020 n.4 (S.D.Ill.1978), affirmed, 603 F.2d 590 (7th Cir. 1979). . Since the record below contains no evidence as to the common understanding and practice of those working in the forging industry and even the ALJ concedes that the six-part hearing conservation program for which Kropp was cited was not the common practice in the forging industry, the Secretary’s reliance on our decision in Allis-Chalmers v. OSHRC, 542 F.2d 27 (7th Cir. 1976), is misguided. See Cotter & Company v. OSAHRC, 598 F.2d 911 (5th Cir. 1979). As noted both in Dravo Corporation, supra, and Diamond Roofing, supra, when a regulation fails in its purpose because of vagueness the Secretary should remedy the situation by promulgating a clearer regulation, as he finally did this year, rather than forcing the judiciary to press to the limits by judicial construction. 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:

songer_initiate

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. George TURNER, Defendant-Appellee. No. 14311. United States Court of Appeals Seventh Circuit. April 7, 1964. Charles Donahue, Sol., U. S. Dept. of Labor, Washington, D. C., Herman Grant, Regional Atty., U. S. Dept. of Labor, Chicago, Ill., Bessie Margolin, Associate Sol., Robert E. Nagle, Jack H. Weiner, Attys., U. S. Dept. of Labor, Washington, D. C., for appellant. Burl F. Nader, Libertyville, Ill., for appellee. Before DUFFY, CASTLE and SWYGERT, Circuit Judges. DUFFY, Circuit Judge. This suit was brought by the Secretary of Labor under Section 16(c) of the Fair Labor Standards Act, pursuant to the written request of Martin Halma, a former employee of defendant. The suit sought to recover $488.20 in unpaid overtime compensation. At the close of plaintiff’s case, the District Court granted the motion of the defendant for a directed verdict. In explanation of such action, the Court said: “In the light of that record, with the beneficial plaintiff saying on one oecasion that everything was square and then two months later making a claim, and then at the trial saying he doesn’t know how much is owing, I feel that you would be unable to go into the jury room and arrive at any amount. * * * ” f Previously the Court had asked Mr. Halma several questions: “The Court: How much money do you say now that Mr. Turner owes you? “The Witness: What the letter said, your Honor. “The Court: I say — read the question to the witness. “(Question read by the reporter.) “The Witness: I do not know. “The Court: You don’t know how much money you have coming. That is all. You may step down.” Defendant is a contract mail carrier for the United States Postoffice Department. During the period covered by this action, April 1, 1960 to July 15, 1961, he employed complainant Halma principally on a regularly scheduled route between McHenry, Illinois and Chicago. At first, Halma was paid a straight weekly salary. Statutory overtime wages were not paid to him for hours worked in excess of forty hours a week until after the period covered by this action. The evidence presented by the Secretary to establish the number of hours work done by claimant showed that during the period April 1, 1960 to October 28, 1960, the schedule for the ChicagoMcHenry route called for departure from the McHenry postofiice at 6:40 p. m. and arrival at Chicago Suburban Truck Terminal at 9:30 p. m., with intermediate stops being made on the way. This was followed by a return trip leaving Chicago at 2 a. m. and arriving at McHenry at 5 a. m. This schedule was followed daily except Sundays and some holidays. In following this schedule, claimant testified he would begin his work day with arrival at 5:30 p. m. at a DX Service Station where defendant’s tractor and trailer were kept. After gassing and oiling the tractor, he would drive approximately one and a half miles to McHenry postofiice where he loaded the mail that was to be loaded on the truck. Claimant’s scheduled departure time was 6:40 p. m. After arriving in Chicago, he would await his turn in line and unload the tractor and would then spot the vehicle in back of the postofiice loading dock. He would complete this about 10:05 p. m. He then started to work again at the scheduled time of 2 a. m. the following morning. After arrival at McHenry and unloading the mail, he returned the vehicle to the DX station, usually arriving there about 6 a. m. There was additional testimony about extra hours worked due to breakdowns of the truck and other delays such as that caused by a dead battery. There was further testimony of hours worked in the period October 29, 1960 to February 9, 1961 where there were extra mail runs and some twenty-one extra trips were confirmed by postoffice memoranda as occurring during the 1960 Christmas holiday season. Other testimony covered the period from February 10, 1961 to July 15, 1961. In an attempt to demonstrate the method for computing the wages due on the basis of overtime hours worked, the Secretary called as a witness one Max Packer who, for twenty-four years, had been a wage-hour investigator under the Fair Labor Standards Act and who had conducted some two thousand investigations including the investigation of defendant’s compensation practices. However, upon objection by defendant, the Court would not permit Mr. Packer to testify as to the computations he had made of wages due the claimant, nor was he allowed to explain to the jury how such computations may be made. In the situation before us, we consider the evidence most favorable to the plaintiff. Sufficient evidence was received so that this case should have been submitted to the jury for its verdict. The claimant’s testimony, supported by other evidence, indicated that he had regularly worked 52 to 53^2 hours per week; 50 to 52 hours per week; and 48 to 50 hours per week during the three periods covered by this suit. Undoubtedly there was some uncertainty as to the exact amount of damages, but it is well established that a plaintiff under the Fair Labor Standards Act may recover even if the exact amount due is not capable of mathematical ascertainment. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 was a case where the Supreme Court considered the proper determination of working time for the purposes of the Fair Labor Standards Act. The Court there said 328 U.S. at page 688, 66 S.Ct. at page 1192, 90 L.Ed. 1515: “The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of § 11(c) of the Act.” The Court further stated: “Nor is such a result to be condemned by the rule that precludes the recovery of uncertain and speculative damages. * * The uncertainty lies only in the amount of damages arising from the statutory violation by the employer. * * * It is enough under these circumstances if there is a basis for a reasonable inference as to the extent of the damages. (Citing cases.)” The District Court emphasized that claimant had acquiesced in the wages paid to him. However, this is in no manner controlling. It is well settled that statutory wages cannot be waived by agreement. Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296; Fleming v. Warshawsky & Co., 7 Cir., 123 F.2d 622. The District Court, time and time again, sustained objections where Packer, the expert witness, was asked as to certain computations. One instance was: “Q. Can you explain to us how a computation for overtime is made when a person is paid $1.50 per hour? Mr. Nader: I am going to object. The Court: Sustain the objection. We are not conducting a class in labor law here or in labor investigation. We are trying to determine how much money, if any, the beneficial plaintiff has coming here.” We see no objection to the question as asked. A jury cannot keep in mind all of the figures that might enter into a determination as to whether overtime payments were due. Computations and summaries based upon evidence before the Court, in many instances, would be very helpful to a jury. An expert may testify to computations based on facts which are in evidence as an aid to the jury’s determination. In United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 87 L.Ed. 1546, an expert accountant was permitted to testify to calculations of income and expenditures. As examples of types of cases where expert testimony as to computations have been received are: United States v. Daisart Sportswear, 2 Cir., 169 F.2d 856, 863 (misusing priorities under § 301 of the Second War Powers Act and conspiring to violate the Emergency Price Control Act of 1942); Beaty v. United States, 4 Cir., 203 F.2d 652, 655 (income taxes owing as disclosed by testimony); Gendelman v. United States, 9 Cir., 191 F.2d 993, 996-997 (increase in net worth in an income tax fraud case). In a ease before this Court, the computations of an accountant were held admissible before a Special Master (in an action for an accounting of special assessments), First Nat. Bank and Trust Co. of Racine v. Village of Skokie, 7 Cir., 190 F.2d 791, 796. The District Court was in error in directing judgment for the defendant. The jury should have been permitted to determine whether and to what extent claimant worked in excess of forty hours a week during the relevant periods. Then, as the Supreme Court said in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, at page 688, 66 S.Ct. 1187, at page 1193, 90 L.Ed. 1515: “It is enough under these circumstances if there is a basis for reasonable inference as to the extent of the damages.” Reversed and remanded for a new trial. . Fair Labor Standards Act, 29 U.S.C. §§ 201, 207, 216(c). Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

songer_usc1

35

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. BROOME et al. v. HARDIE-TYNES MFG. CO. No. 8451. Circuit Court of Appeals, Fifth Circuit. Nov. 15, 1937. Edwin P. Corbett and John J. Mahoney, both of Columbus, Ohio, and James R. For-man, of Birmingham, Ala., for appellants. Forney Johnston and Henry L. Jennings, both of Birmingham, Ala., for ap-pellee. Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges. HUTCHESON, Circuit Judge. This suit was for injunction, for accounting, and for damages for infringement of letters patent Nos. 1,306,370 and 1,-603,406 for sluice gates. The claim was that defendant, without leave or license from plaintiffs, and in defiance of the patents, had made and sold, and was making and selling, devices embodying the inventions described in them. Defendant denied infringement, and put the validity of the patent at issue. The defense on which the case went off was that the only thing being done by the defendant, having any relation whatever to the patents in suit, was the manufacture of emergency gates and accessories for the government of the United States, to be installed at the Mohawk and Bolivar Dams in the state of Ohio, under a contract had with the defendant, and upon specifications and drawings furnished by the United States; and that by section 68, title 35 U.S.C.A. plaintiffs’ exclusive remedy is a suit against the government in the Court of Claims. The District Judge, of the opinion that the issue this defense presented should be tried first, heard evidence upon and determined it in defendant’s favor. He accordingly dismissed the bill. Appellants make two points against the decree. The first goes to the procedure employed in disposing of the defense. It affirms that, instead of taking testimony in advance of a trial of the patent claims, on defendant’s plea that plaintiffs’ exclusive remedy was in the Court of Claims, the court should have treated it as a plea to the jurisdiction, and denied it on the authority of Sperry Gyroscope Co. v. Arma Engineering Co., 271 U.S. 232, 46 S.Ct. 505, 70 L.Ed. 922, holding that the invoked section does not deprive the District Court, as a federal court, of jurisdiction, but only operates as a defense. The argument here is that the defendant set up, and the District Judge gave effect to, the statute as a jurisdictional bar, and that, instead of hearing the cause on the merits, including the issue of exclusive remedy thus raised, the case was dismissed for want of jurisdiction in contravention of the practice approved in the Sperry Case. As applied to what was done here, the argument of appellants finally comes down to this, that the District Court should not have heard testimony on one fundamental defense without at the same time hearing it on all the others. We think there, can be no merit in this contention. If sustained, it would require the laborious and tedious processes of trying a patent suit, only to dismiss it at the end because plaintiffs’ remedy, lies in some other court. Without regard to what defendant may have called its plea, the District Judge did not determine it as one going to its jurisdiction to hear the cause, but as one going to the right of plaintiffs to the relief they sought. He disposed of it on that basis. As shown in his full findings of fact and conclusions of law, followed by an opinion and final decree, the court took full jurisdiction of the cause, and, having done so, proceeded to try independently of other matters of defense, the fundamental defense that plaintiffs’ sole remedy was in the Court of Claims. Having determined that, because of the statute providing an exclusive remedy in the Court of Claims, plaintiffs were without remedy in the District Court, he dismissed the bill. The second point searches the substance of the ruling on the plea. It affirms that the alleged infringing devices were in fact made by the defendant, not for the United States, but for the Muskingum Watershed Conservancy District, a corporation of Ohio, and that therefore the invoked statute does not apply in letter or in spirit. The argument for this point is based on the proposition that, though the sluice gates were being made and installed under a contract on its face between defendant and the United States government, the contract was really made by the government on behalf and for the benefit of, and the sluice gates were really furnished to and installed for, the Muskingum District. We do not think this complaint against the decree any better founded. The District Judge found; that no sluice gates or other apparatus or devices relating to the patents in suit had been made or sold by the defendant within six years next preceding the filing of the bill of complaint, except under two contracts with the United States. These contracts, one dated May 8, the other June 8, 1935, were for the furnishing and delivery to the United States for the Mohawk and the Bolivar Dams, respectively, of six service gates and one emergency gate and accessories, in accordance with specifications and drawings prepared and issued by United States engineers. He found, too, that part of the equipment had already been delivered, and other parts were still under construction at the defendant’s plant; that there was no completed delivery prior to the expiration of the date of the patents or the filing of the suit; and that under both contracts and by both sets of specifications, the defendant was required to prepare and design all work in accordance with the specifications and drawings. Every detail of the design of the gates and accessories as the United States wanted them constructed was known and understood between defendant and the representative of the government when the contracts were made. Contrary to plaintiffs’ insistence that though the contracts were in name between the government of the United States and defendant, they were in fact between defendant and the Muskin-gum District, the court found that they were and are solely between the United States as sole principal, and the defendant, and that the Muskingum District is in no relation of privity with the defendant as principal, disclosed or undisclosed. He concluded that within the clear meaning of the invoked statute the work to be done by defendant was to be done solely and exclusively for the United States. Appellants insist that the arrangement was merely one by which the United States loans and contributes funds to a district project; that the project is the district’s, the property the district’s and the construction the defendant has undertaken is the district’s. They insist further that, since the contracts declare that the estimated cost of the project and plans is to be $34,-000,000, of which the district is recognized as contributing $12,000,000 in lands, easements, rights of way, etc., and the United States is to pay $22,000,000 for construction, it is plain that if, as appellee contends, these dams are government projects the district is a part owner in them, and that to the extent at least of its ownership, the defendant, in constructing the gates in question, is, constructing them for it, and therefore, at least to that extent, defendant would be suable for infringement of plaintiffs’ patents. Appellee stands firmly on the form and contents of the contracts. Pointing to their terms requiring it to furnish and deliver the apparatus called for in them to the government, and to their terms holding the defendant bound and liable to the United States for the complete performance of them, it insists that the District Judge was right in his findings both of fact and of law. Especially does it point out that the whole project was under the control and direction of the Army engineers who are authorized to handle and expend the $22,000,000 which the United States will lay out on the project, and that it cannot be gainsaid that, if defendant is suable by injunction to prevent the construction of the sluice gates in question, this will result in preventing the United States from going ahead with its public works and thus permit the very mischief the invoked statute was enacted to prevent. Appellee points out too, that there is no provision in the contract that defendant’s structures, which are made for the government and paid for by it, or the dams of which they are a part, are or should become the property of the district. It argues with vigor that the fact that the contract contains clauses to hold the district harmless does not create any right of action in plaintiffs against the defendant. It argues that the only effect of these clauses is to protect the district from any liability which the acts of the defendant might conceivably lay it under. They do not at all change the fact that the contract is not with the district, but with the United States, nor the fact that the work is being done in exact accordance with and under plans and specifications prepared by the United States engineers. A careful examination of the record convinces us that it fully sustains the fact findings of the District Judge. Indeed, the evidence is without contradiction with respect to the matters on which he finds. We are clear that the contract was with, and was to be performed on behalf of, the United States, and that if the defendant may be subjected to an injunction against going on with the contract, the purpose and effect of the invoked statute would be defeated. The decisions have made it clear what that purpose and effect is, and we think it may not be doubted that the mischief which gave rise to the passage of the statute, and which it was designed to avoid, would be present here if the statute were without application. The project on which the work is being done is a government project. The statute was designed to furnish the patentees an adequate and effective remedy while saving the government from having its public works tied up and thwarted while private parties are carrying on a long drawn out litigation. The case presented here of an effort to stop the progress of the work through an injunction against the contractor presents the exact case the statute was designed to meet. The decree of dismissal was rightly entered. It is affirmed. “Suit for unlicensed use of invention by the United States; compensation for; Government employees. “Whenever an invention described in and covered by a patent of the United States shall be used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, such owner’s remedy shall be by suit against the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such use and manufacture.” Smyth v. Asphalt Belt Ry. Co., 267 U.S. 326, 45 S.Ct. 242, 69 L.Ed. 629; Becker Steel Co. v. Cummings, 296 U.S. 74, 56 S.Ct. 15, 80 L.Ed. 54; Timken Roller Bearing Co. v. Pennsylvania R. R. Co., 274 U.S. 181, 47 S.Ct. 550, 71 L.Ed. 989. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

songer_applfrom

L

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). CITY CHEVROLET COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 7023. United States Court of Appeals Fourth Circuit. Argued Jan. 6, 1956. Decided Jan. 11, 1956. Frederic D. Dassori, Washington, D. C. (Dee R. Bramwell, Washington, D. C., on brief), for petitioner. C. Guy Tadlock, Atty., Dept, of Justice, Washington, D. C. (H. Brian Holland, Asst. Atty. Gen., Robert N. Anderson and A. F. Prescott, Attys., Dept, of Justice, Washington, D. C., on brief), for respondent. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PER CURIAM. This is a petition to review a decision of the Tax Court relating to deductions for the year 1946 on account of personal services rendered taxpayer corporation by officers who with their "wives were its sole stockholders. The facts are fully stated in the opinion of the Tax Court and need not be repeated here. Taxpayer contends that the bonus of $30,881.69 paid to each of the officers for the year 1946 in addition to salaries of $12,000 each was reasonable because provided for by a contract under which the officers were to have 50% of the net profits of the corporation in excess of 15% and that this was in effect a continuation of a contract made sometime prior thereto when the stock of the corporation was owned by others. The question is one of fact and we are not prepared to hold that the holding of the Tax Court with regard thereto was clearly wrong. A bonus contract which was reasonable as holding out an incentive to those managing the corporation when its stock was owned by others could well be held unreasonable when the managers themselves became owners of the stock and the question was, not what incentive was needed to call forth their best efforts, but what part of the earnings of the corporation could fairly be paid to them for their services as officers. See University Chevrolet Co. v. Commissioner, 16 T.C. 1452, affirmed 5 Cir., 199 F.2d 629. Affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:

songer_constit

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Plaintiff-Appellee, v. Henry W. COGWELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward BEY et al., Defendants-Appellants. Nos. 72-1671, 72-1672. United States Court of Appeals, Seventh Circuit. Argued Sept. 14, 1973. Decided Oct. 30, 1973. James D. Montgomery, David Lowell Slader, John Powers Crowley, Chicago, Ill., for defendants-appellants. James R. Thompson, U. S. Atty., William T. Huyck, Gordon B. Nash, Jr., Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee. Before CASTLE, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges. CASTLE, Senior Circuit Judge. Defendants Bey, Cogwell, Fort, Jackson and Pugh appeal their jury convictions for conspiring to make false statements to the Office of Educational Opportunity, to obtain fraudulently monies which were the subject of a poverty program grant, and to defraud the United States through falsification and concealment of material facts. Defendant Jackson also appeals his convictions for knowingly making false statements in contravention of 18 U.S.C. § 1001 by signing the time and attendance sheets of program trainees with the knowledge that they were neither at the training centers nor at job interviews (9 counts), and for misapplying grant funds by endorsing the names of trainees to stipend checks knowing that they received neither the checks nor the proceeds and causing the fraudulent endorsement of the checks in violation of 42 U.S.C. § 2703 (2 counts). Defendant Bey additionally appeals his conviction for knowingly making false statements, contrary to 18 U.S.C. § 1001, by signing check receipts with the knowledge that the trainees did not receive the checks or the proceeds (6 counts). Defendant Cog-well further appeals his convictions for knowingly making false statements, unlawful under 18 U.S.C. § 1001, by signing the time and attendance sheets of trainees with the knowledge that they were neither at the training centers nor at job interviews (2 counts) and by signing check receipts knowing the trainees neither received the checks nor the proceeds (4 counts). Cogwell also appeals his conviction for misapplying grant funds by endorsing the names of trainees to stipend checks and causing the fraudulent endorsement of them in violation of 42 U.S.C. § 2703 (4 counts). Defendants were participants in a program funded by an Office of Educational Opportunity (hereinafter O.E.O.) grant given in June 1967 to the Woodlawn Organization (hereinafter T. W.O.), a Chicago community organization. The program was designed to utilize existing gang structure and leadership to provide basic educational and vocational skills to gang members. The grant provided that T.W.O. would establish four manpower' training centers, with two of the centers established for the benefit of members of the Black P. Stone Nation gang. The grant specified that center chiefs, instructors, assistant instructors, and staff members would be drawn from the hierarchy of the gangs and would be salaried. To induce participation, the grant provided daily stipends and carfare allowances for trainees. The O.E.O. grant required T. W.O. to maintain detailed records and accounts of the payment of stipends to the individual trainees, and it specified that payment was to be conditioned on verification of the trainees’ attendance at the centers. T.W.O. operationalized this rule by requiring the trainees to sign time and attendance sheets at the centers on arrival and departure at both sessions on each day. The center chief was responsible for collecting these sheets at the end of each week and for returning them to T.W.O. Stipend checks payable -to the trainees and based on the time and attendance sheet data were forwarded to the centers for distribution by the chief and his staff to the trainees each Friday afternoon. Attached to each check was a receipt to be signed by the trainee-payee, collected by the staff, and returned to T.W.O. When the grant was approved, Jeff Fort was the leader of the Black P. Stone Nation, a conglomerate of several Blackstone Ranger gangs, whose leaders formed the Main 21 (the ruling body) of the Black P. Stone Nation and, essentially, the supervisory and teaching personnel of the two centers. Jeff Fort was the Center 1 chief from the inception of the program until his incarceration on an unrelated matter on October 25, 1967, when he ws succeeded by Fletcher Pugh, a Center 1 staff member. Henry Cogwell was Chief of Center 2. Charles Edward Bey was an assistant vocational educational supervisor at Center 2, where Robert Jackson was a community worker. On this appeal, the defendants argue that the evidence is insufficient to support the jury verdict, that defendant Fort’s right of confrontation was violated by the admission of inculpatory statements purportedly made by him to a codefendant who did not testify, and that the Chicago policemen’s testimony based on observation of the program was the product of an unconstitutional search and was improperly admitted into evidence. For reasons set forth below, we affirm the convictions. I. Defendants contend that the evidence was insufficient to sustain the jury’s findings. With respect to the substantive counts, it was stipulated that Bey and Cogwell had written names other than their own to check receipts, that Jackson and Cogwell had written names other than their own to time and attendance sheets, and that Jackson and Cog-well had written endorsements to checks payable to trainees. The trial court instructed the jury, with the approval of counsel, that the determinative facts of legal liability in this case were, under 18 U.S.C. § 1001, whether the trainees in question received either their checks or the proceeds and, under 42 U.S.C. § 2703, whether the trainees involved were not present at the center or at job interviews. Defendants Bey, Cogwell and Jackson claim the government failed to prove its case because it did not present direct evidence from the trainees whose names were signed by Bey, Cog-well and Jackson that they received neither their checks nor the proceeds, or that they were not in class or at interviews. Defendants argue that the direct testimony of Duffy and Hall, named payees on a check and receipt in question, respectively, failed to add any material evidence beyond the stipulation and was therefore of no probative value. Defendants further claim that even if direct testimony is unnecessary to finding a course of unlawful conduct at Center 1, it would still be improper to infer the occurrence of unlawful activity at Center 2, where Bey, Cogwell and Jackson were staff members. With respect to the conspiracy count, the defendants contend that the failure to show a course of conduct to support the substantive charges is equivalent to a failure to prove concerted action necessary to find a conspiracy. Upon our examination of the evidence, we find that the jury, after weighing the evidence, determining the credibility of the witnesses, and drawing reasonable inferences, had substantial support for its findings. It is axiomatic in determining sufficiency of the evidence that an appellate court view the evidence and the reasonable inferences which can be drawn 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). This determination must be made considering all the evidence, including that of the defendants. United States v. Tubbs, 461 F.2d 43, 45 (7th Cir. 1972). However, this determination is not limited to a consideration of direct evidence, excluding circumstantial evidence of unlawful conduct at both centers. Circumstantial evidence is as pertinent as direct evidence to the establishment of guilt or innocence. Holland v. United States, 348 U.S. 121, 149, 75 S.Ct. 127, 99 L.Ed. 150 (1954). It is only required that circumstantial evidence be sufficiently relevant to have probative value. See, United States v. Delay, 440 F.2d 566, 568 (7th Cir. 1971); United States v. Lynch, 366 F.2d 829, 831 (7th Cir. 1966). This court has specifically stated: “Participation in a criminal conspiracy need not be proved by direct evidence .... [T]he conspiracy may be shown by circumstantial evidence or permissible inferences or deductions from the facts. Such a showing is nonetheless substantial.” United States v. Zuideveld, 316 F.2d 873, 877-878 (7th Cir. 1963); Blumenthal v. United States, 332 U.S. 539, 549-550, 68 S.Ct. 248, 92 L.Ed. 154 (1947). Thus, it is unnecessary for the government to present testimony from the trainees named in the check endorsements and receipts and in the time and attendance sheets to sustain either the conspiracy or substantive counts, so long as the government presents sufficient, relevant circumstantial evidence to prove concert of action in the commission of unlawful acts, from which a common design can be inferred. United States v. Zuideveld, supra. In demonstrating the operation of a sophisticated kickback scheme, the government concentrated on activities at Center 1, presenting testimony from instructors, assistant instructors, and trainees as well as police observers. Evidence of unlawful conduct in the signing of time and attendance sheets was overwhelming. Charles Hall, a trainee, identified four hundred forged signatures of his name in his time and attendance sheets for the period from March to May 1968. James Duffy, a trainee, identified almost five hundred unauthorized signatures in his sheets during the course of the program, while John Griffin identified ninety instances of forgery in his sheets. This practice occurred on a regular basis without authorization. Adam Bat-tiste, a Center 1 instructor, identified over 1200 instances when he signed trainees’ names to time and attendance sheets on the orders of Fort and others. On occasion, he would take entire sheets home and fill in the remaining blanks indiscriminately, whether or not the trainee had been present. Battiste also testified that Fort and others instructed him to maintain a separate “dock list” in which he recorded accurate attendance figures for the purpose of determining the weekly kickback amount per trainee. Griffin and Duffy testified that they signed other trainees’ names to the sheets on orders from Pugh and Battiste. White, a Center 1 assistant instructor, witnessed instructors and trainees filling out time and attendance shees on at least twenty occasions. The time and attendance sheets’ indication of substantial growth in the number of trainees participating in the program was contrary to the direct evidence. White testified that although an average of fifty trainees were present during the beginning of the program, only fifteen or twenty remained by May 1968. Police Officer Houtsma testified that the names listed on the time and attendance sheets exceeded observed attendance on three occasions; he never saw more than twenty trainees at Center 1 in about 150 visits during the course of the program. Officer Doyle observed a range of three or four to ten trainees in over 100 visits to Center 1 and a maximum of fifteen or eighteen trainees at Center 2. Officer Duffy saw a maximum of twenty trainees at each center. Trainee Duffy testified that Center 1 attendance ranged from three to twenty-five, while Turner, another trainee, observed ten to thirty trainees. Duffy, Hall, Griffin, Turner, and White all testified that instruction was both limited and sporadic at Center 1; this corresponded with the police observations. The government also presented extensive evidence that trainees’ names were signed to check receipts and endorsements in connection with the kickback operation. Near the commencement of the program, according to Duffy, Jeff Fort explained to Center 1 trainees that they were expected to return a portion of their stipends to Pugh and Battiste. Hall also testified to returning part of his payment to Pugh pursuant to instructions from Fort. As the program progressed, the gang refined its scheme by having staff members distribute the trainees’ checks for endorsement, collect and cash checks, deduct the appropriate kickback, and return the net proceeds to the trainees. The gang then eliminated the formality of distributing the checks to trainees for endorsements prior to cashing the checks. Duffy testified that he signed other trainees’ names on the backs of stipend checks at the request of Pugh and Battiste, and he observed Pugh, Jackson and others, in Fort’s presence, writing trainees’ names as endorsements to checks during March and April 1968. Duffy observed these cheeks being carried to a local store during this period and he saw Fort, Pugh, Jackson and other staff members return with substantial sums. White testified that Pugh kept the proceeds retained by the gang until Fort asked for the funds. The kickback scheme attained further refinement in Fort’s announcement to all Black P. Stone Nation trainees at a mass meeting held at Center 2 on May 24, 1968, that while stipend checks for the final two weeks would be distributed for endorsement, anyone who claimed his check without demonstrable need would be subject to physical reprisals. From our own review of the evidence, we concur with the trial judge’s conclusion that “the permissible inference is that what happened at Ranger Center 1 happened at Ranger Center 2 . because there is sufficient evidence in the record . . . that they were coordinated operations. The most striking example of the pervasive domination of the gang leadership at both centers occurred at the May 24 meeting. The meeting was held at Center 2, whose chief, Cogwell, was present. Yet it was chaired by Jeff Fort. Fort, the former Center 1 chief, was no longer a participant in the program following his release from jail. However, he was still' the. leader of the gang, and, as this meeting demonstrated, he controlled the terms under which gang members participated in the program. Pugh and Bey, Center 1 and 2 staff members, respectively, were also present. This pattern of interchangeable staff leadership between the two centers in pursuit of a common plan is abundantly evidenced by the record. Defendant Jackson, a Center 2 staff member, was particularly mobile. Battiste testified that Jackson and William Troope (an instructor from Center 2) would disrupt some of the few classes at Center 1 and would “slap around” trainees objecting to participation in the kickback scheme. Willie Harris testified that he saw Robert Jackson, in addition to eight other Center 2 staff members, on a day-to-day basis. White testified that Fort instructed Jackson and two other Center 2 leaders to keep students signed on the sheets whether or not they were still participating in the program. Duffy testified that Jackson and Lee Jackson (a Center 2 instructor) made cash payments to him as part of the kickback scheme and that he observed Jackson, Lee Jackson, and Sylvester Hutchins (a Center 2 instructor) signing trainee checks at Center 1. Hall testified that Lee Jackson was present during Center 1 training sessions and that Hutchins slapped him for objecting to the kickback requirement. Griffin observed Troope among a group of leaders who instructed him to sign other trainees’ time and attendance sheets. Battiste testified that he saw Troope leave Center 1 with checks and return with cash. There is substantial evidence that the activities occurring at Center 2 corresponded with those occurring at Center 1. T.W.O. officials, program participants, and Chicago policemen noted low attendance and sporadic instruction as common problems. The time and attendance sheets at Center 2 demonstrated the same disregard for reality evident in the Center 1 sheets. T.W.O.’s acting project director for the grant recalled observing less trainees than listed on the sheet on one day. He further testified that he closed down the center for a week, although the sheets indicated full attendance during this period. Trainee McDonald (Center 2) testified that he would sometimes be absent for a full week and still receive payments, as his name was signed to the sheets. During the final two-week period, he signed none of the twenty signatures on the sheets which purported to be his. Trainee Mc-Gill (Center 2) admitted that someone else had signed his name for the entire month of April 26-May 24, 1968. Willie Shaw, another Center 2 trainee, was paid for a week he spent in the county jail, when his name was signed to the sheets without his authorization. Tal-midge McGraw, Center 2 trainee, could not identify any of the twenty signatures on his time and attendance sheet for the week ending May 24, 1968 as his own; he admitted that the signatures appeared to be written by the same hand. Further, he was uncertain whether any of the signatures on his time and attendance sheets for the period April 19-May 17, 1968 were his. Dennis Griffin (from Center 2) admitted that others signed his name to the sheets when he was not at the center. It was apparently a common practice as well to sign trainees’ names to check endorsements and receipts. Mc-Gill stated he signed only one check during the month when others signed his name over one hundred times to the time and attendance sheets. It was stipulated that probably one individual endorsed groups of checks payable to trainees at both centers. The circumstantial evidence suggesting that Jackson signed trainees’ names to time and attendance sheets knowing they were neither present nor at job interviews is exceedingly substantial. Defendant stipulated to signing exclusively the nine trainees’ time and attendance sheets in question; thus the remaining issue is whether he possessed the requisite knowledge. Although Jackson was on the Center 2 staff, the trainees involved were assigned variously to both centers. It would strain credulity for this court to believe that four times a day for an entire week, Jackson verified the whereabouts of nine persons, some of whom were not even assigned to his center. Moreover, the time and attendance sheets signed exclusively by Jackson cover the. period reflected in the checks which were the subject of Jeff Fort’s May 24th announcement. The jury could reasonably infer from the unlawful decision to retain the entire proceeds of trainees’ checks that gang leaders in a position to determine the size of the cheeks, like Jackson, would falsify the time and attendance sheets by adding signatures in order to increase the amount the gang would receive. Such conduct by Jackson would conform to his pattern of participation in various aspects of the kickback scheme, as described above in testimony from Center 1 people. The evidence is also more than sufficient for the jury to reasonably conclude that Jackson was guilty of the two check endorsement counts. Charles Hall, a Center 1 trainee, testified, regarding the March 22, 1968 check payable to him, that he did not cash the check, sign the receipt or receive any of the proceeds. Jackson stipulated that he, in fact, had endorsed the Hall check. The jury could have reasonably inferred that Jackson knew Hall neither received the check nor the proceeds from Battiste’s testimony that he had observed Jackson stealing stipend checks. Further, since Jackson stipulated that he endorsed the other check in question and since that check bore the same date as the Hall cheek, the jury could have justifiably inferred a pattern of unlawful conduct. There is also sufficient evidence to support the conviction of Bey for signing check receipts knowing that the trainees did not receive the cheeks or the proceeds. Duffy, the named payee on one receipt, testified that he did not sign the receipt. Bey stipulated that he signed Duffy’s receipt. Since Duffy further testified that he did not sign the endorsement for the check of the receipt in question and since Bey was a Center 2 supervisor, neither responsible for nor in the proximity of Duffy (a Center 1 trainee), the jury could reasonably have concluded that Bey knew Duffy would receive nothing. The jury could have properly inferred a pattern of illegal activity, as the probability would be remote that a Center 2 supervisor who stipulated to signing all six receipts would have insured the distribution of proceeds of six checks bearing identical dates to six trainees scattered at two centers. That improbability is substantiated by the evidence that at least one of the checks was endorsed by someone other than the named payee. The evidence against Cogwell is also sufficiently substantial to support the determinations of the jury. First, there is much circumstantial evidence indicating that Cogwell was a participant in the kickback scheme. Rev. Arthur Brazier, President of T.W.O., testified that the trainees’ checks were given by the T.W.O. staff to the center chiefs for distribution. The center chiefs were responsible for the return of the time and attendance sheets to T.W.O. Cogwell held the key position of Chief of Center 2. It is unreasonable to assume that a kickback scheme involving Center 2 trainees in which Bey, Jackson and other Center 2 staff used inflated time and attendance sheets and forged check endorsements and receipts, could have operated successfully without the knowledge and participation of the center chief, Cogwell. In addition, the inference of coordinated, unlawful activity involving Cogwell is strengthened by two occurrences. On September 6, 1967, Officer Peck observed Fort, Cogwell, Bey and other members of the Main 21 standing on a neighborhood street corner at a time when instruction would normally be scheduled at the two centers. Of far greater significance, two witnesses, White and Harris, identified Cogwell as being among the center leaders present at the May 24, 1968 mass meeting at Center 2 when Fort announced that the proceeds of the last two paychecks would be retained. With respect to the time and attendance sheet counts, Cogwell stipulated to signing the sheets of trainee Pitts and Reeves for an entire week, a total of forty signatures. During this period, Center 2 was reporting upwards of fifty trainees in attendance on the time and attendance sheets. However, Sam Sains, a program development adviser (who instructed one day per month at Center 2) and defense witness, testified that he never saw more than thirty-five trainees at Center 2. Police officers testified that they never observed more than twenty trainees at Center 2. Given this context, the jury could justifiably infer from Cogwell’s prolonged pattern of exclusively signing the two trainees’ names to their time and attendance sheets that he was acting in furtherance of the kickback scheme with knowledge that the trainees were not at the center. Regarding the check receipt conviction, it is significant that all four check receipts bore May dates, a time when increasingly reckless and flagrant violations of the accounting system occurred. One check receipt was dated May 17, 1968, indicating that the check to which it was attached was distributed for endorsement only at the May 24 mass meeting. In view of Fort’s injunction to the assembled trainees in Cogwell’s presence, the jury could reasonably conclude that Cogwell knew that the payee of that check received neither the check nor the proceeds. Cogwell stipulated to signing that check receipt as well as the other three receipts in question, and the jury could properly infer a pattern of signing trainees’ names to check receipts with the knowledge that they would neither receive the check nor the proceeds. The check endorsement counts involve two groups of checks issued near the termination of the program on April 19 and May 10, 1968. Cogwell stipulated to signing the check endorsement of five different trainees for those two days. Considering the totality of the evidence suggesting Cogwell’s participation in an elaborate kickback scheme involving forged check endorsements, the jury could reasonably infer that Cogwell endorsed the checks with the knowledge that the trainees would neither receive the checks nor the proceeds. It is true that McDonald, McGill and McGraw testified that Cogwell picked up their checks at their request and remitted the proceeds to them. However, since these three trainees also denied the existence of the May 24 meeting, corroborated in detail by other witnesses, the jury could have quite properly discounted their testimony in concluding that Cogwell forged endorsements with the knowledge that the payees would not receive the proceeds. Finally, common purpose and plan may be inferred from a “development and collocation of circumstances,” Glasser v. United States, supra, which demonstrates concert of action in the commission of unlawful acts. United States v. Zuideveld, supra, 316 F.2d at 878. In addition to the acts for which Bey, Cogwell and Jackson were convicted, the record evidences other methodical violations of law occurring on a continuous basis at both centers pursuant to the kickback scheme. The testimony contains numerous references to Fort’s pivotal position in both the gang and the scheme. It was he who announced the essential policy related to the operation of the scheme to trainees near the inception of the program and again on May 24, 1968. He ordered the maintenance of two separate books of attendance records, and he received the kickbacks collected by Pugh. Pugh was largely responsible for effectuating the scheme at Center 1. Witnesses testified that this included physically punishing recalcitrant trainees, endorsing and cashing trainees’ checks, and collecting dock money. Therefore, based on our review of the record and applying the standards we have set forth, we hold that there is substantial evidence to support the jury’s finding that defendants are guilty of the conspiracy charged. II. During the trial, witnesses Turner and White testified, over objections, to hearsay admissions of defendant Pugh in which Pugh related his conversations with defendant Fort. On both occasions, the trial court instructed the jury that although the testimony was admissible against defendant Pugh, the jury should not consider it as evidence against defendant Fort. Notwithstanding these limiting instructions, Fort contends that since the testimony of inculpatory statements made by him to a co-defendant who did not testify was heard by the jury, his right of confrontation was violated because of the substantial risk that the jury nonetheless considered the incriminating extrajudicial statements in determining his guilt. Turner stated that although he was formally a trainee in the program, he was performing the duties of an instructor and had requested a commensurate salary from Pugh. On the following day, Turner testified that Pugh told him in the presence of about twelve members of the Main 21 that “Jeff [Fort] had told him the night before that he [Fort] didn’t want me [Turner] to quit, and [he would] split the dock money with me . . . . ” White, an assistant instructor at Center 1, testified that after Fort’s incarceration in the Cook County Jail, about thirteen members of the Main 21 including himself, went to visit Fort. Apparently, Pugh was the only one per-" mitted to speak with Fort. White testified that following the conversation with Fort, Pugh told the Main 21 members at the county jail that “Fort told him [Pugh] to handle the money . [which] he was supposed to collect from both centers on Fridays [and] keep it . . . until Jeff Fort got out.” The defendant relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), a case involving a joint trial for armed postal robbery. A postal inspector testified that a codefendant, Evans, had confessed to him that Bruton and Evans had committed the robbery; Evans did not testify. The trial court instructed the jury to disregard Evan’s confession in considering Bruton’s culpability. The Supreme Court found this insufficient, holding that “in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination.” Id. at 137, 88 S.Ct. at 1628. The rationale of the decision was clearly expressed: “The risk of prejudice in petitioner’s case was even more serious than in Douglas [Douglas v. Alabama, 380 U.S. 15, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1957)] because . . . the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” Id. at 127, 135-136, 88 S.Ct. at 1623, 1628. The evil which the sixth amendment was designed to prevent is illustrated in Douglas, where the prosecutor read a document purporting to be an accomplice’s confession which incriminated the defendant. The Supreme Court noted that the accomplice’s assertion of his right against compulsory self-incrimination “created a situation in which the jury might improperly infer both that the statement had been made and that it was true.” 380 U.S. at 419, 85 S.Ct. at 1077. Since the prosecutor was not a witness, the inference that the accomplice made the statement could not be tested by cross-examination. Similarly, the accomplice could not be cross-examined on a statement imputed to him. Id. The right of cross-examination, however, is not absolute. There is no violation of sixth amendment rights where the testimony is sufficiently clothed with “indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant.” Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213. In Dutton, which also involved the coconspiracy exception to the hearsay rule, the Supreme Court upheld the trial court’s admission of testimony by a fellow inmate of a codefendant who did not testify at the defendant’s trial. The inmate related a statement of the codefendant from which the jury could infer the defendant’s guilt. The Supreme Court found that the defendant was not deprived of any right of confrontation as to whether the co-defendant actually made the statement to the witness, since the witness was cross-examined, and that the circumstances under which the statement was made indicated the content of the statement was true. Applying this two-fold test to the facts in this ease, we find that the circumstances indicate that the challenged statements possess sufficient reliability to satisfy the demands of the sixth amendment. The statements in question did not involve the use of a confession made under the coercive circumstances of an official interrogation, as did Bruton. Although the statements were damaging, like the one in Dutton, they were in no sense crucial or devastating. See, Bruton v. United States, supra. There was no indication of prosecutorial misconduct or wholesale denial of cross-examination. See, Douglas v. Alabama, supra-, Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). At trial, the prosecution presented more than a dozen witnesses, all of whom were subject to cross-examination. Perhaps the most damaging evidence was the testimony of three eyewitnesses to the May 24,1968 mass meeting. In view of the extent of the testimony inculpating Fort, these two statements, again like the one in Dutton, were “of peripheral significance at most.” Dut-ton v. Evans, supra, 400 U.S. at 87, 91 S.Ct. 219. Fort was not deprived of his right of confrontation on the issue of whether Pugh, a coconspirator, actually made the statements to Turner and White. The confrontation issues arise because the jury was asked to infer from the statements that Fort was a coeonspirator and that Fort actually made the statements to Pugh. We conclude that there was no denial of the right of confrontation with respect to the latter issue. The possibility that Pugh’s statements were based on faulty recollection is highly remote; on one occasion Pugh had spoken with Fort only moments earlier, and on the other he had talked with Fort during the previous evening. The circumstances under which Pugh made his statements also indicate that Pugh did not misrepresent Fort. The statements were made not only before the testifying witness but also in the presence of about twelve members of the Main 21 on both occasions. The leaders could have verified Pugh’s statements with Fort. As some of the leaders had used physical force to insure the success of the kickback scheme, the penalty for perjury pales by comparison with the consequences Pugh would have doubtlessly suffered for lying. Pugh’s statements were against his penal interests, and he had no obvious reason to lie to Turner or White. There are also sufficient indicators of reliability to conclude that the statements which were made were true. Unlike Bruton, Dutton, and Douglas, the statements in question were made by Fort to a trusted coconspirator in the course of and in furtherance of the kickback scheme. Fort’s statement authorizing Turner to share with him and others in the kickback proceeds which Fort received was against Fort’s penal and pecuniary interests. Fort’s statement to Pugh at the jail to collect the funds and hold them for Fort until his release conformed with his modus operandi established by White’s testimony. Fort’s statement was in furtherance of his pecuniary interest in retaining control over the funds despite his incarceration and was against his penal interest. He had no apparent reason to lie to Pugh on either occasion. III. At trial, seven Chicago policemen testified that in the course of several hundred visits to the centers from September 1967 to June 1968, they observed only limited trainee attendance and practically no instruction. Their testimony was at variance with the time and attendance sheets and circumstantially suggested the falsification of the sheets and the misapplication of grant funds. Defendants contend that these visits were searches in violation of their fourth amendment rights and that testimony of observations at the centers should have been excluded. McGinnis v. United States, 227 F.2d 598 (1st Cir. 1955); cf., Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1968). Defendants assert that the fourth amendment standard of an unreasonable search is tested by the individual’s reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Specifically, they argue that in assessing whether the defendants’ expectations are constitutionally justifiable, this court should focus on whether specially recruited youths could reasonably assert an expectation of privacy in their activities and should disregard the occurrence of those activities within the context of a federally-funded educational program. However, “the specific content and incidents of [fourth amendment rights are] shaped by the context in which they are asserted,” Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed. 889 (1968), and we must therefore consider all the relevant circumstances in determining the reasonableness of a search. From our examination of the facts, we find that the defendants had no reasonable expectation' of privacy. Katz establishes that “what a person knowingly exposes to the public, even in his home or office, is not the subject of Fourth Amendment protection.” Katz v. United States, supra, 389 U.S. at 351, 88 S.Ct. at 511. Defendants were voluntary participants in an educational program subject to continual monitoring by United States government officials as well as T.W.O. officers. They cannot, therefore, reasonably claim the same expectancy of privacy which might shroud their purely personal activity. Further, the locations do not suggest an expectation of privacy. The training centers were generally accessible to anyone having an interest in the program, including some nonparticipants. The centers were not subject to the legal control of any of the defendants, and training centers are not intrinsically so closely associated with the individual as to give rise to a reasonable expectation of privacy. Cf., Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971); Wheeler v. Goodman, 330 F.Supp. 1356 (D.D.C. 1971). The nature of the activity belies an expectation of privacy. Educational classes are inherently group activities open to the full view of fellow participants, instructors, and administrative and supervisory personnel. The manner of the police presence also negates an expectation of privacy among knowledgeable gang members. The participants were fully aware of their observation by uniformed policemen. Cf., Katz v. United States, supra. If the defendants had no reasonable expectation of privacy regarding activity at the training centers, the police observations of the activity are admissible. See, United States v. Horton, 328 F.2d 132 (3rd Cir. 1964), cert, den., 377 U.S. 970, 84 S.Ct. 1651, 12 L.Ed.2d 739 (1964). There is a second reason why the police visits do not descend to the level of unreasonableness proscribed by the fourth amendment. Investigation necessary to ensure proper effectuation of a tax-supported program is regarded as so essential to the fulfillment of a public trust that it is deemed reasonable. Wyman v. James, 400 U.S. 309, 91 S.Ct 381, 27 L.Ed.2d 408 (1971). The O.E.O. grant to T.W.O. envisioned civic involvment in the supervision of the program, in accordance with the statutory mandate of O.E.O. Both T.W.O. and O.E.O. invited the Chicago Police Department to attend weekly monitoring meetings of the program in order “to give the police depai’tment access to the program so they could understand the contents, and if they had any questions, they could raise them at that time.” It is doubtful that the police would have sufficient information to formulate questions or to participate effectively in the weekly evaluation sessions unless it was contemplated by O.E.O. and T.W.O. that the police would observe the operation of the program. This is supported by the testimony of T.W.O.’s president and executive director (both of whom participated in the weekly meetings with the police) that despite the hundreds of police visits to the centers, they had no recollection of requesting the police to cease the visits. O.E.O. involved the police in other aspects of its evaluation of the program. O.E.O.’s chief investigator at the time testified that he encouraged police cooperation and that his visits to the centers with the police resulted in changes in the conditions of the grant. While the exact role of the police in the program is unclear, the police apparently functioned as an investigatory adjunct to O.E.O.’s evaluation system, see, Wy-man v. James, supra at 323, 91 S.Ct. 381, aiding the agency in “assuring that the intended and proper objects of the tax-produced assistance [here the trainees] are the one[s] who benefit from the aid it dispenses.” Id. at 319, 91 S.Ct. at 386. The Supreme Court’s conclusion is equally apt: “Surely it is not unreasonable, in the Fourth Amendment sense, or in any other sense of that term, that the State have at its command a gentle means, of limited extent and of practical and considerate application of achieving that assurance.” Id. As in Wyman, there was no snooping, no visitation outside of working hours, and no entry under false pretenses. Id. at 321, 91 S.Ct. 381. During the hundreds of visits, there was only one forcible entry, when Officer Houts-ma sought a suspect in an office, and that event was completely extraneous to the trial testimony. Generally, the visits lasted thirty minutes and occurred between three and five times per week, though on occasion both frequency and duration increased markedly. During the visits, the police observed the activity in the classrooms. While there is conflicting evidence on the effect of the police visits on the educational program, we accept the logic of the trial judge: if interference was a serious problem, it is inconceivable that nobody ever told the police that their visits three to five times a week were interfering with the operation of the school and that they were to please stay out. Mere observation by policemen is inherently less disruptive to the beneficiaries of a public program than an interrogational visit focusing on personal relationships, beliefs and behavior. See, Wyman v. James, Id. We conclude that the police conduct conformed to the limits set forth in Wy-man and therefore did not constitute an unreasonable search. Finally, a search to which voluntary consent is given is not an unlawful search, and evidence obtained through the search is admissible. See, Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). While consent to a search is not lightly inferred and depends on the facts of each case, United States v. Durham, 475 F.2d 208 (7th Cir. 1973) (Pell, J., concurring), the circumstances here indicate that T.W.O., the grant recipient and lessee of the centers, impliedly consented to the several hundred police visits which occurred during the eight-month period. The President of T.W.O., Rev. Arthur Brazier, and T.W.O.’s executive director, Leon Finney, were experienced community organizers sufficiently sophisticated at dealing with government officials to obtain a grant of almost one million dollars. They met weekly with high-ranking police officers at the monitoring meetings. Despite their frequent opportunities to object to the visits, Brazier testified that his only response was to complain at some of the meetings that policemen “ought to be more responsible.” Similarly, Finney complained of police harassment of gangs in general. Significantly, both complaints were directed to police conduct rather than to police presence. The decision to consent tacitly was based neither on intimidation nor ignorance but on T. W.O.’s inability to protest successfully past police practices. Nothing in the record indicates that T.W.O. was acquiescing to a police claim of lawful authority, cf. Amos, v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654 (1921); Bumper v. North Carolina, supra, 391 U.S. at 549, 88 S.Ct. 1788 for there is no evidence of any police claim. Since T.W.O. was the administrator of the program in which defendants participated and the lessee of the premises to which defendants were invited, and since the defendants had no reasonable expectation of privacy from T.W.O. with respect to classroom activity, we find that T.W.O.’s implied consent validated the police observation of the program activity. Affirmed. . The appeal of Cogwell, No. 72-1671, and the appeal of Bey, Fort, Jackson and Pugh, No. 72-1672, are consolidated, for purposes of this opinion. . The Office of Educational Opportunity is an agency of the federal government operating pursuant to 42 U.S.C. §§ 2701-2994. . Fort was released on March 25, 1968. It was stipulated that Fort did not assume a . salaried position with the program on his release from jail. . Trial transcript 2421-2422. . Fort asserts that his sixth amendment rights are violated unless the statements attributed to him are admissible against him. He then argues that the coeonspiracy exception to the hearsay rule is not intended to encompass “double hearsay” — statements from one coconspirator which relate statements of another coconspirator. Defendant thus erroneously equates the confrontation clause of the sixth amendment and the evidentiary hearsay rules. Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 27 L.Ed. 2d 213 (1970). Justice White cogently answered this argument in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L. Ed.2d 489 (1970): While it may be readily conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. The converse is equally true; merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied. Id. at 155-156, 90 S.Ct. at 1933 [citations and footnote omitted]. Although the admissibility of the statements against Fort is not determinative of the sixth amendment issue he raises, it is well-settled that where a witness testifies that one coconspirator related the statement of a second coconspirator and both statements were made in the course of and in furtherance of the conspiracy, the evidence of the out-of-court statement by the second coconspirator (as well as that of the first coeonspirator) is fully admissible against the. second coeonspirator and his fellow coconspirators. United States v. Aloisio, 440 F.2d 705, 708-709 (7th Cir. 1971), cert, den., 404 U.S. 824, 92 S.Ct. 49, 30 L.Ed.2d 51 (1972); United States v. Santos, 385 F.2d 43 (7th Cir. 1967), cert, den., 390 U.S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1148 (1968); see, Bruton v. United States, 391 U.S. 123, 128 n. 3, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). . For example, the Mayor of Chicago apparently had veto power over the appointment of the program’s director. . Title 42 U.S.C. Section 2974 provides: In addition to his other powers under this chapter, and to assist the President in coordinating the antipoverty efforts of all Federal agencies, the Director shall'— * * * * * (2) carry on a continuing evaluation of all activities under this chapter and consult with interested agencies and groups, including State agencies described in section 2824 of this title and the National Advisory Council, with a view to identifying coordination problems that may warrant consideration by the Council or the President and to the extent feasible or appropriate initiate action for overcoming those problems, either through the Office of Economic Opportunity or in conjunction with other Federal, State, or local agencies (emphasis added). . Testimony of Leon Finney, Trial Transcript 731. Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:

songer_appel1_3_3

F

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. NICHOLAS, Collector of Internal Revenue, v. FIFTEENTH STREET INV. CO. No. 1796. Circuit Court of Appeals, Tenth Circuit. June 19, 1939. F. A. Michels, Sp. Asst, to Atty. Gen (James W. Morris, Asst. Atty. Gen., Sewal; Key and J. L. Monarch, Sp. Assts. to Atty Gen., and Thomas J. Morrissey, U. S. Atty., and Ivor O. Wingren, Asst. U. S. Atty., both of Denver, Colo., on the brief), for appellant. Horace Phelps, of Denver, Colo. (James D. Benedict and Horace F. Phelps, both of Denver, Colo., on the brief), for appellee. Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges. BRATTON, Circuit Judge. This is a suit instituted by the Fifteenth Street Investment Company, a corporation, hereinafter called the taxpayer, against Ralph Nicholas, Collector of Internal Revenue for the District of Colorado, under section 24 (20) of the Judicial Code, 28 U.S.C.A. § 41 (20), to recover income taxes paid for the years 1932 and 1933. The taxpayer owned a parcel of real estate situated in the City of Denver. In March, 1929, the property was leased to Mountain States Theater Corporation for the succeeding twenty-five years. In August, 1930, the taxpayer completed the construction of a building on such real estate at a cost of $262,500. In addition to the amount thus expended by the taxpayer, the lessee, with the permission of the taxpayer but without obligation to do so, expended $134,164.40 for unseverable and permanent improvements to the building. The title to such improvements was at all times vested in the taxpayer, and no part of the expenditures which the lessee made for them was in lieu of rent. The depreciable life of the building following the agreed determinative period of the lease was sixteen and one-half years. In May, 1933, the lease was prematurely terminated by the default of the lessee, and the exclusive possession of the property was unconditionally surrendered to the taxpayer. The taxpayer included in its income tax return for the year 1932 the amount of $2,-355 as the aliquot part for one year of the value of the improvements paid for by the lessee and paid the tax thereon. No part of the value of the improvements made by the lessee was included in the return of the taxpayer for the year 1933. On examination of the facts, the Commissioner increased the income of the taxpayer in the sum of $49,106.66 as representing the depreciated value of the improvements made by the lessee remaining after the termination of the lease. A deficiency in taxes was imposed and paid. Claims for refund were submitted and denied. This suit followed. The court determined that the taxpayer did not realize any taxable gain in the years in question resulting from the improvements made by the lessee. 23 F.Supp. 863. Judgment was rendered for the taxpayer, and the collector appealed. Section 22(a) of the Revenue Act of 1932, 47 Stat. 169, 178, 26 U.S.C.A. § 22 (a), is relied upon to sustain liability for the taxes in controversy. The section provides that gross income shall include gains, profits, and income derived from dealings in property, whether real or personal, growing out of the ownership or use of such property or of any interest therein; also gains, profits, and income derived from any source whatever. But the power of the Congress to lay and collect taxes on income is confined to that which is actually and essentially income; and income, as thus used, means the gain derived from capital, from labor, or from both combined. The taxing power in respect to income cannot by legislative definition be extended beyond that scope. That which is not actually and essentially income cannot by definition be subjected to such a tax. Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, 9 A.L.R. 1570. The improvements for which the lessee paid enhanced the value of the property, but the enhancement did not constitute realized income to the taxpayer during the years in question. It constituted an addition to capital instead of realized income within the meaning of the statute. Such an enhancement in value can result in realized income to the taxpayer only through increased rentals from the property after cancellation of the lease, or through the sale of the property. M. E. Blatt Co. v. United States, 305 U.S. 267, 59 S.Ct. 186, 83 L.Ed. 167; Hewitt Realty Co. v. Commissioner, 2 Cir., 76 F.2d 880, 98 A.L.R. 1201. Reliance is also placed upon Article 63, Treasury Regulations 77, promulgated under the Act. It provides, in substance, that where a lessee erects or makes improvements in a building in pursuance of an agreement with the lessor, and such building or improvements are not subject to removal by the lessee, the lessor may at his option report as income at the time when such building or improvements are completed the fair market value thereof, or he may spread over the life of the lease the estimated depreciated value, of such building or improvements at the termination of the lease and report as income for each year of the lease the aliquot part thereof; and that if for any reason other than a bona fide purchase from the lessee by the lessor, the lease is terminated so that the lessor comes into possession or control of the property sooner than the time originally fixed for the termination of the lease, the lessor shall be deemed to have derived additional income for the year in which the lease is thus terminated to the extent that the value of the building or improvements at that time exceeds the amount previously reported as income on account of the erection of such building or improvements. The function of Treasury Regulations is to further the administration of Revenue Acts. As previously stated, the enhancement in the value of the property resulting from the improvements for which the lessee paid did not constitute realized income to the taxpayer during the years in question within the meaning of the statute. The regulation did not make it so. M. E. Blatt Co. v. United States, supra. The judgment is affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? A. Food & Drug Administration B. General Services Administration C. Government Accounting Office (GAO) D. Health Care Financing Administration E. Immigration & Naturalization Service (includes border patrol) F. Internal Revenue Service (IRS) G. Interstate Commerce Commission H. Merit Systems Protection Board I. National Credit Union Association J. National Labor Relations Board K. Nuclear Regulatory Commission Answer:

songer_r_fed

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. LONG v. COMMISSIONER OF INTERNAL REVENUE. No. 8571. Circuit Court of Appeals, Ninth Circuit. April 23, 1938. Petition for Rehearing Denied May 18, 1938. Chandler P. - Ward, of Los Angeles, Cal., for petitioner. ' James W. Morris, Asst. Atty. Gen., and Sewall- Key, Norman D. Keller, Alexander Tucker, and John J. Pringle, Sp. Assts. to Atty. Gen., for respondent. Before GARRECHT, HANEY, and STEPHENS, Circuit Judges. STEPHENS, Circuit Judge. The Commissioner of Internal Revenue disallowed a deduction claimed in petitioner’s income tax return and determined a deficiency in the tax liability of $3,286.17 for the year 1931. She petitioned the Board of Tax Appeals for a redetermination of the deficiency and prayed that, “The Board may find that the taxpayer suffered a deductible loss during the year 1931 in the sum of $112,450.” The Board decided no deduction should be allowed. Petitioner seeks review of this decision. The undisputed facts are as follows: On January 10, 1929, petitioner and her husband, Marcus Marshall, entered into a written agreement settling their property rights and claims between themselves, including the maintenance of their two minor daughters. Their property was held in community. The agreement provided that the husband would convey to petitioner certain realty and personal property and would within five ye'ars discharge encumbrances on the realty amounting to the sum of $9,324.01, and would create a fund of $100,000 payable to petitioner for the maintenance of herself and the children, and, until such fund had been created and paid to petitioner, pay her $500 monthly. An action for divorce was pending in the California Superior Court when this agreement was entered into and on February 15, 1929, an interlocutory decree of divorce was entered and the agreement, as above detailed, was approved by the court. The court also directed that Marshall deposit with a ■ trust company 500 shares of stock of .the Marshall Corporation as a guaranty for the establishment of the $100,000 fund. A final decree of divorce, which by reference incorporated the terms of the agreement, was entered F’ebruary 17,1930.- Marshall conveyed the realty, deposited the 500 shares as ordered, and paid the $500 per month until October, 1930, when he paid but $200 and in November but $150,' in December $150'and nothing thereafter. Upon his death in April, 1931, he was delinquent in the sum of $2,500. He had not then discharged any part of the encumbrances on the realty, nor had he paid to petitioner any part of the proposed $100,000 fund. At his death in 1931 his estate consisted of insurance and personalty of an aggregate value of $3,571. Creditor’s claims, in addition to petitioner’s claim of $112,450, were many times the value of the assets. The stock deposited as a guarantee for the establishment, of the $100,000 fund was worthless. In the year of Marshall’s death petitioner ascertained that the amounts agreed to be paid were uncollectible, charged them off as valueless, and took a deduction in her income tax return for that year of $112,450 as a bad debt. Section 23(j) of the Revenue Act of 1928, 26 U.S.C.A. § 23 note, under which petitioner claimed and the Board disallowed deductibility of the amount in question, provided as follows: “In computing net income there shall be allowed as deductions: * * * “(j) Bad Debts. Debts ascertained to be worthless and charged off within the taxable year.” The parties have argued • the question of whether or not the obligation charged off by petitioner was a “debt” within the meaning of the quoted provision. However, we do not here decide this point since in our view if it be assumed that the sum unpaid under the property settlement agreement is a debt nonetheless the claimed deduction was properly disallowed. . Section. 113 of the Revenue Act of 1928,. 26 U.S.C.A. § 113 note (effective when this deduction was claimed), provided, so far as is applicable here, that: “The basis for 'determining the gain or loss from the sale or other disposition of property acquired after February 28; 1913, shall be the cost of such property.” It has been held, and we think properly, in construing the comparable provision of section 202 of the Revenue Act of 1918, 40 Stat. 1060, that the act of charging off- a worthless debt is a “disposition” of proner-ty. Ayer v. Blair, 1928, 58 App.D.C. 175, 26 F.2d 547; Skinner v. Eaton, D.C.Conn., 1929, 34 F.2d 576, affirmed without opinion, 2 Cir., 1930, 44 F.2d 1020. The same conclusion was reached by this court in Crocker v. Lucas, 9 Cir., 1930, 37 F.2d 275, where section 202(b), of the Revenue Act of 1921, 42 Stat. 229 (substantially identical with the provision here under consideration), was involved. Where a bad debt deduction is claimed it will not be granted in the absence of proof of the basis governing its allowance. Harmount v. Commissioner, 6 Cir., 1932, 58 F.2d 118, 121; and see Kinkead v. Commissioner, 3 Cir., 1934, 71 F.2d 522. And the amount stated on the face of an obligation cannot be considered prima facie the cost thereof. Ayer v. Blair, supra; Skinner v. Eaton, supra. In the present case the Board of Tax Appeals has made no finding as to the “cost” of the “debt” now sought to be deducted as worthless. Nor could such a finding have been made since the record is barren of evidence as to the fact. If the obligation involved be thought to have been acquired by way of gift and thus to have become part of petitioner’s capital without cost to her, then the basis for determining the loss would be the fair market value of the obligation at the time of acquisition by the donor. Section 113(a) (2) of the Revenue Act of 1928, 26 U.S. C.A. § 113 note; see Kinkead v. Commissioner, supra. No evidence .as to fair market value appears in the record, and indeed it is doubtful' whether the agreement may be properly said to have had a “fair market value.” As stated in Helvering v. Walbridge, 2 Cir., 1934, 70 F.2d 683, 685, “All the cases have required some more palpable measure than any available here, which can be no more than an opinion as to the value of a unique right of action for which there were no known buyers, nor any but an imaginary demand. [Citing cases.]”. Regardless, then, of whether “cost” or “value” be considered as the proper measure for the calculation of the claimed deduction, no basis -has been established. The burden of proof to establish a deductible loss and the amount of it, clearly was upon petitioner. Reinecke v. Spalding, 280 U.S. 227, 233, 50 S.Ct. 96, 98, 74 L.Ed. 385; Harmount v. Commissioner, supra; Kinkead v. Commissioner, supra. If it be thought that the difficulties of establishing a basis in a case such as' the present are insurmountable, the language of the Supreme Court in Burnet v. Houston, 283 U.S. 223, 228, 51 S.Ct. 413, 415, 75 L.Ed. 991, is pertinent. 'The court there said: “We cannot agree that the impossibility of establishing a specific fact, made essential by the statute as a prerequisite to the allowance of a loss, justifies a decision for the taxpayer based upon a consideration only of the remaining factors which the statute contemplates. * * * The impossibility of proving a materia! fact upon which the right to. relief de-t pends simply leaves the claimant upon whom the burden rests with an unenforceable claim, a misfortune to be borne by him, as it must be borne in other cases, as the result of a failure of proof.” Affirmed. “See. 202: ■ (a) That for • the purpose of ascertaining the gain derived or loss sustained from the sale or other disposition of property, real, personal, or mixed, the basis shall be — ” “See. 202. * * * (b) The basis for ascertaining the gain derived or loss sustained from the sale or other disposition of property, real, personal, or mixed, acquired before March 1, 1913, shall be the same as that provided by subdivision (a); but — ” 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_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). BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT 20, MUSKOGEE, OKLAHOMA; Natalie Sams and F. Clarence Sams, minors who sue by their parents, Mr. and Mrs. Nathan Sams, and Mr. and Mrs. Nathan Sams, individually; Thomas Buckley, Robert Buckley and John Buckley, minors who sue by their parents, Mr. and Mrs. William A. Buckley, and Mr. and Mrs. William Buckley, individually; Jennifer Parker, a minor who sues by her parents, Mr. and Mrs. Kenneth Parker, and Mr. and Mrs. Kenneth Parker, individually; and the Class of all those School Districts, School Children, Parents and Property Owners in the State of Oklahoma who are Similarly Situated with the above Named Plaintiffs, Plaintiffs-Appellants, v. STATE OF OKLAHOMA; State of Oklahoma ex rel. the Commissioners of the Land Office; Jack Blackwell, the County Treasurer of Oklahoma County; Jim Parkinson, the County Treasurer of Tulsa County; and Oscar Thomas, the County Treasurer of Muskogee County, in their official capacities and representing the class of all County Treasurers of Oklahoma, Defendants-Appellees, and Board of Education of Independent School District 1, Sulphur, Oklahoma, et al., Intervenors-Appellees. No. 89-68. United States Court of Appeals Tenth Circuit. April 14, 1969. Rehearing Denied May 5, 1969. Tom R. Mason, Muskogee, Okl., and Maurice H. Merrill, Norman, Okl. (Norman & Wheeler and Bonds, Matthews & Mason, Muskogee, Okl., were with them on the brief), for plaintiffs-appellants. Bert Barefoot, Jr., Oklahoma City, Okl. (C. J. Engling, Asst. Atty. Gen. for State of Oklahoma, was with him on the brief), for defendants-appellees. John A. Claro, Oklahoma City, Okl. (Bert Barefoot, Jr., Edward H. Moler and Barefoot, Moler, Bohanon & Barth, Oklahoma City, Okl., were with him on the brief), for intervenors-appellees other than Independent School Dist. 1 of Tulsa County, Okl. C. H. Rosenstein, Tulsa, Okl. (Rosenstein, Livingston, Fist & Ringold, Tulsa, Okl., were with him on the brief), for intervenor-appellee Independent School Dist. 1 of Tulsa County, Okl. Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges. BREITENSTEIN, Circuit Judge. The claim of the plaintiffs-appellants is that Oklahoma treats them unequally in the distribution of taxes collected for school purposes from utilities operating in more than one county. Jurisdiction is asserted under 28 U.S.C. § 1343(3) in that plaintiffs are deprived of the equal protection guaranteed by the Fourteenth Amendment. A three-judge district court was requested and denied. The trial court dismissed the action for lack of subject-matter jurisdiction and this appeal followed. The action was brought by the Board of Education of a Muskogee, Oklahoma, school district and by parents and taxpayers suing in their own behalf and in behalf of their school children. The defendants are the State of Oklahoma and various state and local officials whose duties relate to the collection and distribution of taxes. Several school districts were permitted to intervene on the side of the defendants. The allegations of the complaint are these. The Oklahoma Constitution, Art. X, § 12a, provides that taxes on utilities operating in more than one county “shall be paid into the Common School Fund * * * of this State.” In Linthicum v. School District No. 4 of Choctaw County, 49 Okl. 48, 149 P. 898, the Oklahoma Supreme Court held that this constitutional provision was not self-executing and that in the absence of legislation the county treasurers could not pay into the Common School Fund the mentioned taxes. The Oklahoma legislature has not enacted the necessary implementing legislation. This failure deprives the plaintiffs of equal protection because the children are denied an equal opportunity for education, because the individual taxpayers are required to pay more taxes, and because the school district is denied its “equalized share of the school ad valorem taxes,” assured by Art. X, § 12a. The plaintiffs seek a decree enjoining the county treasurers from paying taxes collected on utilities operating in more than one county to the local school districts, directing the state legislature to enact implementing legislation, and, in the event of such legislation, ordering the Commissioners of the Land Office to apportion. and distribute the taxes throughout the state as other “Common School Funds.” A single judge may dismiss for lack of subject-matter jurisdiction and his determination is made on the basis of the allegations of the complaint. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. His refusal to convene a three-judge court may be reviewed by the court of appeals. Idlewild Bon-Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794. If the trial court was correct in holding that subject-matter jurisdiction is not alleged,, there is no need of pursuing further the question of the need for a three-judge court. The complaint before us does not attack the constitutionality of any state statute or of any administrative order. The claims are (1) the decision in Linthicum v. School District No. 4 of Choctaw County, 49 Okl. 48, 149 P. 898, that § 12a of the Oklahoma Constitution is not self-executing is wrong, and (2) accepting Linthicum, the state legislature has denied the plaintiffs equal protection by not implementing § 12a. If the complaint is read liberally, it can be taken as an over-all attack on the Oklahoma system of distribution of school funds. If such is the intent, we do not know what law or what official act is relied on as a denial of equal protection. The plaintiffs say that the apportionment decisions, e. g. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, and Moss v. Burkhart, W.D.Okl., 220 F.Supp. 149, support their right to a three-judge district court. In those cases the constitutionality of specific state apportionment statutes was attacked. Other decisions cited by plaintiffs are similarly distinguishable. In Sailors v. Board of Education of County of Kent, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650, the charge was that a state statute was unconstitutional. Flast v. Cohen, Secretary of Health, Education, and Welfare, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, was concerned with the constitutionality of a federal statute. King, Commissioner, Department of Pensions and Security v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118, related to the constitutionality of a state regulation. The decision in Linthicum that § 12a is not self-executing is an interpretation by the highest court of Oklahoma of the constitution of that state. It is conclusive on the point and is binding on us. Senn v. Tile Layers Protective Union, Local No. 5, 301 U.S. 468, 477, 57 S.Ct. 857, 81 L.Ed. 1229. The claim that Linthicum was decided wrongly goes to the construction of the state constitution and does not deny a federal constitutional right. We cannot overturn Linthicum. The failure of the legislature to implement § 12a is not the denial of a right, privilege, or immunity secured by the Constitution of the United States. No allegation of the complaint charges that any plaintiff, any group of plaintiffs, or any class which they claim to represent have been discriminated against in the collection and distribution of tax moneys because of race, color, religion, or any other personal attribute. Absent such allegations, the claim is simply that they want a different allocation of the public revenues. In Allied Stores of Ohio, Inc. v. Bowers, Tax Commissioner of Ohio, 358 U.S. 522, 526, 79 S.Ct. 437, 440, 3 L.Ed.2d 480, the Supreme Court said that when the states are dealing with their proper domestic concerns and do not entrench on federal prerogatives or violate the guaranties of the federal constitution, they “have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests.” See also Thompson v. Allen County, 115 U.S. 550, 555 and 556, 6 S.Ct. 140, 29 L.Ed. 472. The question of whether taxes collected from utilities operating in more than one .county should be used in the county where the property is located or distributed generally on some basis to all the counties of the state presents a policy matter for determination by the state — not by the federal judiciary. See McInnis v. Shapiro, N.D.Ill., 293 F.Supp. 327, affirmed sub nom. McInnis v. Ogilvie, 394 U.S. 322, 89 S.Ct. 1197, 22 L.Ed.2d 308. The use of taxes in the county where the taxed property is located does not, of itself, constitute an invidious discrimination or unreasonable classification. We agree with the trial court that subject-matter jurisdiction is not present. The trial court dismissed the State of Oklahoma as a defendant on the ground of sovereign immunity and no express consent to suit. The action was correct. Hamilton Manufacturing Company v. Trustees of the State Colleges in Colorado, 10 Cir., 356 F.2d 599, 601, and cases there cited. Affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:

songer_casetyp1_2-3-3

C

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "civil rights - other civil rights". Maria DOE and Cruz Doe, individually and on behalf of their minor son Manual Doe, Plaintiffs, and Anna Doe, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES, et al., Defendants, and Catholic Home Bureau, Defendant-Appellee. No. 590, Docket 82-7505. United States Court of Appeals, Second Circuit. Argued Jan. 27, 1983. Decided June 2, 1983. Certiorari Denied Oct. 3, 1983. See 104 S.Ct. 195. Carolyn Kubitschek, Edward N. Simon, New York City, David J. Lansner, Lansner & Wendt, New York City, Louise Gruner Gans, New York City, for plaintiff-appellant. Frederick J. Magovern, New York City, for defendant-appellee. Before OAKES, KEARSE and SLOVI-TER, Circuit Judges. Of the United States Court of Appeals for the Third Circuit, sitting by designation. SLOVITER, Circuit Judge: Appellant Anna Doe’s claim under 42 U.S.C. § 1983 (Supp. IV 1980) against the Catholic Home Bureau (“the Bureau”) comes before this court for the second time. On the first appeal, we reversed the judgment entered on the jury verdict for the defendant Bureau and remanded the case for a new trial because the jury instructions were misleading and because certain evi-dentiary rulings were erroneous. Doe v. New York City Department of Social Services, 649 F.2d 134 (2d Cir.1981) (Doe I). After the jury found for plaintiff at the new trial and assessed damages at $225,000, Judge Brieant, the trial judge, United States District Court for the Southern District of New York, entered judgment notwithstanding the verdict in favor of the defendant Bureau. The judge rejected plaintiff’s argument that she was entitled to the jury verdict under this court’s earlier decision. Instead, the trial court held the evidence was so overwhelming that no reasonable jury could find the Bureau acted with deliberate indifference, the standard used to establish liability under the section 1983 claim at issue. Plaintiff appeals the entry of judgment in favor of the Bureau; we reverse and remand for reinstatement of the jury verdict. I. BACKGROUND A. Facts Because this ease reaches us on appeal from a judgment notwithstanding the jury’s verdict for the plaintiff, we must view the evidence in the light most favorable to the plaintiff who “must be given the benefit of all reasonable inferences which may be drawn in [her] favor from [the] evidence.” Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970). Anna Doe, born in 1961, was two years old when she was placed in foster care along with her sister. The New York City Commissioner of Welfare, their legal custodian, arranged for defendant Catholic Home Bureau to supervise their care beginning January 5, 1964. The Bureau placed the girls with Mr. and Mrs. Senerchia, having previously investigated and certified them as suitable for foster placements. The Bureau placed two additional foster children with them in 1965. The record contains evidence that Anna was regularly and frequently physically and sexually abused by Mr. Senerchia, her foster father, starting in 1971 when she was about ten or eleven years old. The physical abuse consisted, inter alia, of beating her over her entire body with his hands and with a belt, throwing her down the stairs and even once cutting her with a hunting knife. Beginning at the same time when Anna was ten or eleven, and continuing for more than six years, Mr. Senerchia forced Anna to have intercourse and oral sexual relations with him. He had threatened Anna she would be institutionalized if she told anyone of his actions. The Bureau took decisive action only after Mrs. Senerchia reported to the Bureau in August 1977 that she had recently discovered Mr. Senerchia and Anna in bed together. On receipt of this information, the Bureau barred Mr. Senerchia from returning home and the Bureau reported the abuse to the appropriate city authority, the Confidential Investigation Unit. Shortly thereafter, one of Anna’s foster sisters reported that she had also been physically and sexually abused by Mr. Senerchia. The Confidential Investigation Unit corroborated the occurrence of abuse of Anna. It is undisputed that prior to August 1977, the Bureau did not report any suspected abuse either to the New York City Department of Social Services or to the Confidential Unit. In this law suit, filed in April 1979, Anna claims that the Catholic Home Bureau violated her constitutional right to be kept free from harm. She alleges that the Bureau’s failure to supervise her placement adequately and to report her situation to the New York City Department of Social Services as a case of suspected child abuse led to continuation of her mistreatment. Plaintiff contends that the Bureau had violated specific duties imposed by New York law; that it had enough information beginning at least in early 1975 to give it actual or constructive notice of the abuse to which Anna was being subjected; and that the Bureau was grossly negligent and deliberately indifferent to Anna’s physical well-being in failing to act, resulting in Anna’s continued abuse. To support the jury’s verdict, which depended on a finding of deliberate indifference to plaintiff’s needs, plaintiff relies primarily on events beginning in early 1975. The case records evince some earlier concerns. There are notations about Mr. Sen-erchia’s unusual dominance within the family, the difficulty of dealing with him, the suspicion that Mr. Senerchia had severe emotional problems, the difficulties which Mr. and Mrs. Senerchia placed in the path of workers seeking to see Anna alone, and the Senerehias’ practice of often answering questions directed to Anna. Nonetheless the early case records were generally positive about the family environment. However, in January 1975, when Anna was in the eighth grade, specific information of a problem was communicated to Sister Una McCormack, the Bureau’s executive head. A priest told her that Mr. Sen-erchia had taken Anna out of her school allegedly because “Anna was sexually acting out in school” with other children, and was attempting to get her into parochial school. Sister Una directed that Anna be seen by Dr. Lewis, a Bureau psychologist. Ms. Crowe, the supervisor of the Staten Island office which was handling Anna’s case, contacted Mr. Senerchia regarding this appointment. Mr. Senerchia repeated the allegation of frequent sexual activity to Ms. Crowe, and stated that Anna, upon his prodding, had confessed to sexual involvement with other school children including actual intercourse occurring since the first grade. These activities allegedly occurred during school hours in empty classrooms, hallways, the gym and the cafeteria. The case records of conversations of Bureau personnel with Mr. Senerchia note that he seemed eager to give details of this sexual activity and that he seemed to derive some satisfaction from recounting the matter. Mr. Senerchia insisted that his wife not be told and that the Bureau not approach the school. Ms. Moroney, Ms. Crowe’s supervisor, visited the Bureau’s branch office, read the case record and discussed the situation. Ms. Moroney took the case record containing background information on the Senerchia family to Dr. Lewis. Dr. Lewis was informed that Anna had been “engaging in sexual activity with classmates.” Dr. Lewis, however, did not read the case record before interviewing Anna and Mr. Senerc-hia. During this interview on January 9, 1975, Anna admitted to “sexual play” with other children and evinced anxiety about the repercussions the episode might have on the possibility of her adoption by the Sen-erchias. Dr. Lewis’ impression was that Anna had probably been engaging in some “sex play” and concluded, after spending 15 minutes with Mr. Senerchia, that he seemed to be a concerned and warm parent. She recommended that Anna be transferred to a more appropriate educational setting, but that the foster home placement be maintained. Dr. Lewis and the Bureau’s personnel agreed, after conferring, that Anna should not return to the school she had been attending. Significantly, on learning of Mr. Senerchia’s allegation, no one from the Bureau contacted the school where Anna had allegedly engaged in these active and frequent sexual activities either to corroborate Mr. Senerchia’s story or to see what light the school authorities could shed. Shortly thereafter, Dr. Lewis made an up-to-date psychological evaluation of Anna to measure her intelligence for purposes of educational placement, since the Bureau was seeking to have Anna placed in a special class for the mentally handicapped. A representative of the City’s Bureau of Child Guidance told Anna’s caseworker that Anna’s test results were above the ceiling for placement in a mentally handicapped class. The caseworker informed that representative at the City’s Bureau that Anna’s foster father had removed her from school, but did not give the reason. The Catholic Bureau then considered trying to place Anna in a special class for the emotionally handicapped. Since such a placement required a psychiatric evaluation in addition to the psychological evaluation performed by Dr. Lewis, Anna was scheduled to see Dr. de Alvarado, an agency psychiatrist, on March 5, 1975, and Mr. and Mrs. Senerchia were requested to attend. A staff conference on Anna’s case was held in late February at Dr. de Alvarado’s request. The March 5, 1975 appointment was cancelled because Mr. Senerchia had been hospitalized, but Dr. de Alvarado saw Anna alone on March 19th. Dr. de Alvarado testified that she had carefully read the case history and felt something did not add up. Upon questioning Anna, she did not believe the details of Anna’s sexual involvement with other school children. She asked Anna directly if she was sexually involved with Mr. Senerc-hia. Although Anna did not answer, Dr. de Alvarado knew that a great majority of abused children deny occurrence of such abuse. Dr. de Alvarado reached the judgment that sexual abuse was occurring, which she based upon her reading of the case history and her observation of Anna during the interview, including Anna’s tearful reaction to the question about sexual involvement with her foster father. After the interview, the psychiatrist called a conference that same day with Ms. Crowe and others and, as Dr. de Alvarado testified, “very explicitly said to them that I thought there was sexual abuse in that home and that she [Anna] should be removed so that they could explore” the situation. Dr. de Alvarado testified that she “thought it was a crisis situation.” Her report recommended removal from the foster home and placement in a residential structured situation. Although Dr. de Alvarado had alerted the Bureau personnel to her views on March 19, 1975, no immediate action was taken by them. Dr. de Alvarado was requested by the Bureau to delete references to any suspected sexual relationship from her written report, apparently so that the report could be used by those outside the Bureau for school placement purposes, and she did so. An administrative review in the Bureau was not held until April 10, 1975, when Ms. Maroney, Mr. Galano, Special Services Coordinator, Ms. Crowe, and Ms. Klages, Anna’s caseworker, met and agreed, as set forth in the case records, that “a continuing effort should be made to get Anna into a school” and that “Mr. Senerchia’s involvement with Anna should be further investigated.” Nonetheless, the Bureau undertook no such investigation on its own, nor did it request an investigation by others. No one from the Bureau reported suspected abuse to the Confidential Investigation Unit, although only the month before there had been a memorandum to child care agencies from the City emphasizing that “[i]t is imperative that diligent reporting” of abuse be made. Doe I, 649 F.2d at 148 n. 13. Furthermore, no home visits were made between November 12, 1974 and May 12, 1975, and Anna, who had previously been classified as having borderline intelligence, remained out of school for the semester. The truant officer from Anna’s school became concerned about Anna’s absence. After learning Mr. Senerchia’s asserted reason for removing Anna from school, the truant officer telephoned the Bureau in April 1975 and told the caseworker that “this [Mr. Senerchia’s allegations] could not be occurring” because the school “is not ... haphazardly run”, Anna could not have been cutting classes, and there were no empty storerooms or classrooms where the alleged activity could have taken place. The school’s principal called the Bureau shortly thereafter to report he had investigated and confirmed that Anna had not been cutting class. When the caseworker finally saw Mr. Senerchia on May 12, 1975 and questioned him about his allegations, Mr. Senerchia gave a version which the caseworker noted “differ[ed] greatly from the version Mr. S. originally gave.” In May 1975, Anna was examined concerning her school placement by Dr. Davis, a consultant psychiatrist for the City’s Board of Child Guidance. The Bureau did not inform Dr. Davis of Dr. de Alvarado’s assessment of Mr. Senerchia’s involvement with Anna. Dr. Davis advised against a residential placement but felt Anna needed a special slow class. When Anna finally resumed school in the fall, she attended a parochial school rather than the special classes for which the Bureau had been waiting the prior semester. On June 6,1975, the Bureau submitted its annual report to the City. It did not mention Mr. Senerchia’s withdrawal of Anna from school, Dr. de Alvarado’s suspicions and recommendation, or the allegations of Anna’s sexual activity in school, although these events had occurred in the year covered by the report. Nor did the Bureau probe further based on the information at hand. Instead, the Bureau transferred the case to a different office supervisor (Ms. Gambino) and caseworker (Ms. Dellaverson) in the summer of 1975 because of “the complications surrounding [the] case” and “in an effort to move away from the historical relationship (or lack of) that exists between [the Senerchia family] and unit staff.” Ms. Dellaverson was never instructed to investigate the possible sexual involvement of Anna with her foster father. She testified that she visited the Senerchia home every three weeks or so. The case records do not reflect any visitations between September 14, 1976 and April 1, 1977, another critical period. In September 1976, Mr. Senerchia informed the Bureau that Anna’s foster sister had been “sexually acting out” in a fashion similar to his reports about Anna. He removed the foster sister from school. Ms. Dellaverson told her supervisor, Ms. Gambi-no, that she felt this was a “repetition syndrome” and Ms. Gambino “felt there was something abnormal here.” Nonetheless, this new and troubling development did not evoke any suspected child abuse report by the Bureau. Because the Senerchias were planning to adopt Anna and her sister, Ms. Dellaverson and Ms. Gambino decided that a psychiatrist should interview the Senerchias, Anna, and her sister before proceeding with the adoption. The Senerchias initially resisted a psychiatric visit, but were finally seen in March 1977 by a Catholic Bureau psychiatrist, Dr. Piaña. Ms. Dellaverson testified that she did not think she told Dr. Piaña about Dr. de Alvarado’s suspicions or that the children had been taken out of school. Although Dr. Piaña testified at the trial that he had reviewed the highlights of the case record, this recollection was in conflict with his previous deposition testimony that he had read only a two page case summary before his interview rather than the entire case record. This summary mentioned that Anna and her foster sister had been involved in “sexual acting out” at school, but did not state that Anna had been removed from school and did not refer to Dr. de Alvarado’s suspicions. Dr. Piaña found no psychiatric contra-indications to the Senerc-hias adopting Anna and her sister. There was no testimony that he had asked the girls about sexual abuse at home, even though he was aware of the reports of Anna’s sexual acting out in school. His testimony indicated a disinclination to questioning about sexual involvement at home. It is not clear from the record whether the Bureau provided Dr. Piaña with a copy of Dr. de Alvarado’s earlier report. In the summer of 1977, Mr. Senerchia informed the Bureau he was going to divorce Mrs. Senerchia and planned to marry a young woman whose child he had fathered. After Mrs. Senerchia learned of her husband’s plan to divorce her, she went to the Bureau in August 1977 with Anna and reported she had found Anna and Mr. Senerchia in bed together. The record indicates that the Bureau then acted promptly in reporting the abuse to authorities and in moving to protect the girls. B. Liability The Bureau does not contest that 42 U.S.C. § 1983 applies to it. As a placement agency, it had various statutory and contractual obligations. It was charged by state law with the task of annually recerti-fying the Senerchia home. See Doe I, 649 F.2d at 137. The Bureau also had a contractual agreement with the Department of Social Services of the City of New York by which it undertook, inter alia, to supervise the foster home, to provide appropriate comprehensive services, and to submit periodic reports concerning the placement so that the City could monitor the situation. Plaintiffs evidence showed, however, that there were some- lengthy periods when no Bureau personnel visited the Senerehia home, and that these gaps came at critical times under the events of this case. Furthermore, the Bureau failed to submit comprehensive and timely reports. Finally, and most importantly, as noted in Doe I, N.Y. Soc.Serv.Law § 413 (McKinney Supp.1982) “imposed a strict duty on the agency to report all suspected cases of child abuse to the Department of Social Services.” 649 F.2d at 145 & n. 8 (emphasis added). The duty of agencies supervising a foster home to report suspected child abuse was reiterated on March 5,1975 in a memorandum by Assistant Commissioner Parry which emphasized that “[i]t is better, by far, in the best interests of the children we are mandated to protect, to err on the side of reporting cases which may be unfounded, than not to report and thereby endanger our children.” Doe I, 649 F.2d at 148 n. 13. Although the Bureau’s staff psychiatrist, Dr. de Alvarado, explicitly stated she suspected sexual activity between Anna and her foster father, the Bureau transmitted no report of suspected abuse. In Doe I, we reversed the trial court’s entry of judgment for the defendant. We held that the jury had not been properly instructed with regard to the meaning of “deliberate indifference”, the standard of liability. The trial court had erroneously conveyed “an impression of deliberate indifference requiring a higher degree of knowledge, ill-will and culpability than is actually the case.” 649 F.2d at 142. Moreover, “[i]t failed to explain to the jury that repeated acts of negligence could be evidence of indifference.” Id. We furthermore noted that gross negligence and deliberate indifference are “closely associated” and that the former “creates a strong presumption” of the latter. Id. at 143 (footnote omitted). We found that the trial court erred by instructing the jury that plaintiff had to show that the Bureau had actual and specific knowledge of Anna’s mistreatment. Id. at 144 — 45. We stated liability under section 1983 could be established if supervisory personnel “exhibited deliberate indifference to a known injury, a known risk, or a specific duty.” Id. at 145. We also held that the trial court erroneously excluded certain evidence, such as parts of the Parry memorandum and evidence of abuse of Anna’s foster sister, and that the trial court erred in admitting certain other evidence of dubious relevance without cautionary instruction. After the second trial, the jury returned a verdict for the plaintiff and assessed damages at $225,000. The trial court set aside the verdict and rejected plaintiff’s argument that the holding in our prior opinion negated its power to rule on a motion for judgment notwithstanding the verdict. The trial judge also held that the evidence was so overwhelming that no reasonable jury could have concluded the Bureau acted with deliberate indifference, although he believed there was evidence of negligence. He stated, however, that if his determination was reversed on appeal, the damage award was proper. No cross-appeal was taken from this latter determination. Plaintiff appeals the grant of defendant’s motion for judgment notwithstanding the verdict. II. DISCUSSION There are two primary issues on appeal : (1) the application of the law of the case doctrine and (2) whether the evidence was so overwhelming that no reasonable jury could find the Bureau acted with deliberate indifference, thereby justifying entry of judgment n.o.v. A. Law of the Case 1. Mandate of Prior Decision Under one prong of the law of the case doctrine, “When an appellate court has once decided an issue, the trial court, at a later stage of the litigation, is under a duty to follow the appellate court’s ruling on that issue.” United States v. Cirami, 563 F.2d 26, 32 (2d Cir.1977); see 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 792-93 (1981). This doctrine applies to issues that have been decided “either expressly or by necessary implication.” Munro v. Post, 102 F.2d 686, 688 (2d Cir.1939); see Fogel v. Chestnutt, 668 F.2d 100, 108 (2d Cir.1981), cert. denied, - U.S. -, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982). Thus if, in Doe I, we decided that there was sufficient evidence to present a jury question on liability under section 1983, that holding would be binding on the lower court. In arguing that we did in fact hold a jury question on liability existed which precluded the district court from overturning the jury verdict, appellant relies particularly on the following language: Defendant argues that any errors committed by the trial court would have been harmless because plaintiff’s case was so weak that it should never have gone to the jury. We disagree. This is a complicated and difficult case. Whether the Catholic Home Bureau’s omissions were the product of deliberate indifference and proximately caused any portion of Anna’s abuse were questions of fact to be resolved by the jury. 649 F.2d at 149. The Bureau characterizes this passage as mere dicta. We do-not so regard it. Although the decision to remand for a new trial was based on a finding that certain jury instructions and evidentiary rulings were erroneous, the plain language quoted above indicates that the sufficiency of the evidence question was presented to and decided by the earlier panel. Furthermore, 28 U.S.C. § 2111 (1976) directs appellate courts to disregard harmless error. It would have been unnecessary to remand for a new trial because of erroneous jury instructions and evidentiary rulings if plaintiff’s evidence on liability (including that proffered and improperly excluded) was insufficient under section 1983 as a matter of law. It is therefore clear that Doe I held plaintiff presented sufficient evidence to go to the jury. Accordingly, resolution of the sufficiency issue became part of the law of the case. There is some authority in other circuits which would permit the district court to enter a directed verdict or j.n.o.v. if there was substantially different evidence at the second trial. See, e.g., Otten v. Stonewall Insurance Co., 538 F.2d 210, 212 (8th Cir.1976); Johnson v. Bernard Insurance Agency, 532 F.2d 1382, 1383-84 (D.C.Cir.1976); Pyramid Life Insurance Co. v. Curry, 291 F.2d 411, 414 (8th Cir.1961). We need not decide whether to adopt that precedent here, see United States v. Fernandez, 506 F.2d 1200, 1202-03 (2d Cir.1974) (trial court has no power to alter mandate of the appellate court based on “new evidence”), because we reject the Bureau’s contention that there was substantially different evidence presented at the second trial of this case. We have examined the records of both trials and conclude the evidence at the second trial was not substantially or materially different. The core of plaintiff’s case pertinent to the issue of deliberate indifference was very similar at both trials and, if anything, was probably stronger at the second trial. Although the defendant Bureau called several new witnesses at the second trial, there was little, if any, material new evidence that would justify departure from the law of the case. Merely cumulative evidence does not constitute such a justification. See First National Bank v. Material Service Corp., 597 F.2d 1110, 1116 (7th Cir.1979). 2. Reconsideration oí Prior Appellate Decision Appellee Bureau urges that if we find the prior decision controlling on the district court, we should nevertheless reconsider it. A second prong of the law of the case doctrine, however, encompasses “adherence by an appellate court to its own decision at an earlier stage of the litigation.” United States v. Cirami, 563 F.2d 26, 33 n. 6 (2d Cir.1977). As we have noted on numerous occasions, we view this aspect of the law of the case doctrine as one of sound, albeit not inexorable, practice. See, e.g., Rolf v. Blyth, Eastman Dillon & Co., 637 F.2d 77, 87 (2d Cir.1980); Crane Co. v. American Standard, Inc., 603 F.2d 244, 248 (2d Cir.1979) (Crane III); United States v. Fernandez, 506 F.2d 1200, 1203 (2d Cir.1974). Accord Insurance Group Committee v. Denver & Rio Grande Western Railroad Co., 329 U.S. 607, 612, 67 S.Ct. 583, 585, 91 L.Ed. 547 (1947). We have repeatedly stated we will not depart from this sound policy absent “cogent” or “compelling” reasons. See, e.g., United States v. Fernandez, 506 F.2d at 1203-04; Dale v. Hahn, 486 F.2d 76, 81 (2d Cir.1973), cert. denied, 419 U.S. 826, 95 S.Ct. 44, 42 L.Ed.2d 50 (1974). The major grounds justifying reconsideration are “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 790 (1981) (footnote omitted); see Melong v. Micronesian Claims Commission, 643 F.2d 10, 17 (D.C.Cir.1980); White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967). In the previous section we discussed and rejected the Bureau’s new evidence claim. We similarly reject the Bureau’s characterization of the prior appellate decision as clear error leading to manifest injustice. We turn then to the Bureau’s claim that the intervening decision in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), has altered the applicable standard of liability under section 1983. Romeo involved a section 1983 damage suit. The Court held that mentally retarded person's involuntarily confined in a state institution for the retarded have substantive rights under the due process clause of the Fourteenth Amendment. The Court stated that professional caretakers violate these rights “only when the decision by the professional is such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. 102 S.Ct. at 2462 (footnote omitted). In so stating, the Court adopted what is essentially a gross negligence standard. Even if the Romeo standard of liability is applicable outside of an institutional 'setting, it is not more favorable to the Bureau than the deliberate indifference test which was applied in Doe I. The deliberate indifference test stemmed from the decision in Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), where the Court held that deliberate indifference to a prisoner’s serious medical needs constituted cruel and unusual punishment under the Eighth Amendment and stated a cause of action under section 1983. The Romeo Court, however, stated that it was error to apply the deliberate indifference standard when considering the due process rights of retarded persons involuntarily committed. 102 S.Ct. at 2456 n. 11. Such persons are “entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” 102 S.Ct. at 2461 (citing Estelle v. Gamble, 429 U.S. at 104, 97 S.Ct. at 291). Thus the standard of liability which Anna was required to meet in this case may have been stricter than that suggested by the Romeo opinion. Consequently, we reject the Bureau’s assertion that the Romeo decision has effected a change in the controlling law so as to make our prior decision clear error, and hold that the plaintiff was entitled to her jury verdict under the law of the case. B. Propriety of Judgment n.o.v. Alternatively, we hold that entry of judgment n.o.v. for the defendant Bureau was unwarranted because the record contains sufficient evidence from which a jury could reasonably find deliberate indifference. The standard for grant of judgment n.o.v. has been recently articulated as follows: [T]he trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgment n.o.v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him. Howes v. Great Lakes Press Corp., 679 F.2d 1023, 1030 (2d Cir.) (quoting Mattivi v. South African Marine Corp., “Huguenot”, 618 F.2d 163, 167-68 (2d Cir.1980)), cert. denied, - U.S. -, 103 S.Ct. 452, 74 L.Ed.2d 605 (1982). The trial court in this case premised its decision on the second ground referred to in Howes. It relied particularly on the facts that Bureau personnel had often visited the plaintiff and the foster home and had provided or arranged for many general services for Anna’s care, such as tutoring and medical services, and furthermore that Anna expressed no discontent with her placement and, to the contrary, indicated her desire for adoption. The judge characterized as at most “mere negligence”, “poor judgment” or “somewhat careless” the Bureau’s failure to comply with periodic reporting requirements, its failure to visit the foster home during at least two lengthy periods and its failure to report Dr. de Alvarado’s suspicions of sexual abuse which the judge considered to be “almost equal to a guess.” In so ruling, the court usurped the function of the jury. In Doe I we stated that an agency could be held liable under section 1983 if “its top supervisory personnel ... exhibited deliberate indifference to a known injury, a known risk, or a specific duty, and their failure to perform the duty or act to ameliorate the risk or injury was a proximate cause of plaintiff’s deprivation of rights under the Constitution.” 649 F.2d at 145. In Doe I we referred to two separate theories of liability which could be applied here. One theory is predicated on the Bureau’s failure to comply with specific statutory duties, such as to report all suspected child abuse to the Department of Social Services. Id. at 145 & n. 8. This duty was characterized as “specific” and “unequivocal”, and the Bureau’s failure to act furnished a plausible basis for the jury to infer deliberate indifference. We also held that liability could be based on inferring deliberate unconcern “from a pattern of omissions revealing deliberate inattention to specific duties imposed for the purpose of safeguarding plaintiffs from abuse.” Id. (citation omitted). Moreover, the failure to report could be taken as “incremental documentation of a pervasive pattern of indifference.” Id. at 146 (footnote omitted). The fact that the agency may have been attentive to Anna’s general care and provided Anna with general services did not preclude a jury finding of deliberate indifference respecting one very significant aspect of her welfare, the protection from abuse. See Murrell v. Bennett, 615 F.2d 306, 310 n. 4 (5th Cir.1980) (one episode of gross misconduct with respect to prisoner’s medical care not necessarily excused by general pattern of attentiveness). Furthermore, although Anna’s silence about her abuse is uncontested, the record contains expert testimony that abused children typically do not come forward and usually wish to remain in the home. Even defendant’s expert agreed that plaintiff’s desire for adoption was not inconsistent with her having been physically or sexually abused. The jury could infer that childcare professionals should know this fact, especially when their own expert psychiatrist informs them she believes abuse is occurring and the child is viewed as passive and of limited intelligence by agency personnel. None of the facts relied on by the trial court justified its overriding of the jury’s verdict. A reasonable jury could have inferred deliberate indifference by the Bureau from the following evidence: the failure to report suspected child abuse to relevant authorities after being informed in March 1975 of Dr. de Alvarado’s opinion, especially when viewed against a background of unusual circumstances surrounding Mr. Sen-erchia’s removal of Anna from school; the failure after the April 10,1975 staff conference to carry out any further investigation of possible sexual abuse; the failure to verify Mr. Senerchia’s allegations of Anna’s sexual acting out in school with school authorities; the failure to take action after school officials informed the Bureau that the events described by Mr. Senerchia could not have transpired and after Mr. Senerchia changed his story significantly; acquiescence in Anna’s remaining out of school for an entire semester; the failure to conduct any home visits between December 1974 and May 1975; the failure to report Anna’s school absence, alleged sexual acting out or Dr. de Alvarado’s abuse suspicion in the June 1975 annual report to the Department of Social Services; the failure to take decisive action in 1976 when Mr. Senerchia reported markedly similar sexual acting out by Anna’s foster sister; and the failure either of Bureau personnel to provide Dr. Piaña with adequate information or the failure of Dr. Piaña, in light of the information given, to question Anna concerning sexual abuse in his March 1977 interview. As an appellate court, we do not sit to evaluate the validity or plausibility of the Bureau’s explanations for its actions. There was sufficient evidence for the liability issue to be presented to the jury, and the jury made its decision. III. We conclude that the law of the case established by the earlier appellate decision in Doe I precluded entry of a judgment n.o.v. for the defendant at the second trial and that no compelling reason has been established to justify our reconsideration of that decision.- In any event, entry of judgment n.o.v. was erroneous because there was sufficient evidence for a jury finding of liability under section 1983. Consequently, we reverse and remand for reinstatement of the jury verdict. . We reject the Bureau’s additional contention that this court lacks jurisdiction under Fed.R. App.P. 4(a). The district court entered judgment n.o.v. for the Bureau on June 4, 1982 and subsequently granted plaintiffs motion for reargument but adhered to its original decision on June 24, 1982. The notice of appeal, filed June 30, 1982, was timely, and it was not error for plaintiff to have designated the appeal as from the June 4, 1982 entry of judgment. . This contrasts with Borger v. Yamaha International Corp., 625 F.2d 390 (2d Cir.1980), where the appellant had not preserved the sufficiency of the evidence issue. We ordered retrial because of trial errors and explicitly reserved consideration of the sufficiency issue, stating the law of the case doctrine would not prevent appellate review of the evidence after retrial. Id. at 395. . That section provides in pertinent part: “On the hearing of any appeal ..., the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.” .Similar reasoning was used by the court in Pyramid Life Ins. Co. v. Curry, 291 F.2d 411, 413 (8th Cir.1961). See also Otten v. Stonewall Ins. Co., 538 F.2d 210, 213 (8th Cir.1976) (when earlier panel remanded for new trial based on erroneous jury instructions and rejected appeal of j.n.o.v. motion in a footnote, that opinion was construed as reaching sufficiency of the evidence question because court would not otherwise have reached new trial issue). . The Bureau’s further contention that the decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), has changed the controlling law has no merit. Parratt involved a state prisoner’s section 1983 suit for negligent loss of a hobby kit. Unlike this case, only mere negligence was asserted, and the deprivation complained of was a property loss. . “Mere doubt” of such a change is insufficient to open a matter for full reconsideration. See Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir.1981), cert. denied, - U.S. -, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982); Zdanok v. Glidden Co., 327 F.2d 944, 952 (2d Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964). . For example, the evidence concerning Mr. Senerchia’s 1976 allegations about the sexual acting out of Anna’s foster sister which had been erroneously excluded from the first trial was introduced in the second trial. . One witness’ testimony went only to the question of damages. The testimony of Sister Una McCormack, a Bureau executive administrator, and of Dr. Lewis, the psychologist who interviewed Anna in January 1975, added little to the case records and reports that had been introduced at the first trial. Dr. Lewis referred often to her reports during the course of her testimony and Sister Una had little independent recollection of the January 1975 events. Sister Una had no active involvement in the case again until August 1977 when Mrs. Senerchia made her disclosure to the Bureau. Ms. Del-laverson, the caseworker from the summer of 1975 until May 1977, also testified. Her case records were in evidence at the first trial, and her testimony was arguably new primarily in her assertion that she had visited the foster home every three weeks during this period, a fact at variance with her case records. This contradicted testimony cannot justify taking the question from the jury. .The Bureau contends that the previous panel clearly erred in finding certain jury instructions misleading and in requiring other instructions. We disagree for the reasons set forth in the earlier opinion. See Doe I, 649 F.2d at 141-47. . See N.Y.Soc.Serv.Law § 413 (McKinney Supp.1982). We also noted that a March 1975 memorandum of Assistant Commissioner Parry interpreting this requirement and reminding agencies of this duty stressed that any error should be on the side of reporting. Doe I, 649 F.2d at 147 n. 13, 147-48. . We also noted that New York law defines keeping a child out of school as child abuse. See Doe I, 649 F.2d at 146 n. 12. . The trial judge’s characterization of Dr. de Alvarado’s opinion as a “guess” is unwarranted since Dr. de Alvarado used accepted clinical methods, i.e. observation of reactions and familiarization with case history. Although the trial court construed the record as showing that the Bureau found Dr. de Alvarado’s opinion to be unjustified, from the facts presented to it, the jury could have concluded that Bureau personnel should have evaluated Dr. de Alvarado’s suspicion in light of her extensive psychiatric clinical experience over a twenty year period, as distinguished from that of Dr. Lewis, the agency psychologist, who had received her doctoral degree in January 1975, the same month she interviewed Anna and Mr. Senerchia. Question: What is the specific issue in the case within the general category of "civil rights - other civil rights"? A. alien petitions - (includes disputes over attempts at deportation) B. indian rights and law C. juveniles D. poverty law, rights of indigents (civil) E. rights of handicapped (includes employment) F. age discrimination (includes employment) G. discrimination based on religion or nationality H. discrimination based on sexual preference federal government (other than categories above) I. other 14th amendment and civil rights act cases J. 290 challenge to hiring, firing, promotion decision of federal government (other than categories above) K. other civil rights Answer:

songer_treat

G

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. UNITED STATES of America, Appellee, v. Gregory Christopher BAILEY, Appellant. UNITED STATES of America, Appellee, v. James Henry BROWN, Appellant. UNITED STATES of America, Appellee, v. Irving Marion MAXWELL, Appellant. UNITED STATES of America, Appellee, v. Robert Lee MORROW, Appellant. UNITED STATES of America, Appellee, v. Larry Eugene WALLACE, Appellant. Nos. 73-2374 to 73-2378. United States Court of Appeals, Fourth Circuit. Argued Sept. 30, 1974. Decided Jan. 31, 1975. David R. Badger, Charlotte, N. C. (Court-appointed), for appellant in No. 73-2377. Keith M. Stroud, .Charlotte, N. C. (Court-appointed), for appellant in No. 73-2374. Donald M. Tepper, New York City (Court-appointed), for appellant in No. 73-2378. James M. Shannonhouse, Jr., Charlotte, N. C. (Court-appointed), for appellant in No. 73 — 2375. Peter Goldberger, Third-year law student (Lila Bellar, Charlotte, N. C. (Court-appointed), on brief), for appellant in No. 73-2376. Michael S. Scofield, Asst. U. S. Atty. (Keith S. Snyder, U. S. Atty., on brief), for appellee in Nos. 73-2374, 73-2375, 73-2376, 73-2377 and 73-2378. Before BRYAN, Senior Circuit Judge, and WINTER and RUSSELL, Circuit J udges. ALBERT V. BRYAN, Senior Circuit Judge: In three counts, George Christopher Bailey, James Henry Brown, Robert Lee Morrow and Larry Eugene Wallace were charged with the robbery of the Northeast Branch, North Carolina National Bank at Charlotte, North Carolina on July 9, 1973 in violation of 18 U.S.C. § 2113, and Irving Marion Maxwell was indicted with them as an aider and abettor, 18 U.S.C. § 2(a). Tried together, all five were found guilty. Bailey, Brown, Morrow and Wallace were each sentenced to 18 years imprisonment, and Maxwell to 14. They appeal. With an exception now to be mentioned, no substantive defect in trial is to. be found in any of these cases. The exception is in the sentencing of defendants Bailey, Morrow and Wallace but the findings of their guilt are affirmed. Each of these three, however, was under 22 years of age at the time of conviction and so were eligible for consideration under the Federal Youth Corrections Act, 18 U.S.C. §§ 5005, 5006(e) et seq. In argument at the bar of this court the United States Attorney called our attention to the circumstance that as to these three defendants before pronouncing sentence the District Court had not made the requisite finding upon whether any of them would benefit from treatment under the Act, 18 U.S.C. § 5010(d). For this omission the prosecution confessed error. It moved that these cases be remanded to the District Court to pass such new judgments on the verdicts as it may deem just after resolution of the question of benefit. Dorszynski v. U. S., 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). It will be so ordered. Another defendant, Brown, was 22 years of age at the time sentence was passed upon him and hence not within the mandates of the Youth Corrections Act. But since he had not reached 26, the treatment outlined in that Act was permissibly available for his sentence as an adult offender, 18 U.S.C. § 4209. Nevertheless, we do not hold this optional use of the latter section an indispensable consideration prerequisite to recourse to the regular adult punishments for offenses like Brown’s. However, since he is a contemporary of his companions in crime, it would not seem amiss, if the District Court saw fit, to allow him the advantages of the Youth Corrections Act as far as extendable under § 4209. Consequently, his case will be remanded to the District Court for that consideration. See United States v. Wilson, 450 F.2d 495, 498 (4 Cir. 1971). Defendant Maxwell, since he was twenty-two years old when convicted, was not eligible for treatment under the Youth Corrections Act, but he asks to be adjudged an “eligible offender” with the propitious provisions of the Narcotic Addict Rehabilitation Act of 1966, 18 U.S.C. §§ 4251, 4252, as amended. At the time of his sentencing the District Judge said: “Now, Mr. Maxwell, at your age, you will be considered for parole after you serve one-third of that time. If your habit is as bad as you say it is you will need that length of time and maybe more to get rid of that habit. It is recommended that the defendant be examined to determine whether or not he is a narcotic addict and in the event he is that he be given the necessary treatment”. The record discloses no report made to the Court, after the commitment to the Attorney General, on whether he was an addict. However, there is no necessity to delve into it further because he does not qualify for the treatment provided by the Narcotic Act for an eligible offender as set forth in 18 U.S.C. § 4253. This is because he had been “convicted of a crime of violence”. 18 U.S.C. § 4251(f)(1). As defined in this Act a crime of( violence “includes robbery . . . extortion accompanied by threats of violence, assault with a dangerous weapon or assault with' intent to commit any offense punishable by imprisonment for more than one year”. 18 U.S.C. § 4251(b). Maxwell’s principals were convicted of violating the bank robbery statute, 18 U.S.C. § 2113. It embraced the taking by force, violence and intimidation of $15,533.75 belonging to or in the possession of a bank and, in the commission of that act, assaulting a person. The crime comprised the putting in jeopardy of the life of the person by the use of a dangerous weapon. These offenses were punishable by imprisonment for more than one year. Maxwell was convicted of aiding and abetting his co-defendants in the perpetration of these crimes. Therefore, since 18 U.S.C. § 2(a) declares that “whoever commits an offense against the United States or aids [and] abets ... its commission, is punishable as a principal”, then he has been “convicted of a crime of violence”, which disqualifies him for treatment as an eligible offender under the Narcotic Act. His participation was not simply passive or consultive. His four fellows entered the bank with sawed-off shotguns and a hand gun, presenting the weapons at the faces of the employees and warning that they would be killed if they did not cooperate with the four robbers. All the while Maxwell was waiting for them outside in an escape car. He drove them away immediately as they emerged from the bank. There was a running gun battle between the automobile’s occupants and the police then in pursuit. The car was wrecked and four of the occupants including Maxwell then fled, leaving one of the robbers in the car. A trail of currency and weapons was left by the car and Maxwell with two of the robbers was found hiding in a culvert with large sums of paper money floating about. Nevertheless, like Brown Maxwell was twenty-two years old when convicted. His case likewise should be remanded to the District Court to consider whether the provisions of the Youth Corrections Act, as allowed by § 4209, should avail him. No ground appears for interfering with the guilty verdicts as to any of the appellants or with the judgments entered against appellants Brown and Maxwell. Vacated in part; affirmed in part, and remanded. . The Act, 18 U.S.C. § 5006(e), states that a “ ‘Youth offender’ means a person under the age of twenty-two years at the time of conviction”. It states, too, that “ ‘Conviction’ means the judgment on the verdict or finding of guilty . . In passing sentence the District Judge noted to Brown that his age was twenty-two. Thus he was not under the Act a “youth offender”, 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_direct1

C

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. CEFALU v. UNITED STATES. Circuit Court of Appeals, Tenth Circuit. January 24, 1930. No. 119. Robert D. Charlton, of Denver, Colo. (Lewis DeR. Mowry, of Denver, Colo., on. the brief), for appellant. Ralph L. Carr, U. S. Atty., of Denver, Colo. (Charles E. Works, Asst. U. S. Atty., of Denver, Colo., on the brief), for the United States. Before LEWIS, COTTERAL, and Mc-DERMOTT, Circuit Judges. COTTERAL, Circuit Judge. An information was filed against appellant, his wife, and Frank Mazza, charging them with five violations of the National Prohibition Act (27 USCA),' at Denver, Colo., in 1928. Mazza was acquitted. Mrs. Cefalu was convicted on all counts- Appellant was acquitted on counts 2 and 3 charging sales, and convicted on count 1 for possession of whisky on August 15, count 4 for a sale of whisky on August 8, and count 5 for maintaining a nuisance on September 11. He assigns error in the denial of a motion to direct a verdiet for insufficiency of the evidence and in giving and refusing instructions to the jury. The wife of appellant testified that she and Mazza were engaged in the sale of whisky, that they hid their supplies in the country, and did not make the sales at the Cefalu home in Denver. Federal Prohibition Agents testified that they bought whisky from her there on several occasions, but that appellant was present only on August 8; that on that day when she had gone to another room, appellant came from the same room wearing a bath robe, in his bare feet, sat on a piano bench, talked with the officers, and was present when she returned with the whisky and made the sale of it to them. Sales were testified to'by them at the home on July 25 and August 4, and by their account when they were there on August 15, they saw Mrs. Cefalu go from the front part of the house to the kitchen carrying two bottles, break one of them on the sink, and the other contained a small quantity of whisky. The testimony of the appellant is he had nothing to do with the transactions, he did not know of them, or know there was whisky in the house, his wife rented the house, he supported her, paying her bills, and he was absent most of the time engaged in selling macaroni and olive oil to Italians, chiefly in Nebraska. Mrs. Cefalu corroborated his testimony. This summary, incomplete as it is in many details, suffices for the purpose of determining whether' appellant was entitled to a directed verdict in his favor on the fourth count, charging a sale on August 8th. It seems to us, as it did to the trial judge, it was a question of fact whether appellant was a party to that sale, and it is inconceivable he could have been present as he was at his home and conducted himself as he did there under the circumstances when the sale was made, without having clear knowledge the illicit business was being carried on there and without having a responsible part in it. Otherwise, the transaction called for some expression of surprise or protest from him, but he was acquiescent. There was such apparent understanding and approval of it as to connect him with it, in the way of aiding and counseling his wife, and this was the theory on which the case was submitted to the jury. Section 550, Title 18 U. S. Code (18 USCA § 550). The jury so found, and we think it cannot he said the finding was without support. The cases cited to show the mere presence at-the scene of an offense under different circumstances is not sufficient for conviction, present a different question. The ruling on the motion to direct a verdict on count 4 was therefore correct. As to count 1, charging possession, on August 15th, and count 5, charging a nuisance, on September 11th, there was no1 sufficient evidence to connect appellant with the transactions and warrant submission of them to the jury as to him, and the motion to direct a verdict on those two counts should have been sustained. The complaint leveled at the charge to the jury is without force, as there was no exception to it. Examining it, however, we find it fairly submitted the issues to the jury and it discloses no prejudicial error. A request tendered and refused was to the effect that the proof, in order to convict, must show appellant actively and knowingly participated in the liquor transactions. This we hold was a requirement that was too broad.in terms. Another portion of the same request was that the mere presence of the appellant when the liquor transactions occurred was not sufficient to establish his guilt, but the court so charged the jury. No other questions are entitled to consideration. The judgment of conviction on count 4 is affirmed. The judgments of conviction on counts 1 and 5 are reversed, and the cause is remanded to the District Court with direction to grant the appellant a new trial on those two counts. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:

sc_casesourcestate

37

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. SCHINE CHAIN THEATRES, INC. et al. v. UNITED STATES. No. 10. Argued December 15, 1947. Decided May 3, 1948. Bruce Bromley argued the cause for appellants. With him on the brief were Willard S. McKay, Alfred McCor-mack and Richard T. Davis. Harold R. Medina, Arthur Garfield Hays and Osmond K. Fraenkel were also of counsel. Robert L. Wright argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Sonnett, Stanley M. Silverberg and Philip Marcus. Milton Pollack filed a brief for Lawrence J. Carkey et al., as amici curiae, urging affirmance. Mr. Justice Douglas delivered the opinion of the Court. This is a companion case to No. 64, United States v. Griffith, ante, p. 100, and is here by way of appeal from the District Court. The appellants, who were defendants below, are a parent company, three of its officers and directors, and five of its wholly owned subsidiaries— to whom we refer collectively as Schine. As of May 19, 1942, Schine owned or had a financial interest in a chain .of approximately 148 motion picture theatres located in 76 towns in 6 states, the greater portion being 78 theatres in 41 towns in New York and 36 theatres in 17 towns in Ohio. Of the 76 towns, 60 were closed towns, i. e., places where Schine had the only theatre or all the theatres in town. This chain was acquired beginning in 1920 and is the largest independent theatre circuit in the country. Since 1931 Schine acquired 118 theatres. Since 1928 the closed towns increased by 56. In 1941 there were only three towns in which Schine’s competitors were playing major film products. The United States sued to prevent and restrain appellants from violating §§ 1 and 2 of the Sherman Act. 26 Stat. 209, 50 Stat. 693, 15 U. S. C. §§ 1, 2. The complaint charged that the Schine interests by pooling their entire circuit buying power in the negotiation of films from the distributors so as to combine its closed and open towns got advantages for itself and imposed restrictions on its competitors which otherwise would not have been possible. It charged that the distributors granted certain favors to Schine which were withheld from Schine’s competitors, e. g., giving Schine the first run, refusing at times second runs to Schine’s competitors, charging Schine with lower rentals than it charged others, licensing to Schine films in excess of Schine’s reasonable requirements. The complaint also charged that Schine had forced or attempted to force competitors out of business and where competitors would not sell out to Schine had threatened to build or had built an opposition theatre, had threatened to deprive or had deprived competitors of a desirable film or run, had cut admission prices, and had engaged in other unfair practices. In these and other ways it was charged that Schine had used its circuit buying power to maintain its monopoly and to restrain trade. The conspiracy charged was between the Schine defendants themselves and between them and the distributors. The District Court found that the appellants had conspired with each other and with the eight major film distributors to violate § 1 and § 2 of the Sherman Act. Its findings may be summarized as follows: The entire circuit buying power was utilized to negotiate films for all the theatres from the distributors, the negotiations ending in master agreements between a distributor and the exhibitor. This large buying power gave Schine the “opportunity to exert pressure on the distributors to obtain preferences.” Moreover, Schine by combining its closed and open towns in its negotiations for films was able “to dictate terms to the distributors.” Schine bought films for some theatres in which it had no financial interest (but as respects most of which it had an option to purchase). It also performed the service (under so-called pooling agreements) for groups of theatres in which it and others were interested. Through the use of such buying power Schine arbitrarily deprived competitors of first- and second-run pictures, was able in many towns to secure unreasonable clearances year after year of from 90 to 180 days, obtained long-term agreements for rental of film (franchises) which gave it preferences not given independent operators, and received more advantageous concessions from the distributors respecting admission prices than competitors were able to get. Schine made threats to build or to open closed theatres in order to force sales of theatres in various towns or to prevent entry by an independent operator. Schine cut admission prices. Schine obtained from competitors whom it bought out agreements not to compete for long terms of years which agreements at times extended to other towns as well. Schine obtained film-rental concessions not made available to independents. The District Court entered a decree enjoining these practices and requiring a divestiture by Schine of various of its theatres. 63 F. Supp. 229. First. For the reasons stated in United States v. Griffith, ante, p. 100, the combining of the open and closed towns for the negotiation of films for the circuit was a restraint of trade and the use of monopoly power in violation of § 1 and § 2 of the Act. The concerted action of the parent company, its subsidiaries, and the named officers and directors in that endeavor was a conspiracy which was not immunized by reason of the fact that the members were closely affiliated rather than independent. See United States v. Yellow Cab Co., 332 U. S. 218, 227; United States v. Crescent Amusement Co., 323 U. S. 173. The negotiations which Schine had with the distributors resulted in the execution of master agreements between the distributors and exhibitors. This brought the distributors into unlawful combinations with the Schine defendants. See United States v. Paramount Pictures, Inc., post, p. 131. The course of business makes plain that the commerce affected was interstate. United States v. Crescent Amusement Co., supra, pp. 180, 183-184. Second. Appellants object to admission in evidence of numerous inter-office communications between officials of the distributors with whom Schine dealt. The District Court placed considerable reliance on them in making its findings. We will advert later to the use of these documents to prove the unreasonableness of clearances. It is sufficient at this point to say that since a conspiracy between Schine and each of the named distributors was established by independent evidence, these inter-office letters and memoranda were admissible against all conspirators as declarations of some of the associates so far as they were in furtherance of the unlawful project. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 249; United States v. Crescent Amusement Co., supra, p. 184; United States v. Gypsum Co., 333 U. S. 364, 393. Third. Appellants make detailed challenges to many of the other findings of the District Court on which it based its holdings that appellants violated the Act. (1) They vigorously attack the findings that Schine arbitrarily deprived independents of first- and second-run pictures. Their chief contention is that there is no support for the finding of arbitrary action on the part of Schine, that Schine did not buy pictures beyond its needs in order to keep them away from its competitors, that any successful purchaser of a first- or second-run picture has an exclusive privilege that necessarily deprives competitors of the film for the period of the run, and that any advantage which Schine obtained in this regard was the result of the operation of forces of competition. As we read the evidence underlying this finding, it was the use of Schine’s monopoly power — represented by combining the buying power of the open and closed towns— which enabled it to obtain that which its competitors could not obtain. Deprivation of competitors of first- and second-run pictures in that way was indeed arbitrary in the sense that it was the product of monopoly power, not of competitive forces. That is the construction we give the finding of the District Court; and as so construed it is supported by substantial evidence. There may be exceptions in the case of some subsidiary findings. But we do not stop to relate them. For even if we lay them aside as clearly erroneous for lack of support in the evidence, the conclusion is irresistible that Schine so used its monopoly power to gain advantages and preferences which, on a purely competitive basis, it could not have achieved. (2) Defense of the long-term film-rental agreements— the franchises — is made on the ground that they were accepted methods of doing business in the industry, that they were favored by distributors as devices to stabilize their end of the business and to save expense, and that they were not chosen by Schine as instruments to suppress competition. But it seems to us apparent that their use served to intensify the impact of Schine's monopoly power on its competitors. For when Schine’s buying power was used to acquire films produced by a distributor for two or three years rather than for one year alone, it plainly strengthened through the exercise of monopoly power such dominant position as Schine had over each of its competitors. Appellants also challenge the finding that Schine obtained preferences through the franchises, in addition to long-term supplies of pictures, which were not granted independent operators. One of these preferences was found to be the unfair and inequitable clearance provisions; another, special film-rental concessions. We will consider these later. The other aspects of the findings we do not stop to analyze. For the franchise agreements as employed by Schine are unreasonable restraints of trade for the reasons stated; and they must be permanently enjoined, even though we assume their collateral aspects are not accurately described by the District Court and so may not be condemned. (3) Appellants challenge the finding that Schine made threats to build theatres or to open closed ones in order to force sales of theatres in various towns or to prevent entry by an independent operator. There are inaccuracies in some of the subsidiary findings. There are episodes which are susceptible of two interpretations, one wholly innocent and the other unlawful. There are still other episodes which have the unmistakable earmarks of the use of monopoly power with intent to expand an empire and to restrain competition. On the whole we think the District Court was justified in drawing the inference of unlawful purpose from the ambiguous episodes and that those coupled with the others are adequate to support these findings of the District Court. (4) We reach the same result as respects the agreements not to compete which Schine exacted from competitors whom it bought out. It is not enough that the agreements may be valid under local law.' Even an otherwise lawful device may be used as a weapon in restraint of trade or in an effort to monopolize a part of trade or commerce. Agreements not to compete have at times been used for that unlawful purpose. See United States v. American Tobacco Co., 221 U. S. 106, 174; United States v. Crescent Amusement Co., supra, p. 181. If we had here only agreements not to compete, the inferences drawn by the District Court might not be warranted. But in the setting of this record, and against the background of Schine’s other monopolistic practices, it seems to us that the District Court might infer that the requisite purpose was present and that these agreements were additional weapons in Schine’s arsenal of power through the use of which its monopoly was sought to be extended. (5) The finding that Schine obtained film-rental concessions not made available to independent operators is not intelligible to us. For the District Court went on to state that “These provisions were also in contracts with independents.” How those concessions constitute a restraint of trade is therefore not apparent. We set aside this finding so that it may be clarified on remand of the cause. (6) There is challenge to the findings that Schine’s rental agreements contained minimum admission prices, or minimum admission prices lower than those to be charged by the independent operators for subsequent runs, or relieved Schine of requirements for minimum admission prices though imposing them on its competitors. There is evidence to support the findings that minimum prices were fixed. It is well settled that the fixing of minimum prices, like other types of price fixing, is unlawful per se. United States v. Socony-Vacuum Oil Co., 310 U. S. 150. The findings that Schine was either granted minimum admission prices more favorable than those required "of its competitors, or that Schine, unlike its competitors, was relieved of all requirements for minimum prices, are also supported by evidence. It is said that these provisions of the agreements were not adhered to. But since they did exist, it is not for us to speculate as to what force or sanction they may have had. (7) There is also challenge to the finding that Schine cut admission prices. This seems uncontroverted. But price cutting without more is not a violation of the Sherman Act. It is indeed a competitive practice which this record shows to have been common in the industry. It may be used in violation of the Act. Thus it may be the instrument of monopoly power to eliminate competitors or to bring them to their knees. But since it is not unlawful per se, facts and circumstances must be adduced to show that it was in purpose or effect employed as an instrument of monopoly power. Here there is nothing except a bare finding that at times Schine cut admission prices. That finding is not sufficiently discriminating to withstand analysis and is not adequate to support an injunction against price cutting. (8) The finding as to unreasonable clearances presents rather large issues. We have elaborated the point in United States v. Paramount Pictures, Inc., post, p. 131, and need not repeat what is said there. Clearance is an agreement by a distributor not to exhibit a film nor to license others to do so within a given area and for a stated period after the last date of the showing of the film by the licensée with whom the agreement is made. It is, in other words, an agreement by a distributor to license films only for specified successive dates. It is in part designéd to protect the value of the license which is granted. While it thus protects the income of the first exhibitor, there is no contention that clearance agreements are per se unlawful restraints on competition by reason of the effect they may have on admission prices or otherwise. All the District Court purported to condemn, and all the appellee maintains is unlawful, are “unreasonable clearances.” If reasonableness is the test, the factors which bear on it would appear to be numerous. The findings and opinion of the District Court, however, do not greatly illuminate the problem. What standards or criteria of unreasonableness were applied does not clearly appear. There are, however, in some of the subsidiary findings in this case a few clues as to the basis used by the District Court in classifying clearances as. unreasonable. Thus it said that Schine got some clearances “over towns in which Schine did not operate.” But that is irrelevant to the problem of reasonableness of clearances, since by definition clearances run to both theatres and towns not owned by him who has the clearance. The District Court also found that clearances “were given over towns over which there had been no previous clearance.” But that without more would not make a clearance “unreasonable.” The District Court found that Schine got clearances over “some towns distant from 10 to upwards of 20 miles” and that clearances were also obtained over “outside towns of comparably small population, distant so far that no clearance is justified.” If the basis for these findings is that the towns were in different competitive areas, it would come closest to revealing the standard used by the District Court in determining whether the clearances were or were not reasonable, unless possibly it be the finding that in a few instances Schine got clearances over towns where there were no theatres. The District Court cites instances of clearances which in its view were illegal because unreasonable as to time. But some of these turn out to be situations where clearances were granted over towns where Schine had the only theatre in town. So perhaps the District Court used as a basis for some of its findings of unreasonable clearances the absence of any competition between the theatres in question. But as to that we can only guess in each case and then wonder whether our guess was correct, because appellee suggests that one vice of Schine’s clearances was that they ran not to specified theatres but to specified towns^ We are, however, left somewhat in the dark whether the District Court followed that theory or made the reasonableness of clearances turn on whether or not the theatres affected were in different competitive areas. Appellee also suggests that proof of the unreasonableness of Schine’s clearances is that their periods were almost uniformly the same even though there were wide variations in the condition and size of theatres and of the type of pictures played in the various theatres. But we are given no clue in the findings whether that was the view of the District Court. On its face it seems more like an attempt of the appellee to show what findings could have been made on the basis of the record had some discrimination been made in appraising the evidence. Appellee seems to argue that standards of reasonableness can be dispensed with by reason of statements in the inter-office memoranda of the distributors that many of Schine’s clearances were “unreasonable.” On the matter of clearances, however, the interests of distributors and exhibitors are not necessarily identical. For the self-interest of exhibitors which would call for long clearances would militate against the best interests of distributors. So it is not clear that these declarations can properly be said to fall within the scope of the unlawful project which the two groups were sponsoring. Cf. Pinkerton v. United States, 328 U. S. 640, 647-648. But however that may be, these statements do not advance us very far with the problem because they too fail to give specific content to the concept of unreasonable as applied to clearances. As a last resort appellee seeks to sustain these findings on the ground that Schine got at least some of its clearances by refusing to make any deal for the circuit unless its terms were met. But any clearance so obtained, though otherwise reasonable, would be unlawful, for it would be the product of the exercise of monopoly power. It is evident, however, that that was not the theory adopted by the District Court for it did not look to see what clearances had been obtained in that manner. The short of the matter is that since we do not know for certain what the findings of the District Court on clearances mean, they must be set aside. In doing so we of course do not intimate here, any more than we do in case of the other findings we have set aside in the case, that the record would not sustain findings adverse to Schine. We only hold that before we can pass on the questions tendered, findings on clearances must be made which reflect an appraisal of the complex of factors bearing on this question of reasonableness. That is a function of the District Court. Fourth. The decree entered by the District Court enjoins appellants from specified acts or practices. To the extent that these provisions are directed to practices reflected in findings which we set aside, they must be re-examined by the District Court on remand of the case. Appellants object to the generality of the injunction against “monopolizing” first- and second-run films. The statutory requirement is that these injunctions “shall be specific in terms, and shall describe in reasonable detail, and not by reference to the bill of complaint or other document, the act or acts sought to be restrained.” 38 Stat. 738, 28 U. S. C. § 383. And see Fed. R. Civ. P., 65 (d). We need not determine whether the provision in question if read, as it must be, in light of the other paragraphs of the decree (Swift & Co. v. United States, 276 U. S. 311, 328) would pass muster. For we think the public interest requires that a more specific decree be entered on this phase of the case. The precise practices found to have violated the act should be specifically enjoined. We have considered the objections to the other parts of the injunction (apart from provisions as to divestiture which we discuss later) and find them without merit. Fifth. The District Court included in its decree a divestiture provision adjudging that appellant companies be “dissolved, realigned, or reorganized in their ownership and control so that fair competition between them and other theatres may be restored and thereafter maintained.” The parties subsequently submitted various plans and after hearings the one submitted by the Department of Justice was approved with modifications. The plan does not provide for the dissolution of the Schine circuit through the separation of the several affiliated corporations as was done in United States v. Crescent Amusement Co., supra, pp. 188-189. It keeps the circuit intact in that sense but requires Schine to sell certain theatres. The plan requires Schine to sell its interest in all but one theatre of its selection in each of 33 towns, all but two in each of four larger towns, and two of four theatres in Rochester, New York. Schine is to be divested of more than 50 of its theatres. The towns affected are over 40 out of the 70-odd in which Schine is operating. The one-theatre towns of Schine are unaffected. The decree also dissolves the pooling agreements. A trustee is appointed to make the sales which are ordered. Schine is prohibited from acquiring any financial interest in additional theatres “except after an affirmative showing that such acquisition will not unreasonably restrain competition.” Schine is ordered not to buy or book films for any theatre other than those in which it owns a financial interest. The District Court concluded that this program of divestiture was necessary in order to restore “free enterprise and open competition amongst all branches of the motion picture industry.” As we have noted, the District Court did not follow the procedure of United States v. Crescent Amusement Co., supra, and order the dissolution of the combination of the affiliated corporations. Schine presented such a plan and it was rejected. That plan contemplated the division of the Schine theatres among three separate corporations, with members of the Schine family owning each corporation. The District Court rejected that plan because it did not furnish such separation of ownership as would assure discontinuance of the practices which had constituted violations of the Act. The District Court did not pursue further the prospect of dismemberment of the Schine circuit through separation of the theatres into geographical groupings under separate and unaffiliated ownerships. Nor do the findings reflect an inquiry to determine what theatres had been acquired by Schine through methods which violate the Act. So far as the findings reveal, the theatres which are ordered divested may be properties which in whole or in part were lawfully acquired; and theatres which Schine is permitted to retain may, so far as the findings reveal, be ones which it obtained as the result of tactics violating the Act. In this type of case we start from the premise that an injunction against future violations is not adequate to protect the public interest. If all that was done was to forbid a repetition of the illegal conduct, those who had unlawfully built their empires could preserve them intact. They could retain the full dividends of their monopolistic practices and profit from the unlawful restraints of trade which they had inflicted on competitors. Such a course would make enforcement of the Act a futile thing unless perchance the United States moved in at the incipient stages of the unlawful project. For these reasons divestiture or dissolution is an essential feature of these decrees. See United States v. Crescent Amusement Co., supra, p. 189, and cases cited. To require divestiture of theatres unlawfully acquired is not to add to the penalties that Congress has provided in the antitrust laws. Like restitution it merely deprives a defendant of the gains from his wrongful conduct. It is an equitable remedy designed in the public interest to undo what could have been prevented had the defendants not outdistanced the government in their unlawful project. Nor is United States v. National Lead Co., 332 U. S. 319, 351-353, opposed to this view. For in that case there was no showing that the plants sought to be divested were either unlawfully acquired or used in a manner violative of the antitrust laws. Divestiture or dissolution must take account of the present and future conditions in the particular industry as well as past violations. It serves several functions: (1) It puts an end to the combination or conspiracy when that is itself the violation. (2) It deprives the antitrust defendants of the benefits of their conspiracy. (3) It is designed to break up or render impotent the monopoly power which violates the Act. See United States v. Crescent Amusement Co., supra, pp. 188-190; United States v. Griffith, ante, p. 100. The last two phases of this problem are the ones presented in this case. But the District Court purported to deal with only one of them. It did not determine what dividends Schine had obtained from the conspiracy. In United States v. Crescent Amusement Co., supra, pp. 181, 189, some of the affiliated corporations through which that empire was built were products of the conspiracy. Hence that fact without more justified the direction in the decree to unscramble them. There are no findings which would warrant such a course in this case. But an even more direct method of causing appellants to surrender the gains from their conspiracy is to require them to dispose of theatres obtained by practices which violate the antitrust acts. We do not know what findings on that score would be supported by the record, for the District Court did not address itself to the problem. The upshot of the matter is that the findings do not reveal what the rewards of the conspiracy were; and consequently the court did not consider what would be the preferable way of causing appellants to surrender them. The case must therefore be remanded so that the District Court may make appropriate findings on this phase of the case. While such an inquiry is the starting point for determining to what extent divestiture should be ordered, the matter does not end there. For it may be that even after appellants are deprived of the fruits of their conspiracy, the Schine circuit might still constitute a. monopoly power of the kind which the Act condemns (see American Tobacco Co. v. United States, 328 U. S. 781, 809, 811), in spite of the restrictive provisions of the decree. Monopoly power is not condemned by the Act only when it was unlawfully obtained. The mere existence of the power to monopolize, together with the purpose or intent to do so, constitutes an evil at which the Act is aimed. United States v. Griffith, ante, p. 100; United States v. Aluminum Co. of America, 148 F. 2d 416, 432. But whether that condition will obtain in this case must await the findings on the other phase of the case. We accordingly set aside the divestiture provisions of the decree so that the District Court can make the findings necessary for an appropriate decree. We approve the dissolution of the pooling agreements, the prohibition against buying or booking films for theatres in which Schine has no financial interest, and the restriction on future acquisitions of theatres. See United States v. Crescent Amusement Co., supra, pp. 185-187. We do not reach the question of the appointment of a trustee to sell theatres as that merely implements the divestiture provisions which must be reconsidered by the District Court. The judgment of the District Court is affirmed in part and reversed in part and the cause is remanded to it for proceedings in conformity with this opinion. So ordered. Mr. Justice Frankfurter concurs in the result. Mr. Justice Murphy and Mr. Justice Jackson took no part in the consideration or decision of the case. These figures do not include 18 which were closed and had been or were being converted to other uses. New York (78), Ohio (36), Kentucky (18), Maryland (12), Delaware (2), Virginia (2). Schine had the only theatre in each of 21 towns, both theatres in 21 towns that had two each, all theatres in 16 towns that had three each, and all theatres in one town that had six theatres and in another that had four theatres. Of these theatres approximately 87 per cent are located in cities or villages with populations under 25,000 and 60 per cent in cities or villages with populations under 10,000. Fox, Loew, Paramount, KKO, Warner, Columbia, Universal, and United Artists. In the 1939-1940 season Schine paid $1,647,000 to six distributors in film rental. By clearance is meant the period of time agreed upon which must elapse between runs of the same feature within a particular area or in specified theatres. The District Court used “independents” or “independent operators” to mean competitors other than the exhibitor-distributors. Schine, of course, is an independent circuit, as that term is used in the industry. A consent order was entered in the present case on May 19, 1942, which provided, inter alia, that appellants would not enter into any agreement licensing films released by any distributor during a period of more than one year and that all agreements in existence having a longer term should be void as to all films released after the thirtieth day following the date of the consent order. See note 6, supra. See Bertrand, Evans & Blanchard, The Motion Picture Industry — A Pattern of Control 40-41 (TNEC Monograph No. 43, 1941): “The establishment of clearance schedules is an intricate procedure. It involves a complex bargaining process and the balance of a variety of opposing economic interests. It may be stated initially that the primary objective of the distributor is, of course, to maximize his total revenue from each picture. This aim gives him a very direct interest in clearance periods. The higher rental fees paid by the prior-run exhibitor are directly conditioned on the extent of the protection which he is granted, and in general the longer the clearance period before subsequent showing, the higher the rental fee the prior-run exhibitor will pay. “On the other hand, the distributor’s revenue from subsequent-run exhibition is also important to him; this income may mean the difference between black or red ink on his ledgers. But the longer the clearance period, the smaller will be these returns — not only because more customers will have attended the prior showing rather than wait for subsequent exhibition, but also because the effects of the advertising and exploitation efforts made when the picture was released will have been vitiated over this time. In general, the greater the total box-office return earned by a film in all showings, the greater will be the distributor’s revenue. “The relation between run, clearance and zoning, admission price, seating capacity, and rental fees is indeed a complex one. The range covered by these factors is indicated by this fact: a license fee amounting to many thousands of dollars may be paid for the first showing of a film in a large metropolitan theater, and within a year the same film may be exhibited in some small theater in the same city for a fee of less than $20.” See note 10, supra. This part of the decree provides: "Each of the defendants is hereby enjoined and restrained: “1. From monopolizing the supply of major first run films in any situation where there is a competing theatre suitable for first run exhibition thereof and from monopolizing the supply of second run film in any situation where there is a suitable theatre for second run exhibition thereof. “2. From demanding or receiving clearance over theatres operated by others which unreasonably restricts their ability to compete with a theatre owned or operated by a defendant corporation controlled by it and from attempting to control the admission prices charged by others by agreement with distributors, demands made upon distributors, or by any means whatsoever. “3. From conditioning the licensing of films in any competitive situation outside of Buffalo, New York, upon the licensing of films in any other situation and from entering into any film franchise. “5. From enforcing any existing agreements heretofore entered into (1) not to compete or (2) to restrict the use of any real estate to non-theatrical purposes. “6. From using any threats or deception as a means whereby a competitor is induced to sell. “7. From continuing any contract, conspiracy or combination with each other or with any other person which has the purpose or effect of maintaining the exhibition or theatre monopolies of the defendants or of preventing any other theatre or exhibitor from competing with the defendants or any of them, and from entering into any similar contract, conspiracy, or combination for the purpose or with the effect of restraining or monopolizing trade and commerce between the States.” See note 12, supra, paragraph 1. It also requires Schine to sell specific theatres remaining unsold under the consent decree of May 19,1942, Schine had withdrawn from five towns pursuant to the consent order of May 19,1942. Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

sc_decisiontype

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. SMITH v. PENNSYLVANIA. No. 561. Decided March 9, 1964. William T. Coleman, Jr. for petitioner. Frank P. Lawley, Deputy Attorney General of Pennsylvania, for respondent. Solicitor General Cox filed a memorandum for the United States. Melvin L. Wulf for the American Civil Liberties Union, Greater Philadelphia Branch, et ah, as amici curiae, in support of the petition. Per Curiam. Prior to commencement of petitioner’s trial for assault and battery upon state police officers, he served upon the local office of the Federal Bureau of Investigation a subpoena duces tecum calling for the production of “[statements of all witnesses, diagrams, sketches and photographs taken in connection with” the FBI’s investigation of the incident which formed the basis for the criminal prosecution. The FBI had made the investigation in response to a complaint filed by petitioner with the Civil Rights Division of the Department of Justice, charging a deprivation of his civil rights by the actions of the police officers whom he allegedly assaulted. An Assistant United States Attorney appeared on the day set for trial and moved to quash the subpoena, claiming that the file contained confidential material subject to a federal privilege of nondisclosure. The subpoena was quashed by the trial court for that reason and for noncompliance with local rules of practice. Petitioner formally requested the court, both before and after they testified, to issue a subpoena duces tecum for statements taken by the FBI from two witnesses for the prosecution, stating that the statements were needed for purposes of impeachment. The trial court denied the requests because it felt that petitioner would receive the same information from material which the state authorities had promised to make available. Following petitioner’s conviction, the trial court denied his motion for a new trial which was based in part on the failure to issue the requested subpoena, stating that the Federal Government had already indicated that it would not honor such a subpoena. The judgment of conviction was affirmed by the Pennsylvania Supreme Court (412 Pa. 1, 192 A. 2d 671), the court stating, inter alia, that the FBI, not the Commonwealth, had denied petitioner access to the information in question. In response to an inquiry from this Court, the Solicitor General has indicated that the claim of confidential privilege was concerned solely with the initial broad-based demand for virtually the entire FBI file on the matter and that the Department of Justice was not informed of, and did not refuse to comply with, the subsequent specific requests for statements given by the two witnesses. We grant the petition for a writ of certiorari and remand the case to the Supreme Court of Pennsylvania, for reconsideration of petitioner’s requests in light of the representations of the Solicitor General. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:

songer_district

B

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". SYSTEMATIC TOOL & MACHINE COMPANY et al., Appellees, v. WALTER KIDDE & COMPANY, INC., Appellant. No. 76-1660. United States Court of Appeals, Third Circuit. Argued Jan. 11, 1977. Decided March 25, 1977. Gordon D. Coplein, Darby & Darby, New York City, Richard M. Rosenbleeth, William H. Roberts, Blank, Rome, Klaus & Comisky, Philadelphia, Pa., Jacob C. Kellem, Connolly, Bove & Lodge, Wilmington, Del., for appellant. Alan H. Bernstein, Caesar, Rivise, Bernstein & Cohen, Philadelphia, Pa., for appel-lees. Before ROSENN and HUNTER, Circuit Judges, and SNYDER, District Judge. Daniel J. Snyder, Jr., United States District Judge for the Western District of Pennsylvania, sitting by designation. SNYDER, District Judge: Systematic Tool and Machine Co., Systematic Products, Inc., and Dominic D’Am-bro, licensees, with Clayton E. Giangiulio, owner of the patent, filed this action for patent infringement. The decision of the district court found valid and infringed Patent No. 3,369,582 (hereinafter “the ’582 patent”) issued February 20, 1968, for a hand-operated tomato-slicing device. Appeal was taken to this court under 28 U.S.C. § 1292(a)(4) giving us jurisdiction over “Judgments in civil actions for patent infringement which are final except for accounting.” Since we find the subject matter of the patent and the prior art relating to this device is obvious, we reverse under 35 U.S.C. § 103. I. THE PATENT IN SUIT The patent in suit relates to a commercially successful and efficient tomato slicer. As set forth in Claim 1, the device is characterized by the following features: 1. A pusher to hold the tomato and move it with reference to an array of blades. 2. The blade array lying at an angle less than 40° with respect to the pusher path of movement. 3. The angle of separation between the pusher leading arm and trailing arm being greater than 90°. 4. The angle between the leading arm ■ and the cutting edge of the blades being less than 90°. 5. The trailing arm of the pusher making a small acute angle with reference to the cutting edge of the blades. The plaintiffs assert that the tough skin and mushy interior of a tomato present a unique problem in slicing since a direct perpendicular contact of the tomato and blade edge tends to bruise or mangle the tomato. Plaintiffs’ claimed invention solved this problem by the various angles between the leading and trailing arms which hold the tomato between the pusher and the angle of the cutting edges of the blades to the pusher. The ’582 patent device pushes the tomato in a straight line through the rack of thin blades at an angle less than 40° with respect to the pusher path of movement. See Figure I. The original claims filed did not relate the angle of the leading and trailing arms to the physical structure or recite any particular angles for them. The Examiner originally rejected the claims for two reasons: (1) for indefiniteness in not stating relationships between the angles and physical structures, and (2) for obviousness over a combination of prior art slicers with similar structures but having somewhat different angles relating to the blades and pusher. The claims were amended to distinguish the prior art (as underlined by the patentee to make it apparent how the claim differed from the prior art) as follows: “. . .an [relatively small acute] angle less than forty (40) degrees with respect to said pusher path of movement, the angle of separation between said pusher leading arm and trailing arm being greater than 90°. the ande between said leading arm and the cutting edge of said blades being less than 90° with the trailing arm of said pusher making a small acute angle with respect to said cutting edge. . . . whereby said pusher assembly [achieving] achieves a smooth shearing action [by said blades through] with a tomato urged against and through said blades to secure a plurality of thin tomato slices, essentially undamaged, with said tomato holding pocket slots allowing said blades to pass through the tomato.” [Additions to the claim are underlined; deletions are in brackets.] II. THE ACCUSED DEVICES There are two accused devices know as the TK-I and the TK-II machines. The TK-I, not sold since 1968, is a virtual copy of the plaintiffs’ machine and was stipulated to be an infringement of the patent in suit, if the court finds the patent in suit valid. The TK-II, not sold since 1972, is a somewhat different looking method of doing that which the plaintiffs’ device (called the “Tomato Tamer”) achieves. See Figure II. III. THE TRIAL COURT’S TREATMENT The district court filed a preliminary opinion and order holding the ’582 patent valid and infringed but allowed 30 days to file exceptions. Exceptions were filed and by its second opinion, the district court denied the exceptions, affirming and readopting its earlier findings of fact and conclusions of law. A third order later denied injunctive relief in view of the defendant’s cessation of infringing activities in 1972. Plaintiffs’ principal witness, Clayton Giangiulio, inventor and former delicatessen operator, pointed out that prior to his invention, tomatoes had been sliced with a hand-held knife, a slow process at best, or with an expensive commercial meat slicer which scattered individual slices, released juice, and required time consuming clean-up procedures. He demonstrated that a tomato could be sliced by pushing it with his hand but not as safely and efficiently as with the patented device. He admitted that while the basic elements of a slicer consisting of blades, pushers, bases and relative movement were well known, innovation was claimed in the unique arrangement of otherwise general elements which existed in different relationships in the prior art — “the slicing of tomatoes at a rate ten times greater than the prior art as well as providing straighter slices held together in the form of a tomato.” (Appellees’ Brief, p. 14.) The defendant elicited through Ronald Karr, an extensively qualified mechanical engineer, a designer, and professor of mechanical design, that the ’582 patent was a routine development of old elements in view of prior art patents for straight line slicing devices. He stated on cross examination: “Q. Now, you have testified with respect to six patents on direct examination? A. Yes, sir. Q. Is it your testimony that given these patents and put in a room you could come up with the invention in suit? A. I would need in that room several tools and materials to produce the invention. And I would have to qualify that a little bit, but yes; I could. And there are about half a dozen others that could do that. Since I don’t know every engineer in the country, there might be a thousand people that could do that.” (p. 342a). The plaintiff chose not to contradict this testimony but to argue that the six prior art patents relied upon by the defendant did not show a pusher containing slots for the reception of blades, where the blade array lies at an angle of less than 40° with respect to the pusher path movement to achieve thin tomato slices in a single pass of the pusher through the blades. The district court analyzed the six patents from a functional viewpoint saying for example, that the French patent to Biram-beau for a tomato slicer relied on a sawing action which did not foreshadow a mechanical, single pass slicer such as the subject matter of the patent in suit. The court held that the Bever patent for a bun slicer could not pass completely through the tomato and “[n]o reasonable adaptation of the machine will perform such a function. Hence, we conclude that the Bever patent neither suggests nor discloses the subject matter of the patent in suit.” The court continued this type of analysis through the other prior patents and concluded: “We have determined from the patent material submitted by the defendant and discussed above, that the ordinary level of skill in the art of food slicing is that possessed by an individual performing that task. . We have heard the evidence of defendant’s expert engineering witness. We understand his testimony to mean that slicers are interesting developments of known technology and that, while a particular slicer may be an extremely efficient, and well-designed piece of machinery, there is no invention in putting a slicer together. However, in light of the prior art, and of our determination of the ordinary level of skill in the art, we disagree with his opinion as to the obviousness of the '582 patent. . . .We find that the subject matter of the ’582 patent is not obvious to an individual possessing the average level of skill in the art, in light of the prior art existing at the time the invention was developed and the application was filed; the inventor of the ’582 patent, Clayton Giangiulio, did not know of the existence of any device which suggested to him the machine he devised. Rather, the ’582 patent was the product of his own independent and original development, and hence we disagree with the defendant’s contention of obviousness from the prior art.” In coming to this conclusion the court rejected Karr’s expert opinion that it is routine handbook procedure first to determine the physical nature of the object to be sliced, and that merely to recognize the physical properties of the common tomato does not reach the level of invention. Further, the court held that the basic elements of fruit and vegetable slicers — blades, pushers, bases and means for relative movement — were well known in the prior art but that innovation existed here in the synergistic result achieved by the unique arrangement of these basic elements which existed separately or in different relationships in the prior art. The lower court concluded it was the plaintiffs’ solution to the peculiar problem of slicing tomatoes (pressure build-up during slicing) that embodied innovative and unique developmental work which resulted in the invention. On infringement, the court relied on the doctrine of equivalents, i. e., the essence of the invention used is identical even though the superficial form is different. Cf., Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950) (“if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape.”) Since the TK-I admittedly infringed upon some of the claims of the ’582 patent and the TK-II used the same element of the ’582 patent (a shallow-entry-angle pusher in relation to the blades) for the same purpose and in the same manner, it, too, infringed. “Tomatoes have always been favorites here,” wrote John Lewis, a transplanted Englishman. “They generally require a person to be educated to them. . . . They . . . are eaten in every possible way, mostly however cut up alone.” From We Americans, A Volume in the Story of Man Library, published by The National Geographic Society, p. 228 (1975). “Our conclusion is based on the following factors: (1) the central factor in the development of a food sheer is the identification of the unique problems associated with the preparation of a particular category of fruits or vegetables; (2) while diverse elements of food slicers are well-known in the art, it is the synergistic result of arranging these elements in a specific manner that is significant in the issuance of a patent for the invention; (3) it would be unusual for an engineer to have either the need for such a device, or the method of accomplishing the desired result; and (4) the activity of an engineer in those circumstances would be cumulative toward a successful embodiment of the concept, and not independent of the actual creative work involved in isolating the problems before arriving at a solution.” IV. OBVIOUSNESS Very recently in Sakraida v. AG Pro, Inc., 425 U.S. 273, 279-80, 96 S.Ct. 1532, 1536, 47 L.Ed.2d 784 (1976) the court stated: “It has long been clear that the Constitution requires that there be some ‘invention’ to be entitled to patent protection. Dann v. Johnston, 425 U.S. 219, 96 S.Ct. 1393, 47 L.Ed.2d 692 (1976). As we explained in Hotchkiss v. Greenwood, 11 How. 248, 267, 13 L.Ed. 683, 691 (1851): ‘[U]nless more ingenuity and skill . were required . . . than were possessed by an ordinary mechanic acquainted with the business, there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention. In other words, the improvement is the work of the skillful mechanic, not that of the inventor.’ This standard was enacted in 1952 by Congress in 35 U.S.C. § 103 ‘as a codification of judicial precedents . . . with congressional directions that inquiries into the obviousness of the subject matter sought to be patented are a prerequisite to patentability.' Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545, 566 (1966). Section 103 provides: ‘A patent may not be obtained though the invention is not identically disclosed or described, as set forth in section 102 of this title, 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. Patentability shall not be negatived by the manner in which the invention was made.’ The ultimate test of patent validity is one of law, A & P Tea Co. v. Supermarket Corp., 340 U.S. 147, 155, 71 S.Ct. 127, 131, 95 L.Ed. 162,168 (1950), but resolution of the obviousness issue necessarily entails several basic factual inquiries. Graham v. John Deere Co., supra, 383 U.S. at 17, 86 S.Ct. at 693. ‘Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved.’ Ibid." These three inquiries — scope and content of the prior art, differences between prior art and the claims at issue, and the level of ordinary skill in the art — are findings of fact to be made by the district court; having resolved these crucial factual questions, the court then draws its legal conclusion as to obviousness. E. g., Philips Elec. & P. Ind. Corp. v. Thermal & Elec. Inc., 450 F.2d 1164, 1173-74 (3d Cir. 1971). In the case before us, appellants claim that one of these factual questions — level of ordinary skill in the art — was erroneously determined and that this resulted in an improper conclusion of law as to obviousness. The search in this branch of inquiry under 35 U.S.C. § 103 is for a hypothetical person having ordinary skill in the art to which said subject matter pertains, i. e., the problem solver and not the user of the solution. Gass v. Montgomery Ward & Co., 387 F.2d 129, 132 (7th Cir. 1967), quoted in Erie Technological Products, Inc. v. Die Craft Metal Products, Inc., 461 F.2d 5, 8 n.5 (7th Cir. 1972) (“The level of ordinary skill in the field appears to be that of mechanically inclined men with long experience in design of auto accessories”); Howe v. General Motors Corporation, 401 F.2d 73, 78 (7th Cir. 1968), cert, denied 394 U.S. 919, 89 S.Ct. 1192, 22 L.Ed.2d 452 (“The level of ordinary skill in the field of designing automobile bodies, including hinges, was that of engineers of substantial training, and specialized skill.”). In the case at bar, the district court engaged in a detailed analysis of the prior art as illustrated in prior patents, admitting that the activity of an engineer, if he were aware of the problems associated with slicing tomatoes, would culminate in the patented concept. But it then stated: “(3) it would be unusual for an engineer to have either the need for such a device, or the method of accomplishing the desired result; and (4) the activity of an engineer in those circumstances would be cumulative toward a successful embodiment of the concept, and not independent of the actual creative work involved in isolating the problems before arriving at a solution.” The court therefore looked to the knowledge of persons who perform the task of tomato slicing to determine skill in the pertinent art. By focusing on the user rather than the problem solver, the district court erred. An interesting and pertinent application of principle can be gleaned from the court’s treatment of the skill in the pertinent art for beehive fasteners in In re Application of Grout, 377 F.2d 1019, 1021-22, 54 CCPA 1559 (1967): “It is appellant’s position that since the combination of elements claimed is to be used by beekeepers that it is to this group we must turn to ascertain what would have been obvious to them. After discussing the disclosures of the prior art, appellant states the position in his brief that: The preceding discussion calls attention to a variety of facts, circumstances and reasons which repel the inference that it would have been obvious in 1961 for a man of ordinary skill in the beekeeping art to turn to the window shade roller art or Andersen’s polymer film stretching device for ways and means of improving beehive components. Such facts, circumstances and reasons, show the difference in problems and objectives in the several arts differ from one another and how the defor-mative measures inhering in the arts of the secondary references would be completely unsuitable for application to bees’ wax foundation webs which are commonly used in the invention. . “Considering all the papers of record, we are not convinced that the ‘person having ordinary skill in the art to which said subject matter pertains,’ section 103, is exemplified by a beekeeper. Appellant’s invention relates to novel fastening means used in beehives. It is alleged that a problem existed in the support of honeycomb foundations which appellant solved. While this problem would be encountered by a beekeeper, we think the problem naturally calls for the talents of one skilled in the art of fasteners. Under section 103 we must look to the person of ordinary skill in the art to which the invention pertains, not those who may use the invention.” [Emphasis supplied.] Similarly, in Universal Athletic Sales Co. v. American Gym, Rec. & Ath. Eq. Corp., 546 F.2d 530, at 537 (3d Cir. 1976), this Court looked to the problem solver in the business when it held that the art pertinent to a weightlifting apparatus is the design of body-training devices. In other words, the hypothetical person skilled in the pertinent art is the mechanically skilled individual familiar with the design of devices in the industry. Erie Technological Products, Inc. v. Die Graft Metal Products, Inc., supra; Howe v. General Motors Corp., supra. Here, then, the pertinent art is the design of food slicing devices. We hold, therefore, that the district court’s finding as to the level of ordinary skill in the art was clearly erroneous. Having resolved this critical factual issue, this court is in a position to draw the ultimate conclusion of law with respect to obviousness. As stated in Deller’s Walker on Patents, § 109 at 153-54 (2d ed. 1964): “The issue of law as to whether an invention was obvious to one having ordinary skill in the art is one which a court of appeals is in as good a position to determine as the district court; the latter’s conclusion on this issue, not being on a question of fact, is not clothed with a presumption of correctness, and instead requires that the court of appeals make its own independent determination thereon. Rule 52(a) does not require the court of appeals either to accept findings unsupported by the evidence or to require the court of appeals to respect conclusions which do not rest properly on the facts of the case. . . . [But] such finding[s] . of fact . . . unless clearly erroneous will not be set aside by the court of appeals.” (Footnotes omitted) Had the district court applied the proper standard of skill — that possessed by the mechanic familiar with the design of food slicing devices — it would have had only the uncontradicted expert testimony of Mr. Karr to determine the question of “obviousness” with respect to such persons. Mr. Karr testified that it would be routine procedure for a mechanic first to determine the physical properties of the object to be sliced, see supra at 346, and that mechanics familiar with other patents in the food slicing industry would apply known mechanical principles to come up with the tomato slicer in question, see supra at 347. He supported his conclusion with testimony about six prior patents which would suggest to the mechanic the principles applied in the Tomato Tamer. Specifically, the Bever patent (a bun slicer) had its blade fixed at the same shallow angle to the path of the pusher, but it would not pass the blade clearly through the tomato. The Curtis patent (a fruit slicer) also showed an angle of less than 90° (“an angle of at least 70 °”) and contained the equivalent of the pusher leading arm of the Tomato Tamer (p. 329a). Mr. Karr was asked by the Court: “You are saying in effect . . . that given a mechanic and designer of ordinary skill and given the problem of cutting a tomato, that the prior art which certainly has encompassed pushers with pockets to hold the fruit or the object, blades to push them through and means of.so angling the pusher so that it goes through the blades, that this would be an obvious thing for anybody presented with the problem who had the skills of an ordinary mechanic or designer?” His response was, “Yes, your Honor.” (p. 337a) In light of this uncontradicted testimony about the skill of mechanics familiar with the design of food slicers, we need not remand to the district court for further findings of fact. Although the synergistic combination of known elements is one factor to consider in determining obviousness, we cannot agree that the district court’s findings reveal any more of a synergistic effect than was found in the device to release water on a barn floor from a storage tank in Sakraida, supra. See also Anderson’s-Black Rock v. Pavement Salvage Co., 396 U.S. 57, 61, 90 S.Ct. 305, 24 L.Ed.2d 258 (1960). As a matter of law, plaintiffs’ slicer was “obvious.” Despite the commercial success of the product, there was no “invention” to warrant patentability, and the judgment of the district court will be reversed. . 35 U.S.C. § 103 reads as follows: “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, 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. Patentability shall not be negatived by the manner in which the invention was made.” . See Appellees’ Brief, p. 7. Capable of slicing a tomato per second, plaintiffs’ invention, it was agreed, was an improvement over slicing with a hand-held knife or slicing with a meat-slicer which scattered individual slices, released juice, and required cleanup procedures. Commercial success without invention, however, will not make patentability. Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., Inc., 396 U.S. 57, 61, 90 S.Ct. 305, 24 L.Ed.2d 258 (1969); A & P Tea Co. v. Supermarket Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950); U. S. Expansion Bolt Company v. Jordan Industries, Inc., 488 F.2d 566 (3rd Cir. 1973). . Redco, Inc. (a non-party) was the sole manufacturer of the accused devices and sold them to defendant Kidde which, in turn, resold through distributors as well as users like Burger King Corporation, an operator of hamburger restaurants. This action was commenced in the Northern District of Illinois against Kidde and several of its customers, including Burger King. It was transferred to the Eastern District of Pennsylvania, with Kidde as the only active defendant. Suit was stayed as to all other defendants pending disposition of the litigation before this court. . While apparently counsel originally conceived that accounting would proceed before appeal to this Court (Trial Transcript, p. 12) the three orders dispose of all proceedings in the district court except for an accounting and collectively constitute the requisite judgment for our jurisdiction under 28 U.S.C. § 1292(a)(4). Cf., Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360 (3rd Cir. 1975); W. L. Gore & Associates, Inc. v. Carlisle Corp., 529 F.2d 614 (3rd Cir. 1976); Kramer v. Scientiñc Control Corp., 534 F.2d 1085 (3rd Cir. 1976). . Page numbers followed by “a” refer to pages in the Appendix to the Briefs. . The following appears in Chapter “1876 Centennial . The lower court stated: . In Tokyo Shibaura Electric Co., Ltd, et al. v. Zenith Radio Corp., 548 F.2d 88 (3rd Cir. 1977) at p. 94, fn. 18, we said: “[This theoretical person of] ordinary skill in the art is ‘charged with knowledge of all that the prior art disclosed at the time of his alleged invention, irrespective of whether persons of ordinary skill in the field, or he himself, or anyone else, actually possessed such all-encompassing familiarity with prior disclosures.’ Cool-Fin Electronics Corp. v. International Electronic Research Corp., 491 F.2d 660, 662 n.7 (9th Cir. 1974), quoting Walker v. General Motors Corp., 362 F.2d 56, 60 n.3 (9th Cir. 1966). Accord Layne-New York Co. v. Allied Asphalt Co., 501 F.2d 405, 406 (3rd Cir. 1974), cert, denied, 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1975).” . The dissenting opinion expresses concern that Mr. Karr did not represent a person having ordinary skill in the pertinent art — the design of food slicing machines. That concern would be relevant to the issue before us only if Mr. Karr had testified that the device in question would not have been obvious to anyone “who had the skills of an ordinary mechanic or designer.” Then we would have been forced to remand the case so that the lower court could consider whether a person with the additional skiils of one who designs food slicers might have viewed the device as obvious. As it is, however, Mr. Karr testified that the device would have been obvious to anyone with ordinary mechanical or design skills — skills we must presume food slicing designers to possess. A fortiori, the device must have been obvious to the latter group, too. There is no need, then, to remand the case so that the impact of food slicing designers’ peculiar skills can be considered. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:

songer_respond1_3_2

I

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. UNITED STATES of America, Plaintiff-Appellee, v. Eugene DOBSON, Defendant-Appellant. No. 74-1816. United States Court of Appeals, Sixth Circuit. Feb. 20, 1975. John M. McKnight (Court Appointed— CJA), Knoxville, Tenn., for defendant-appellant. John L. Bowers, Jr., U. S. Atty., Charles N. Stedman, Knoxville, Tenn., for plaintiff-appellee. Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges. PER CURIAM. Eugene Dobson was tried before a jury in two consolidated cases and convicted of the unlawful possession, forgery and uttering of United States Treasury Social Security checks which had been stolen from the mail, in violation of 18 U.S.C. §§ 495 and 1708. On appeal two contentions are made as grounds for reversal: (1) That it was error to allow a Government witness to identify the defendant in the court room when the witness had failed to identify the picture of the defendant from an array of photographs; and (2) that the evidence was insufficient to support the verdict of the jury. The appeal came on to be considered pursuant to Sixth Circuit Rule 3(e). Dobson was identified in the court room by Floyd Ernest Roach, owner of the Floyd Furniture Store at Knoxville, Tennessee, who cashed the stolen check. Mr. Roach testified that Dobson, had been in the store the previous evening looking at a television set. He returned the following day and stayed approximately ten minutes. He purchased a $104.95 television set, paying for it by signing and cashing a cheek which proved to be stolen and receiving $270.15 in change. Mr. Roach stated that he watched Dobson for several minutes while he was waiting outside following the transaction and that Dobson later returned to the store to use the telephone. This witness had a good opportunity to see Dobson and to become familiar with his features. Earlier in his testimony, however, Mr. Roach had selected a photograph of a different person as the one who cashed the check. In United States v. Black, 412 F.2d 687 (6th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970), this court held that where an eyewitness was unable to pick out a defendant’s picture from an array of photographs, this did not prevent the same witness from making a positive in-court identification. This court said, speaking through Judge Weick: The fact that eye witnesses to an occurrence cannot make a positive identification of an individual from an examination of photographs of a number of persons, does not necessarily detract from the validity of their in-court identification where they see the individual in person. The weight to be given to their in-eourt identification is for the jury to determine. 412 F.2d at 689. To like effect see United States v. O’Neal, 496 F.2d 368, 372 (6th Cir. 1974); United States v. Toney, 440 F.2d 590 (6th Cir. 1971). We conclude that O’Neal, Black and Toney are controlling in the present case. Appellant’s first contention is without merit. An examination of the transcript demonstrates that there was abundant evidence to support the verdict of the jury. It was stipulated that the checks were stolen and that the payees did not know Dobson. There was more than sufficient evidence from which the jury could have concluded that Dobson possessed, forged and cashed the stolen checks. In denying bail pending appeal, District Judge Robert L. Taylor included the following language in his order: “In the opinion of the court there is no legal basis for appeal of this case and it is taken for the purpose of delay.” We conclude that it is manifest that the questions on which the decision of this cause depends are so unsubstantial as not to need further argument. Sixth Circuit Rule 8. Affirmed. . (e) Docket Control. In the interest of docket control, the chief judge may from time to time, in his discretion, appoint a panel or panels to review pending cases for appropriate assignment or disposition under Rules 7(e), 8 or 9 or any other rule of this court. 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_genresp2

I

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. MOORE v. SCOTT STAMP & COIN CO., Inc. No. 41, Docket 21417. United States Court of Appeals Second Circuit. Argued Oct. 6, 1949. Decided Dec. 1, 1949. Miller, Bretzfelder & Boardman, New York City, for defendant, appellant and appellee; Bertram Boardman, New York City, of counsel. Thayer & Gilbert, New York City, for plaintiff, appellee and appellant; Phil E. Gilbert, Jr., and Harold A. Segall, New York City, of counsel. Before L. HAND, SWAN and CLARK, Circuit Judges. SWAN, Circuit Judge. These appeals bring up for review a judgment entered upon the verdict of a jury in an action to recover the agreed price of Chinese postage stamps purchased by the plaintiff in China at the defendant’s request and sent by registered mail addressed to the defendant. Federal jurisdiction rests on diversity of citizenship. The complaint, as originally filed, contained a single cause of action. It alleged that Scott Stamp & Coin Co., Inc., whom we shall call the buyer, requested the plaintiff, whom we shall call the seller, to obtain in China certain Chinese stamps and agreed to pay him the cost of the stamps, plus 10% for his services, plus postage; that the seller mailed the specified stamps to the buyer in February 1944; that after their arrival in New York in March 1944, the buyer refused to accept them, and is indebted therefor to the seller in the sum of $3,151.89. The defendant’s answer was a general denial. From correspondence introduced at the trial it appears that after the stamps arrived in New York they were held up by the customs officials who notified the buyer on March 28, 1944 that “These stamps will be held for the duration of the war, and may be claimed by you at that time.” Thereafter the buyer wrote to the seller’s agent on May 12, 1944: “As soon as the merchandise is released to us and in our possession, we shall make arrangement for its payment.” This letter was made the basis of a second count added to the complaint by amendment during the trial. This count further alleged that the stamps were released and made available to the buyer in September 1946, but the said sum of $3,151.89 has remained unpaid, although demanded by the seller. Both counts were submitted to the jury with instructions that if they found for the seller on either cause of action they must find for the buyer on the other. The jury brought in a verdict for the plaintiff on the second cause of action, and their silence as to the first was taken by the court as a verdict for the defendant on that count. Judgment was entered accordingly, and both parties have appealed. Upon the defendant’s appeal the errors assigned are denial of its motions to dismiss the complaint or direct a verdict and the refusal to give certain requested instructions. The plaintiff has taken a cross-appeal merely to protect his rights in case the judgment in his favor should be reversed. He contends that his motion for a directed verdict should have been granted. The seller’s shipment of the stamps in February 1944 was an acceptance of the buyer’s offer and created a unilateral contract which obligated the buyer to pay in accordance with the terms of the contract. Since all communications between the parties were by letters, we think that the meaning of the contract should have been determined by the court rather than the jury.If the correspondence prior to shipment of the stamps meant that the obligation of the buyer to pay became fixed when the stamps were shipped, a verdict should have been directed for the seller. On the other hand, if, as we believe, the contract should be interpreted to mean that the buyer’s obligation to pay was conditioned on receipt of the stamps by the buyer within a reasonable time after shipment, a verdict should have been directed for the buyer on the cause of action originally alleged. But such condition was modified by the letter of May 12th upon which the amendment of the complaint was based. The buyer then knew that the stamps would be held by the customs officials until the end of the war, unless someone could obtain an earlier release of them, and it expressly agreed to accept and pay for them at that time. The seller made unsuccessful efforts to obtain their earlier release. The buyer, as consignee of merchandise, made entry of it on March 2, 1944 but did nothing further to obtain possession of the stamps until it wrote to the Bureau of Customs in December 1948 in preparation for the trial of this action. The proof showed that the stamps were available for release to the buyer on September 3, 1946. By a letter of that date the Bureau of Customs so informed the seller, but there is no evidence that he passed on the information to the buyer. On September 11, 1946 the seller wrote demanding payment. The buyer’s reply on the 13th stated that it was no longer interested in getting the stamps as it had obtained large quantities from other sources. But this repudiation of the contract cannot aid the buyer, since there was uncontradicted testimony by Mr. Pollock of the Bureau of Customs that only the buyer, as consignee and importer of the stamps, could obtain their release from the Bureau. Hence the condition of the buyer’s promise to pay “as soon as the merchandise is released to us and in our possession” was a condition which could only be performed by it, and it cannot escape from its obligation by its own failure to perform the condition. The buyer erroneously argues that there was no consideration to support the promise of payment contained in its letter of May 12th. It has overlooked N. Y. Personal Property Law, McK.Consol.Laws, c. 41, § 33(2) which makes consideration unnecessary when a contract is modified by an agreement in writing. None of the refused instructions requires discussion. In our opinion the court should have directed a verdict on the second count. Since submission to the jury produced such a verdict, the judgment is affirmed. . See Williston, Contracts, 3rd Ed., § 616; Dwight v. Germania Rife Ins. Co., 103 N.Y. 341, 333, 8 N.E. 654, 57 Am. Rep. 729; Brady v. Cassidy, 104 N.Y. 147, 155, 10 N.E. 131. In the case at bar the jury was instructed that “it is your interpretation of those letters upon which you are to decide this ease.” . Williston, Contracts, 3rd Ed. §§ 677, 1293A; A.L.I. Restatement, Contracts, § 295. . “An agreement * * * to change or modify * * * any contract * * * shall not be invalid because of the absence of consideration, provided that the agreement * * * shall be in writing and signed by the party against whom it is sought to enforce the change, modification or discharge”. See Jaeger v. Canter, 13 N.Y.S.2d 414; Spector v. National Cellulose Corp., 181 Misc. 465, 48 N.Y.S.2d 234, affirmed 267 App.Div. 870, 47 N.Y.S.2d 311. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

sc_casesource

024

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. FEDERAL TRADE COMMISSION v. MOTION PICTURE ADVERTISING SERVICE CO., INC. No. 75. Argued December 8, 1952. Decided February 2, 1953. James L. Morrisson argued the cause for petitioner. With him on the brief were Acting Solicitor General Stern, Acting Assistant Attorney General Clapp, Charles H. Weston and W. T. Kelley. Louis L. Rosen argued the cause for respondent. With him on the brief were Charles Rosen and William B. Cozad. Mr. Justice Douglas delivered the opinion of the Court. Respondent is a producer and distributor of advertising motion pictures which depict and describe commodities offered for sale by commercial establishments. Respondent contracts with theatre owners for the display of these advertising films and ships the films from its place of business in Louisiana to theatres in twenty-seven states and the District of Columbia. These contracts run for terms up to five years, the majority being for one or two years. A substantial number of them contain a provision that the theatre owner will display only advertising films furnished by respondent, with the exception of films for charities or for governmental organizations, or announcements of coming attractions. Respondent and three other companies in the same business (against which proceedings were also brought) together had exclusive arrangements for advertising films with approximately three-fourths of the total number of theatres in the United States which display advertising films for compensation. Respondent had exclusive contracts with almost 40 percent of the theatres in the area where it operates. The Federal Trade Commission, the petitioner, filed a complaint charging respondent with the use of “unfair methods of competition” in violation of § 5 of the Federal Trade Commission Act, 38 Stat. 717, 719, 52 Stat. Ill, 15 U. S. C. § 45. The Commission found that respondent was in substantial competition with other companies engaged in the business of distributing advertising films, that its exclusive contracts have limited the outlets for films of competitors and have forced some competitors out of business because of their inability to obtain outlets for their advertising films. It held by a divided vote that the exclusive contracts are unduly restrictive of competition when they extend for periods in excess of one year. It accordingly entered a cease and desist order which prohibits respondent from entering into any such contract that grants an exclusive privilege for more than a year or from continuing in effect any exclusive provision of an existing contract longer than a year after the date of service in the Commission’s order. 47 F. T. C. 378. The Court of Appeals reversed, holding that the exclusive contracts are not unfair methods of competition and that their prohibition would not be in the public interest. 194 F. 2d 633. The “unfair methods of competition,” which are condemned by § 5 (a) of the Act, are not confined to those that were illegal at common law or that were condemned by the Sherman Act. Federal Trade Commission v. Keppel & Bro., 291 U. S. 304. Congress advisedly left the concept flexible to be defined with particularity by the myriad of cases from the field of business. Id., pp. 310-312. It is also clear that the Federal Trade Commission Act was designed to supplement and bolster the Sherman Act and the Clayton Act (see Federal Trade Commission v. Beech-Nut Co., 257 U. S. 441, 453) — to stop in their incipiency acts and practices which, when full blown, would violate those Acts (see Fashion Guild v. Federal Trade Commission, 312 U. S. 457, 463, 466), as well as to condemn as “unfair methods of competition” existing violations of them. See Federal Trade Commission v. Cement Institute, 333 U. S. 683, 691. The Commission found in the present case that respondent’s exclusive contracts unreasonably restrain competition and tend to monopoly. Those findings are supported by substantial evidence. This is not a situation where by the nature of the market there is room for newcomers, irrespective of the existing restrictive practices. The number of outlets for the films is quite limited. And due to the exclusive contracts, respondent and the three other major companies have foreclosed to competitors 75 percent of all available outlets for this business throughout the United States. It is, we think, plain from the Commission’s findings that a device which has sewed up a market so tightly for the benefit of a few falls within the prohibitions of the Sherman Act and is therefore an “unfair method of competition” within the meaning of § 5 (a) of the Federal Trade Commission Act. An attack is made on that part of the order which restricts the exclusive contracts to one-year terms. It is argued that one-year contracts will not be practicable. It is said that the expenses of securing these screening contracts do not warrant one-year agreements, that investment of capital in the business would not be justified without assurance of a market for more than one year, that theatres frequently demand guarantees for more than a year or otherwise refuse to exhibit advertising films. These and other business requirements are the basis of the argument that exclusive contracts of a duration in excess of a year are necessary for the conduct of the business of the distributors. The Commission considered this argument and concluded that, although the exclusive contracts were beneficial to the distributor and preferred by the theatre owners, their use should be restricted in the public interest. The Commission found that the term of one year had become a standard practice and that the continuance of exclusive contracts so limited would not be an undue restraint upon competition, in view of the compelling business reasons for some exclusive arrangement. The precise impact of a particular practice on the trade is for the Commission, not the courts, to determine. The point where a method of competition becomes “unfair” within the meaning of the Act will often turn on the exigencies of a particular situation, trade practices, or the practical requirements of the business in question. Certainly we cannot say that exclusive contracts in this field should have been banned in their entirety or not at all, that the Commission exceeded the limits of its allowable judgment (see Siegel Co. v. Federal Trade Commission, 327 U. S. 608, 612; Federal Trade Commission v. Cement Institute, 333 U. S. 683, 726-727) in limiting their term to one year. The Court of Appeals held that the contracts between respondent and the theatres were contracts of agency and therefore governed by Federal Trade Commission v. Curtis Publishing Co., 260 U. S. 568. This was on the theory that respondent furnishes the films by bailment to the exhibitors in exchange for a contract for personal services which the exhibitors undertake to perform. But the Curtis case would be relevant here only if § 3 of the Clayton Act were involved. The vice of the exclusive contract in this particular field is in its tendency to restrain competition and to develop a monopoly in violation of the Sherman Act. And when the Sherman Act is involved the crucial fact is the impact of the particular practice on competition, not the label that it carries. See United States v. Masonite Corp., 316 U. S. 265, 280. Finally, respondent urges that the sole issue raised in the Commission’s complaint had been adjudicated in a former proceeding instituted by the Commission which resulted in a cease and desist order. 36 F. T. C. 957. But that was a proceeding to put an end to a conspiracy between respondent and other distributors involving the use of these exclusive agreements. The present proceeding charges no conspiracy; it is directed against individual acts of respondent. The plea of res judicata is therefore not available since the issues litigated and determined in the present case are not the same as those in the earlier one. Cf. Tait v. Western Maryland R. Co., 289 U. S. 620, 623. Reversed. Comparable findings and like orders were entered in each of the three companion cases. In the Matter of Reid H. Ray Film, Industries, 47 F. T. C. 326; In the Matter of Alexander Film Co., 47 F. T. C. 345; In the Matter of United Film Ad Service, Inc., 47 F. T. C. 362. The Commission said: “Under the general practice the representative of the respondent first contacts the theater to determine if space is available for screen advertising and makes such arrangements as conditions warrant with respect to such space. In this way respondent’s representative is able to show prospective advertisers where space is available. In contacting the theater it is necessary for the respondent to estimate the amount of space it will be able to sell to advertisers. Since film advertising space in theaters is limited to four, five, or six advertisements, it is not unreasonable for respondent to contract for all space available in such theaters, particularly in territories canvassed by its salesmen at regular and frequent intervals. “It is therefore the conclusion of the Commission in the circumstances here that an exclusive screening agreement for a period of 1 year is not an undue restraint upon competition.” 47 F. T. C., at 389. A suggestion is made that respondent needs a period longer than one year in view of the fact that the contracts with advertisers are often not coterminous with the exclusive screening agreements, due in large part to the delays in obtaining advertising contracts after the exclusive screening agreements have been executed. The Commission rejected this contention, stating that by custom and by the terms of the exclusive contracts the theatre completes the screening of advertisements as required by the advertising contracts, even though those contracts extend beyond the expiration date of the exclusive screening agreement. We have concluded that the order which the Commission entered in this case is consistent with that construction. It does not prevent the completion of any particular advertising contract after the expiration of the exclusive screening agreement. The order merely prevents respondent from requiring the theatre owner to show only its films after that date. It does not prevent the theatre owner from making an otherwise exclusive agreement with another distributor at that time. No theatre owner is a party to this proceeding. The cease and desist order binds only respondent. This section makes unlawful a lease, sale, or contract for sale which substantially lessens competition or tends to create a monopoly. 15 U. S. C. § 14. 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. 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State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:

songer_treat

I

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. S. W. NOGGLE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 72-1678. United States Court of Appeals, Eighth Circuit. Submitted April 11, 1973. Decided May 1, 1973. Harry L. Brovvne, Kansas City, Mo., for petitioner. M. Namrow, Atty., N. L. R. B., Washington, D. C., for respondent. Before GIBSON, BRIGHT and ROSS, Circuit Judges. GIBSON, Circuit Judge. Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. The Board’s Decision and Order are reported at 199 NLRB No. 107. The S.W. Noggle Company was found by the NLRB to have committed an unfair labor practice in violation of §§ 8(a) . (1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3), by threatening to discipline and later by the discharge of Mike Masonbrink. It is the contention of the General Counsel that the employer discharged Mason-brink because he advocated that the employees go out on strike for a new contract. The Department Store, Package, Grocery, Paper House, Liquor and Meat Drivers, Helpers and Warehousemen, Local No. 955, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), had represented a unit consisting of the employer’s ware-housemen and drivers for 30 years. On September 30, 1971, the three-year contract between the employer and the Union expired. Negotiations were in progress at the time of the events with which this action is concerned. Masonbrink was a part-time employee of the Noggle Company from October 1969 to May 1970 when he enlisted in the Coast Guard. He returned from this military service in June 1971. At the end of June, through the efforts of his sister, Vickie Harrison, an order clerk for Noggle, he was rehired on a full time basis. He worked as a truck driver until mid-October when he requested and received a transfer to the warehouse. He worked in the warehouse about six weeks, until his discharge on December 1, 1971. During the period when he was employed in the warehouse the Trial Examiner found that Masonbrink “was far from being a model employee.” On several occasions he refused to perform his duties as he was instructed to do although he stated that he later would go ahead and do them. He was reported by Bramer, the leadman, to Thomas Turner, the general manager for Noggle, who in turn complained of his conduct to the Union. Several witnesses testified that they had heard Mansonbrink state that he would like to draw “rocking chair money” which was explained as meaning state unemployment compensation. Ma-sonbrink did not deny this but only stated that he could not remember saying it. On November 15, at a meeting between the unit employees and several union representatives Masonbrink strongly advocated that the Union strike the company because of its failure to negotiate a new collective bargaining agreement. Leadman Bramer reported Masonbrink’s position to General Manager Turner. Turner spoke to Vickie Harrison on about November 29, and told her, “Vickie, we’re going to have to do something about Mike. He has the men upset about going out on strike.” When she replied that it was because the company had not negotiated a new contract yet he responded, “I can’t help that. He still has to get his orders out.” The Trial Examiner found that this was a threat to discipline Masonbrink. Two days later, after Vickie had spoken to her brother concerning this conversation, Masonbrink called to Turner while he was in the warehouse, and told him that if he had anything to say to him he should do so directly and not to tell his sister. Turner made no response to this. At this point the stories of the parties diverge. Masonbrink states that they then began to discuss the performance of his work. Turner stated that he asked Masonbrink to fill a rush order and that Masonbrink refused because he was already working on another order. One of the other warehousemen heard this conversation and his version, while not identical to that of Turner’s tends to support Turner’s version. Both Mason-brink and Turner testified that Mason-brink said that if Turner thought he could do a better job he could do it himself, and that Turner stated to Mason-brink that if he did not like working there he could quit. Masonbrink admits that he told Turner that if he did not like the way he was doing his job Turner could fire him. This challenge was repeated several times and finally Turner did fire Masonbrink. The sole issue on this appeal is a factual one, whether the finding of the Trial Examiner and the Board that Mason-brink was discharged for his advocacy of a strike was supported by substantial evidence in the whole record. 29 U.S.C. § 160(e). ■ The Supreme Court has defined “substantial evidence” as: “ ‘. . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 '[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.’ Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence Labor Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 961, 86 L.Ed. 1305; Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18, 21.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-621, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (footnotes omitted). Considering first the finding by the Board that Turner had not requested Masonbrink to fill a rush order and been refused, we hold that this finding is not supported by substantial evidence on the whole record. The issue was decided by the Trial Examiner as a matter of credibility, balancing the testimony of Turner that he had told Masonbrink to fill the order and been refused against Masonbrink’s denial of the incident and testimony that the conversation concerned only his work performance generally. The Trial Examiner appeared to ignore the testimony of Ralph Roberts, one of the other warehousemen, to the effect that he had heard the conversation between Turner and Masonbrink, and that he had heard Turner tell Masonbrink to fill an order. Although Roberts did not testify that Masonbrink had openly refused to comply with the instruction, Robert’s version of the confrontation is more consistent with Turner’s version than was Masonbrink’s in that Mason-brink denied that he was even told to fill an order. Turning next to the statement made by Turner to Vickie Harrison with regard to Masonbrink’s advocacy of striking, the Examiner failed to fully examine this incident. Beyond reciting the facts of the statement and the bare finding that “I also find that Turner’s statement to Vickie constituted a violation of Section 8(a)(1) of the Act” there was no analysis of the statement. Turner denied that it was a threat to discharge Masonbrink. He stated that he wanted Vickie to see if she could get Mike to settle down. In view of the fact that Vickie Harrison had been instrumental in getting Masonbrink the job, and the cordial relationship which obviously existed between the small group of employees and the management, this is not an unlikely explanation for the conversation. From the record of this conversation it would be erroneous to draw the conclusion that Turner was threatening to fire Masonbrink for advocating a strike. In view of the fact that Masonbrink had been employed in the warehouse only a short time, and that after the one occasion when a complaint had been made of Masonbrink’s sub-par performance Turner had promptly notified the Union, this record cannot support the finding by the Examiner that Turner had “put up with quite a bit” or condoned the prior misconduct of Masonbrink. This finding appears incredible. By employing such reverse logic, the mere condoning of inferior work, would give the employee a shield against dismissal for cause. Even without the refusal by Masonbrink to fill the order on the day of his discharge, the record does not support the finding that he was not discharged for cause but for his union activities. It is clear that he initiated the confrontation with Turner. It is further undisputed that he several times challenged Turner to discharge him if Turner did not like the way he did his work, indicating that he would not even attempt to meet the standards which his employer would expect. This sort of defiant attitude by employees is not protected by either a Union shield or the National Labor Relations Act. Considering the record as a whole, it is clear that the finding of a discriminatory discharge of this hostile and contentious employee is not supported by substantial evidence. Accordingly, the Board’s Order which required his reinstatement with back pay will not be enforced. Enforcement denied. . Of course, an employee, absent a protective agreement, may be discharged with or without cause so long as it is not for a reason prohibited by the National Labor Relations Act. “It must be remembered that it is not the purpose of the Act to give the Board any control whatsoever over an employer’s policies, including his policies concerning tenure of employment, and that an employer may hire and fire at will for any reason whatever, or for no reason, so long as the motivation is not violative of the Act.” NLRB v. Ace Comb Co., 342 F.2d 841, 847 (8th Cir. 1965). See also NLRB v. Red Top, Inc., 455 F.2d 721, 726 (8th Cir. 1972) (cases cited at n. 4). 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_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. MEDELLIN v. TEXAS ON APPLICATION TO RECALL AND STAY MANDATE AND FOR STAY No. 06-984 (08A98). Decided August 5, 2008 Together with No. 08-5573 (08A99), Medellín v. Texas, on application for stay and on petition for a writ of certiorari to the Court of Criminal Appeals of Texas, and No. 08-5574 (08A99), In re Medellín, on application for stay and on petition for a writ of habeas corpus. Per Curiam. Petitioner seeks a stay of execution on the theory that either Congress or the Legislature of the State of Texas might determine that actions of the International Court of Justice (ICJ) should be given controlling weight in determining that a violation of the Vienna Convention on Consular Relations is grounds for vacating the sentence imposed in this suit. Under settled principles, these possibilities are too remote to justify an order from this Court staying the sentence imposed by the Texas courts. And neither the President nor the Governor of the State of Texas has represented to us that there is any likelihood of congressional or state legislative action. It is up to Congress whether to implement obligations undertaken under a treaty which (like this one) does not itself have the force and effect of domestic law sufficient to set aside the judgment or the ensuing sentence, and Congress has not progressed beyond the bare introduction of a bill in the four years since the IC J ruling and the four months since our ruling in Medellín v. Texas, 552 U. S. 491 (2008). This inaction is consistent with the President’s decision in 2005 to withdraw the United States’ accession to jurisdiction of the ICJ with regard to matters arising under the Convention. The beginning premise for any stay, and indeed for the assumption that Congress or the legislature might seek to intervene in this suit, must be that petitioner’s confession was obtained unlawfully. This is highly unlikely as a matter of domestic or international law. Other arguments seeking to establish that a violation of the Convention constitutes grounds for showing the invalidity of the state-court judgment, for instance because counsel was inadequate, are also insubstantial, for the reasons noted in our previous opinion. Id., at 502, n. 1. The Department of Justice of the United States is well aware of these proceedings and has not chosen to seek our intervention. Its silence is no surprise: The United States has not wavered in its position that petitioner was not prejudiced by his lack of consular access. The application to recall and stay the mandate and for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, is denied. The application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, is denied. The petition for a writ of habeas corpus is denied. It is so ordered. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:

sc_respondentstate

55

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. TURNER v. MURRAY, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS No. 84-6646. Argued December 12, 1985 Decided April 30, 1986 White, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and III, in which Brennan, Blackmun, Stevens, and O’Connor, JJ., joined, and an opinion with respect to Parts II and IV, in which Blackmun, Stevens, and O’Connor, JJ., joined. Burger, C. J., concurred in the judgment. Brennan, J., filed an opinion concurring in part and dissenting in part, post, p. 38. Marshall, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Brennan, J., joined, post, p. 45. Powell, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 45. J. Lloyd Snook III, by appointment of the Court, 471 U. S. 1134, argued the cause and filed briefs for petitioner. James E. Kulp, Senior Assistant Attorney General of Virginia, argued the cause for respondent. With him on the brief were William G. Broaddus, Attorney General, and Robert H. Anderson III, Assistant Attorney General. Justice White announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and III, and an opinion with respect to Parts II and IV, in which Justice Blackmun, Justice Stevens, and Justice O’Connor join. Petitioner is a black man sentenced to death for the murder of a white storekeeper. The question presented is whether the trial judge committed reversible error at voir dire by refusing petitioner’s request to question prospective jurors on racial prejudice. I On July 12, 1978, petitioner entered a jewelry store in Franklin, Virginia, armed with a sáwed-off shotgun. He demanded that the proprietor, W. Jack Smith, Jr., put jewelry and money from the cash register into some jewelry bags. Smith complied with petitioner’s demand, but triggered a silent alarm, alerting the Police Department. When Alan Bain, a police officer, arrived to inquire about the alarm, petitioner surprised him and forced him to surrender his revolver. Having learned that Smith had triggered a silent alarm, petitioner became agitated. He fired toward the rear wall of the store and stated that if he saw or heard any more police officers, he was going to start killing those in the store. When a police siren sounded, petitioner walked to where Smith was stationed behind a counter and without warning shot him in the head with Bain’s pistol, wounding Smith and causing him to slump incapacitated to the floor. Officer Bain attempted to calm petitioner, promising to take him anywhere he wanted to go and asking him not to shoot again. Petitioner angrily replied that he was going to kill Smith for “snitching,” and fired two pistol shots into Smith’s chest, fatally wounding him. As petitioner turned away from shooting Smith, Bain was able to disarm him and place him under arrest. A Southampton County, Virginia, grand jury indicted petitioner on charges of capital murder, use of a firearm in the commission of a murder, and possession of a sawed-off shotgun in the commission of a robbery. Petitioner requested and was granted a change of venue to Northampton County, Virginia, a rural county some 80 miles from the location of the murder. Prior to the commencement of voir dire, petitioner’s counsel submitted to the trial judge a list of proposed questions, including the following: “‘The defendant, Willie Lloyd Turner, is a member of the Negro race. The victim, W. Jack Smith, Jr., was a white Caucasian. Will these facts prejudice you against Willie Lloyd Turner or affect your ability to render a fair and impartial verdict based solely on the evidence?’” Turner v. Commonwealth, 221 Va. 513, 522, n. 8, 273 S. E. 2d 36, 42, n. 8 (1980). The judge declined to ask this question, stating that it “has been ruled on by the Supreme Court.” App. 15. The judge did ask the venire, who were questioned in groups of five in petitioner’s presence, whether any person was aware of any reason why he could not render a fair and impartial verdict, to which all answered “no.” Id., at 17, 78. At the time the question was asked, the prospective jurors had no way of knowing that the murder victim was white. The jury that was empaneled, which consisted of eight whites and four blacks, convicted petitioner on all of the charges against him. Id., at 97 and Addendum. After a separate sentencing hearing on the capital charge, the jury recommended that petitioner be sentenced to death, a recommendation the trial judge accepted. Id., at 18, 19. Petitioner appealed his death sentence to the Virginia Supreme Court. Among other points, he argued that the trial judge deprived him of his constitutional right to a fair and impartial jury by refusing to question prospective jurors on racial prejudice. The Virginia Supreme Court rejected this argument. Relying on our decision in Ristaino v. Ross, 424 U. S. 589 (1976), the court stated that a trial judge’s refusal to ask prospective jurors about their racial attitudes, while perhaps not the wisest decision as a matter of policy, is not constitutionally objectionable in the absence of factors akin to those in Ham v. South Carolina, 409 U. S. 524 (1973). Turner v. Commonwealth, supra, at 523, 273 S. E. 2d, at 42. The court held that “[t]he mere fact that a defendant is black and that a victim is white does not constitutionally mandate ... an inquiry [into racial prejudice].” Ibid. Having failed in his direct appeal, petitioner sought habeas corpus relief in the Federal District Court for the Eastern District of Virginia. App. 97. Again he argued without success that the trial judge’s refusal to ask prospective jurors about their racial attitudes deprived him of his right to a fair trial. Id., at 102-104. The District Court noted that in Ristaino, supra, which involved a crime of interracial violence, we held that inquiry into racial prejudice at voir dire was not constitutionally required because the facts of the case “ ‘did not suggest a significant likelihood that racial prejudice might infect [the defendant’s] trial.’” App. 103 (quoting 424 U. S., at 598). The court found the present case like Ristaino and unlike Ham in that “racial issues [are] not ‘inextricably bound up with the facts at trial.’” App. 103. The United States Court of Appeals for the Fourth Circuit affirmed the District Court’s denial of habeas corpus relief for petitioner. Turner v. Bass, 753 F. 2d 342 (1985). Like the Virginia Supreme Court and the District Court, the Fourth Circuit found no “special circumstances” in this case analogous to those in Ham. The court rejected the idea that “the nature of the crime or punishment itself is ... a special circumstance.” 753 F. 2d, at 345. Relying on Ristaino, the court likewise found no special circumstance in the fact that petitioner is black and his victim white. We granted certiorari to review the Fourth Circuit’s decision that petitioner was not constitutionally entitled to have potential jurors questioned concerning racial prejudice. 471 U. S. 1098 (1985). We reverse. II The Fourth Circuit’s opinion correctly states the analytical framework for evaluating petitioner’s argument: “The broad inquiry in each case must be . . . whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be indifferent as [they stand] unsworne.” 753 F. 2d, at 345-346 (internal quotation omitted). The Fourth Circuit was correct, too, in holding that under Ristaino the mere fact that petitioner is black and his victim white does not constitute a “special circumstance” of constitutional proportions. What sets this case apart from Ristaino, however, is that in addition to petitioner’s being accused of a crime against a white victim, the crime charged was a capital offense. In a capital sentencing proceeding before a jury, the jury is called upon to make a “highly subjective, ‘unique, individualized judgment regarding the punishment that a particular person deserves.’” Caldwell v. Mississippi, 472 U. S. 320, 340, n. 7 (1985) (quoting Zant v. Stephens, 462 U. S. 862, 900 (1983) (Rehnquist, J., concurring in judgment)). The Virginia statute under which petitioner was sentenced is instructive of the kinds of judgments a capital sentencing jury-must make. First, in order to consider the death penalty, a Virginia jury must find either that the defendant is likely to commit future violent crimes or that his crime was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim.” Va. Code §19.2-264.2 (1983). Second, the jury must consider any mitigating evidence offered by the defendant. Mitigating evidence may include, but is not limited to, facts tending to show that the defendant acted under the influence of extreme emotional or mental disturbance, or that at the time of the crime the defendant’s capacity “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired.” § 19.2-262.4(B). Finally, even if the jury has found an aggravating factor, and irrespective of whether mitigating evidence has been offered, the jury has discretion not to recommend the death sentence, in which case it may not be imposed. § 19.2-264.2. Virginia’s death-penalty statute gives the jury greater discretion than other systems which we have upheld against constitutional challenge. See, e. g., Jurek v. Texas, 428 U. S. 262 (1976). However, our cases establish that every capital sentencer must be free to weigh relevant mitigating evidence before deciding whether to impose the death penalty, see, e. g., Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586, 597-609 (1978) (plurality opinion), and that in the end it is the jury that must make the difficult, individualized judgment as to whether the defendant deserves the sentence of death. Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected. On the facts of this ease, a juror who believes that blacks are violence prone or morally inferior might well be influenced by that belief in deciding whether petitioner’s crime involved the aggravating factors specified under Virginia law. Such a juror might also be less favorably inclined toward petitioner’s evidence of mental disturbance as a mitigating circumstance. More subtle, less consciously held racial attitudes could also influence a juror’s decision in this case. Fear of blacks, which could easily be stirred up by the violent facts of petitioner’s crime, might incline a juror to favor the death penalty. The risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence. “The Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” California v. Ramos, 463 U. S. 992, 998-999 (1983). We have struck down capital sentences when we found that the circumstances under which they were imposed “created an unacceptable risk that ‘the death penalty [may have been] meted out arbitrarily or capriciously’ or through ‘whim . . . or mistake.’” Caldwell, supra, at 343 (O’Connor, J., concurring in part and concurring in judgment) (citation omitted). In the present case, we find the risk that racial prejudice may have infected petitioner’s capital sentencing unacceptable in light of the ease with which that risk could have been minimized. By refusing to question prospective jurors on racial prejudice, the trial judge failed to adequately protect petitioner’s constitutional right to an impartial jury. Ill We hold that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. The rule we propose is minimally intrusive; as in other cases involving “special circumstances,” the trial judge retains discretion as to the form and number of questions on the subject, including the decision whether to question the venire individually or collectively. See Ham v. South Carolina, 409 U. S., at 527. Also, a defendant cannot complain of a judge’s failure to question the venire on racial prejudice unless the defendant has specifically requested such an inquiry. IV The inadequacy of voir dire in this case requires that petitioner’s death sentence be vacated. It is not necessary, however, that he be retried on the issue of guilt. Our judgment in this case is that there was an unacceptable risk of racial prejudice infecting the capital sentencing proceeding. This judgment is based on a conjunction of three factors: the fact that the crime charged involved interracial violence, the broad discretion given the jury at the death-penalty hearing, and the special seriousness of the risk of improper sentencing in a capital case. At the guilt phase of petitioner’s trial, the jury had no greater discretion than it would have had if the crime charged had been noncapital murder. Thus, with respect to the guilt phase of petitioner’s trial, we find this case to be indistinguishable from Ristaino, to which we continue to adhere. See n. 5, supra. 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. The Chief Justice concurs in the judgment. In addition to Smith and Bain, a store employee and two customers were present at this time. Whether the trial judge was referring to this Court’s decision in Ristaino v. Ross, 424 U. S. 589 (1976), or to a decision of the Virginia Supreme Court, is unclear. In Ham, a young black man known in his small South Carolina hometown as a civil rights activist was arrested and charged with possession of marijuana. We held that the trial judge committed reversible error in refusing to honor Ham’s request to question prospective jurors on racial prejudice. In Ristaino, supra, we specified the factors which mandated an inquiry into racial prejudice in Ham: “Ham’s defense was that he had been framed because of his civil rights activities. His prominence in the community as a civil rights activist, if not already known to veniremen, inevitably would have been revealed to the members of the jury in the course of his presentation of that defense. Racial issues therefore were inextricably bound up with the conduct of the trial. Further, Ham’s reputation as a civil rights activist and the defense he interposed were likely to intensify any prejudice that individual members of the jury might harbor.” 424 U. S., at 596-597. The court also rejected petitioner’s reliance on a statistical study showing that black defendants who kill white victims are sentenced to death with disproportionate frequency. The court stated that the study, which is based on statistics compiled in other States, has little utility in establishing the potential for racial prejudice in Virginia. 221 Va., at 523, n. 9, 273 S. E. 2d, at 42, n. 9. In Ristaino, the defendant was one of three black men charged with assaulting a white security guard with intent to murder him. The assault occurred in the course of a robbery. 424 U. S., at 590. To the suggestion that it is a special circumstance that black murderers whose victims are white are executed with disproportionate frequency, the court responded by quoting our opinion in Rosales-Lopez v. United States, 451 U. S. 182 (1981), for the proposition that “‘[t]here is no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups.’” 753 F. 2d, at 345 (quoting 451 U. S., at 190). In referring to the facts of petitioner’s crime, we do not retreat from our holding in Ristaino. The fact of interracial violence alone is not a “special circumstance” entitling the defendant to have prospective jurors questioned about racial prejudice. It should be clear, though, that our holding in Ristaino was not based on a blind belief that the facts presented in that case could not evoke racial prejudice. As we stated in Rosales-Lopez v. United States, 451 U. S., at 192: “It remains an unfortunate fact in our society that violent crimes perpetrated against members of other racial or ethnic groups often raise [a reasonable possibility that racial prejudice would influence the jury].” Ristaino does not condone this possibility, but simply leaves it to the trial judge’s discretion to decide what measures to take in screening out racial prejudice, absent a showing of “significant likelihood that racial prejudice might infect [the] trial.” 424 U. S., at 598. Justice Powell’s dissent takes issue with what he terms the “singularly unwise and unjustified presumption that capital jurors harbor latent racial bias.” Post, at 53. This remark fails to distinguish between our recognition that jurors in a capital case may harbor racial bias, and the presumption, which we do not make, that any particular capital jurors are in fact racially prejudiced. Justice Powell implicitly recognizes such a distinction, but only when it suits his purposes; thus, he does not say that in a case like Ham v. South Carolina, 409 U. S. 524 (1973), the jurors are presumed to be prejudiced, but rather that there is “an unacceptable risk that racial prejudice will ‘distort the trial.’ ” Post, at 50. Once rhetoric is put aside, it is plain that there is some risk of racial prejudice influencing a jury whenever there is a crime involving interracial violence, see n. 7, supra; the only question is at what point that risk becomes constitutionally unacceptable. Notwithstanding Justice Powell’s attempt to minimize the significance of the discretion entrusted to the jury at a capital sentencing hearing, post, at 50-52, we are convinced that such discretion gives greater opportunity for racial prejudice to operate than is present when the jury is restricted to factfinding. This, together with the special seriousness with which we view the risk of racial prejudice influencing a capital sentencing decision, is what distinguishes this case from Ristaino. The right to an impartial jury is guaranteed by both the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, and by principles of due process. Ristaino, 424 U. S., at 595, n. 6. Justice Powell contends that inquiry into racial prejudice “in the absence of circumstances that make clear a need for it could well have the negative effect of suggesting to the jurors that race somehow is relevant to the case.” Post, at 48-49, n. 5. Whether such a concern is purely chimerical or not is a decision we leave up to a capital defendant’s counsel. Should defendant’s counsel decline to request voir dire on the subject of racial prejudice, we in no way require or suggest that the judge broach the topic sua sponte. We find it unnecessary to evaluate the statistical studies which petitioner has introduced in support of the proposition that black defendants who kill whites are executed with disproportionate frequency. Justice Brennan incorrectly reads into our opinion a suggestion that “the constitutional entitlement to an impartial jury attaches only at the sentencing phase. ” Post, at 43. The real question is not whether there is a constitutional right to an impartial jury throughout a criminal trial, see n. 9, swpra, but what prophylactic rules the Constitution imposes on the States in furtherance of that right. What we held in Ristaino, and reaffirm today, is that absent'“special circumstances” that create a particularly compelling need to inquire into racial prejudice, the Constitution leaves the conduct of voir dire to the sound discretion of state trial judges. The implication of Justice Brennan’s opinion is that every crime of interracial violence is a “special circumstance.” Over Justice Brennan’s dissent, however, Ristaino squarely rejected this approach. Moreover, we are unpersuaded by Justice Brennan’s view that “the opportunity for racial bias to taint the jury process is . . . equally a factor at the guilt [and sentencing] phase[s] of a bifurcated capital trial.” Post, at 41. As we see it, the risk of racial bias at sentencing hearings is of an entirely different order, because the decisions that sentencing jurors must make involve far more subjective judgments than when they are deciding guilt or innocence. 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: