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In the Matter of FINANCIAL COMPUTER SYSTEMS, INC., a California corporation, Debtor. EQUITABLE LEASING CO., Respondent-Appellant, v. Richard CLEMENTS, Trustee-Appellee. No. 25628. United States Court of Appeals, Ninth Circuit. Feb. 5, 1973. Rehearing Denied March 15, 1973. James B. Bertero (argued), Bruce E. Clark, of Musick, Peeler & Garrett, Stephen R. Wolfson, of Tiernan & Moneymaker, Los Angeles, Cal., for respondent-appellant. Donald Rothman (argued), of Sulmeyer, Kupetz & Alberts, A. J. Bumb, Los Angeles, Cal., for trustee-appellee. Before ELY, HUFSTEDLER, and WRIGHT, Circuit Judges. ELY, Circuit Judge: Equitable Leasing Company sought reclamation, in bankruptcy proceedings, of two air conditioning units in the possession of the bankrupt’s trustee under an alleged lease agreement. The trustee refused to turn over the two units, claiming contrary to the express provisions of the written contract, that the alleged lease was a security agreement, and, as such, void because of the failure of Equitable to file a financing statement with the Secretary of State. Cal. Comm.Code § 9302. At the referee’s hearing the trustee was allowed, over strenuous objection by Equitable, to introduce oral evidence that clearly contradicted the written terms of the otherwise complete and unambiguous lease agreement. The contested evidence suggested that an oral option had been granted by Equitable to Financial (the bankrupt) enabling the now bankrupt lessee to purchase the air conditioning units upon termination of the lease for $1,094.00. Equitable objects that this oral evidence was inadmissible under the provisions of the California Commercial Code § 2201 and the parol evidence rule. Equitable also contends, secondly, that it was error to conclude that the written agreement was a conditional sales contract and not a straight lease; thirdly, that it was error to give effect to the alleged oral option to purchase because such an agreement violates the statute of frauds, Cal.Comm.Code § 2201 and Cal.Civ.Code § 1624(1); and finally, that the referee erred in not applying the doctrine of offset after it had been stipulated by the parties that there were rentals due Equitable under the terms of the lease. Since we conclude that the admission of the contested oral evidence violated the Commercial Code we do not reach Equitable’s additional assignments of error. Cal.Comm.Code § 2201(1) (West 1964) provides: “Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.” The comment following this code section recites that: “Only three definite and invariable requirements as to the memorandum are made by this subsection. First, it must evidence a contract for the sale of goods; second, it must be ‘signed’, a word which includes any authentication which identifies the party to be charged; and third, it must specify a quantity.” The lease contract, which was the only memorandum or writing offered into evidence, contains no mention of an option to purchase the two air conditioning units. To the contrary, the written agreement clearly and expressly provides for a straight lease with ownership remaining with Equitable at all times: “a. ‘The personal property hereby leased (hereinafter called the Property) shall at all times remain and be the sole and exclusive property of Lessor, and Lessee shall have no right or title therein, . . . . ’ “b. Paragraph 5 — ‘At the expiration of the lease period or termination of the lease pursuant to the provisions hereof, Lessee will return the property to lessor in as good condition as received less normal wear, tear and depreciation.’ “c. Paragraph 11. ‘This lease constitutes the entire understanding of the parties and shall not be altered or amended except by an agreement in writing signed by the parties hereto.’ ” Financial argues, however, that § 2201(1) of the Commercial Code is inapplicable because evidence of the oral option to purchase was introduced only to prove that the agreement was a security device and not a lease. The trustee thus argues that there was no attempt to “enforce” the option. We disagree. By its terms § 2201 of the Commercial Code applies to agreements to sell regardless of whether enforcement is sought “by way of action or defense.” As a result of the introduction of Financial’s oral evidence the trustee was able to exercise the very power it claims under the alleged purchase option agreement: the power to defeat Equitable’s reclamation action and to relegate Equitable’s claim in the air conditioning units to the position of an unperfected security interest. In our view this was “enforcement” of Financial's rights under the alleged oral agreement, and as such it was improper in the absence of “some writing sufficient to indicate that a contract for sale has been made between the parties. .” Cal.Comm.Code § 2201. Reversed.

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 "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.

This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?

SOUTHLAND ROYALTY COMPANY, Phillips Petroleum Company, Shell Oil Company, Chevron U.S.A., Inc., the Superior Oil Company, the Union Oil Company of California, Wilshire Oil Company of Texas, Anadarko Production Company, and Texaco, Inc., Plaintiffs, Appellants, Cross-Appellees, State of Utah, Lynn C. Baker, individually, and as Treasurer of the State of Utah, Utah State Tax Commission, David L. Duncan, Chairman, and Douglas Sonntag, Georgia B. Peterson and Robert D. Bowen, individually, and as members of the Utah State Tax Commission, Utah State Board of Oil, Gas and Mining, Charles Henderson, Chairman, and John L. Bell, Thadis W. Box, C. Ray Juvelin, Edward T. Beck, Constance K. Lundberg, and E. Steele McIntyre, individually, and as members of the Utah State Board of Oil, Gas and Mining, San Juan County, Utah, Edward S. Boyle, William G. Dunow and Calvin Black, individually, and as Commissioners of San Juan County, Utah, Marian Bayles, individually, and as San Juan County Treasurer, and Barbara Montella, individually, and as San Juan County Assessor, Plaintiffs in Intervention (in D.C. No. C-79-296), Defendants-Appellees, v. NAVAJO TRIBE OF INDIANS, Defendant, Appellee, Cross-Appellant, Navajo Tribal Council, Peter MacDonald, individually, and as Chairman of the Navajo Tribal Council, Navajo Tax Commission, Glen C. George, Robert Shorty, Jr., David C. Cole, Delfred Wauneka, and William Morgan, Jr., individually, and as members of the Navajo Tax Commission, Defendants, Appellees, United States of America, James G. Watt, Secretary of the Interior, Martin E. Seneca, Jr., Acting Commissioner of the United States Bureau of Indian Affairs, Defendants, Appellees, Cross-Appellants. Nos. 80-2035 to 80-2038, 80-2067 and 80-2159. United States Court of Appeals, Tenth Circuit. Aug. 22, 1983. Edward L. Barrett, Jr. of Nielsen & Senior, Salt Lake City, Utah (Arthur H. Nielsen, Clark R. Nielsen and John K. Mangum, Salt Lake City, Utah, with him on the brief), for plaintiffs, appellants, cross-appellees Southland Royalty Co., The Superior Oil Co., The Union Oil Co. of California, Wilshire Oil Co. of Texas and Anadarko Production Co. Bruce D. Black of Campbell, Byrd & Black, P.A., Santa Fe, N.M., for plaintiff, appellant, cross-appellee Texaco, Inc. Alan L. Sullivan of Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah (Leonard J. Lewis and Gregory K. Orme, Salt Lake City, Utah, with him on the brief), for plaintiffs, appellants, cross-appellees Phillips Petroleum Co., Shell Oil Co., and Chevron U.S.A., Inc. Michael M. Quealy, Asst. Atty. Gen., State of Utah, Salt Lake City, Utah (David L. Wilkinson, Atty. Gen., Richard L. Dewsnup, Dallin W. Jensen and Frank V. Nelson, Asst. Attys. Gen., Salt Lake City, Utah, with him on the brief), for plaintiffs in intervention, defendants-appellees State of Utah and state officials. Katherine Ott and Gary Verberg of Vlassis & Ott, Phoenix, Ariz. (George P. Vlassis of Vlassis & Ott, Phoenix, Ariz., Harold G. Christensen and Max D. Wheeler of Snow, Christensen & Martineau, Salt Lake City, Utah, with Katherine Ott, on brief), for defendant, appellee, cross-appellant The Navajo Tribe of Indians, and Navajo defendants-appellees. Kay L. Richman, Attorney, Dept, of Justice, Washington, D.C. (Carol E. Dinkins, Asst. Atty. Gen., James J. Clear and Dirk D. Snel, Attorneys, Dept, of Justice, Washington, D.C., with her on brief, David Etheridge, Attorney, Dept, of the Interior, Washington, D.C., of counsel), for defendants, appellees, cross-appellants United States and federal officials. Bruce K. Halliday, San Juan County Atty., Monticello, Utah, on brief for plaintiffs in intervention, defendants-appellees San Juan County and county officials. Jeff Bingaman, Atty. Gen., State of N.M., Denise D. Fort, Asst. Atty. Gen., Nancy F. Jones and Allison Karslake, Sp. Asst. Attys. Gen., Taxation and Revenue Dept., Santa Fe, N.M., on brief for amicus curiae State of N.M. Mark B. Thompson, III of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, N.M., on brief for amicus curiae Amoco Production Co. Before SETH, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges. SETH, Chief Judge. Since the 1950’s the appellants have held oil and gas leases on lands in the Navajo Indian Reservation in Utah. The Navajo Tribe imposed taxes on the value of mineral interests and on gross receipts. The State of Utah and San Juan County have been collecting similar taxes for some years. The tribe has not collected taxes as yet under the resolutions imposing the taxes. This action is considered to be against the tribal officials. Phillips Petroleum Company, Shell Oil Company and Chevron U.S.A., Inc. brought suit against the tribe and individual tribal officials individually to have the Navajo taxes declared invalid. A similar challenge was brought by Southland Royalty Company, The Superior Oil Company, The Union Oil Company of California, Wilshire Oil Company of Texas and Anadarko Production Company. These plaintiffs argued in the alternative that state and local taxes were invalid. Texaco, Inc. also brought suit against the tribe but did not challenge the state and local taxes. In the Texaco suit the state and county intervened in order to present their own arguments against the tribe’s power to tax oil and gas leases and receipts. All of these cases were consolidated in the district court. The district court dismissed the tribe and tribal entities but kept in the individual defendants. It found that the validity of the Navajo taxes was conditioned upon their approval by the Secretary of the Interior which had not been obtained, and that the state and county taxes were valid. These appeals and cross-appeals followed. As the district court noted, the facts and issues in this case are very similar to those of Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir.). Since the district court opinion in the cases before us the Supreme Court decided Merrion. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21. These two cases govern the basic issues in this appeal. It is apparent from Merrion that Indian taxation of oil and gas leases is a valid exercise of tribal authority. As the Court there said, 455 U.S. 130, at 137, 102 S.Ct. 894 at 901, the tribe has a power to tax which derives from “the tribe’s general authority, as sovereign, to control economic activity within its jurisdiction, and to defray the cost of providing governmental services by requiring contributions from persons or enterprises engaged in economic activities within that jurisdiction.” See also Washington v. Confederated Tribes, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10. Thus the Navajo Tribe had the power to tax and the burden on those who attack that power is to show that it has been modified, conditioned or divested by Congressional action. The Supreme Court in Merrion rejected the argument that the Jicarilla Tribe’s power to tax had been preempted by the extensive federal regulation of oil and gas leases promulgated pursuant to the Indian Mineral Leasing Act, 25 U.S.C. §§ 396a-396g. Despite that position of the Court the plaintiffs again advance a preemption argument, but they contend that there is a critical difference between the Jicarilla Tribe and the Navajo Tribe in that the Navajo Tribe has .not chosen to organize and adopt a constitution under the Indian Reorganization Act of 1934, 25 U.S.C. §§ 461-479 (IRA). Thus taxes imposed by the organized Jicarilla Tribe would be reviewed by the Secretary of the Interior in accordance with the Jicarilla Constitution. Revised Constitution of the Jicarilla Apache Tribe, Art. XI § 1(e). This fact was noted by the Court in Merrion. 455 U.S. 130 at 150, 102 S.Ct. 894 at 905. In contrast, plaintiffs argue the taxes imposed by the Navajo Tribe which has no constitution would not be reviewed by any federal agency and might disrupt federal energy policies. Therefore, the plaintiffs argue the Navajo tax should be held to be preempted even though Merrion held that the similar Jicarilla tax was not. We cannot agree with this argument. The secretarial approval required by the Jicarilla Constitution was not the only factor mentioned in Merrion on the point of federal regulation and preemption of the tribe’s power to tax. State taxation might cause similar disruptions of federal policy, and the Court in Merrion, though not faced with the question, clearly indicated that state taxation of these leases was allowed under 25 U.S.C. § 398c. Merrion, 455 U.S. at 150-51, 102 S.Ct. at 908. See also Commonwealth Edison Co. v. Montana, 453 U.S. 609, 101 S.Ct. 2946, 69 L.Ed.2d 884. Further, in Merrion the Court observed that Congress had recognized and allowed for the possibility of Indian taxation in the Natural Gas Policy Act of 1978, 15 U.S.C. § 3320(a), (c)(1) (1976 ed. Supp. III). The tribal taxation contemplated by this statute is not confined to taxes imposed by organized tribes. See 15 U.S.C. § 3316(b)(2)(C)(ii) (1976 ed.) where the meaning of the phrase “Indian tribe” for purposes of the Natural Gas Policy Act is stated. Thus federal energy law expressly allows for tribal taxes, and does so without any suggestion that the power to tax can only be exercised by tribes which have adopted a constitution under the IRA. We therefore hold that the Navajo Tribe’s power to tax exists despite extensive federal regulation of the oil and gas activities- on the reservation. As the district court observed this state of the law may result in an advantage for tribes which have not adopted a constitution or charter under the IRA. The Navajo Tribe, for example, can impose taxes free from any requirement of approval by the Secretary of the Interior while organized tribes if their constitutions so provide must submit to secretarial review at some stage of the taxation process. The district court was concerned that to permit non-organized tribes an advantage would contravene a Congressional policy of encouraging tribes to organize. The court also considered it possible that Congress had generally intended that the Secretary of the Interior oversee all Indian legislation on oil and gas matters whether promulgated by an organized tribe or not. On these grounds, the district court imposed a requirement of secretarial review over the Navajo taxes. We do not agree that there is support for this requirement in the statutes. The purpose of the IRA was to enable and encourage Indian self-government. Organization under the IRA was not the only form of self-government acceptable to Congress. One of the ways in which the IRA reflects a respect for self-government was in the provision that makes adoption of a constitution optional. 25 U.S.C.. § 476. The choice of government is in itself an act of self-government and consonant with Congressional policies. The self-sufficiency of the Navajo Tribe could be impaired by the imposition of a requirement of secretarial approval of its actions as to taxes. Thus we disagree with the position that the delegation of regulatory authority over oil and gas leases to the Secretary requires that the Secretary review and approve these tribal taxes. It is clear that the Secretary’s authority does not control every conceivable dispute or concern over Indian leases. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 88 S.Ct. 982, 19 L.Ed.2d 1238. A requirement of secretarial approval would be directed not so much to regulatory uniformity as to the control of Indian affairs versus self-government. If the Congressional intent with regard to secretarial approval of Indian taxation of oil and gas lands is ambiguous then, as the Supreme Court reiterated in Merrion, 455 U.S. at 152, 102 S.Ct. at 909 (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136 at 143-44, 100 S.Ct. 2578 at 2583-84, 65 L.Ed.2d 665): “ ‘Ambiguities in federal law have been construed generously in order to comport with ... traditional notions of sovereignty and with the federal policy of encouraging tribal independence.’ ” Thus we must reverse that part of the district court’s holding which conditioned the validity of the Navajo taxes upon the review and approval by the Secretary of the Interior, and hold that such approval is not here required. The plaintiffs argue also that the Indian taxes offend the Commerce Clause of the United States Constitution. This claim is partially disposed of by the analysis in Merrion, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21. The Court there held that it was not necessary to reach the question of the applicability of the Commerce Clause to Indian reservations in the case of the Jicarilla tax because Congress had specifically allowed those tribes organized under the IRA to tax. Nevertheless, the Court included a Commerce Clause analysis and determined that the Jicarilla tax would survive judicial scrutiny under the Commerce Clause. The Court held that the Jicarilla tax did not discriminate against interstate commerce. The Navajo tax is similar in its legal incidence and in our view should be upheld under Merrion. The plaintiffs further claim that they should be permitted to conduct discovery to determine how the tribe intends to use the proceeds of the tax. The purpose of this would be to see whether the amount of the tax is fairly related to the services intended to be provided by the tribe. This inquiry is related, it is urged, to the test of Commerce Clause validity set out in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326. We, however, agree with the district court that discovery would be inappropriate because no tax has yet been collected and predictions as to its use would be speculative. Discovery now could not yield any information relevant to validity under the Commerce Clause. Furthermore, although the amount sought to be collected is substantial, although at best a rough estimate, it is insignificant by common knowledge in relation to the very large balances in the funds the tribe owns in its own right, and thus again presents no basis for discovery at this time. The other argument advanced by plaintiffs to institute discovery proceedings was to “bolster their claim that the Navajo Business Activity Tax unlawfully discriminated against interstate commerce in favor of intra-Reservation commerce.” Brief of plaintiffs-appellants Phillips Petroleum Company, Shell Oil Company and Chevron U.S.A., Inc. at 30. No description of the information that might be the object of discovery is given, while the allegations that the tax is discriminatory are all based on provisions on the face of the Act. This is not surprising as the tax has never been collected and no practical effects could be shown. Thus discovery would be premature under this claim as well. The plaintiffs make a final argument with regard to the Commerce Clause. They claim that if the State of Utah’s right to tax oil and gas leases on Navajo land is upheld the companies will be subject to multiple tax burdens. However, a multiple tax burden is not necessarily unconstitutional. Washington v. Confederated Tribes, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10. The plaintiffs have a taxable nexus with two governments and must accept the tax burdens. Western Live Stock v. Bureau, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823. In Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 100 S.Ct. 1223, 63 L.Ed.2d 510, the Supreme Court held that nothing in the Constitution required allocation of tax power to one authority rather than apportionment between two. As long as the extent of taxation does not exceed the nexus between the sovereign and the taxpayer the tax is lawful even where, as here, another also has a right to tax. The scope of taxation is limited by the fact that a similar tax could not be imposed with equal right by any other states or tribes. Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir.). Two final constitutional questions must be considered. The first is couched in the form of an equal protection claim advanced by plaintiff-appellant Texaco Company. Texaco argued that the Navajo tax is of limited application and thus discriminatory in that no Navajo businesses will be affected. Some enterprises are specifically excluded. Texaco asserts that all of the excepted types of establishments on the reservation are owned by Navajos, and most or all other Navajo businesses will be excluded by the standard deduction of $125,000, leaving plaintiffs to bear the entire tax. As we have noted the Council’s tax resolutions have not been put into operation. In view of this fact, and the state of the record, it would be premature to consider this equal protection issue on this appeal. Some of the plaintiffs also suggest that there are serious due process and related concerns arising from the fact that only Navajos can participate in the governmental process and in voting for members of the tribal government. It is apparent that non-Navajos are excluded from participation in the process which imposes the taxes. They are excluded from the other tribal governmental processes. As the Government states in its brief at 6, “Council members are elected by the Navajo people.” The Government refers to the “Navajo Nation” as does the tribe as a separate “nation” within Utah. It also appears that the tribe can exclude from the reservation non-Navajos. It is in this context, and in the absence of a tribal constitution, that the plaintiffs raise the questions as to what if any remedy they might have to challenge the severe enforcement devices included in the Council’s resolutions or any other matters of assessment, valuation and collection. The lessees were, of course, granted a leasehold interest in the reservation as an oil and gas lease provides. The tax apparently recognizes the existence of such an interest and possessory right. But again we must consider these issues to be premature and do not consider them. The state taxation of the same activities must be examined. We have already noted that taxation by two entities is not necessarily unconstitutional. The plaintiffs ask us to decide, however, a different question which is not in any way bound to the validity of the Navajo tax. We are asked to decide the validity of a state severance tax on oil produced from Navajo lands. This state tax is challenged on the theory that 25 U.S.C. § 398c which permits such a tax has been repealed by the Indian Mineral Leasing Act of 1938, 25 U.S.C. §§ 396a-396g. This question is outside the jurisdiction of the federal courts as it concerns the validity of the state tax. 28 U.S.C. § 1341 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.” Several recent Supreme Court cases have reaffirmed the limiting power of this statute. California v. Grace Brethren Church, 457 U.S. 393, 102 S.Ct. 2498, 73 L.Ed.2d 93; Fair Assessment in Real Estate Assn. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271; Rosewell v. LaSalle National Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464. In Grace Brethren Church, section 1341 operated to bar jurisdiction even where, as here, the interpretation of a federal statute was at issue. The plaintiffs argue that there is no “plain, speedy and efficient” remedy at state law. They contend that with respect to some of the state taxes at issue that the remedies are administrative, and Utah law precludes the examination of constitutional issues in an administrative forum. It is true that the first step in a state challenge of some of the taxes at issue is before the State Tax Commission. See Utah Code Ann. §§ 59-24 — 1 through 9 (Tax Court Act). This is only the first step and under Utah law this proceeding is for the purpose of permitting the Commission to correct administrative errors rather than to consider constitutional challenges. Shea v. State Tax Commission, 101 Utah 209, 120 P.2d 274. The second step of the state challenge may, however, at the option of the complainant, be brought in district court and will be “original, independent proceedings and shall be tried ... de novo,” Utah Code Ann. § 59-24-3(1), and apparently all issues may be raised and considered. The procedure of going first to the Tax Commission, then to district court spells out in statutory form a requirement of exhaustion of administrative remedies. In Rosewell v. LaSalle National Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464, the Supreme Court upheld a procedure requiring exhaustion of administrative remedies as “plain, speedy and efficient” for purposes of section 1341. It is the judgment of this court that the judgment of the trial court is reversed insofar as it conditioned the validity of the taxes imposed by the tribe on the approval of the Secretary of Interior, but is otherwise affirmed.

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.

Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?

James Earl YOUNG, Sr., Appellant, v. STATE OF ARKANSAS et al., Appellees. No. 75-1784. United States Court of Appeals, Eighth Circuit. Submitted April 15, 1976. Decided April 22, 1976. James Earl Young, pro se. Jim Guy Tucker, Atty. Gen., and Gary Isbell, Asst. Atty. Gen., State of Ark., Little Rock, Ark., for appellees. Before HEANEY, BRIGHT and ROSS, Circuit Judges. PER CURIAM. •- James Earl Young, Sr., an Arkansas state prisoner, appeals from the District Court’s dismissal of his petition for habeas corpus for failure to exhaust state remedies. We affirm. The appellant was convicted in an Arkansas state court of possession of stolen property of a value greater than $35.00, in violation of Ark.Stat.Ann. § 41-3938. He was sentenced to thirty-one years imprisonment, under the Arkansas Habitual Offender Statute, Ark.Stat.Ann. § 43-2328. íl' From his conviction, the appellant filed a direct appeal to the Arkansas Supreme Court raising two issues: (1) that he had not been brought to trial within one hundred and eighty days of demand, as required by the Arkansas version of the Interstate Agreement on Detainers, Ark.Stat. Ann. § 43-3201, and (2) that certain evidence used at trial was the fruit of an illegal search. The Arkansas Supreme Court found both of these contentions to be without merit and affirmed the conviction. In his petition for habeas corpus under 28 U.S.C. § 2254 below, the appellant asserted two grounds for relief: (1) that he was denied his Sixth Amendment right to a speedy trial; and (2) that there was insufficient evidence that the stolen property found in his possession exceeded the statutory amount required for a conviction under Ark.Stat.Ann. § 41-3938. The District Court dismissed his speedy trial argument finding that the appellant had asserted in his direct appeal to the Arkansas Supreme Court only the alleged violation of Ark.Stat.Ann. § 43-3201 and not the Sixth Amendment argument now raised. As to the second ground, the District Court found that the appellant had not raised the issue at all in state court. The court, therefore, denied the petition for failure to exhaust available state remedies. The record discloses that the appellant did not raise in state court either the Sixth Amendment argument or the insufficient evidence of the value of the stolen goods claim raised in federal court. Until the appellant raises these issues in state court, he has not exhausted his available state remedies. The District Court was correct in denying the appellant’s petition on that ground. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Blunt v. Wolff, 501 F.2d 1138 (8th Cir. 1974). The appellant also contends on appeal that the evidence used at trial was the fruit of an unlawful search. While this argument was exhausted in state court, it was not presented to the District Court. It cannot be considered for the first time here. United States v. Sappington, 527 F.2d 508 (8th Cir. 1975). We affirm. . We note, as did the District Court, that the appellant has not yet availed himself of post-conviction relief available to him under Rule 37 of the Arkansas Rules of Criminal Procedure.

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.

Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?

Terri Lee DREISONSTOK, an infant, by her mother and next friend, Catherine A. Dreisonstok, and Catherine A. Dreisonstok, Appellees, v. VOLKSWAGENWERK, A. G., a/k/a Volkswagenwerk Aktiegesellschaft, a foreign corporation, and Volkswagen of America, Inc., a New York corporation, Appellants. No. 73-1074. United States Court of Appeals, Fourth Circuit. Argued Oct. 3, 1973. Decided Jan. 14, 1974. Alexander H. Slaughter, Richmond, Va. (Rosewell Page, II, McGuire Woods, & Battle, Richmond, Va., Herbert Rubin, Michael Hoenig and Herzfeld & Rubin, P. C., New York City, on brief) for appellants. Oren R. Lewis, Jr., Arlington, Va. (Gary R. Sheehan and Tolbert, Lewis & Fitzgerald, Ltd., Arlington, Va., on brief) for appellees. Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and RUSSELL, Circuit Judge. DONALD RUSSELL, Circuit Judge: The plaintiff, along with her mother, sues a car manufacturer for so-called “enhanced” injuries sustained by her when the Volkswagen microbus in which she was riding crashed into a telephone pole. The microbus had passed the crest of a small hill and was proceeding down the grade at the time of the accident. When the vehicle passed the crest of the hill, the driver noted that his speed was about 40 miles an hour. As the vehicle continued down the hill, the bus began “picking up some speed, a little too much.” To reduce his speed, the driver attempted to downshift the vehicle. Beeause he had some difficulty in locating the gearshift lever, the driver took his “eyes off the road” and in some way “pulled the steering wheel” causing the vehicle to veer “to the right” into “the driveway”. The plaintiff screamed, causing the driver to look up. As the driver did, he “saw a telephone pole headed right toward us”. He tried to cut back into the road but there “was an oncoming vehicle the other way, so it was either the telephone pole or another vehicle.” He chose the telephone pole. The bus hit the pole on its right front. The plaintiff was seated in the center of the seat, next to the driver, with her left leg under her. As a result of the impact, her right leg was caught between the back of the seat and the dashboard of the van and she was apparently thrown forward. She sustained severe injuries to her ankle and femur. She seeks to recover for her injuries, and her mother for medical expenses, from the vehicle manufacturer, contending that the latter was guilty of negligent design in the location of the gearshift in its vehicle and in the want of crashwor-thiness of its vehicle. The action was tried without a jury. The District Court dismissed the claim relating to the gearshift but concluded that the defendant manufacturer had been guilty of negligence in failing to use due care in the- design of its vehicle by providing “sufficient energy-absorbing materials or devices or ‘crush space,’ if you will, so that at 40 miles an hour the integrity of the passenger compartment would not be violated”, and that, as a result, the injuries of the plaintiff were enhanced “over and above those injuries which the plaintiff might have incurred.” From judgment entered on the basis of that conclusion in favor of the plaintiff and her mother, the defendants have appealed. We reverse. The correctness of the finding by the District Court that the defendant manufacturer was guilty of negligent design in this case depends on the determination of what extent a car manufacturer owes the duty to design and market a “crashworthy” vehicle, one which, in the event of a collision, resulting accidentally or negligently from the act of another and not from any defect or malfunction in the vehicle itself, protects against unreasonable risk of injury to the occupants. The existence and nature of such a duty is a legal issue, for resolution as a matter of law. So much all the authorities agree. There are, however, two fairly definite lines of conflicting authority on whether there is such a duty. *One group of which Evans is the leading authority, holds that no such duty rests on the manufacturer, since the “intended use” of an automobile does not extend to collisions. The other, while relieving the manufacturer of any duty to design an accident-proof vehicle, would impose a duty to use reasonable care in the design and manufacture of its product so as “to eliminate any unreasonable risk of foreseeable injury” as a result of a collision, for which the manufacturer may not be responsible. Larsen is the primary authority for this rule. This is a diversity case and, as such, the rights of the parties are governed by Virginia law. It is conceded that there is no binding Virginia precedent on a car manufacturer’s duty to design a “crashworthy” vehicle. The plaintiffs argue, though, that the general trend of the decisions in Virginia, as evidenced by the opinion of this Court in Spruill v. Boyle-Midway, Incorporated (4th Cir. 1962) 308 F.2d 79, ranges Virginia with those jurisdictions imposing liability for negligent design in failing to take reasonable precautions against unreasonable risks of harm to passengers by reason of a collision. For purposes of this decision, it may be assumed that this is the trend of the Virginia decisions. Assuming it to be applicable to the facts of this case, however, the Larsen rule will not support recovery by the plaintiffs. In arguing in favor of liability, the appellees stress the foreseeability in this mechanical age of automobile collisions, as affirmed in numerous authorities, and would seemingly deduce from this a duty on the car manufacturer to design its vehicle so as to guard against injury from involvement of its vehicle in any such anticipated collisions. The mere fact, however, that automobile collisions are frequent enough to be foreseeable is not sufficient in and of itself to create a duty on the part of the manufacturer to design its car to withstand such collisions under any circumstances. Foreseeability, it has been many times repeated, is not to be equated with duty; it is, after all, but one factor, albeit an important one, to be weighed in determining the issue of duty. Were foreseeability of collision the absolute litmus test for establishing a duty on the part of the car manufacturer, the obligation of the manufacturer to design a crash-proof car would be absolute, a result that Larsen itself specifically repudiates. After all, “[N] early every accident situation, [involving an automobile] no matter how bizarre, is ‘foreseeable’ if only because in the last fifty years drivers have discovered just about every conceivable way of wrecking an automobile.” The key phrase in the statement of the Larsen rule is “unreasonable risk of injury in the event of a collision”, not foreseeability of collision. The latter circumstance is assumed in collision cases under the Larsen principle; it is the element of “unreasonable risk” that is uncertain in such cases and on which the determination of liability or no liability will rest. It would patently be unreasonable “to require the manufacturer to provide for every conceivable use or unuse of a car.” Nader & Page, Automobile Design and the Judicial Process, 55 Cal.L.Rev. 645, 646. Liability for negligent design thus “is imposed only when an unreasonable danger is created. Whether or not this has occurred should be determined by general negligence principles, which involve a balancing of the likelihood of harm, and the gravity of harm if it happens against the burden of the precautions which would be effective to avoid the harm.” In short, against the likelihood and gravity of harm “must be balanced in every case the utility of the type of conduct in question.” The likelihood of harm is tied in with the obviousness of the danger, whether latent or patent, since it is frequently stated “that a design is not unreasonably dangerous because the risk is one which any one immediately would recognize and avoid.” The purposes and intended use of the article is an even more important factor to be considered. After all, it is a commonplace that utility of design and attractiveness of the style of the car are elements which car manufacturers seek after and by which buyers are influenced in their selections. In every case, the utility and purpose of the particular type of vehicle will govern in varying degree the standards of safety to be observed in its design. This was recognized in the Traffic and Motor Vehicle Safety Act, which undertakes “to establish motor vehicle safety standards for motor vehicles.” 15 U.S.C. 1381 et seq. In prescribing such standards, the Secretary is directed to “consider whether any such proposed standard is reasonable, practicable and appropriate for the particular type of motor vehicle * * *.” Section 1392(f)(3). (Italics added.) Stated somewhat differently, the safety of every type of vehicle is to be evaluated under this Act in connection with what is “reasonable, practicable and appropriate” for its special type. And this is the same rule that has been judicially applied, even in Larsen type cases. Thus, in Dyson v. General Motors Corporation (D.C.Pa. 1969) 298 F.Supp. 1064, 1073, a case which followed and applied the Larsen rule, the Court emphasized that design safety must take account of “differentiation between various models of automobile” and involves “a recognition of the inherent characteristics of each.” It pointed out that a convertible could not be made “as safe in roll-over accidents as a standard four-door sedan with center posts and full-door frames.” The convertible was only required to be as reasonably safe as its intended use would allow and “not appreciably less safe than other convertibles.” Price is, also, a factor to be considered, for, if a change in design would appreciably add to cost, add little to safety, and take an article out of the price range of the market to which it was intended to appeal, it may be “unreasonable” as well as “impractical” for the Courts to require the manufacturer to adopt such change. Of course, if an article can be made safer and the hazard of harm may be mitigated “by an alternate design or device at no substantial increase in price”, then the manufacturer has a duty to adopt such a design but a Cadillac may be expected to include more in the way of both conveniences and “crashworthiness” than the economy car. Moreover, in a “crashworthy” case, it is necessary to consider the circumstances of the accident itself. As Dyson puts it, “it could not reasonably be argued that a car manufacturer should be held liable because its vehicle collapsed when involved in a head-on collision with a large truck, at high speed.” In summary, every case such as this involves a delicate balancing of many factors in order to determine whether the manufacturer has used ordinary care in designing a car, which, giving consideration to the market purposes and utility of the vehicle, did not involve unreasonable risk of injury to occupants within the range of its “intended use”. “In the light of the recognizable risk, the conduct, to be negligent, must be unreasonable.” Applying the foregoing principles to the facts of this particular case, it is clear that there was no violation by the defendant of its duty of ordinary care in the design of its vehicle. The defendant’s vehicle, described as “a van type multipurpose vehicle”, was of a special type and particular design. This design was uniquely developed in order to provide the owner with the maximum amount of either cargo or passenger space in a vehicle inexpensively priced and of such dimensions as to make possible easy maneuverability To achieve this, it advanced the driver’s seat forward, bringing such seat in close proximity to the front of the vehicle, thereby adding to the cargo or passenger space. This, of course, reduced considerably the space between the exact front of the vehicle and the driver’s compartment. All of this was readily discernible to any one using the vehicle; in fact, it was, as we have said, the unique feature of the vehicle. The usefulness of the design is vouchsafed by the popularity of the type. It was of special utility as a van for the transportation of light cargo, as a family camper, as a station wagon and for use by passenger groups too large for the average passenger car. It was a design that had been adopted by other manufacturers, including American. It was a design duplicated in the construction of the large trucking tractors, where there was the same purpose of extending the cargo space without unduly lengthening the tractor-trailer coupling. There was no evidence in the record that there was any practical way of improving the “crashability” of the vehicle that would have been consistent with the peculiar purposes of its design. The only theory on which the plaintiffs posited their claim of negligent design was, to quote the language of their brief in this Court, that “[T]he 1968 Volkswagen station wagon did not provide the protection for the front seat passengers as did the ‘normal’ or standard passenger car.” The “normal or standard passenger car”, to which, under the plaintiffs’ argument, the vehicle was required to conform if it was to meet the test of reasonable design, was defined by the plaintiffs on one occasion as “a standard American made vehicle, which is a configuration with the passengers in the middle and the motor in the front” and on another as “a passenger car with an engine in front and with a long hood * * And all of their expert testimony was to this point. These experts offered by the plaintiffs concededly made no attempt to compare for safety of design or for any other purpose defendant’s special type of vehicle with similar types made by other manufacturers or indicated any way in which safety in such vehicles could have been improved, given the peculiar purpose of the vehicle. They completely disregarded the rule developed in Dyson, swpra, and the standards developed by Congress in the Traffic and Motor Vehicle Safety Act, which would compare vehicles of the same type in determining safety standards. These experts contented themselves with arriving at the reasonable design of the defendant’s vehicle by one test and that was by comparing it with the 1966 midsized Ford passenger car. In short, the plaintiffs’ theory of negligent design and the thrust of all their expert testimony on such point was that, to meet the test of ordinary care in design so as to avoid “unreasonable risk” of injury, the vehicle of the defendant had to conform with the configuration of the standard American passenger car, vintage 1966, i. e., its motor must be in front, not in the rear; its passenger compartment must be “in the middle”; and the space in front of the passenger compartment must be approximately the same as that in a “standard American passenger car.” Under this standard, any rear engine car would be “inherently dangerous”; any microbus or front-end tractor — both in wide use in 1968 and now — would be declared “inherently dangerous”. To avoid liability for negligent design, no manufacturer could introduce any innovative or unique design, even though reasonably calculated to provide some special advantage such as greater roominess. Such a strait-jacket on design is not imposed, whether the rule applied is that of Evans or of Larsen. If a person purchases a convertible, as Dyson makes clear, he cannot expect — and the Court may not impose on the manufacturer the duty to provide him with— the exact kind of protection in a rollover accident as in the “standard American passenger car”. The situation is similar when he purchases a microbus: The distance between the front and the passenger compartment is minified in order to provide additional cargo or passenger space just as the convertible is designed to provide openness. It is entirely impermissible to predicate a conclusion of negligent design simply because a vehicle, having a distinctive purpose, such as the microbus, does not conform to the design of another type of vehicle, such as a standard passenger car, having a different nature and utility. As a matter of fact, the defendant offered evidence — unrefuted in the testimony — that its design, at least so far as “crash space between the front and the passenger compartment, was equal to or superior to that of other vehicles of like type. The District Court, however, seems to have accepted plaintiffs’ theory, though expressing it somewhat differently from the standard stated by the plaintiffs in their brief. It stated the standard of ordinary care in design to require that a vehicle be able to withstand a “head-on” collision at 40 miles an hour without a violation of “the integrity of the passenger compartment”, and held that the defendant had “violated” its duty in failing to meet this standard. Accepting the principle that a manufacturer must anticipate that its product will likely at some point in its use be involved in a collision, does ordinary care demand that, in taking precautions, it must provide against impacts at a speed of 40 miles per hour? Is this the “reasonable risk”, as it has been defined in the authorities quoted supra, against which the manufacturer must provide protection? And why “40 miles an hour” as the standard anyway? This standard was adopted, it seems clear from the District Court’s order, because the plaintiffs contended that a “standard American passenger car” had sufficient “crash space” that its passenger compartment would not have been invaded in a 40 mile impact. This conclusion rests on some measurements made by the plaintiffs’ experts in comparing the “crasha-bility” of a microbus and that of a 1966 Ford passenger car. No tests were made by these experts to confirm experimentally these conclusions. The plaintiffs’ experts merely measured the distance from the exact front of the micro-bus and the point where the plaintiff had collided with the interior of the van and compared that distance with the distance between the front and passenger seat of a 1966 Ford passenger car; and because the distance in the latter instance was greater than in the former, they concluded that, had the plaintiff been riding in a 1966 Ford passenger car, she would have escaped injury. But, as we have already seen, in determining whether a vehicle has been negligently designed so far as safety is concerned, the special purpose and character of the particular type of vehicle must be considered, and a microbus is no more to be compared with a standard 1966 passenger type car than the convertible instanced in Dyson is to be compared with a standard hard-top passenger car. Both the plaintiffs and the District Court employed an improper standard in determining whether the defendant had been guilty of negligent design. It, perhaps, may not be amiss to note that there is not substantial evidence to sustain a finding that as a result of the design of the microbus the plaintiff’s injuries were enhanced. Cf., Yetter v. Rajeski, supra, at pp. 108-109 (364 F.Supp.). In fact, the record seems clear that in any event the plaintiff, who had made no endeavor to protect herself with a seat belt, would have received severe injuries, irrespective of the type of vehicle she may have been riding in. There was testimony — which was not seriously questioned — that experiments conducted under the auspices of the Department of Transportation indicated that “the average barrier equipment velocity for fatalities, the mean velocity is only 33 miles per hour * * It may be that in every case the injuries may be somewhat different but any “head-on” collision at a speed of 40 miles an hour or more will result in severe injuries to the occupants of a vehicle and, certainly in 1968, no design short of an impractical and exorbitantly expensive tank-like vehicle (see, Alexander v. Seaboard Air Line Railroad Company, supra, 346 F.Supp. 320) could have protected against such injuries; in fact, it is doubtful that even such a vehicle could have. Can it be said that a manufacturer in 1968 must have, in its design, so built its vehicle as to protect against such an “unreasonable risk of injury”? We think not. Reversed and remanded with directions to the District Court to enter judgment in favor of the appellants-defendants. . As the driver, in his testimony, explained it, “[F]or the simple reason I was picking up too much speed and I was coming down a hill, and my father had always taught me to downshift whenever I had the chance to, to save on the brakes.” . As in Larsen v. General Motors Corporation (8th Cir. 1968) 391 F.2d 495, 506, the Court based its decision on ordinary negligence principles rather than warranty or strict liability. It has been intimated that this is the correct basis in design cases. See Brown v. General Motors Corporation (4th Cir. 1966) 355 F.2d 814, 821, cert. denied 386 U.S. 1036, 87 S.Ct. 1474, 18 L.Ed.2d 600; Gray v. General Motors Corporation (8th Cir. 1970) 434 F.2d 110, 114; Note, 1966 Utah L.Rev. 698, 705. It would appear, however, that it makes little or no real difference whether liability is asserted on grounds of negligence, warranty or strict liability ; the applicable principles are roughly the same in any case. Chestnut v. Ford Motor Company (4th Cir. 1971) 445 F.2d 967, 968-969; Note, 24 Vanderbilt L.Rev. 862, 863. . "The term ‘crashworthiness’ ”, as defined in the Motor Vehicle Information and Cost Savings Act, “means the protection that a passenger motor vehicle affords its passengers against personal injury or death as a result of a motor vehicle accident.” Section 1901(14), 15 U.S.C. Crashworthiness has, also, been defined as “the relative ability of an automobile to protect its passengers from the second collision.” Note, Liability for Negligent Automobile Design, 52 Iowa L.Rev. 953, 957 (1967). Another definition of crashworthiness is phrased as the “second collision doctrine” which “seeks to impose common law liability upon the automobile industry for injurious consequences of automobile collisions despite the fact that no defect or malfunction in the vehicle causes the mishap.” Iloenig & Wer-ber, Automobile “Crashworthiness”: An Untenable Doctrine, 1971 Ins.L.Journal 583. The term “second collision” in these definitions refers to the collision,“of the passenger with the interior part of the automobile” after the initial impact or collision, in this case, the collision of the van with the telephone pole. Larsen, p. 502 (391 F.2d); Note, 80 Harv.L.Rev. 688. And, “[C'jourts have described enhanced injuries as ‘second accident’ injuries — those injuries that occur after the initial accident.” Note, Torts— Strict Liability — Automobile Manufacturer Liable for Defective Design that Enhanced Injury After Initial Accident, 24 Vand.L.Rev. 862, 864 (1971). . Larsen v. General Motors Corporation, supra (391 F.2d p. 498); Evans v. General Motors Corporation, (7th Cir. 1966) 359 F. 2d 822, 824, cert. denied 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70. . Compare, Evans v. General Motors Corporation, supra, with Larsen v. General Motors Corporation, supra, and Alexander v. Seaboard Air Line Railroad Company (D.C.N.C.1971) 346 F.Supp. 320, 322, with Grundmanis v. British Motor Corporation (D.C.Wis.1970) 308 F.Supp. 303, 306. The conflicting authorities are set forth in the Annotation, 42 A.L.R.3d 560. . 359 F.2d 822. . 391 F.2d at 503. . Landrum v. Massey-Ferguson, Inc. (5th Cir. 1973) 473 F.2d 543, 544. . The point is well expressed in Goldberg v. Housing Authority (1962) 38 N.J. 578, 186 A.2d 291, 293: “The question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.” See, also, § 289, comment b, 2d Restatement of Torts: “* * * jn or(jei. ¿hat an ac(. jaay be negligent it is necessary that the actor should realize that it involves a risk of causing harm to some interest of another, such as the interest in bodily security, which is protected against unintended invasion. But this of itself is not sufficient to make the act negligent. Not only must the act involve a risk which the actor realizes or should realize, but the risk which is realized or should be realized must be unreasonable, as to which see §§ 291-293.” The editor in 42 Notre Dame L.Rev. 111, 1.15 (1967) puts it: “Foreseeability alone, however, creates no duty. If such were the case, a manufacturer of hammers, foreseeing injured fingers and thumbs, would be liable for every such injury. Thus, duty is established as a matter of social policy — as a means to an end.” See, also, Passwaters v. General Motors Corporation (8th Cir. 1972) 454 F.2d 1270, 1275, n. 5. “Foreseeability” does provide the formula for determining “intended use”. Gardner v. Q.H.S., Inc. (4th Cir. 1971) 448 F.2d 238, 242. . See, Green, Foreseeability in Negligence Law, 61 Col.L.Rev. 1401,1418 (1961) : “There are many factors other than foreseeability that may condition a judge’s imposing or not imposing a duty in the particular case.” See, also, Note, Foreseeability in Product Design and Duty to Warn Cases — Distinctions and Misconceptions, 1968 Wis.L.Rev. 228, 244: “ * * * anticipation of harm, of course, is by no means the only factor involved. Other aspects of social policy find crystallization in other doctrinal developments.” See, Note, 42 Notre Dame L.Rev. 111, 114, quoting from 2 Harper & James, Torts, see. 28.6: “Obviously the maker of goods is bound to foresee and guard against only unreasonable risks which result from some use of his product which a reasonable manufacturer would anticipate as likely enough to be taken into account.” . Larsen states the rule to be that “an automobile manufacturer is under no duty to design an accident-proof or fool-proof vehicle * * *, but such manufacturer is under a duty to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision.” (Page 502, 391 F.2d). . Hoenig & Werber, Automobile “Crashworthiness” : An Untenable Doctrine, supra (1971 Wis.L.Journal at 595). See, Yetter v. Rajeski (D.C.N.J.1973) 364 F.Supp. 105, 108: “ * * * It is obvious, of course, that automobiles are unhappily and almost continuously colliding with other motor vehicles, with trees, with culverts, with locomotives, and with every imaginable type of object, either moving or fixed ; that they are, indeed, driven off bridges, driven into water, and driven over cliffs; they are, in fact, involved in collisions of limitless variety.” . This is made clear by the same Court that decided Larsen in the subsequent decision of Schneider v. Chrysler Motors Corporation (8th Cir. 1968) 401 F.2d 549, 558. In that case, the Court said that the duty there found rested on the obligation to avoid the ‘‘creation of an unreasonable risk of harm”, and, restated the rule of Larsen, that the users of the vehicle were only subjected “to an unreasonable rislc of harm when the automobiles were being used for the purpose intended" (Italics Court’s) (at p. 556). See, Note, Foreseeability in Product Design and Duty to Warn Cases — Distinctions and Misconceptions, 1968, Wis.L.Rev. 228, 229: “The apparent emphasis on foreseeability (in automobile cases) is misleading because it blurs the more important policy bases of decision.” Again, at p. 245: “In fact, however, the term ‘foreseeability’ has become a lop-sided doctrinal vehicle which leads the reader, trying to follow its course, to believe that the prudent manufacturer ought to anticipate the carelessness and ignorance of the public; that he is liable because he is in some way more at fault. The term has been expanded to such an extent as to become no more than a grotesque of its denotative meaning.” . See, Prosser on Torts (3rd Ed. 1964), p. 149: . Larsen, p. 502, n. 3, quoting from Noel, Manufacturer’s Negligence of Design or Directions for Use of A Product, 71 Yale L.J. 816, 818 (1962). . Prosser on Torts (3rd Ed., 1964) p. 151; Note, Liability for Negligent Automobile Design, 52 Iowa L.Rev. 953, 959. The determination of whether conduct is negligent or not always involves the weighing of interests, the balancing of “the magnitude of the risk” against “the value which the law attaches to the conduct which involves it.” See, Section 283, comment e, 2d Restatement Torts; Tobin v. Grossman (1969) 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419, 422-123. . Ibid, 71 Yale L.J. at p. 836. Larsen itself underscores this point, stating (p. 501) : “Accepting, therefore the principle that a manufacturer’s duty of - design and construction extends to producing a product that is reasonably fit for its intended use and free of hidden defeats that oould render it unsafe for such use, the issue narrows on the proper interpretation of ‘intended use’.” (Italics added.) Cf., Schemel v. General Motors Corporation (7th Cir. 1967) 384 F.2d 802, 805, cert. denied 390 U.S. 945, 88 S.Ct. 1030, 19 L.Ed. 2d 1134 which follows Evans, but on this point may perhaps not be different from • Larsen: “The manufacturer is not an insurer. His duty is to avoid hidden defects and latent or concealed dangers [citing cases]. He is not bound to anticipate and guard against grossly careless misuse of his product by reckless drivers. The dangers attendant on excessive and unlawful speed are neither latent nor concealed.” See, also, Re Bruns Volkswagen Garage, Inc. (1968 Wis. C.C.) CCH Products Liability Reporter, § 5930, where, in absolving manufacturer of liability arising out of a collision, by reason of a claim of want of crashworthiness, it was held that “so long as the buyer was aware or made aware of the danger, * * * no warning was required * * *, because it must have been perfectly clear to. the purchaser when he bought a Volkswagen that a head-on collision in such a small car would be very hazardous.” 42 A.L.R.3d at p. 586. Where the dangerous element in an article is latent, the usual basis for liability rests on failure to warn. This was the real rationale for the decisions in Spruill v. BoyleMidway, Incorporated, supra, and Gardner v. Q.H.S., Inc., supra. Cf., Willis v. Chrysler Corporation (D.C.Tex.1967) 264 F.Supp. 1010, 1012, which, though adopting the Evans rule, used language which it would seem would be equally applicable to a decision following Larsen; i. e., that a car manufacturer is under no duty in the ordinary case “to design an automobile that could withstand a high speed collision and maintain its structural integrity.” . Of course, safety may not be sacrificed unreasonably and any vehicle should be made as safe as it reasonably can, considering its special purpose and “intended use”; but standards of safety themselves must take into account the utility of the vehicle. . In Bratton v. Chrysler Motors Corp., an unreported decision from the Western District of Texas, 1972, the instructions of the District Court, as set forth in 4 St. Mary’s L.J. 303, at p. 312, defines “unreasonable risk” in the design as one which is “dangerous to an extent beyond that which would be contemplated by an ordinary consumer who purchases the vehicle with the ordinary knowledge common to the community as to the characteristics of a product of the type purchased.” Cf., however, Note, 80 Harv.L.Rev. 688, 691, where, in indicating why Courts may in design cases be influenced to deny liability, the editor states that, “it may be that while the consumer is unable to discover product defects by insjteetion, he is in a position to choose among different designs. But perhaps even in instances where information as to product design is available, this argument may attribute to most consumers a higher degree of awareness and sophistication than is realistic. Further, in view of the resulting injuries which could have been avoided, a court may not wish to leave completely open the alternative of sacrificing safety to other considerations, to whatever extent consumers consciously make such a choice.” . See, Enders v. Volkswagenwerk, A.G., CCH Prod.Liab.Rep., § 5930 (Wis.Cir.Ct., 1968), quoted in Hoenig & Werber, supra, at p. 538: “When a G.M.C. tractor and a Mack tractor in head-on collisions do not furnish enough protection to prevent deaths of the respective drivers * * * to impose the duty of preparing inexpensive cars against head-on collisions seems beyond the realm of sensible public jjolicy » * In the Note, 52 Iowa L.Rev. 953, 972, it is stated that a basis for a claim of liability on account of defective design involves consideration of whether the manufacturer “could obviate or mitigate the injury by an alternate known design or device at no substantial increase in price.” (Italics added). . Ibid., 52 Iowa L.Rev. 972. See, also, Hoppe v. Midwest Conveyor Company, Inc. (8th Cir. 1973) 485 F.2d 1196, 1202: “Liability alleged from defective design encompasses many factors not generally relevant to ordinary negligence in tort cases. The comparative design with similar and competitive machinery in the field, alternative designs and post accident modification of the machine, the frequency or infrequency of use of the same product with or without mishap, and the relative cost and feasibility in adopting other design are all relevant to proof of defective design. * * * ” . See Mieher v. Brown (Ill.1973) 301 N.E.2d 307, 310 (reversing 3 Ill.App.3d 802, 278 N.E.2d 869) : “Although the injury complained of may have

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").

This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.

Samuel KOPET, Appellant, v. ESQUIRE REALTY COMPANY et al., Appellees. No. 42, Docket 75-7047. United States Court of Appeals, Second Circuit. Argued Sept. 2, 1975. Decided Sept. 29, 1975. Robert S. Churchill, New York City (Kass, Goodkind, Wechsler & Gerstein and David M. Gerstein, New York City, on the brief), for appellant. Herman Odell, New York City (John F. Zulack and Nathaniel M. Sokolski, New York City, on the brief), for appellees. Before KAUFMAN, Chief Judge, and LUMBARD and ANDERSON, Circuit Judges. ROBERT P. ANDERSON, Circuit Judge: In 1962, the appellant, Samuel Kopet, became a limited partner of appellee, Es-. quire Realty Company (Esquire), a limited partnership engaged in the business of owning real estate. On November 1, 1971, Esquire wrote to each of its 350 limited partners offering them the opportunity to invest additional funds for the purpose of refinancing a mortgage on1 one of Esquire’s properties. No registration statement for this offer was filed with the Securities and Exchange Commission, nor was a prospectus filed with the New York State Department of Law. Pursuant to the offer, appellant and 185 other limited partners bought additional partnership interests in the aggregate amount of $131,250. Appellant brought suit against Esquire and three general partners thereof, also appellees here, alleging, inter alia, violation of §§ 5 and 12 of the Securities Act of 1933 and of § 352e of the New York General Business Law, for failure to file the required registration statement and prospectus, respectively, in connection with the 1971 offer. This appeal is from the district court’s denial of appellant’s application for an award of counsel fees for services rendered by his attorneys in that action. With respect to the above-mentioned claims relating to the lack of required filings, appellees admitted liability below, and the district court granted summary judgment in favor of appellant. The court also ordered that the action on these claims be maintained on behalf of the class of all limited partners who purchased additional interests in response to the 1971 offer. Appellant’s complaint also contained two other counts based upon appellees’ alleged failure to provide annual certified financial statements to the limited partners, as required by the original 1962 partnership agreement, and to account for the profits of Esquire, as required by the New York Partnership Law. In the course of defending these claims, which were ultimately dismissed for lack of pendent jurisdiction, the appellees produced financial statements which revealed, for the first time, that two of the general partners, Benjamin Kaufman and Nathan P. Jacobs, had borrowed sums totaling hundreds of thousands of dollars from Esquire and that the general partners had contracted to sell Esquire’s principal asset. Moreover, it appears that during the course of this litigation, the appellees sent certified financial statements to the limited partners for the first time since Esquire was created. As a result of these revelations, limited partners of Esquire have instituted suit in the New York State courts alleging that Kaufman, Jacobs and Esquire have breached both their common law and statutory fiduciary duties. After the lower court had disposed of the parties’ motions for summary judgment and dismissal as related above, appellant asked for counsel fees in the amount of $25,000, plus disbursements of $331.41, to be paid by the individual appellees, Benjamin Kaufman and Nathan P. Jacobs, or, in the alternative, appellee, Esquire Realty Company. The district court denied the motion. We reverse on the issue of awarding counsel fees against Esquire. To establish his claim for counsel fees, appellant contended that the favorable summary judgment on the securities law claims benefited Esquire by “causing Esquire’s management to conduct its future affairs in conformity with legal requirements” and the policy of full disclosure regarding securities offerings. He further argued that the litigation concerning the claims which were eventually dismissed benefited Esquire by resulting in the release of important information about the management of the partnership, which may among other things enable the limited partners to win a recovery in the state court from some or all of the general partners, and in the distribution to the limited partners of certified financial statements in accordance with the partnership agreement. As for the first of the above claims, the district court saw no benefit accruing to the partnership as a whole, as distinguished from individual purchasers who would be entitled to obtain rescission or damages. But as the Supreme Court has developed the “common fund” rationale for awarding attorney fees, assessment of such fees to a group of beneficiaries may be predicated on the conferral of benefits which are neither monetary in nature nor explicitly sought on behalf of the entire group. Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). In Mills, which involved proxy violations under the 1934 Act, the Court found that “the stress placed by Congress on the importance of fair and informed corporate suffrage leads to the conclusion that, in vindicating the statutory policy, petitioners have rendered a substantial service to the corporation and- its shareholders.” 396 U.S. at 396, 90 S.Ct. at 627. Here, similarly, it appears that appellant rendered a service to the partnership by vindicating the statutory policy against unregistered offerings. Esquire benefited from appellant’s action both in arresting an existing violation of the law and in the deterrent effect which it may be assumed the action will have on the future conduct of Esquire management. Moreover, all limited partners, whether or not they decided to purchase in response to the 1971 offer, belong to the class of beneficiaries of the securities law requirement that adequate disclosure be made on which to base an informed investment decision. While it is true that those limited partners who actually purchased in 1971 have been given an additional benefit, in the form of a right to rescind, the wider benefits to Esquire should nonetheless be recognized in allocating payment of counsel fees. We leave it to the sound discretion of the district court to decide whether and, if so, how this distinction in benefits conferred is to be taken into account; e. g., by apportioning the relevant fees in some equitable way between the smaller class of rescinding limited partners and the remaining limited and general partners. As to the second of the claimed benefits, the district court refused to award counsel fees because the benefits related to state law claims which were dismissed for lack of subject matter jurisdiction. There is no question, however, that federal courts may award counsel fees based on benefits resulting from litigation efforts even where adjudication on the merits is never reached, e. g., after a settlement. See Blau v. Rayette-Faberge, Inc., 389 F.2d 469 (2 Cir. 1968); Gilson v. Chock Full O’Nuts Corp., 331 F.2d 107 (2 Cir. 1964); accord, Thomas v. Honeybrook Mines, Inc., 428 F.2d 981 (3 Cir. 1970), cert. den., 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809. It may be true that appellant will be able to recover counsel fees in connection with further state court litigation against appellees using, inter alia, information obtained in the course of these proceedings in the federal court. This should not preclude the district court from recognizing that Esquire has already received substantial benefits from appellant’s efforts in the litigation before it, including the production of certified financial statements covering past years of the partnership’s business, and from allocating the legal costs incurred in obtaining them to all who benefited. This case is, therefore, reversed and remanded to the district court for further proceedings not inconsistent with this opinion. In so doing we express no opinion as to the monetary value of the legal services in question, but leave that to the discretion of the district court. . The complaint contained a fifth count, on which summary judgment was denied, alleging that the 1971 letter of offer was false and misleading, in violation of the 1934 Securities Exchange Act, Rule 10b-5 thereunder, and the 1933 Act. Appellant voluntarily discontinued this claim, saying that the favorable judgment on the other securities law counts “would yield substantially the relief which could have been obtained” thereunder. . The court did, however, leave open the possibility of assessing counsel fees against the recovery of the limited partners who elected to rescind their 1971 purchases. . Appellant argues that the individual appellees, in preference to the partnership, should pay counsel fees because of their alleged “flagrant disregard” of their legal obligations and their “wanton acts” in violation of the limited partners’ rights. Appellant’s characterizations do not, however, suffice as a basis for allowing counsel fees against the defendants below under the “in bad faith, vexatiously, wantonly, or for oppressive reasons” exception to the general American rule on counsel fees. 6 J. Moore, Federal Practice 1154.77[2], p. 1709 (2d ed. 1972), cited in Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1971). . We note, however, that since the current market value of the limited partnership interests is higher than the original purchase price, neither party anticipates wholesale rescissions. Appellant also contends, with some force, that limited partners may be encouraged to retain, rather than rescind, their interests precisely because of the “therapeutic” effect of his litigation of the future conduct of Esquire’s management. Nothing in this opinion is intended to indicate that plaintiffs in the typical litigation leading to monetary recovery may rely on the incidental, deterrent impact of their judgment as the basis for an application for payment of the fees of their attorneys. . While the issue has never been raised by the defendants-appellees, we note that an award of attorney fees here would not appear to be inconsistent with Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967). In that case there was no question of any benefit having been conferred on the party from which recovery of such fees was sought. Moreover, the remedies expressly provided by the applicable statute in Fleischmann were more comprehensive, “intricate,” and “meticulously detailed” than what is found in § 12 of the 1933 Act.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").

This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.

McKAY v. ROGERS et al. No. 1318. Circuit Court of Appeals, Tenth Circuit. April 4, 1936. William Neff, of Tulsa, Okl. (A. T. Lewellen, of Tulsa, Old, on the brief), for appellant. N. A. Gibson and Richard H. Wills, both of Tulsa, Okl. (James C. Denton and John Rogers, both of Tulsa, Okl., on the brief), for appellees. Before LEWIS and BRATTON, Circuit Judges, and KENNEDY, District Judge. KENNEDY, District Judge. On the 12th day of April, 1928, the appellant, as plaintiff in the Court below, instituted a suit in the District Court of Creek county, Old, alleging that she was the sole heir of one Ullie Eagle, an enrolled full-blood Indian of the Creek Nation who had died intestate, and that she, the plaintiff, was the legal and equitable owner and entitled to the immediate possession of certain real estate of which Ullie Eagle died seized; that the defendants were in possession of said real estate and had produced large quantities of oil and gas therefrom which they had appropriated to their own use and benefit. The prayer of the petition was for the possession of said premises and damages in the sum of $7,500,000. On May. 10, 1928, the defendants named in said petition file’d their motion to require the plaintiff to make her petition more definite and certain and on the same day said answering defendants issued notice of the pendency of said action to the United States of America through the superintendent of the Five Civilized Tribes, accompanied by a transcribed copy of all the pleadings and papers in said suit.. On the 15th day of May, 1928, said notice was served upon the superintendent of the Five Civilized Tribes. On June 2, 1928, the court entered an order for good cause shown, giving the United States twenty days additional time in which to plead. In the meantime the defendants in said action filed their joint and several answer and cross-petition in the case. On the 22d day of June, 1928, and within the twenty days allowed, the United States, through its Assistant District Attorney for the Northern District of Oklahoma, filed its petition for removal of the cause, making the statutory averments as to the plaintiff being a restricted member of the Five Civilized Tribes and as to the character of the title of the deceased. Ullie Eagle in the lands sought to be recovered. On the same day the District Court of Creek county entered its order removing said case to the United States District Court for the Northern District of Oklahoma. On March 11, 1930, upon application of the Assistant District Attorney, plaintiff’s counsel being present, the United States District Court allowed the United States thirty days from said date in which to plead. On April 23, 1934, counsel for plaintiff and defendants filed a written waiver of jury trial. On April 5, 1935, the plaintiff filed a motion to remand the cause to the District Court of Creek County, which was on the 8th day of April following overruled and denied. On April 9, 1935, the case came on for trial resulting in the court making findings of fact and conclusions of law, and entering a judgment in favor of the defendants. The United States did not file a pleading in said cUuse or participate in the trial. From this judgment, the plaintiff appeals on account of alleged errors committed by the trial court, presented in her assignments of error. The first contention urged by the plaintiff as appellant here is, that because the United States never became a party to the suit, the United States District Court had no jurisdiction to try the case and that it should have been remanded to the State court. This contention involves the statute under which the removal proceeding was undertaken. This appears in the Act of April 12, 1926, 44 Stat. 239, 240, in which section 3 of said act is applicable, reading as follows: “Any one or more of the parties to a suit in the United States courts in the State of Oklahoma or in the State courts of Oklahoma to which a restricted member of the Five Civilized Tribes in Oklahoma, or the restricted heirs or grantees of such Indian are parties, as plaintiff, defendant, or intervenor, and claiming or entitled to claim title to or an interest in lands allotted to a citizen of the Five Civilized Tribes or the proceeds, issues, rents and profits derived from the same, may serve written notice of the pendency of such suit upon the Superintendent for the Five Civilized Tribes, and the United States may appear in said cause within twenty days thereafter, or within such extended time as the trial court in its discretion may permit, and after such appearance or the expiration of said twenty days or any extension thereof the proceedings and judgment in said cause shall bind the United States and the parties thereto to the same extent as though no Indian land or question were involved. Duplicate original of the notice shall be filed with the clerk of the court in which the action is pending and the notice shall be served on the Superintendent for the Five Civilized Tribes or, in case of his absence from his principal office, upon one of his- assistants, and shall be served within ten days after the general appearance in the case of the party who causes the notice to be issued. The notice shall be accompanied by a certified copy of all pleadings on file in the suit at the time of the filing of the duplicate original notice with the clerk and shall be signed by the party to the action or his or her counsel of record and shall be served by the United States marshal and due return of service made thereon, showing date of receipt and service, of notice. If notice is not served within the time herein specified, or if return of service thereof be not made within the time allowed by law for the return of service of summons, alias notices may be given until service and return of notice is had and in no event shall the United States be bound unless written notice is had as herein specified: Provided, That within twenty days after the service of such notice on the Superintendent for the Five Civilized Tribes or within such extended time as the trial court in its discretion may permit the United States may be, and hereby is, given the right to remove any such suit pending in a State court to the United States district court by filing in such suit in the State court a petition for the removal of such suit into the said United States district court, to be held in the district where such suit is pending, together with the cerified copy of the pleadings in such suit served on the Superintendent for the Five Civilized Tribes as hereinbefore provided. It shall then be the duty of the State court to accept such petition and proceed no further in said suit. The said copy shall be entered in the said district court of the United States within twenty days after the filing of the petition for removal and the defendants and intervenors in said suit shall within twenty days thereafter plead, answer, or demur to the declaration or complaint in said cause, and the cause shall then proceed in the same manner as if it had been originally commenced in said district court, and such court is hereby given jurisdiction to hear and determine said suit, and its judgment may be reviewed by certiorari, appeal, or writ of error in like manner as if the suit had been originally brought in said district court.” The answer to plaintiff’s contention is found in two cases in this court where removal proceedings were had under this statute concerning the very same title to the Ullie Eagle lands involved in the case at bar. These cases are Fish v. Kennamer (C.C.A. 10) 37 F.(2d) 243, and United States v. Mid-Continent Petroleum Corporation (C.C.A. 10) 67 F.(2d) 37. In the Fish Case, 37 F.(2d) 243, at page 245, Judge Lewis speaking for the court says: “It fairly appears that a very large number, if not all, of those claiming to be heirs of Ullie Eagle, are under the protecting guardianship of the United States, and the latter deemed it necessary in their interest and in the orderly determination of their claimed rights to come into this litigation and remove the case into a court of the United States, and its counsel appear to have participated in the procedure since and in the hearings before the master. When their guardian intervened they were) no longer free to conduct their litigation, as does an ordinary litigant, and the guardian has raised no objection to the course pursued by the district judge.” After quoting the statute, the learned judge continues, 37 F.(2d) 243, at page 246: “So far as the section has been quoted its evident purpose is to give the United States an opportunity to intervene in said cause so that the judgment therein may bind it and thus cut off a right of the guardian to renew the suit in its name in event the judgment be adverse to the Indian or Indians. * * * ■ “It is true the statute does.not expressly say that the United States is a party to the cause on its removal to the Federal court; but we see no reason why, considering the purpose of the statute and the intervention of the United States for removal, which was undoubtedly the exercise of its protecting care over the Indians’ rights, it should not thereafter participate in the disposal of the whole controversy in its capacity as guardian, and, as said, it was represented by counsel thereafter in the cause.” The question of jurisdiction of the federal court was again challenged in thé Mid-Continent Petroleum Corporation Case, supra, and the conclusion again reached that the cause of action had been properly removed under this statute. But it is urged by the plaintiff that because the United States did not file a pleading and proceed to litigate on behalf of its wards after the removal, that the court thereby lost jurisdiction and should have remanded the cause. The answer to this contention is apparent when it is considered that one may be a party to a cause and still not file a pleading or actively participate in a trial; and, further, that a removal is based upon the condition existing at the time of removal and not upon what may occur thereafter. Brelsford v. Whitney Trust & Savings Bank (C.C.A. 5) 69 F.(2d) 491. Another point urged by the plaintiff is, that the suit was removed by the Assistant United States District Attorney without authority. This contention is based upon the theory that the official was not specifically authorized and directed by the Secretary of the Interior or the Attorney General of the United States to remove the suit. The only foundation for this claim in the record is, that the Assistant United States Attorney looked through the files of this particular suit and found no authorization, but that no general search of the-files of the District Attorney’s office had otherwise been made. This proof in itself falls far short of discharging the burden placed upon a party who alleges absence of authority. In addition, we think that the statute imposes the duty upon a District Attorney to prosecute both criminal and civil actions in his district. 28 U.S.C. § 485. (28 U.S.C.A. § 485). Likewise, litigated cases support this theory. Confiscation Cases, 7 Wall. 454, 19 L.Ed. 196; Hilborn v. United States, 163 U.S. 342, 16 S.Ct. 1017, 41 L.Ed. 183; United States v. Smith, 158 U.S. 346, 15 S.Ct. 846, 39 L.Ed. 1011. Furthermore, it is presumed that a District Attorney, being a sworn officer of the United States, does his duty, including the performance of all that was necessary to make what he does legal with the requisite direction from the duly constituted authorizing official. Forbes v. United States (C.C.A. 5) 268 F. 273; Sabin v. United States (Ct.Cl.) 44 F.(2d) 70; Anderson v. P. W. Madsen Inv. Co. (C.C.A. 10) 72 F.(2d) 768. Finally, it is contended on behalf of the plaintiff that the cause was not lawfully removed because the removal petition was not filed in time, was not verified, and no notice of the filing of the petition was given. The first of these contentions is answered by the record, inasmuch as it appears that the petition for removal was filed within the time allowed by the order fixed by the state court, which additional time the state court was authorized to grant by virtue of the removal statute itself. To sustain a petition for removal filed within the extended time to plead, where the statute specifically authorizes an extension of time to petition for removal, is not out of harmony with a reasonable construction of the statute. The statute does not require a petition for removal to be verified, nor is it required that any notice of the filing thereof be given. It may readily be seen that this statute is one for removal independent of and distinct from the provision for the removal of cases covered by the general removal statutes. But in any event, the matter of removal as to the requirement of time and manner is not jurisdictional, but more or less model and formal in which irregularities may be waived. Montgomery v. Sioux City Seed Co. (C.C.A. 10) 71 F.(2d) 926; Guarantee Co. v. Hanway (C.C.A. 8) 104 F. 369; Ayers v. Watson, 113 U.S. 594, 5 S.Ct. 641, 28 L.Ed. 1093. The right to remand may be lost by laches, with such intervening conduct which will constitute waiver of irregularities in removal proceedings. 54 C.J. 364. In this case the record discloses that the case was removed on June 22, 1928; that on March 11, 1930, counsel for plaintiff was present making no objection when additional time was granted the United States to plead; that on April 23, 1934, the plaintiff participated in the waiver of a jury trial; and that no motion to remand was made until April 5, 1935. Whatever legitimate obj ections plaintiff may have had to irregularities as to the time and manner of removal, they were clearly waived by her subsequent acts in the federal court before the motion to remand was filed. The judgment of the trial court will be and is affirmed.

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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.

What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.

MISSOURI BROADCASTING CORPORATION v. FEDERAL COMMUNICATIONS COMMISSION (STAR-TIMES PUB. CO., Intervener). No. 6869. United States Court of Appeals for the District of Columbia. Argued Oct. 19-20, 1937. Decided Dec. 6, 1937. Rehearing Denied Jan. 14, 1938. Louis G. Caldwell, Percy H. Russell, Jr., and Donald C. Beelar, all of Washington, D. G, for appellant. Hampson Gary, General Counsel, Federal Communications Commission, George B. Porter, Asst. General Counsel, and Fanney Neyman, Principal Atty., all of Washington, D. G, for appellee Federal Communications Commission. Paul D. P. Spearman and Alan B. David, both of Washington, D. G, for appellee Star-Times Pub. Co. Before ROBB, GRONER, and MILLER, Associate Justices, and WHEAT, District Judge. Writ of certiorari denied 58 S.Ct. 759, 82 L,Ed. —. GRONER, J. Missouri Broadcasting Corporation (appellant) and Star-Times Publishing Company (intervener) were rival applicants for a permit to operate a radio broadcasting station in St. Louis on 1250 kc. The commission in an order dated September 22, 1936, made effective October 6, 1936, granted the application of Star-Times and denied the application of Missouri. As a principal ground of appeal, Missouri insists that the order of the commission was void because it was not preceded by or based on any findings of fact or grounds for the decision. The printed record contains approximately 400 pages of evidence and more than 100 pages of exhibits. After reference to the examiner in the early part of 1936, Pulitzer Publishing Company, operator under a license in St. Louis, together with several other stations concerned in the matter, intervened opposing the grant to either applicant. Its separate appeal we have disposed of today in Pulitzer Publishing Co. v. Federal Communications Commission, 68 App.D.C. 124, 94 F.2d 249. The examiner reported in July, 1936, recom-' mending the denial of the application of both Missouri and Star-Times. The following September there was oral argument before the broadcast division of the commission, and two weeks later the division entered its decision and final order. The order is in the following form: “Upon consideration of the applications, record, and evidence in these cases, Examiner’s Report 1-246, the exceptions thereto and oral argument heard, the Broadcast Division this day found that public interest, convenience and necessity would be served by granting the application of Star-[Times] Publishing Co., for construction permit and that public ’interest, convenience and necessity would not be served by granting the application of Missouri Broadcasting Corp., for construction permit and entered its final order granting and denying the same respectively, in the following cases: [Then followed the docket numbers, names of the applicants, etc., together with a statement that the order entered would be effective at 3 A. M. October 6, 1936, and that the Commission would at a subsequent date issue and publish an opinion setting forth a statement of the facts appearing of record and the grounds for the decision reached.]” The statement of facts and reasons for the decision was filed on October 7, 1936, and appears to have been released to the press as of October 17, 1936. In the meantime and on October 5, 1936, Missouri filed a petition for rehearing and on October 21st a supplemental petition for rehearing which on the same day the commission denied. Thereupon Missouri filed its notice of appeal. Missouri’s position, as we have indicated, is that the commission is not authorized by the act to make a decision without finding the facts and reasons therefor, and it says that in the present order there is not a single word which can serve as such a finding. The position of the commission, on the other hand, is that the only finding it is required under the act to embody in its order is that of public interest, convenience, and necessity, and that this it did in its original decision and likewise in its subsequently issued and published opinion. In short, its position is that the facts and reasons for its decision need not be previously found and incorporated in its order, and that only the ultimate facts need be stated, and by “ultimate facts” the cpmmission - means neither more nor less than a declaration on its part that public interest, convenience, and necessity will be served by granting or refusing the application. The Communications Act of 1934, 48 Stat. 1093, provides in section 309(a), 47 U.S.C.A. § 309(a): “If upon examination of any application for a station license or for the renewal or modification of a station license the Commission shall determine that public interest, convenience, or necessity would be served by the grantipg thereof, it shall authorize the issuance, renewal, or modification thereof in accordance with said finding. In the event the Commission upon examination of any such application does not reach such decision with respect thereto, it shall notify the applicant thereof, shall fix and give notice of a time and place for hearing thereon, and shall afford such applicant an ■opportunity to be heard under such rules and regulations as it may prescribe.” The appeal section (402) of the act, 47 U.S.C.A. § 402, provides, inter alia, that an appeal may be taken by filing written notice of appeal in this- court within twenty days after the decision is effective. The notice must be served on the commission and must contain a statement of the reasons for the appeal. The commission is required within five days to give notice to all other parties in interest, and such parties are permitted to intervene in the appeal and to inspect and to make copies of the appellant’s statement of reasons for the appeal. The commission must then within thirty days file in this court originals or certified copies of all papers and evidence considered by it, a copy of its decision, and within thirty days thereafter “a full statement in writing of the facto and grounds for its decision as found and given by it.” The question here presented is not new. It ha's been suggested before, but we have hitherto found it unnecessary to pass upon it. The question, however, should be decided in the interest of procedural accuracy and in order that the appeal to this court may be heard and decided in the light of the issues formed by the commission’s grounds for decision and the appellant’s reasons for appeal. The act provides for an appeal to this court (a) by an applicant for a construction permit, or for a station license, or for renewal or modification of a station license, whose application is refused; (b) by any other person aggrieved or whose interests are adversely, affected by a decision of the commission granting or refusing such an application; and (c) by a radio operator whose license has been suspended by the commission. The review to this court is limited by the act to questions of law, and it is provided that “findings of fact by the Commission, if supported by substantial evidence, shall be conclusive unless it shall clearly appear that the findings of the Commission are arbitrary or capricious.” 47 U.S.C.A. § 402(e). This quoted language of the act provides substantially the same rule applied in cases of appeal from most, if hot all, of the important federal administrative boards and commissions. The language implies that there shall be a public hearing, that evidence shall be taken and preserved, that the facts shall be found by the commission, and that this court shall have, jurisdiction to deny effect to an order made without any supporting evidence or contrary to the indisputable character of the evidence, or wherever the hearing or the decision is inadequate, unfair, or arbitrary. Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598. In this view we cannot give our assent to the position taken by the commission that to give binding effect to its order the act requires it to do no more than to make a stark finding one way or the other that public interest, convenience, and necessity will be served. To sustain this position would be to ignore the reasonable implications inherent in the language of the act, section 402(c), 47 U.S.C.A. § 402(c), that the commission shall file a full statement in writing of the facts and grounds for its decision. And so, without taking further time in a discussion of this aspect of the question, we think the only doubt arises as to the time when the commission is required to find the facts and state the grounds of its decision. The commission’s answer is that, if at all, not in any case until after the appeal is taken and relies in this respect upon the language of the act requiring it to file its statement within thirty days after it has filed a copy of the record. Undoubtedly this unusual provision tends somewhat to cloud and confuse the question, but we think that to interpret it as the commission insists would tend to still greater confusion, if indeed it would not result in a denial of due process. As we have pointed out, the act requires a petitioner for review to assign in this court the reasons for his appeal, and this, as we think, is the equivalent of requiring him to state his assignments of error; and in Great Western Broadcasting Ass’n v. Federal Communications Commission, Intermountain Broadcasting Corporation v. Federal Communications Commission, 68 App.D.C. 119, 94 F.2d 244, decided today, we said: “The nature of its grievance can be measured on this appeal only by the reasons therefor which the act requires it to give; and in order to determine its appealable interest we must look — and can look only — to those reasons.” If we are correct in this holding, and of this we have no doubt, then it would be a thoroughly anomalous and undesirable situation to construe the provision of the act with relation to the time when the commission must find the facts and reasons for its decision as not requiring the publication of the finding until some date — possibly sixty days — after the appeal is noted. Manifestly the object in requiring the commission to state its reasons for its grant or denial of the license is to advise the defeated party of the respects in which he has failed to bring himself within the terms of the act. To say that no reasons for the decision need be stated would leave the party in doubt as to a matter essential to the determination whether an appeal should or should not be taken, for until the appealing party knows the grounds on which the order rests he is in no position to assign reasons for its reversal. It was the recognition of this indubitable fact which at least in part induced "the Supreme Court to say in Beaumont, S. L. & W. Ry. Co. v. U. S., 282 U.S. 74, 86, 51 S.Ct. 1, 6, 75 L.Ed. 221: “Complete statements by the Commission [there the I. C. C.] showing the grounds upon which its determinations rest are quite as necessary as are opinions of lower courts setting forth the reasons on which they base their decisions,” etc. In this view to hold that the statement of the grounds on which the commission reached its decision may be disclosed for the first time sixty days after the appeal is taken would be manifestly unfair because, if for no other reason, it would be to require an appellant to appeal from a decision the grounds for which he would not and could not know, and by the same token to assign reasons for the appeal wholly different, as it might very well turn out, from the grounds which the commission later asserted as the basis of its denial of the application. And that, in turn, would result in an application to us — in order to avoid a clear denial of justice — to permit amendments to be made after the appeal was perfected and in some cases after the record was printed. Not only this, an even greater injustice might result (and we have the commission’s assurance that such procedure would be proper) if the commission seized the opportunity to write its statement of facts and grounds of decision as an answer to appellant’s reasons for appeal. We think reflection upon the bare statement of this possibility is convincing that no such procedure' can be allowed. But all of these reasons aside, we think we are not required to give any of the language or requirements of the act forced construction to reach the conclusion we do. For, as we have pointed out, the act unquestionably requires the commission in every case of appeal to file not only the record and its decision but a statement of the facts and a stafement of the grounds of its decision. The exact language is — file a full statement in writing of the facts and grounds for its decision as found and given by it. The six words we have emphasized imply, we think, that the grounds of decision and a brief factual statement of the reasons therefor have been previously given, that is, previously to the filing of the full statement, i. e., findings of fact, in this court. Certainly this would be the reasonable and ordinary course because no commission exercising the judicial function ought to give a decision without knowing the grounds therefor, and the statement of those grounds necessarily must be drawn from the facts found. If this rule be adopted the appellant will, when the commission enters its order, know the grounds of the decision and will know whether he desires to appeal and will be able to frame intelligently his assignments of error. On the other hand, the commission will not be inconvenienced by being required to include in its order a succinct statement of facts and grounds therefor, since necessarily in every case the commission will know why it is deciding it as it is. We are not unmindful that the reduction of the factual findings to a concise statement in writing requires time, and undoubtedly it was this consideration which moved Congress to afford the commission extra time for filing its “full” statement in writing. And in this view there is no reason why the formal findings of fact — as is not unusual in cases, either in law or equity, should not await the taking of the appeal. What we have said, we hope, sets a sufficient standard to prevent the recurrence of this question on future appeals. In this case it is true the reasons for the decision were not filed until some two weeks after the order, but Missouri had in the meantime filed a motion for a rehearing and after the filing by the commission of its opinion had amended its motion for a rehearing. It, therefore, was full handed with knowledge of the reasons for the commission’s decision when its motion was heard. The failure of the commission, therefore, to file any statement of the grounds of decision simultaneously with the order, was harmless error for, as it turned out in the facts mentioned above, Missouri suffered no damage therefrom. The other grounds of review urged on this appeal were also argued and sufficiently answered in Pulitzer Publishing Company v. Federal Communications Commission, supra, where we held that the evidence authorized the action of the commission in granting the license of Star-Times. The commission, as we think correctly, found need for additional service in St. Louis; and its choice of one applicant over the other, being based on proper considerations disclosed by the record, ought not tó be disturbed. Affirmed.

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.

Are there two issues in the case?

In re BELL & BECKWITH, Debtors. James L. MURRAY and Phyllis J. Murray, Plaintiffs-Appellees, v. Patrick A. McGRAW, Trustee; Securities Investor Protection Corporation, Defendants-Appellants. No. 86-3178. United States Court of Appeals, Sixth Circuit. Argued Dec. 2, 1986. Decided June 16, 1987. Thomas L. Dalrymple, Mary Ann Whipple, Fuller & Henry, Toledo, Ohio, Theodore H. Focht (argued) General Counsel for Securities Investor Protection Corp., Stephen P. Harbeck, Washington, D.C., for defendants-appellants. C. Phillip Baither, III (argued), Robison, Curphey & O’Connell, Toledo, Ohio, for plaintiffs-appellees. Before JONES and RYAN, Circuit Judges, and CELEBREZZE, Senior Circuit Judge. RYAN, Circuit Judge. Appellants are the Securities Investor Protection Corporation (SIPC) and the trustee in bankruptcy (the trustee) of the Toledo, Ohio, brokerage firm of Bell & Beckwith (the debtor). Appellees are a couple, the Murrays, who were customers of the debtor. The sole issue in the case is whether the district court correctly affirmed a bankruptcy court determination that the Murrays had a claim against the bankruptcy estate for stock shares rather than cash. If the Murrays’ claim is for cash, they will receive significantly less than the shares are now worth. We conclude that the Murrays have a claim for cash rather than stock and therefore reverse. I The bankruptcy court granted the Murrays’ motion for summary judgment on stipulated facts. The sequence of events, insofar as agreed upon, is as follows: (1) On February 4, 1983: (a) the Murrays had an account with the debtor; (b) that account reflected, among other things, their ownership of 3500 shares of Toledo Trustcorp stock registered in the debtor’s street name; (c) the Murrays instructed the debtor to sell all 3500 shares; (d) the debtor arranged to sell 1900 shares to other brokers who all were buying on their own accounts as principals (not for customers); (e) the debtor engaged to buy the remaining 1600 shares for its own account; and (f) all of these sales were reflected on trade tickets and reported to the Murrays; (2) On February 5, 1983 (the “filing date”), the debtor brokerage firm filed bankruptcy proceedings; (3) In a statement issued to the Murrays by the debtor, and reflecting transactions “as of 02/04/83,” the debtor listed all of the foregoing transactions, and under the heading “DATE” was printed “02/11/83.” This statement thus reflected the key facts that the “trade date ” for these transactions was February 4 and the anticipated “settlement date ” was February 11. The importance of these dates derives from the fact that the first of them is before the filing date, and the second is after it; (4) On February 10, 1986, the district court issued a protective order; and (5) The trustee then acted to preserve what he considered to be the status quo; he “cancelled” the transactions insofar as they involved the broker/purchasers, leaving them to cover by purchasing stock elsewhere and submitting a claim to the estate for any deficiency; he retained all 3500 shares of stock in the estate; and he credited the Murrays’ account for the sale prices agreed upon. II The Securities Investor Protection Act (SIPA) is, as the title suggests, legislation intended: “to protect individual investors from financial hardship, to insulate the economy from the disruption which can follow the failure of major financial institutions; and to achieve a general upgrading of financial responsibility requirements of brokers and dealers to eliminate, to the maximum extent possible, the risks which lead to customer loss.” S.R. No. 91-1218, 91st Cong., 2d Sess. 4 (1970) (“Senate Report”); see also H.R. No. 91-1613, 91st Cong., 2d Sess. 1 (1970), U.S. Code Cong. & Admin.News 1970, p. 5254 (“House Report”); SIPC v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975). SIPA created SIPC and established procedures for liquidating financially troubled broker-dealers who are members of SIPC. SIPA requires SIPC to establish a fund, by an assessment upon its members, from which claims are paid to customers who have suffered losses as a result of the financial collapse of the broker-dealer. Should SIPC funds become inadequate because of the size or amount of claims, SIPA authorizes a borrowing against the United States Treasury of up to one billion dollars. Under the heading “Payments to customers,” SIPA provides: “After receipt of a written statement of claim pursuant to subsection (a)(2) of this section, the trustee shall promptly discharge, in accordance with the provisions of this section, all obligations of the debt- or to a customer relating to, or net equity claims based upon, securities or cash, by the delivery of securities or the making of payments to or for the account of such customer (subject to the provisions of sub-section (d) of this section and section 78fff-3(a) of this title) insofar as such obligations are ascertainable from the books and records of the debtor or are otherwise established to the satisfaction of the trustee.” 15 U.S.C. § 78fff — 2(b) (1981). Although SIPA differentiates in various ways between the protection afforded stock as opposed to cash claims, see 15 U.S.C. § 78fff-3 (1981), those differences are not pertinent here. The parties agree that, when a claimant under SIPA has a claim for stock, that claimant is entitled to stock, rather than cash. Partly because the stock at issue here is now more valuable than at its 1983 sale price, the Murrays want their claim to be characterized as one for stock. The parties also agree that a customer’s claim against a bankrupt broker is based on the customer’s “net equity” on the debtor’s books on the filing date. The parties disagree, however, about how to distinguish cash claims from stock claims when the filing date intervenes between the trade date and the settlement date. The Murrays and the courts below sought to resolve this issue, which § 78fff-2(b) does not address, by reference to a nearby provision of the statute, § 78fff-2(e), entitled “Closeouts.” This provision states: “(1) In general. — Any contract of the debtor for the purchase or sale of securities in the ordinary course of its business with other brokers or dealers which is wholly executory on the filing date shall not be completed by the trustee, except to the extent permitted by SIPC rule.” Another term that requires definition in order to understand this case is: “open contractual commitment.” The SIPC rules, insofar as pertinent, define an “open contractual commitment” as “a contractual commitment of the debtor, made in the ordinary course of business,, to deliver securities to another broker or dealer against receipt from such broker or dealer of the contract price in cash: Provided, That the respective obligations of the parties remained outstanding until the close of business on the filing date____ [and] which ... had a settlement date which occurs on or within five business days subsequent to the filing date____” 17 C.F.R. § 300.300(b) & (c) (1986). The contractual commitments of the debtor to the various broker/purchasers in the Murray transactions fit this definition. The rule applicable to open contractual commitments is that they “shall be closed out or completed” if the broker dealing with the debtor was doing so not as a principal but on behalf of a customer. 17 C.F.R. § 300.-301 (1986). None of the open contractual commitments in this case falls within this rule. The courts below reasoned that, because the transactions here do not fall within Rule 301, they are contracts not “permitted by SIPC rule,” and that if these contracts may properly be characterized as “wholly executory on the filing date,” they are contracts which “shall not be completed by the trustee.” § 78fff-2(e)(l). Finally, if the contracts are not completed, there has been no sale, and the Murrays are entitled to have their stocks returned to them. The dispositive issue thus becomes whether this contract should be characterized as “wholly executory.” The bankruptcy court determined that it should. This outcome is reached by reference to general contract and agency principles. The bankruptcy court cites one of its own opinions, In re 2522 South Reynolds Corp., 33 B.R. 616, 617 (Bankr.N.D.Ohio 1983), for the principle that an executory contract, for purposes of bankruptcy, is “an agreement under which the obligations of both parties are so far unperformed that the failure of either to complete performance would constitute a material breach” of the contract. See also In re Knutson, 516 F.2d 916 (8th Cir.1977); 4A Collier on Bankruptcy § 70.43[2] (14th ed. 1975). In other words, the court looked to see if this was a situation in which neither side had yet performed, and determined that it was. In the court’s view, (1) the sellers had not performed before the filing date, because the purchasers had not yet received the stock certificates — and in fact never did receive them — and (2) the purchasers had not performed before the filing date, because they never paid the Murrays for the stocks. This latter point is the one that the stipulated facts leave most subject to interpretation. On February 4, the debtor credited the Murrays’ account with the proceeds of the sale, but with the notation that the credit actually was to take effect on the settlement date, February 11. After the trustee took charge of the debtor’s affairs, this amount was credited to the account, but it still was in the nature of an advance by the debtor on behalf of (or in lieu of payment by) the purchasers. The bankruptcy court decided, and the district court agreed, that the Murrays never received the price, and the contract was therefore unperformed on both sides. The bankruptcy court fortified this conclusion with the observation that: “The underlying nature of the customer-broker relationship is that of principal-agent rather than as independently contracting parties.” 47 B.R. 528 (Bankr.N.D.Ohio 1985). Because the debtor cannot be viewed as a contracting party in its own right, the court reasoned, it is only the actions of the Murrays and the purchasing brokers that are pertinent here. Thus, it cannot be, for example, that the Murrays delivered the stocks if the stocks never left the control of the Murrays’ agent, the debtor. Nor can it be that the Murrays received payment if the credit in their account was simply an advance paid by the same agent. In a nutshell, the decision below was that the Murrays are entitled to their stock because it was never sold, and it was never sold because, first, it had not been sold before the filing date, and second, the trustee had no authority, under SIPA, to complete the transaction after the filing date. Ill Appellants’ theory is that the “closeout” provision in SIPA, with its “wholly executory” contract language and its appended rules, describes only the mechanism for resolving incomplete contracts between debtor-brokers and other brokers. They contend that the closeout provision makes no reference to relations between the debt- or and its customers because it is presumed that all trades arranged before the filing date will be treated under SIPA as if completed subsequently, regardless of whether they actually are completed. In other words, the status of a customer’s account with a debtor in a case such as this one is fixed on the trade date, not the settlement date. Therefore, the Murrays lost any claim to the Toledo Trustcorp stock on February 4, 1983, and now have only a claim for the purchase price as arranged on that day and subsequently credited to their account. This theory thus has two aspects. One is statutory, and says that the closeout provision does not condition relations between debtor and customer. The other looks outside the statute, to cases interpreting it and to the state law governing securities transactions, and says that a sale of securities is complete, from the customer’s perspective, on the trade date, and from then on the customer’s claim is for cash, not stock. The settlement date is thus irrelevant under SIPA. Both sides in this case refer to state or “general” law to supplement SIPA’s provisions on the rights of the customers of brokers. The appellees (and the courts below) made use of contract and agency principles. The appellants refer us to Article 8 of the Uniform Commercial Code, as enacted in Ohio, Ohio Rev.Code Ann. §§ 1308.-01-44 (Anderson 1985 Supp.). Of these competing approaches, we consider the latter the more sensible. If we must rely upon some supplemental law, the U.C.C. is the place to look for it, both because the U.C.C. is the law in Ohio (and virtually every other state) governing transactions of this nature (except insofar as federal bankruptcy or securities law preempts it) and because Article 8 of the U.C.C., unlike general contract or agency law, provides specific rules applicable to securities transactions. Appellants contend that the U.C.C. establishes that the Murrays performed their contractual duty on February 4, by delivering the stock. U.C.C. 8-301, Ohio Rev. Code Ann. § 1308.16 (Anderson 1985 Supp.) provides in part: “(A) Upon transfer of a security to a purchaser as provided in section 1308.28 of the Revised Code, the purchaser acquires the rights in the security which his transferor had____” U.C.C. 8-313, Ohio Rev.Code Ann. § 1308.-28 (Anderson 1985 Supp.) provides in part: “(B) The purchaser is the owner of a security held for him by a financial intermediary ****** “(A) .... “(4) At the time a financial intermediary ... sends him confirmation of the purchase and also by book entry or otherwise identifies as belonging to the purchaser ... “(b) A quantity of securities that constitute or are part of a fungible bulk of certificated securities in the financial intermediary’s possession or of uncertificated securities registered in the name of the financial intermediary____” A broker is a “financial intermediary” under this section. U.C.C. 8-314, Ohio Rev. Code Ann. § 1308.29 (Anderson 1985 Supp.), provides in part: “(A) Unless otherwise agreed, if a sale of a security is made on an exchange or otherwise through brokers: “(1) The selling customer fulfills his duty to transfer at the time he: “(a) Places- a certificated security in the possession of the selling broker____” Appellants do not cite or discuss 8-313, instead contending that 8-301 and 8-314 suffice to establish that the Murrays delivered the stocks by placing them in the possession of a broker and ordering that broker to sell them. Once the purchasers arranged the sale with the selling broker, the stocks were delivered — at least as far as the Murrays’ rights and obligations are concerned. They could not reclaim them after this point. Of course, 8-301 requires that the conditions for a transfer under 8-313 be satisfied before a transfer is accomplished and the purchaser acquires the seller’s rights. The stipulated facts do not include any explanation of whether, on February 4, the debtor sent confirmation of the sales to the purchasers and identified, in its books, certain quantities of the Toledo Trustcorp stock as belonging to those purchasers. If some such procedure was followed, the trustee would presumably have little trouble demonstrating that it was, but no proof along these lines was before the court below. All that is known is that the trustee eventually “cancelled” these sales without having physically delivered the certificates. This leaves the U.C.C. argument somewhat up in the air. Nonetheless, the reference to the U.C.C. is still helpful. We are concerned here with a transaction that was interrupted by the operation of federal law. Such a transaction must ultimately be defined as a matter of federal law, because SIPA alters the rights of the parties in a way not contemplated by the U.C.C. State law is thus useful not as a dispositive authority but for the legal context it supplies. That legal context clearly is one in which the rights of parties to a sale of securities tend to be fixed — that is, the transfer of legal rights in the securities is accomplished — while the securities are still in the possession of the selling broker. Whatever might be suggested by reference to contract or agency law, securities law does not require that certificates actually change hands before the seller has lost all ownership rights to the purchaser. Thus, the reference to Article 8 of the U.C.C. tends to support appellants’ argument that the trade date, rather than the settlement date, fixes the rights of the parties to a transaction that is interrupted by a bankruptcy filing under SIPA. IV In the absence of a clear statutory resolution of this issue, however, our recourse must be principally to such indications of legislative intent as are available to us, rather than to related state and common law principles. In SEC v. Aberdeen Securities Co., 480 F.2d 1121 (3d Cir.), cert. denied, 414 U.S. 1111, 94 S.Ct. 841, 38 L.Ed.2d 738 (1973), the court construed the original 1970 version of SIPA (the original act) as providing that: “If the order by a customer for the purchase or sale of a specific security has been placed by the debtor with another broker and remains uncompleted on the filing date, then the Trustee is required to complete the transaction.” Id. at 1126 (emphasis added). Thus, under the original act, the present issue could not have arisen, because the Murrays’ order for the sale, placed with the debtor before the filing date, would necessarily have been completed by the trustee after the filing date. The concern of the drafters was in part to assure customers that their rights in the debtor’s estate would be fixed and easily discoverable as of the filing date. The original act thus provided for the “completion of interbroker or interdealer transactions only when the interest of a customer on either side was involved.” Id. (emphasis added). The current law, enacted in 1978, no longer requires all transactions in which a customer has an interest to be completed. Rather, as we have discussed above, the statute, § 78fff-2(e)(l), and accompanying rules, 17 C.F.R. §§ 300.300 et seq., require such transactions to be completed or closed out. This means essentially that brokers are permitted to cover, by buying stock elsewhere, rather than required to complete transactions. The current statute does not explain what is to be done with transactions, such as the one here, in which a customer of the debtor, rather than a customer of a broker who dealt with the debtor, has an interest. The closeout provisions are addressed only to contractual commitments between the debtor and other brokers, and the appended rules make completion of the transaction turn on whether a customer of the other broker has an interest in the transaction. All of the transactions in this case involved brokers buying for their own account. There is no question that such transactions cannot be completed by the trustee. The Murrays contend that all uncompleted transactions must be treated as if no sale order had ever been given. Appellants, however, suggest that, because a customer has an interest in this transaction, and in view of the fact that it cannot be completed, it must be closed out. This would mean that the debtor is required to credit the Murrays with the purchase price while the stocks themselves stay in the debtor’s estate, and the brokers who arranged to purchase those stocks must cover by buying stock elsewhere. Because the other brokers were acting on their own account, they may submit a claim against the estate for any deficiency, but must do so only as general creditors to whom SIPA extends no special protection. The language of the closeout provision, as well as this historical context, makes it clear that its purpose is to protect customers of brokers who dealt with the debtor. These customers are to be insulated, as much as possible, from the repercussions of the debtor’s financial collapse. The best way to do this is to allow the deals they arranged prior to the filing date to be completed as arranged, or at least to be closed out in such a way as to preserve, for those customers, the benefits of the bargains they made. We are persuaded that Congress intended the exact same policy to apply to the customers of the debtor as applies to customers of brokers who dealt with the debt- or. They should remain, as much as possible, unaffected by their broker’s collapse. The best way to do this is either to complete trades ordered before the filing date or to settle out with the customers as if those trades had been completed. SIPA does not provide for any trades actually to be completed unless the customer of another broker is involved, and, even then, the closeout alternative is available. Thus, the sensible approach is to close out, rather than to rescind, transactions arranged by the debtor’s customers prior to the filing date, just as the trustee did here. To the extent that nonstatutory authorities are pertinent, they support this approach. For example, the SEC Commissioner, testifying on the 1978 amendments, expressed the view that: “When a customer sells securities, his claim from that time until settlement and delivery of the funds is a claim for cash.” Hearings Before the Subcommittee on Consumer Protection and Finance of the Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess. 233 (1977). Appellants also have cited cases which they assert are consistent with their view. None of these cases is precisely on point, and none operates as authority in this court, but the case of SIPC: SEC v. Morgan, Kennedy & Co., 3 Bankr.Ct.Dec. (CCH) 15 (Bankr.S.D.N.Y.1977), decided before the 1978 amendments, is very similar. Morgan, Kennedy held that the status of a customer’s claim against a debtor-broker was fixed on the trade date, even though no delivery of securities took place before (or after) the filing date. Some other roughly analogous cases tend to adopt similar reasoning, and are to that extent persuasive. E.g. Tepper v. Chichester, 285 F.2d 309 (9th Cir.1960); In re GIC Government Securities, 64 B.R. 161 (Bankr.M.D.Fla.1986); In re June S. Jones, 52 B.R. 810 (D.Ore.1985). Of course, it may turn out that the customer would have been better off without the “benefit” of his bargain, where, as here, the bargain turns out poorly. But the facts of this case should not be permitted to obscure the overall policy objectives of SIPA. The approach adopted by the courts below will not be, on average, any more beneficial financially to customers of a debtor-broker than the approach the appellants argue for. What would be sacrificed to help out the Murrays is the predictability of knowing that a customer’s trades will always be treated as if completed. The course adopted by the courts below would mean that, until the trustee discovered which purchasing brokers had acted on behalf of customers, the trustee could not know whether the trades should be given effect or not. In this case, the debtor’s records did not contain this information, and letters had to be written to all the purchasing brokers to discover it. We decline to mandate such an inconvenient and unproductive procedure. The courts below acted as if the trustee had no authority to complete the trades, and therefore was required to rescind them. Clearly, however, there is a third possibility here — the trades can be closed out and treated, as regards the customer, as if completed. As for the stocks sold to the debtor itself, this transaction may be treated as complete on the day it was arranged, because the customer’s account was credited and the debtor already had possession of the stock certificates. V We hold that, under SIPA, all trades ordered by customers of a debtor before the filing date should be treated, vis-a-vis those customers, as if subsequently completed by the debtor. Those customers who ordered stocks held for them by the debtor to be sold before the filing date have a claim against the estate for the purchase price, not for stock, without regard to whether a “settlement date” postdating the filing date was arranged. We reverse the district court’s judgment that the Murrays have a claim for Toledo Trustcorp stock and remand to the district court for entry of judgment in favor of the trustee.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).

This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?

LATROBE STEEL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Steelworkers of America, AFL-CIO, Intervenor. UNITED STEELWORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Latrobe Steel Company, Intervenor. Nos. 79-2299, 79-2709. United States Court of Appeals, Third Circuit. Argued June 12, 1980. Decided Aug. 19, 1980. Peter D. Post, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., argued, for petitioner in No. 79-2299 and intervenor in No. 79-2709. Daniel P. McIntyre, United Steelworkers of America, Pittsburgh, Pa., argued, for petitioner in No. 79-2709 and intervenor in No. 79-2299. Vivian Miller, National Labor Relations Board, Washington, D. C., for respondent. Before HUNTER, WEIS and SLOVITER, Circuit Judges. OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge: This case centers around the attempted negotiation of a collective bargaining contract between the Latrobe Steel Company (the Company) and the United Steelworkers of America (the Union). We are called upon to review the decision of the National Labor Relations Board, which found the Company guilty of three unfair labor practices for refusing to bargain with the Union in violation of § 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) (1976) (the Act), and acquitted the company of another charge. The Board also found that a strike which occurred subsequent to the alleged unfair labor practice was an unfair labor practice strike and ordered reinstatement of the strikers with back pay. The Board presents a cross petition for enforcement of its decision. The parties met 27 times between June 7 and August 1, 1977, but were unable to conclude an agreement to replace the existing 1974 contract. At the expiration of that contract, on August 1, 1977, the Union went out on strike. Negotiations continued intermittently from mid August until November, when they resumed on a full time basis. The Union filed an unfair labor practice charge on December 20, 1977, which alleged several violations of the Act. Specifically, the union alleged that the Company had violated the duty to bargain imposed by § 8(a)(5) of the Act by improperly insisting on the presence of professional stenographers at bargaining sessions and by insisting “to impasse” on the inclusion in the collective bargaining agreement of three clauses concerning non-mandatory subjects of bargaining. The case was heard by an administrative law judge (ALJ) who found unfair labor practices based on the stenographer issue and two of the three contractual issues. The ALJ further found that because of these unfair labor practices the strike was an “unfair labor practice strike.” The Board affirmed the rulings, findings, and conclusions of the ALJ. We will enforce the Board’s decision only insofar as it finds that the Company’s insistence on the issue of the presence of a stenographer constitutes an unfair labor practice. We will not enforce the decisions relative to the unfair labor practices based on the two proposed contract clauses, or to the characterization of the strike. Finally, we will affirm the dismissal of the charge based on the third contractual clause. I A. The Stenographer Issue At the first negotiating session, the Company’s chief negotiator introduced two professional court reporters and indicated that these reporters would, on the Company’s behalf, record all of the negotiations. He further noted that nothing would be “off the record” and that the transcripts of the negotiations would be made available in the Company’s personnel office to all interested persons, including the employees. The Union objected to this procedure. Following a lengthy discussion, the company negotiator stated “[a]ll right, we have been talking about this subject for almost an hour. We can talk about it for another hour, but I have to inform you that the transcripts will be at the personnel office. That is as blunt as I can put it.” Despite continued objections by the Union throughout the course of the negotiations, and the filing of an unfair labor practice charge on June 21, 1977, the stenographers were present at every negotiating session. Based on this and other evidence, the ALJ concluded that it was clear that the Company would only negotiate on the record, with stenographers present, and that no discussion of negotiable issues would be permitted to take place off the record. In addition, the ALJ found that the issue was a non-mandatory subject of bargaining. He therefore found the Company guilty of an unfair labor practice for refusing to bargain with the Union. B. The Contract Proposals In prior contracts, the Company, which produces specialty steel products, and the Union had adopted the Basic Steel Settlement Agreement, negotiated between the Union and the companies comprising the basic steel industry. In the instant negotiations, the Union again demanded the adoption of the Basic Steel Settlement Agreement, as well as the continuation of the provisions of the 1974 agreement between the Company and the Union. The Company, however, sought to negotiate a separate agreement. In addition, the Company proposed 22 specific changes in the existing agreement. The Union, in addition to its position on the Basic Steel Agreement, made 21 specific proposals. Three of the Company’s proposals are relevant to this case. First, the Company proposed that the local union be made a signatory to the collective bargaining agreement. Traditionally, the Union had been the only signatory to the agreement, although officers of the local had signed in their capacity as members of the Union bargaining committee. Since 1937, the Union, or its predecessors, had been the recognized bargaining representative of the employees. Second, the Company demanded that the grievance procedure be altered to require individual employees to sign all grievances. This would, in effect, have precluded the Union from bringing general grievances on behalf of unidentified employees. Finally, the company proposed a change which would have given employees the option to attempt to settle grievances at the second level of the grievance procedure, either with or without the presence of a union representative. A similar option had previously existed at the first level by agreement of the parties. The ALJ found the first two proposals to concern non-mandatory subjects of bargaining and that an impasse existed prior to the time the Union went on strike. He further found that the Company’s insistence on the first two proposed clauses contributed to, and helped to cause the impasse. He stated that it was impossiblé to find, as the Company contended, that the impasse would have occurred in the absence of the non-mandatory proposals. Finally, the ALJ found that the third disputed proposal did not constitute a non-mandatory subject of bargaining. Accordingly, this charge was dismissed. II Section 8(a)(5) of the Act states that “[i]t shall be an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees....” 29 U.S.C. § 158(a)(5) (1976). Section 8(d) defines collective bargaining, in relevant part, as the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment. but such obligation does not compel either party to agree to a proposal or require the making of a concession. Id. § 158(d). In NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958), the Supreme Court held that the duty to bargain in good faith is limited to the subjects of wages, hours and terms and conditions of employment. On matters concerning those subjects “neither party is legally obligated to yield.” Id. at 349, 78 S.Ct. at 722. On the other, the so-called non-mandatory matters, “each party is free to bargain or not to bargain, and to agree or not to agree.” Id. However, a party is not permitted to insist on a non-mandatory subject as a condition or a prerequisite to an agreement on the mandatory subjects. Id.; NLRB v. Operating Engineers Local 542, 532 F.2d 902, 907 (3d Cir. 1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 808, 50 L.Ed.2d 789 (1977). Such insistence constitutes, in effect, “a refusal to bargain about the subjects that are within the scope of mandatory bargaining.” Borg-Warner, 356 U.S. at 349, 78 S.Ct. at 723. In the instant case, the Company was found to have committed unfair labor practices by refusing to bargain in that it unlawfully insisted on three allegedly non-mandatory subjects. A charge based on insistence on a fourth non-mandatory subject was dropped by the ALJ. As to each of these alleged non-mandatory subjects we must first review the board’s determination of whether or not the issue involved was in fact non-mandatory. We must then consider whether there was unlawful insistence by the company on that subject. The Supreme Court has made it clear that the Board has special expertise in classifying bargaining subjects as mandatory or non-mandatory and that Congress specifically delegated to the Board the primary responsibility of defining the scope of the duty to bargain. See Ford Motor Co. v. NLRB, 441 U.S. 488, 495-96, 99 S.Ct. 1842, 1847-48, 60 L.Ed.2d 420 (1979); Local 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 685-86, 85 S.Ct. 1596, 1599-1600, 14 L.Ed.2d 640 (1965). Accordingly, where the Board’s order has reasonable basis in law and is not inconsistent with the structure of the Act, our review is quite circumscribed. Ford Motor Co., 441 U.S. at 497, 99 S.Ct. at 1849. A. Stenographers In Bartlett-Collins Co., 237 N.L.R.B. 770 (1978), the Board overruled a long line of cases which had, in effect, treated issues preliminary to the negotiation of an agreement, including the issue of the presence of a court reporter at negotiations, as mandatory subjects of bargaining. Id. at 772-73. The Board’s prior position had been that “preliminary matters are just as much part of the process of collective bargaining as the negotiations over wages, hours, etc.,” General Electric Co., 173 N.L.R.B. 253, 257 (1968), and that it was wholly consistent with the purposes of the Act that the parties be allowed to arrive at a resolution of their differences on preliminary matters by the same methods of compromise and accommodation as are used in resolving equally difficult differences relating to substantive terms and conditions of employment. St. Louis Typographical Union, No. 8, 149 N.L.R.B. 750, 752 (1964). Accordingly, the Board had applied a good faith standard in evaluating the propriety of a party’s insistence on the presence of stenographers. See, e.g., Architectural Fiberglass Co., 165 N.L.R.B. 238, 239 (1967); St. Louis Typographical Union, No. 8, 149 N.L.R.B. 750, 751-52 (1964); Allis Chalmers Mfg. Co., 106 N.L.R.B. 939 (1953). In Bartlett-Collins, however, the Board reexamined the question of the presence of court reporters at negotiating sessions and concluded that the issue did not involve “wages, hours, and other terms and conditions of employment”. 237 N.L.R.B. at 772. The Board reasoned that The question of whether a court reporter should be present during negotiations is a threshhold matter, preliminary and subordinate to substantive negotiations such as are encompassed within the phrase “wages, hours, and other terms and conditions of employment.” As it is our statutory responsibility to foster and encourage meaningful collective bargaining, we believe that we would be avoiding that responsibility were we to permit a party to stifle negotiations in their inception over such a threshhold issue. Id. at 773. The Board’s newly expressed position is a reasonable interpretation of the Act. We perceive no significant relationship between the presence or absence of a stenographer at negotiating sessions, and the terms or conditions of employment of the employees. Cf. Chemical Workers Local No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 179, 92 S.Ct. 383, 397, 30 L.Ed.2d 341 (1971) (mandatory subjects limited to issues that settle an aspect of the relationship between the employer and employees); NLRB v. Massachusetts Nurses Ass’n, 557 F.2d 894, 897-98 (1st Cir. 1977) (an interest arbitration clause is a non-mandatory subject of bargaining as it bears only a remote or incidental relationship to terms or conditions of employment); Leeds & Northrup Co. v. NLRB, 391 F.2d 874, 877 (3d Cir. 1968) (principle at heart of statutory provision is requiring negotiation on basic terms which are vital to the employees’ economic interest). It would be contrary to the policy of the Act, which mandates negotiation over the substantive provisions of the employer-employee relationship, to permit negotiations to break down over this preliminary procedural issue. The Company contends that the Board’s new position is contrary to law. To support this contention the Company argues that the Board’s long standing interpretation of the Act, which had applied a good faith standard, is entitled to great weight. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). In addition, the Company cites three court of appeals cases which have applied the good faith standard to preliminary issues of bargaining procedures. NLRB v. Southern Transport, Inc., 355 F.2d 978 (8th Cir. 1966) (stenographers); Mid-America Transportation Co. v. NLRB, 325 F.2d 87 (7th Cir. 1963) (site of bargaining); NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131 (1st Cir. 1953) (insistence on stenographers is not evidence of bad faith). The Company’s reliance on these cases, however, is misplaced. In Bell Aerospace, the Board attempted to change its prior long-standing position concerning the Act’s coverage of managerial employees. The Court used the Board’s long-standing interpretation of the Act in conjunction with its finding of a clearly expressed legislative intent that managerial employees were outside of the scope of the Act. 416 U.S. at 274-89, 94 S.Ct. at 1761-69. In particular, the Court noted on Congress’ reenactment of the legislation without relevant change in the face of the Board’s early cases as evidence of congressional agreement with the Board’s position. Id. at 275, 94 S.Ct. at 1762. This is different from the instant case where the only clearly expressed intent of Congress was that the definition of mandatory subjects of bargaining was peculiarly within the Board’s area of expertise. See Ford Motor Co. v. NLRB, 441 U.S. 488, 495-96, 99 S.Ct. 1842, 1848, 60 L.Ed.2d 420 (1979). In such cases, it is clear that so long as the Board’s new position is fully reasoned and explained, and that the position does not exceed the bounds of its Act, the Board is not precluded from overruling its prior cases. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 264-67, 95 S.Ct. 959, 967-968, 43 L.Ed.2d 171 (1975). See Local 777, Seafarers International Union, 603 F.2d 862, 893-94 (D.C. Cir.1978); NLRB v. Wentworth Institute, 515 F.2d 550, 555 (1st Cir. 1975). Moreover, the fact that three courts of appeals had utilized a good faith standard in earlier cases is not dispositive in light of the existing Board position at the time those cases were decided. The Company also argues that the Board’s new position expands the concept of non-mandatory subjects beyond that which was intended by Borg-Warner. This argument would have us limit the applicability of the mandatory, non-mandatory dichotomy to those issues which a party seeks to incorporate into a collective bargaining agreement. It is based on the statement in Borg-Warner that the employer may not “refuse to enter into agreements on the ground that they do not include some proposal which is not a mandatory subject of bargaining.” NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349, 78 5. Ct. 718, 722, 2 L.Ed.2d 823 (1958). Borg-Warner is not so limited. The opinion notes that there is a core of issues about which the parties are compelled by the Act to bargain, but about which they need not agree. The Court’s reasoning makes clear that the parties are not to be permitted to avoid bargaining on these core issues by insisting on subjects outside of this core. As long as the issue is not defined to be within this core of wages, hours, and other terms and conditions of employment, it matters not whether the issue concerns a clause to be inserted in the current contract. Moreover, even were we to find that Borg-Warner was limited in the manner suggested by the Company, it would not necessarily follow that the Board overstepped its authority in applying a rule based on the Borg-Warner rationale to these, preliminary, procedural issues. Accordingly, we will affirm the Board’s conclusion that the presence or absence of stenographers constitutes a non-mandatory subject of bargaining. We are, however, concerned with the Board’s affirmance of a decision of an ALJ which seems to imply that in all instances, the party that wishes to introduce a stenographer into the negotiations is committing the unfair labor practice. See generally NLRB v. Southern Transport, Inc., 355 F.2d 978 (8th Cir. 1966); St. Louis Typographical Union, No. 8, 149 N.L.R.B. 750, 758 (1964) (discussing the benefits of stenographers at negotiations). In Bartlett-Collins, the Board explicitly stated that the issue of the presence of a stenographer was a matter “over which neither party is lawfully entitled to insist to impasse.” 237 N.L.R.B. at 772-73. It would appear that it is equally violative of the Act to insist on the absence of stenographers as to insist that stenographers be present. The fact that an issue is a non-mandatory subject of bargaining does not of itself require that one substantive result be favored over another. It implies only that the parties may not preclude other negotiations on the basis of that issue. Borg-Warner, 356 U.S. at 349, 78 S.Ct. at 722. In the instant case, however, the union was not charged with an unfair labor practice as they stood ready to bargain, and in fact did negotiate, in the presence of the stenographer. Accordingly, the substantive question of the appropriateness of stenographers was not before the Board in this case. Having concluded that the stenographer issue is a non-mandatory subject of bargaining, we must decide if the company unlawfully insisted upon the presence of stenographers. The ALJ found that the Company violated §§ 8(a)(5) and (1) of the Act “by insisting to impasse upon professional reporters to make verbatim transcripts.” In making this finding, the ALJ followed the language of Barlett-Collins and numerous other cases which have made it unlawful to insist upon non-mandatory subjects “to impasse.” 237 N.L.R.B. at 773. See, e. g., National Fresh Fruit & Vegeta ble Co. v. NLRB, 565 F.2d 1331, 1334 (5th Cir. 1978); Philip Carey Mfg. Co. v. NLRB, 331 F.2d 720, 727-28 (6th Cir.), cert. denied, 379 U.S. 888, 85 S.Ct. 159, 13 L.Ed.2d 92 (1964). The Company contends that there was no “impasse” in this case because the parties continued to bargain in the presence of the stenographer and that when an impasse finally occurred, it had nothing to do with the stenographers, but was rather due to the inability of the parties to come to an agreement over mandatory subjects. Much of the confusion over this issue is attributable to the talismanic invocation of the word “impasse” to describe that level of insistence which triggers the Borg-Warner unfair labor practice. The concept of “impasse” is relevant in several contexts involving collective bargaining. In each context, however, its significance is somewhat different. “Impasse” may be used to describe that point at which there is a sufficient disagreement over a mandatory subject of bargaining to permit unilateral action by one of the parties on that subject. See, e. g., NLRB v. Katz, 369 U.S. 736, 741-42, 82 S.Ct. 1107, 1110-11, 8 L.Ed.2d 230 (1964); Dallas General Drivers Local 745 v. NLRB, 355 F.2d 842, 844-45 (D.C.Cir. 1966); Industrial Union of Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615, 621 (3d Cir. 1963), cert. denied, 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964). It may also be used to refer to a breakdown in all negotiations over either one or several issues. See, e. g., Oil, Chemical & Atomic Workers Local 3-89 v. NLRB, 405 F.2d 1111, 1117 (D.C.Cir.1968); accord, Philip Carey Mfg. Co. v. NLRB, 331 F.2d 720, 726 — 28 (6th Cir.), cert. denied, 379 U.S. 888, 85 S.Ct. 159, 13 L.Ed.2d 92 (1964); Industrial Union of Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied, 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964). In this latter sense, “impasse” is relevant to the Borg-Warner question. See page 180, infra; Marine & Shipbuilding Workers, 320 F.2d 615 at 618; accord, Oil, Chemical & Atomic Workers Local 3-89, 405 F.2d at 1117; Philip Carey, 331 F.2d at 726-28. We have grave doubts, however, as to the usefulness of the concept of “impasse” as a level of disagreement over a single issue where that issue is a non-mandatory subject of bargaining. As Borg-Warner makes clear, there can be no adverse consequence from a party’s failure to agree or even his failure to bargain about a non-mandatory subject of bargaining. What Borg-Warner prohibits is insistence upon a non-mandatory subject as a condition precedent to entering an agreement. 356 U.S. at 349, 78 S.Ct. at 722. This is the standard which must guide the inquiry. See NLRB v. Operating Engineers Local 542, 532 F.2d 902, 907 (3d Cir. 1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 808, 50 L.Ed.2d 789 (1977); accord, NLRB v. Sheet Metal Workers Local 38, 575 F.2d 394, 398 (2d.Cir. 1978); Hess Oil Corp. v. NLRB, 415 F.2d 440 (5th Cir. 1969). When viewed in this light, we believe that there is substantial evidence on the record as a whole, see Universal Camera Co. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), to support the Board’s finding that the Company insisted on the presence of stenographers as a precondition to bargaining and, a fortiori, as a precondition to any agreement on mandatory issues. After almost one hour of discussion, and despite vigorous union objection, the Company negotiator simply stated that the transcript would be available to be read and that that was “as blunt as [he] could put it.” To require the union to have refused to bargain in the face of this insistence would be contrary to the purpose of Borg-Warner. Accordingly, the Board’s finding of an unfair labor practice on the stenographer issue will be affirmed. B. The Contract Provisions We now turn to the Company’s contract proposals. Because we conclude that the Company did not unlawfully insist on these proposals, we shall not enforce the unfair labor practice findings relating to them. This decision makes it unnecessary to address the Company’s contention that the clauses in question actually concerned mandatory subjects of bargaining. This issue is irrelevant to our disposition of the case. The ALJ found it to be undisputed that the negotiations had reached an impasse by the time that the union went on strike. He relied on the existence of that impasse to support his finding of unlawful insistence by the company on the allegedly non-mandatory contract proposals. Once again, analysis must begin with Borg-Warner’s holding that a party may not avoid bargaining on the mandatory subjects by insistence on non-mandatory proposals. Borg-Warner, 356 U.S. at 349, 78 S.Ct. at 722; see Oil, Chemical & Atomic Workers Local 3-89, 405 F.2d 1117. This is precisely what occurs when a party’s insistence on non-mandatory proposals causes negotiations between the parties to reach an impasse. Moreover, it is well-settled that the insistence upon the non-mandatory proposal need not be the sole cause of the parties’ failure to reach agreement in order for a Borg-Warner violation to be found. Industrial Union of Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615, 618 (3d Cir. 1963), cert. denied, 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964); accord, Rogers Mfg. Co. v. NLRB, 486 F.2d 644, 649 (6th Cir. 1973), cert. denied, 416 U.S. 937, 94 S.Ct. 1937, 40 L.Ed.2d 288 (1974); Philip Carey, 33 F.2d at 728. The Company argues that it may not be held responsible for the impasse, which it argues was caused by the Union’s insistence on acceptance of the basic steel settlement agreement rather than by its insistence on the non-mandatory proposals. It contends that an impasse on the mandatory subject of bargaining would have occurred even in the absence of its position on the non-mandatory proposals. The ALJ did not accept this contention, concluding that “it is impossible to know as a matter of hindsight what the union might have done... if the [company] had not exacerbated the negotiations with unilaterally imposed conditions.” We cannot agree with this conclusion. The record demonstrates that even had the Company dropped its non-mandatory proposals, the parties would have been at an impasse. From June 7 until August 1, the Union did not move from its original positions. Most notably, a witness for the general counsel testified the Union insisted that there would be a strike unless the Company agreed to accept the Basic Steel Settlement Agreement. Indeed, the evidence indicates that the Union’s position was that it would not even call a meeting of the membership unless the Company accepted the Basic Steel Settlement Agreement and dropped its 22 demands. The Company’s negotiator testified that shortly before the strike, members of the Union committee had stated “they had a mandate from the rank and file that they must have the 1977 Steel Settlement Agreement in its entirety, and there are to be no changes in the 1974 basic agreement, and that there would be no meetings as far as ratification meetings or any other type of meetings unless they satisfied that mandate.” This position was maintained by the Union far beyond the date at which the ALJ found the bargaining impasse. We do not believe that there is substantial evidence on the record to support the Board’s conclusion that the Company had not met its burden in demonstrating that an impasse would have occurred even in the absence of the non-mandatory proposals. While it is true that insistence on non-mandatory proposal, need not be the sole cause of the impasse in negotiations, it must be a cause of the impasse. In the instant case, the impasse would have occurred even absent the party’s insistence on the non-mandatory proposals. Under the facts of this case, it cannot be said that the insistence on the non-mandatory proposal prevented agreement on any mandatory subjects. Therefore, the prohibition of Borg-Warner has not been violated. The mere fact of an impasse coincidental to continued disagreement on a non-mandatory subject of bargaining will not trigger the Borg-Warner unfair labor practice. Accordingly, we will deny enforcement of the finding of unfair labor practices based on the Company’s two contract proposals. It also becomes unnecessary to consider the Union’s claim that the Company’s proposal concerning the second level of the grievance procedure constituted a non-mandatory subject of bargaining. On this, the Board’s finding of no unfair labor practice will be affirmed. Ill Finally, we consider the Board’s conclusion that the strike which began on August 1,1977, was an unfair labor practice strike, and its corresponding order that the strikers are entitled to reinstatement and back pay. See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956); NLRB v. Cast Optics Corp., 458 F.2d 398 (3d Cir.), cert. denied, 409 U.S. 850, 93 S.Ct. 58, 34 L.Ed.2d 92 (1972). For a strike to be deemed an unfair labor practice strike, it must, at least in part, be caused by an unfair labor practice. See Cast Optics Corp., 458 F.2d at 398; Electrical Workers Local 613 v. NLRB, 328 F.2d 723, 726 (3d Cir. 1964); accord, Cagle’s, Inc. v. NLRB, 588 F.2d 943, 950 (5th Cir. 1979); Larand Leisurelies, Inc. v. NLRB, 523 F.2d 814, 820 (6th Cir. 1975). The mere fact that an unfair labor practice is committed prior to a strike does not necessarily render that strike an unfair labor practice strike. See NLRB v. Broadmoor Lumber Co., 578 F.2d 238, 242 (9th Cir. 1978); NLRB v. Colonial Haven Nursing Home, Inc., 542 F.2d 691, 704-05 (7th Cir. 1976); Cf. Cagle’s, 588 F.2d at 950 (5th Cir. 1979) (must be evidence of causal connection). In the instant case, the Board found that the three unfair labor practices, which it had concluded had been committed by the employer, were causes of the strike. We are presented with a somewhat different question, since we have concluded that only the Company’s insistence on the presence of stenographers constituted an unfair labor practice. We do not believe that the record, considered as a whole, could support a finding that the strike was in part caused by this unfair labor practice. The record is devoid of evidence that the presence of stenographers contributed to the Union decision to strike. On the contrary, the vice-president of the local, Mr. Ehman, who was a member of the negotiating committee, testified that the Union’s position on July 29, 1977, three days before the strike, was that there would be a strike “unless the Union’s number one proposal [acceptance of the Basic Steel Settlement Agreement] was agreed to between the parties, and that the Company’s 22 demands. were withdrawn.” The Company’s chief negotiator testified that this position had been expressed by several other members of the Union’s negotiating committee as well. Moreover, the Company’s chief negotiator testified that on July 29, Mr. Ehman stated, “we will be striking over economics.” There is no mention on the record of any link between the strike and the stenographers. Accordingly, we cannot affirm the Board’s finding that the strike was an unfair labor practice strike and we will not enforce the order of reinstatement and back pay. To summarize, we will enforce the order of the NLRB only insofar as it concerns the unfair,, labor practice based on the Company’s unlawful insistence upon the presence of stenographers. The order based on the other unfair labor practice findings will not be enforced, nor will the strike be characterized as an unfair labor practice strike. Finally, we will affirm the Board’s dismissal of the remaining unfair labor practice charge. . The June 21 charge cited the Company for insisting on having stenographers present and on making the transcripts available to any employee. This charge was amended by the December 20 charge which eliminated references to the availability of the transcript. . Stenographers were also present at almost all of the sessions subsequent to the strike. . In St. Louis Typographical Union, No. 8, 149 N.L.R.B. 750 (1964), the Board traced the development of the stenographer issue following the case of Reed & Prince Mfg. Co., 96 N.L.R.B. 850 (1951), which had treated the company’s insistence on stenographers as evidence of bad faith. In subsequent decisions, the legality of insisting upon a stenographic transcript at bargaining session has been determined in light of the entire bargaining context rather than on a per se basis. Similarly, in cases dealing with charges of a refusal to bargain arising from adamant insistence on other conditions preliminary to actual bargaining, such as the determination of the time or place of bargaining, the Board has avoided establishing rigid standards favoring any particular proposal, but has, rather, attempted to examine each case in terms of whether or not the positions were taken to avoid or frustrate the legal objection to bargain. 149 N.L.R.B. at 751-52 (footnote omitted). . The Company argues that we should not accept the Board’s new position because it failed in Bartlett-Collins to explicitly overrule its prior line of cases. See West Sand & Gravel, 87 C.C.H. >' 11,800, n.8 (1st Cir. 1979). Without passing on the necessity of explicitly “overruling,” we note that the Company’s contention is belied by the Board’s statement in Bartlett-Collins that stenographers are a non-mandatory subject of bargaining and “[pjrior Board decisions indicating to the contrary are hereby overruled.” 237 N.L.R.B. at 773. . The Company contests the retroactivity of the Board’s order and urges its reliance on

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.

Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?

NADER v. ALLEGHENY AIRLINES, INC. No. 75-455. Argued March 24, 1976 Decided June 7, 1976 Powell, J., delivered the opinion for a unanimous Court. White, J., filed a concurring opinion, post, p. 308. Reuben B. Robertson III argued the cause for petitioner. With him on the briefs was Alan B. Morrison. E. Barrett Prettyman, Jr., argued the cause for respondent. With him on the briefs were Frank F. Roberson and William A. Bradford, Jr. Donald C. Comlish and Robert Glosser filed a brief for the Air Transport Association of America as amicus curiae. Mr. Justice Powell delivered the opinion of the Court. In this case we address the question whether a common-law tort action based on alleged fraudulent misrepresentation by an air carrier subject to regulation by the Civil Aeronautics Board (Board) must be stayed pending reference to the Board for determination whether the practice is “deceptive” within the meaning of § 411 of the Federal Aviation Act of 1958, 72 Stat. 769, 49 U. S. C. § 1381. We hold that under the circumstances of this case a stay pending reference is inappropriate. I The facts are not contested. Petitioner agreed to make several appearances in Connecticut on April 28, 1972, in support of the fundraising efforts of the Connecticut Citizen Action Group (CCAG), a nonprofit public interest organization. His two principal appearances were to be at a noon rally in Hartford and a later address at the Storrs campus of the University of Connecticut. On April 25, petitioner reserved a seat on respondent’s flight 864 for April 28. The flight was scheduled to leave Washington, D. C., at 10:15 a. m. and to arrive in Hartford at 11:15 a. m. Petitioner’s ticket was purchased from a travel agency on the morning of the flight. It indicated, by the standard “OK” notation, that the reservation was confirmed. Petitioner arrived at the boarding and check-in area approximately five minutes before the scheduled departure time. He was informed that all seats on the flight were occupied and that he, like several other passengers who had arrived shortly before him, could not be accommodated. Explaining that he had to arrive in Hartford in time for the noon rally, petitioner asked respondent’s agent to determine whether any standby passengers had been allowed to board by mistake or whether anyone already on board would voluntarily give up his or her seat. Both requests were refused. In accordance with respondent’s practice, petitioner was offered alternative transportation by air taxi to Philadelphia, where connections could be made with an Allegheny flight scheduled to arrive in Hartford at 12:15 p. m. Fearing that the Philadelphia connection, which allowed only 10 minutes between planes, was too close, petitioner rejected this offer and elected to fly to Boston, where he was met by a CCAG staff member who drove him to Storrs. Both parties agree that petitioner’s reservation was not honored because respondent had accepted more reservations for flight 864 than it could in fact accommodate. One hour prior to the flight, 107 reservations had been confirmed for the 100 seats actually available. Such overbooking is a common industry practice, designed to ensure that each flight leaves with as few empty seats as possible despite the large number of “no-shows” — reservation-holding passengers who do not appear at flight time. By the use of statistical studies of no-show patterns on specific flights, the airlines attempt to predict the appropriate number of reservations necessary to fill each flight. In this way, they attempt to ensure the most efficient use of aircraft while preserving a flexible booking system that permits passengers to cancel and change reservations without notice or penalty. At times the practice of overbooking results in oversales, which occur when more reservation-holding passengers than can be accommodated actually appear to board the flight. When this occurs, some passengers must be denied boarding (“bumped”)- The chance that any particular passenger will be bumped is so negligible that few prospective passengers aware of the possibility would give it a second thought. In April 1972, the month in which petitioner’s reservation was dishonored, 6.7 confirmed passengers per 10,000 enplanements were denied boarding on domestic flights. For all domestic airlines, oversales resulted in bumping an average of 5.4 passengers per 10,000 enplanements in 1972, and 4.6 per 10,000 enplanements in 1973. In domestic operations respondent oversold 6.3 seats per 10,000 enplanements in 1972 and 4.5 seats per 10,000 enplanements in 1973. Thus, based on the 1972 experience of all domestic airlines, there was only slightly more than one chance in 2,000 that any particular passenger would be bumped on a given flight. Nevertheless, the total number of confirmed ticket holders denied seats is quite substantial, numbering over 82,000 passengers in 1972 and about 76,000 in 1973. Board regulations require each airline to establish priority rules for boarding passengers and to offer “denied boarding compensation” to bumped passengers. These “liquidated damages” are equal to the value of the passenger’s ticket with a $25 minimum and a $200 maximum. 14 CFR §250.5 (1975). Passengers are free to reject the compensation offered in favor of a common - law suit for damages suffered as a result of the bumping. Petitioner refused the tender of denied boarding compensation ($32.41 in his case) and, with CCAG, filed this suit for compensatory and punitive damages. His suit did not seek compensation for the bumping per se but asserted two other bases of liability: a common-law action based on fraudulent misrepresentation arising from respondent’s alleged failure to inform petitioner in advance of its deliberate overbooking practices, and a statutory action under § 404 (b) of the Act, 49 U. S. C. § 1374 (b), arising from respondent’s alleged failure to afford petitioner the boarding priority specified in its rules filed with the Board under 14 CFR § 250.3 (1975). The District Court entered a judgment for petitioner on both claims, awarding him a total of $10 in compensatory damages and $25,000 in punitive damages. Judgment also was entered for CCAG on its misrepresentation claim, with an award of $51 in compensatory damages and $25,000 in punitive damages. The Court of Appeals for the District of Columbia Circuit reversed. 167 U. S. App. D. C. 350, 512 F. 2d 527 (1975). A number of its rulings were not presented to this Court in the petition for certiorari. The award of damages to CCAG was reversed on the ground that the organization was too “remote from the transaction” to fall “within the class of persons who may recover.” Id., at 372, 512 F. 2d, at 549. The merits of petitioner’s statutory claim were remanded for further findings. The award of punitive damages to petitioner on the statutory claim was reversed on the ground that respondent’s conduct contained no “elements of intentional wrongdoing or conscious disregard for” petitioner’s rights. Id., at 373, 512 F. 2d, at 550. The question of punitive damages for the common-law claim was remanded for further findings on respondent’s good faith. In particular, the trial court was to consider “whether Allegheny reasonably believed that its policies were completely lawful and in fact carried the approval of the Board.” Id., at 374, 512 F. 2d, at 551. None of these rulings was presented to this Court in the petition for certiorari. The only issue before us concerns the Court of Appeals’ disposition on the merits of petitioner’s claim of fraudulent misrepresentation. Although the court rejected respondent’s argument that the existence of the Board’s cease-and-desist power under § 411 of the Act eliminates all private remedies for common-law torts arising from unfair or deceptive practices by regulated carriers, it held that a determination by the Board that a practice is not deceptive within the meaning of § 411 would, as a matter of law, preclude a common-law tort action seeking damages for injuries caused by that practice. Therefore, the court held that the Board must be allowed to determine in the first instance whether the challenged practice (in this case, the alleged failure to disclose the practice of overbooking) falls within the ambit of § 411. The court took judicial notice that a rulemaking proceeding concerning possible changes in reservation practices in response to the 1973-1974 fuel crisis was already underway and that a challenge to the carriers’ overbooking practices had been raised by an intervenor in that proceeding. The District Court was instructed to stay further action on petitioner’s misrepresentation claim pending the outcome of the rulemaking proceeding. The Court of Appeals characterized its holding as “but another application of the principles of primary jurisdiction, a doctrine whose purpose is the coordination of the workings of agency and court.” 167 U. S. App. D. C., at 367, 512 F. 2d, at 544. II The question before us, then, is whether the Board must be given an opportunity to determine whether respondent’s alleged failure to disclose its practice of deliberate overbooking is a deceptive practice under § 411 before petitioner’s common-law action is allowed to proceed. The decision of the Court of Appeals requires the District Court to stay the action brought by petitioner in order to give the Board an opportunity to resolve the question. If the Board were to find that there had been no violation of § 411, respondent would be immunized from common-law liability. A Section 1106 of the Act, 49 U. S. C. § 1506, provides that “[n]othing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” The Court of Appeals found that “although the saving clause of section 1106 purports to speak in absolute terms it cannot be read so literally.” 167 U. S. App. D. C., at 367, 512 F. 2d, at 544. In reaching this conclusion, it relied on Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (1907). In that case, the Court, despite the existence of a saving clause virtually identical to § 1106, refused to permit a state-court common-law action challenging a published carrier rate as “unjust and unreasonable.” The Court conceded that a common-law right, even absent a saving clause, is not to be abrogated “unless it be found that the preexisting right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory.” 204 U. S., at 437. But the Court found that the continuance of private damages actions attacking the reasonableness of rates subject to the regulation of the Interstate Commerce Commission would destroy the purpose of the Interstate Commerce Act, which was to eliminate discrimination by requiring uniform rates. The saving clause, the Court found, “cannot in reason be construed as continuing in shippers a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself.” Id., at 446. In this case, unlike Abilene, we are not faced with an irreconcilable conflict between the statutory scheme and the persistence of common-law remedies. In Abilene the carrier, if subject to both agency and court sanctions, would be put in an untenable position when the agency and a court disagreed on the reasonableness of a rate. The carrier could not abide by the rate filed with the Commission, as required by statute, and also comply with a court's determination that the rate was excessive. The conflict between the court’s common-law authority and the agency’s ratemaking power was direct and unambiguous. The court in the present case, in contrast, is not called upon to substitute its judgment for the agency’s on the reasonableness of a rate — or, indeed, on the reasonableness of any carrier practice. There is no Board requirement that air carriers engage in overbooking or that they fail to disclose that they do so. And any impact on rates that may result from the imposition of tort liability or from practices adopted by a carrier to avoid such liability would be merely incidental. Under the circumstances, the common-law action and the statute are not “absolutely inconsistent” and may coexist, as contemplated by § 1106. B Section 411 of the Act allows the Board, where “it considers that such action . . . would be in the interest of the public,” “upon its own initiative or upon complaint by any air carrier, foreign air carrier, or ticket agent,” to “investigate and determine whether any air carrier . . . has been or is engaged in unfair or deceptive practices or unfair methods of competition . . . .” Practices determined to be in violation of this section “shall” be the subject of a cease-and-desist order. The Court of Appeals concluded — and respondent does not challenge the conclusion here — that this section does not totally preclude petitioner’s common-law tort action. But the Court of Appeals also held, relying on the nature of the airline industry as “a regulated system of limited competition,” American Airlines, Inc. v. North American Airlines, Inc., 351 U. S. 79, 84 (1956), aiid the Board’s duty to promote “adequate, economical, and efficient service,” § 102 (c) of the Act, 49 U. S. C. § 1302 (c), “at the lowest cost consistent with the furnishing of such service,” § 1002 (e)-(2) of the Act, 49 U. S. C. § 1482 (e) (2), that the Board has the power in a § 411 proceeding to approve practices that might otherwise be considered deceptive and thus to immunize carriers from common-law liability. 167 U. S. App. D. C., at 366, 512 F. 2d, at 543. We cannot agree. No power to immunize can be derived from the language of § 411. And where Congress has sought to confer such power it has done SO' expressly, as in § 414 of the Act, 49 U. S. C. § 1384, which relieves those affected by certain designated orders (not including orders issued under § 411) “from the operations of the 'antitrust laws.’ ” When faced with an exemptive provision similar to § 414 in United States Navigation Co. v. Cunard S. S. Co., 284 U. S. 474 (1932), this Court dismissed an antitrust action because initial consideration by the agency had not been sought. The Court pointed out that the Act in question was “restrictive in its operation upon some of the activities of common carriers . . . , and permissive in respect of others.” Id., at 485. See also Far East Conference v. United States, 342 U. S. 570 (1952). Section 411, in contrast, is purely restrictive. It contemplates the elimination of “unfair or deceptive practices” that impair the public interest. Its role has been described in American Airlines, Inc. v. North American Airlines, Inc., supra, at 85: “ ‘Unfair or deceptive practices or unfair methods of competition/ as used in § 411, are broader concepts than the common-law idea of unfair competition. . . . The section is concerned not with punishment of wrongdoing or protection of injured competitors, but rather with protection of the public interest.” As such, § 411 provides an injunctive remedy for vindication of the public interest to supplement the compensatory common-law remedies for private parties preserved by § 1106. Thus, a violation of § 411, contrary to the Court of Appeals5 conclusion, is not coextensive with a breach of duty under the common law. We note that the Board’s jurisdiction to initiate an investigation under § 411 is expressly premised on a finding that the “public interest” is involved. The Board “may not employ its powers to vindicate private rights.” 351 U. S., at 83. Indeed, individual consumers are not even entitled to initiate proceedings under § 411, a circumstance that indicates that Congress did not intend to require private litigants to obtain a § 411 determination before they could proceed with the common-law remedies preserved by § 1106. Cf. Rosado v. Wyman, 397 U. S. 397, 406 (1970). Section 411 is both broader and narrower than the remedies available at common law. A cease-and-desist order may issue under § 411 merely on the Board’s conclusion, after an investigation determined to be in the public interest, that a carrier is engaged in an “unfair or deceptive practice.” No findings that the practice was intentionally deceptive or fraudulent or that it in fact has caused injury to an individual are necessary. American Airlines, Inc. v. North American Airlines, Inc., supra, at 86. On the other hand, a Board decision that a cease-and-desist order is inappropriate does not represent approval of the practice under investigation. It may merely represent the Board’s conclusion that the serious prohibitory sanction of a cease-and-desist order is inappropriate, that a more flexible approach is necessary. A wrong may be of the sort that calls for compensation to an injured individual without requiring the extreme remedy of a cease-and-desist order. Indeed, the Board, in dealing with the problem of overbooking by air carriers, has declined to issue cease-and-desist orders, despite the determination by an examiner in one case that a § 411 violation had occurred. Instead, the Board has elected to establish boarding priorities and to ensure that passengers will be compensated' for being bumped either by a liquidated sum under Board regulations or by resort to a suit for compensatory damages at common law. In sum, § 411 confers upon the Board a new and powerful weapon against unfair and deceptive practices that injure the public. But it does not represent the only, or best, response to all challenged carrier actions that result in private wrongs. C The doctrine of primary jurisdiction “is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.” United States v. Western Pacific R. Co., 352 U. S. 59, 63 (1956). Even when common-law rights and remedies survive and the agency in question lacks the power to confer immunity from common-law liability, it may be appropriate to refer specific issues to an agency for initial determination where that procedure would secure “[ujniformity and consistency in the regulation of business entrusted to a particular agency” or where “the limited functions of review by the judiciary [would be] more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.” Far East Conference v. United States, 342 U. S., at 574-575. See also United States v. Western Pacific R. Co., supra, at 64. The doctrine has been applied, for example, when an action otherwise within the jurisdiction of the court raises a question of the validity of a rate or practice included in a tariff filed with an agency, e. g., Danna v. Air France, 463 F. 2d 407 (CA2 1972); Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U. S. 411, 417-418 (1959), particularly when the issue involves technical questions of fact uniquely within the expertise and experience of an agency — such as matters turning on an assessment of industry conditions, e. g., United States v. Western Pacific R. Co., supra, at 66-67. In this case, however, considerations of uniformity in regulation and of technical expertise do not call for prior reference ;to the Board. Petitioner seeks damages for respondent’s failure to disclose its overbooking practices. He makes no challenge to any provision in the tariff, and indeed there is no tariff provision or Board regulation applicable to disclosure practices. Petitioner also makes no challenge, comparable to those made in Southwestern Sugar & Molasses Co. v. River Terminals Corp., supra, and Lichten v. Eastern Airlines, Inc., 189 F.. 2d 939 (CA2 1951), to limitations on common-law damages imposed through exculpatory clauses included in a tariff. Referral of the misrepresentation issue to the Board cannot be justified by the interest in informing the court’s ultimate decision with “the expert and specialized knowledge,” United States v. Western Pacific R. Co., supra, at 64, of the Board. The action brought by petitioner does not turn on a determination of the reasonableness of a challenged practice — a determination that could be facilitated by an informed evaluation of the economics or technology of the regulated industry. The standards to be applied in an action for fraudulent misrepresentation are within the conventional competence of the courts, and the judgment of a technically expert body is not likely to be helpful in the application of these standards to the facts of this case. We are particularly aware that, even where the wrong sought to be redressed is not misrepresentation but bumping itself, which has been the subject of Board consideration and for which compensation is provided in carrier tariffs, the Board has contemplated that there may be individual adjudications by courts in common-law suits brought at the option of the passenger. The present regulations dealing with the problems of overbooking and oversales were promulgated by the Board in 1967. They provide for denied boarding compensation to bumped passengers and require each carrier to establish priority rules for seating passengers and to file reports of passengers who could not be accommodated. The order instituting these regulations contemplates that the bumped passenger will have a choice between accepting denied boarding compensation as “liquidated damages for all damages incurred ... as a result of the carrier’s failure to provide the passenger with confirmed reserved space,” or pursuing his or her common-law remedies. The Board specifically provided for a 30-day period before the specified compensation need be accepted so that the passenger will not be forced to make a decision before “the consequences of denied boarding have occurred and are known.” After evaluating the consequences, passengers may choose as an alternative “to pursue their remedy under the common law.” III We conclude that petitioner’s tort action should not be stayed pending reference to the Board and accordingly the decision of the Court of Appeals on this issue is reversed. The Court of Appeals did not address the question whether petitioner had introduced sufficient evidence to sustain his claim. We remand the case for consideration of that question and for further proceedings consistent with this opinion. It is so ordered. Brief for Civil Aeronautics Board as Amicus Curiae filed in Court of Appeals, App. B, p. 58. Id., at 50 Id., at 51. On any given flight, of course, the chance that a passenger will be bumped may be higher or lower than the overall average. Id., at 50. Section 404 (b) provides: “No air carrier or foreign air carrier shall make, give, or cause any undue or unreasonable preference or advantage to any particular person, port, locality, or description of traffic in air transportation in any respect whatsoever or subject any particular person, port, locality, or description of traffic in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” Section 411 provides in full: “The Board may, upon its own initiative or upon complaint by any air carrier, foreign air carrier, or ticket agent, if it considers that such action by it would be in the interest of the public, investigate and determine whether any air carrier, foreign air carrier, or ticket agent has been or is engaged in unfair or deceptive practices or unfair methods of competition in air transportation or the sale thereof. If the Board shall find, after notice and hearing, that such air carrier, foreign air carrier, or ticket agent is engaged in such unfair or deceptive practices or unfair methods of competition, it shall order such air carrier, foreign air carrier, or ticket agent to cease and desist from such practices or methods of competition.” The rulemaking proceedings were initiated in January 1974. Emergency Reservation Practices Investigation, 39 Fed. Reg. 823 (1974) (CAB Order 73-12-93, EDR-260). An opinion and an order were issued on April 13, 1976. Emergency Reservation Practices Investigation (CAB Order 76-4-55). The Board concluded that the questions raised by the Court of Appeals in this case were "outside the scope of [the] investigation.” Id., at 7. It specifically noted that “the question of whether intentional overbooking, in general, or nondisclosure of such practice, in particular, is a deceptive trade practice” was not at issue. Id., at 8. In April 1976 the Board announced a proposed rulemaking proceeding with respect to deliberate overbooking and oversales. Priority Rules, Denied-Boarding Compensation Tariffs and Reports of Unaccommodated Passengers: Reexamination of thé Board’s Policies Concerning Deliberate Overbooking and Oversales, 41 Fed. Reg. 16478 (1976) (CAB Order EDR-296). The Board has decided to re-evaluate existing practices in light of a recent "trend toward a higher rate of oversales” and in fight of the fact that oversales “continue to be a significant cause of [consumer] complaints.” Ibid. Among the options to be considered is a requirement that the practice of deliberate overbooking, if allowed to continue, be disclosed to customers. Id., at 16479. The Court later described the saving clause discussed in Abilene as follows: “That proviso was added at the end of the statute, — not to nullify other parts of the Act, or to defeat rights or remedies given by preceding sections, — but to preserve all existing rights which were not inconsistent with those created by the statute. It was also intended to preserve existing remedies, such as those by which a shipper could, in a state court, recover for damages to property while in the hands of the interstate carrier; damages caused by delay in shipment; damages caused by failure to comply with its common law duties and the like.” Pennsylvania R. Co. v. Puritan Coal Mining Co., 237 U. S. 121, 129-130 (1915). Cf. Federal Trade Comm’n v. Klesner, 280 U. S. 19, 25-26 (1929); Holloway v. Bristol-Myers Corp., 158 U. S. App. D. C. 207, 212, 485 F. 2d 986, 991 (1973) (both opinions discuss § 5 of the Federal Trade Commission Act, 38 Stat. 717, as amended, 15 U. S. C. § 45, which this Court, in American Airlines, Inc. v. North American Airlines, Inc., 351 U. S., at 82, described as the model for §411). In the late 1950’s, § 411 investigations were initiated against two carriers charged with deliberate overbooking. One of these investigations was terminated on the ground that the record showed no deliberate overbooking by the carrier. Eastern Air Lines Overbooking Enforcement Proceeding, 30 C. A. B. 862 (1960). The other was terminated, after a finding by the examiner of a §411 violation, in favor of an industrywide investigation. National Airlines, Inc., Enforcement Proceeding, 31 C. A. B. 390 (1960). See nn. 15-18 and accompanying text, infra. In 1965, the Board proposed a rule requiring carriers to notify individual passengers of overbooked conditions 12 hours prior to the scheduled departure time. Passenger Priorities and Overbooked Flights: Notice of Proposed Rule Making, 30 Fed. Reg. 13236 (1965) (CAB Order EDR-95). This proposal subsequently was abandoned after industry opposition on the ground that it was excessively rigid and unworkable. Priority Rules, Denied Boarding Compensation Tariffs, And Reports of Unaccommodated Passengers: Notice of Proposed Rule Making, 32 Fed. Reg. 459, 460-461 (1967) (CAB Order EDR-109). The Board’s abandonment of this proposal cannot be read as blanket approval of failure to make a public disclosure of overbooking practices. The cost of an individual notification program in terms of expense, public relations, and passenger confusion could be prohibitive. But alternative means of disclosure may be significantly less disruptive. Petitioner suggests, for example, that carrier overbooking practices be included in tariffs, which are required to be available for public inspection. And the Board has approved an innovative approach suggested by Eastern Air Lines, which provides for a system of limited overbooking in which passengers subject to possible denial of boarding are advised at the outset of their status. See Delta Air Lines, Inc. v. CAB, 147 U. S. App. D. C. 272, 455 F. 2d 1340 (1971) (aff’g CAB Order 71-6-120). For example, if respondent’s overbooking practices were detailed in its tariff and therefore available to the public, a court presented with a claim of misrepresentation based on failure to disclose need not make prior reference to the Board, as it should if presented with a suit challenging the reasonableness of practices detailed in a tariff. Rather, the court could, applying settled principles of tort law, determine that the tariff provided sufficient notice to the party who brought the suit — as, indeed, petitioner suggests it would. Reply Brief for Petitioner 3-4, n. 3. Priority Rules, Denied Boarding Compensation Tariffs and Reports of Unaccommodated Passengers, 32 Fed. Reg. 11939 (1967) (CAB Order ER-503). See 14 CFR §250.1 et seq. (1975). CAB Order ER-503, supra, 32 Fed. Reg. 11943. Id., at 11942. Foreign Air Carriers: Priority Rules, Denied Boarding Compensation Tariffs and Reports of Unaccommodated Passengers, 38 Fed. Reg. 15083, 15084 (1973) (CAB Order EDR-248) (amending existing regulations to include foreign air carriers). See also testimony of Jerome F. Huisentruit, assistant general counsel for the Air Transport Association of America and respondent’s witness on Board jurisdiction, App. 72-73. The contemplation that common-law remedies will continue to exist is in conformance with longstanding Board policy dating back at least to the Board’s approval in 1962 of an industry agreement covering trunk carriers and calling for ticketing time limits and reservation charges in combination with a provision for denied boarding compensation. See Domestic Trunklines, Tariff Agreement, 35 C. A. B. 881 (1962) (CAB Order E-18064). The Board specifically rejected the carriers’ proposal that the denied boarding compensation be made an exclusive remedy: “[T]o the extent that the proposed tariff provision is designed to restrict a passenger from seeking damages to which he would otherwise be entitled under the common law, we find it to be adverse to the public interest. Accordingly, we shall condition our approval of the agreement to make clear that the prescribed penalty is a minimum obligation of the carrier which, only if accepted by the passenger, would terminate the carrier’s obligation.” Id., at 882-883. The Court of Appeals specifically remanded for reconsideration of the award of punitive damages on petitioner’s claim of fraudulent misrepresentation. The propriety of that ruling was not challenged in this Court. As the issues of ultimate liability and damages are not before us, we express no opinion as to their merits. We conclude above that mere compliance with agency regulations is not sufficient in itself under the Act to exempt a carrier from common-law liability. We make clear, however, that this conclusion is not intended to foreclose the courts on remand from considering, in relation to other issues in the case, evidence that the Board was fully advised of the practice complained of, and that the carrier had cooperated with the Board.

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FIREMAN’S FUND INSURANCE COMPANY OF SAN FRANCISCO, California, a California Corporation, Appellant, v. Joseph A. HANLEY and Ruth C. Hanley, Appellees. No. 13201. United States Court of Appeals Sixth Circuit. Feb. 25, 1958. J. T. Hammond, Benton Harbor, Mich., and Herbert R. Stoffels, Chicago, 111., for appellant. Harold S. Sawyer, Grand Rapids, Mich. (Harold S. Sawyer, Warner, Nor-cross & Judd, Grand Rapids, Mich., John T. Ryan, St. Joseph, Mich., on the brief), for appellees. Before ALLEN and MILLER, Circuit Judges, and BOYD, District Judge. ALLEN, Circuit Judge. This appeal arises out of an action on an insurance policy for the destruction by landslide of a residence and real property located in St. Joseph, Michigan. The residence occupied the top of a bluff some 80 feet high overlooking the lake. The jury returned a verdict for plaintiffs upon which judgment was rendered. The case arises out of the following facts which, in general, are not in controversy : On March 13, 1954, plaintiffs, husband and wife, purchased an insurance policy from defendant insuring the property against “All Physical Loss” except that covered by certain exclusions contained in Section III, the pertinent portions of which are as follows: “Exclusions: This Policy Does Not Insure Against: * * * “B. Loss by termites or other insects; deterioration; smoke from industrial operations; rust, wet or dry rot; mould; mechanical breakdown; normal settling, shrinkage, or expansion in walls, floors or ceilings ; this Exclusion, however, shall not apply to loss by Fire, Smoke (except as specifically excluded above), Explosion, Landslide, Total or Partial Collapse, Water Damage, and Glass Breakage, caused by perils excluded in this paragraph; “C. Loss by surface waters, flood waters, waves, tide or tidal wave, high water, or overflow of streams or bodies of water, all whether driven by wind or not; this Exclusion, however, shall not apply to loss by Fire or Explosion caused by perils excluded in this paragraph;” For many years prior to 1954 there were severe storms on Lake Michigan. For several years the level of the lake had been unusually high. Waves and high water were driven by winds against the bluff on which plaintiffs had built their house. Especially heavy storms occurred during 1951, 1952 and 1953. The action of the waves, combined with the high water, created extensive erosion along the shore line in the vicinity of St. Joseph, Michigan. Before he secured the insurance in 1948 plaintiff, Joseph Hanley, had partially constructed a seawall and jetty to protect the property and restore the beach. He completed these about the same time that he secured the insurance from defendants in 1948. During 1951, 1952, and 1953 land on the bluff sloughed off into the lake from time to time and five houses in the area were either destroyed or moved for safety. By the spring of 1954, due presumably to the protective structures in the lake built by land owners, a 30 to 40 foot sand beach had been established at the foot of the bluff below plaintiffs’ property. The toe of the bluff during that period was not washed by the waves. In fact, a bulldozer, a crane and other equipment used in building the seawall at the foot of the bluff were stored upon the beach. The bluff was precipitous and about 20 to 30 feet from the top there was a horizontal stratum of clay-sand which regularly carried and at times emitted ground water. At the end of September, 1954, 16 days of exceptional rainfall occurred during which 8.-67 inches of rain fell in the area. During this period the rain percolated into the ground or drained off from plaintiffs’ premises, which were higher than and sloped down to the adjoining real property. On October 13, 1954, a landslide in the upper portion of the bluff cut off some 5 feet of the lawn facing the lake. On October 17, 1954, a large landslide occurred at the rear of plaintiffs’ property covering an area of about 30 feet from east to west and an even greater distance north and south roughly following the shore of the lake. The landslide took off about 40 feet at the top of the 80-foot bluff. The entire rear portion of plaintiffs’ house was undermined. Large cracks appeared, the floors tilted, and eventually the structure was a total loss. Plaintiffs made diligent efforts to secure the removal or salvage of the house but no one would attempt to move it from the top of the bluff. Some ten months later the roof of the house blew off. It was subsequently sold for salvage for a net sum of $1,020. On October 26, 1954, after the entire loss had accrued, defendant cancelled the policy in accordance with its provisions. Under plaintiffs’ insurance contract replacement cost was the measure of damages. This was figured in the policy at $30,000. The policy also provided for reimbursement of amounts actually expended in securing other living quarters and additional living expenses. Testimony was given to the effect that the replacement value of the house at the time of the loss was $29,000 and additional living and other recoverable expenses were shown to be $562.61. A mortgage existed on the property upon which $8,000 was still due when the loss occurred. Following the removal of plaintiffs and sale of the house the mortgage was foreclosed. Under the instruction of the court the jury deducted the net salvage payment and returned a verdict for plaintiff in the sum of $26,792.-61. Defendants claim (1) that the charge of the court constituted reversible error; (2) that, in view of the fact that the destroyed property was subject to a mortgage under which a balance of $8,-000 was unpaid at the time of the loss, $8,000 should have been deducted from the amount of the verdict; and (3) that plaintiffs are not entitled to recover damages on the basis of replacement value because they attempted in 1954 to sell the property for $20,000. The principal question is whether the District Court committed reversible error in instructing the jury as follows with reference to the existence of liability: “Testimony has been presented in this case from which the jury could find that the damage to the plaintiffs’ property resulted from causes within the coverage of the policy, and testimony has been presented from which the jury could find that the damage resulted from causes excluded from the coverage of the policy; and testimony has further been presented from which the jury could find that the damage may have resulted from a combination, concurrence, and working together of causes within the coverage and causes excluded from the coverage of the policy. “Therefore, the court instructs the jury that if you find as a fact that the damage to the plaintiffs’ property resulted from a combination, concurrence, and working together of causes within the coverage of the policy and causes excluded from the coverage of the policy, the court instructs you that the plaintiffs are entitled to recover in this action.” Defendant contends that the dominant cause of the loss was not the landslide, but the long-continued erosion of the shore line due to high water and the action of the wind and waves. It argues that, due to the long existence of this condition, it was inevitable that plaintiffs’ house would be destroyed and therefore the general term “All Physical Loss” did not insure against the risk of landslide because it was not fortuitous. Appleman on Insurance Law and Practice, Vol. 5, section 3272; Richards on Insurance, 5th Edition, Vol. 2, Sections 206, 212. Defendant urges in effect that under the decision in Aetna Insurance Company v. Boon, 95 U.S. 117, 24 L.Ed. 395, an admittedly excluded risk such as damage caused by waves, high water or surface water, combining with a covered factor such as landslide, does not establish liability against the insurer. In the Boon case, supra, a fire insurance policy had been issued upon plaintiff’s merchandise located in a store at Glasgow, Missouri. The policy provided that the company should not be liable for damage by fire which might “happen or take place by means of any invasion, insurrection, riot or civil commotion, or of any military or usurped power * * The city of Glasgow at the time of the fire was occupied by the United States military forces. It was attacked by Confederate armed forces. In the ensuing battle United States troops set fire to the city hall to prevent the capture of important military stores. The fire spread and eventually destroyed the building in which plaintiff’s insured goods were located. The United States Circuit Court allowed recovery, but the Supreme Court of the United States reversed the judgment and ordered that judgment be entered for the defendant. It held that the Confederate invasion was the “predominating and operative cause” of the fire which occurred while the attack was in progress. It pointed out that the attack never ceased to operate as a cause until the loss was complete, that it created the military necessity for the destruction of the military stores, that the fire which destroyed the property was caused by an invasion by military or usurped power and was specifically excepted from the risk undertaken by the insurer. We recognize that the Boon decision is an authority followed in numerous lower court decisions presenting identical or closely similar policy provisions and closely similar facts. However, we think that case is not controlling here. The insurance policy construed in the Boon case contained an exclusive provision which was clear and unambiguous. Moreover, the facts are not closely similar to those herein presented. In the Boon case the court emphasized the fact that when the fire destroyed plaintiff’s goods the attack of the Confederates was in progress and declared that the invasion and' the attack compelled and caused the fire. Also, the court held that the loss fell within the precise terms of the policy above quoted. Defendant contends that, applying the rule in the Boon case, supra, it was shown-herein that the cause of the landslide was an excluded risk, namely, high water, surface water and waves driven against the bluff, inducing over a period of years erosion on the shore line. As to surface water, this contention may be readily disposed of. While the prolonged rain temporarily produced surface water, there is no testimony that the surface water caused any damage. Part of the water percolated into the bluff and part of it simply was not retained on the property but ran off, as plaintiffs’ land sloped from the lakeside to the highway. As held by the Michigan Supreme Court, Fenmode, Inc., v. Aetna Casualty & Surety Company, 303 Mich. 188, 6 N.W.2d 479, surface waters are lost by percolation, evaporation, or by reaching some definite water course. One expert testified that, when water has gone into the ground one inch, geologically it is considered ground water. The proved emission of ground water from the stratum of sand on the face of the bluff after the prolonged rain indicates that to a large degree the heavy rain was converted into ground water. As to the action of the high water of Lake Michigan and of the waves, defendant introduced convincing testimony from experts, two of whom had been connected with the United States Army Corps of Engineers and had made extensive investigations of the erosion problem in this particular area. They stated that for many years the high water and the waves of the lake had caused erosion upon the entire shore line. One expert said that this erosion continued as the primary cause of the landslide up to and including the time of the loss. He also stated that landslide was bound to occur on plaintiffs’ land, thus supporting defendant’s contention heretofore set forth that landslide on plaintiffs’ property was inevitable and hence was not a risk for which recovery could be had. But the testimony that landslide was inevitable was strongly controverted by the undisputed facts. Both the C. & O. Railroad and the Michigan highway authorities had built structures for protection along the shore line. The C. & O. constructed jetties which protected its tracks. Moreover, the United States Army Corps of Engineers sent experts repeatedly to groups of persons dwelling in the area to instruct them as to the different kinds of protective structures which could be used in this situation, their proper method of erection, and the cost. The reasonable inference from this official advice to residents of the area is that destruction was not inevitable. Jetties and seawalls had been built by plaintiffs and other landholders long prior to this particular loss. It is a fair inference that these structures below plaintiffs’ property were so effective that the beach line was extended and large equipment was kept on the beach for safety. The testimony on this point raised a question of fact. We conclude that the jury was justified by ample evidence in finding that the destruction of plaintiffs’ house was not inevitable, that if the unusually heavy rain had. not occurred the jetties and seawalls might have continued to arrest the erosion and protect the bluff. This case presented evidence from which the jury presumably found that the erosion and action of high water, surface water and waves were not predominant and efficient causes of the landslide. These factors did not, like the factors in the Boon case, operate on plaintiffs’ property at any time during or near the time of the loss. The toe of the bluff had been for some time protected by the structures in the lake and by a gradually built sand beach of 30 to 35 feet. Experts for both parties testified that the landslide directly caused the injury and substantial evidence was given to the effect that the sustained rainfall directly caused the landslide. The latter conclusion was supported by the fact that part of the bluff which fell off in the first landslide, October 13, 1954, roughly corresponded to a layer of the clay situated above the stratum of sand-clay which had emitted ground water over a period of years. The weight of the water percolating in the soil, which was largely clay, estimated by one expert as being about 113 tons of water on an acre of ground, produced by one inch of rainfall, may have caused great sections of clay to slough off and fall down the bluff. These chunks pushed the bulldozer some 75 feet into the lake. Defendant’s expert testified that stratified beds of sand or gravel overlying clay constitute a condition favorable to seepage and sliding. He said that underground water softens clay and at the same time increases the weight of the material affected. Defendant’s counsel conceded at the close of the charge that there are two lines of decision governing situations of this kind and that the court followed one of these established lines. The charge of the court quoted above upon these features of the case follows Pearl Assurance Company, Ltd., v. Stacey Brothers Gas Const. Co., 6 Cir., 114 F.2d 702. This case holds that where a policy expressly insures against direct loss and damage by one element but excludes loss or damage caused by another element, the coverage extends to the loss even though the excluded element is a contributory cause. To the same effect is Jordan v. Iowa Mutual Tornado Insurance Co. of Des Moines, 151 Iowa 73, 130 N.W. 177. Cases cited by defendant follow: Chute v. North River Insurance Co., 172 Minn. 13, 214 N.W. 473, 55 A.L.R. 938; Russell v. German Fire Insurance Co., 100 Minn. 528, 111 N.W. 400, 10 L.R.A.,N.S., 326; Newark Trust Co. v. Agricultural Insurance Co., 3 Cir., 237 F. 788; National Fire Insurance Co. v. Crutchfield, 160 Ky. 802, 170 S.W. 187, L.R.A.1915B, 1094. In the cases covered by defendant’s citations, including the Boon case, supra, the insurer writing the policy made express and clear the exclusions relied on as defeating liability. Here the policy with reference to the exclusions and exceptions quoted above is unusually ambiguous. Exclusion B relates to such risks as loss by termites, deterioration, mechanical breakdown, normal settling of a house. This exclusion expressly excepts landslide, but loss due to termites, deterioration or mechanical breakdown, etc., would very seldom, if ever, combine with landslide to create a loss. “ * * * normal settling, shrinkage, or expansion in walls, floors or ceilings” is the only risk excluded in paragraph B that appears to have connection with landslide. And yet it is highly doubtful whether landslide would ever create a “normal settling.” The express exclusions of paragraph B indicate that landslide may be expressly excepted from these exclusions by inadvertence. On the other hand, paragraph C does not include landslide, either among the exclusions or exceptions. Defendant argues that because of this omission the meaningless inclusion of landslide as an exception in paragraph B raises a strong inference that landslide was not included in the exceptions under paragraph C because it was intended specifically to be an excluded loss, such as surface water, flood waters, waves, tide or tidal wave, high water. If this was defendant’s intention it could easily have listed landslide among the exclusions of paragraph C. Defendant’s contention ignores the rule that an ambiguous provision in an insurance policy should be read against the insurer, who writes the policy. Turner v. Fidelity & Casualty Company of New York, 112 Mich. 425, 429, 70 N.W. 898, 38 L.R.A. 529. It is said that because the risk insured against herein is in general terms “All Physical Loss,” the ambiguity rule should be relaxed, on the authority of World Fire & Marine Insurance Co. v. Carolina Mills Distributing Company, 8 Cir., 169 F.2d 826, 828, 4 A.L.R.2d 523. The court there in discussing the insurer’s contentions stated that “If the policy under consideration was one in which the insuring clause was general in its coverage and the exception relied upon by appellant merely carved out of the general class of contingencies covered by the insuring clause a specific class of losses which were to be excepted, appellant’s position that there was no ambiguity * * * would be more tenable.” This statement plainly has no application here. It is not a holding but merely a recognition by the court of the insured’s argument. Here defendant asks us to write “landslide” in the exclusions of paragraph C in which paragraph “landslide” is not mentioned at all. We think the insurer is under at least as high an obligation to be precise and clear in drawing the policy when dealing with risks described in general terms as when the risks insured against are precisely itemized. The insured will have more difficulty in threading through the mazes of exclusions relating to a general comprehensive coverage than in properly appraising exclusions which relate to coverage of specific risks. The instant case falls directly within the established principle that exclusion clauses will be strictly construed and any ambiguity will be resolved against the company. Feeney & Meyers v. Empire State Insurance Co. of Watertown, New York, 10 Cir., 228 F.2d 770; World Fire & Marine Insurance Co. v. Carolina Mills Distributing Co., supra; Prudential Insurance Co. of America v. Carlson, 10 Cir., 126 F.2d 607; Commercial Casualty Insurance Co. v. Stinson, 6 Cir., 111 F.2d 63. Since testimony was given to the effect that the erosion was the dominant cause of the landslide and this testimony was controverted by substantial evidence, the court’s charge, which recognized the conflicting theories of the parties, did not constitute reversible error. Under the undisputed facts there was no wave action operating against the toe of the bluff at or near the time of the landslide. The slide occurred in the top portion of the bluff, being connected with the clay-sand layers which existed therein. The jury evidently found that the factors causing the landslide at or near the time of the loss were the constant rainfall, the increase of weight from water percolating into the clay arid the presence of a huge weight of ground water in clay-sand strata lying 20 to 30 feet below the top of the bluff. We do not discuss the question as to the unpaid balance on the mortgage. It does not appear that any objection was made by defendant to the instructions of the court on this point. The appendix contains no pleading raising the question. After the charge defendant, in entering its objection to the court’s failure to give requested instructions and to any instructions given, stated “the court has denied the requests of the defendants, Nos. 2, 3, 5, and 7, at least in part” and took exception to this action of the court. This appendix presents nothing which connects the requests to charge above listed with the point as to the unpaid balance on the mortgage. Since defendant gives the court no assistance in connecting the requests refused or partially refused, to which objection was made, with the contention as to the unpaid balance on the mortgage, and points out no pleading where this particular point was urged, we have no basis for concluding that the objection was properly raised. Rule 12(h) and Rule 51, 28 U.S.C., Federal Rules of Civil Procedure. There is no merit in the further point that damages on the basis of replacement value should not have been allowed because plaintiffs had attempted, without success, to sell the property for $20,000. By specific agreement of the parties in the policy replacement value was the measure of damages. The fact that plaintiffs offered to sell the house for considerably less than replacement value has no bearing. The judgment of the District Court is affirmed. . The parties will be designated as in the court below.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).

This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?

ITT INDUSTRIAL CREDIT COMPANY, A Nevada Corporation, Plaintiff-Appellee, v. DURANGO CRUSHERS, INC., A Delaware Corporation; Roger Morrison, Defendants-Appellants. No. 85-1976. United States Court of Appeals, Fourth Circuit. Argued Oct. 7, 1987. Decided Nov. 5, 1987. Don Michael Blumenthal (Roger A. Morrison, Chevy Chase, Md., Joann Langston, on brief), for defendants-appellants. Wayne G. Gracey (B. Marvin Potter, Schlachman, Potter, Belsky & Weiner, P.A., Baltimore, Md., on brief), for plaintiff-ap-pellee. Before CHAPMAN and WILKINSON, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge. WILKINSON, Circuit Judge: Durango Crushers, Inc. and Roger Morrison appeal the district court’s award of attorneys’ fees against them in connection with their attempt to remove an action from state court. We affirm. In 1983, Durango entered into a security agreement with ITT Industrial Credit Co. and executed an installment note to ITT. Morrison, as president of Durango, personally guaranteed Durango’s debt to ITT in a separate instrument. Durango defaulted on the note in 1984, and ITT brought suit in Maryland state court against Durango and Morrison. Durango and Morrison sought removal under 28 U.S.C. § 1441 on the basis of diversity of citizenship. Section 1441(b) forbids removal of a suit on the basis of diversity where a defendant is a citizen of the state in which suit is brought. Morrison was a resident of Maryland, but Durango and Morrison claimed that the entire suit could be removed under § 1441(c), which allows the removal of non-removable claims if they are joined with a “separate and independent claim or cause of action, which would be removable if sued upon alone.” 28 U.S.C. § 1441(c) (1982). Diversity existed between ITT and Durango, and appellants contended that ITT’s claims against them were separate and independent. The district court, however, rejected that argument and granted ITT’s motion to remand the entire case to state court. The removal statutes permit the award of “just costs” if a suit is “removed improvidently and without jurisdiction,” 28 U.S.C. § 1447(c) (1982), and the district court awarded ITT attorneys’ fees of $3,991 and costs of $25.93. Durango and Morrison contend that the district court erred in granting attorneys’ fees. Ordinarily, a district court may not award attorneys' fees absent express Congressional authorization. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Exceptions to the “American Rule,” whereby each party pays its own attorney’s fees, are matters of legislative providence. As the Alyeska court pointed out, however, courts do have inherent power to award attorney’s fees against a party who has acted in bad faith. 421 U.S. at 258-59, 95 S.Ct. at 1622. The limited authority of the district courts to award fees as a sanction for a removal taken in bad faith is widely recognized. See, e.g., Cornwall v. Robinson, 654 F.2d 685, 687 (10th Cir.1981); Muirhead v. Bonar, 556 F.2d 735, 737 (5th Cir.1977). Although § 1447(c) itself conveys no power on the district courts to award attorneys’ fees, the district court did not err in awarding attorney’s fees against Durango and Morrison because their removal petition was so patently without merit that the “inescapable conclusion” is that it was filed in bad faith. See Peltier v. Peltier, 548 F.2d 1083, 1084 (1st Cir.1977). It was clear at the time of the removal petition that Morrison was a citizen of Maryland, and that the appellants could not remove the suit under § 1441(b). It should have been clear to the appellants, and would have been clear to any reasonable attorney, that § 1441(c) provided no basis for the removal. In American Fire & Casualty Co. v. Finn, 341 U.S. 6, 14, 71 S.Ct. 534, 540, 95 L.Ed.2d 702 (1951), the Supreme Court stated that “where there is a single wrong to plaintiff, for which relief is sought arising from an interlocked series of transactions, there is no separate and independent cause of action under § 1441(c).” Appellants are correct in observing that ITT’s two claims were brought against two distinct parties and were based on two different instruments, but it is readily apparent that the claims grew out of “a single wrong ... arising from an interlocked series of transactions.” The guarantee of Morrison, as president of Durango, was a condition of ITT’s loan to Durango. ITT’s claims thus arise from a single transaction and a single debt. Du-rango and Morrison argue that the claims are separate and independent, but it would be nearly unthinkable for a creditor like ITT to seek to collect a debt in this situation without joining both the corporate debtor and the individual guarantor. The very purpose of a guarantee is to link the obligations of debtor and guarantor. The removal statutes allow defendants to invoke federal jurisdiction in appropriate cases. They do not make of the courts a maze through which plaintiffs can needlessly be run in order to have their claims determined. The district court properly imposed sanctions for this abuse of the removal process. Its decision is hereby AFFIRMED.

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number.

Frank E. WHITE, Plaintiff-Appellee, v. ARCO/POLYMERS, INC. and Oil, Chemical & Atomic Workers Union, AFL-CIO, Local No. 4-227, Defendants-Appellants. No. 82-2505. United States Court of Appeals, Fifth Circuit. Dec. 12, 1983. Baker & Botts, Richard R. Brann, Douglas W. Sanders, Houston, Tex., for ARCO. Bray & Watson, Patrick M. Flynn, Houston, Tex., for OCAW. Mandell & Wright, Sidney Ravkind, Houston, Tex., for plaintiff-appellee. Before WISDOM, REAvLEY, and JOHNSON, Circuit Judges. JOHNSON, Circuit Judge: The district court found that ARCO/Polymers, Inc. (ARCO) fired employee Frank E. White without just cause, in violation of its collective bargaining agreement with the Oil, Chemical & Atomic Workers International Union, Local 4-227, AFL-CIO (OCAW), and that OCAW violated its duty of fair representation to White by dropping his discharge grievance short of arbitration. ARCO and OCAW contend that the district court clearly erred in finding that White was a nonprobationary employee entitled to the protection of the just cause and arbitration provisions of the collective bargaining agreement. We agree. The judgment of the district court is reversed. I. On November 11, 1974, White, a black man, began work for ARCO as a probationary Operator Trainee in the Styrene Unit of ARCO’s Harris County, Texas petrochemical manufacturing plant. The terms and conditions of White’s employment were set by ARCO’s 1973-75 collective bargaining agreement with OCAW Local 4-227. That contract provided that new employees, like White, were on probation for the first ninety days worked. Probationary employees were not covered by the “just cause for discharge” and “grievance procedure” provisions of the contract. Management could fire them simply for general dissatisfaction with their progress, efficiency, or attitudes; if it did, they had no right to expect the Union to champion their claims for redress. In mid-February 1975, ARCO and OCAW signed a new two-year collective bargaining agreement. The 1975-77 version of their contract extended the probationary period from ninety days worked to 120 days worked. All other pertinent provisions remained the same. On May 8, 1975, ARCO fired White. It gave as its reasons White’s supervisors’ reports that White had now shown initiative in learning his duties, that he did not adequately perform the duties assigned to him, and that he did not get along with his co-workers. White promptly filed a written grievance through OCAW Local 4-227 in which he claimed that his termination was without just cause. The Union pressed White’s grievance through the first three steps of the grievance procedure, but at each step ARCO denied the grievance. At the conclusion of the third step, the Union decided that ARCO was right in contending that White was a probationary employee, concluded that ARCO had shown reasons adequate to justify its decision not to make him a permanent employee, and elected to withdraw the grievance. In late June 1975, White filed a charge against the Union with the Equal Employment Opportunity Commission (EEOC) claiming that the Union had discriminated against him because of his race. In late August 1976, the EEOC issued a determination finding that no reasonable cause existed to believe that the Union had violated Title VII of the Civil Rights Act of 1964 in the manner alleged. White filed this action the following day. White’s original complaint charged that ARCO and OCAW had discriminated against him on the basis of race, in violation of 42 U.S.C. § 1981, and that OCAW had breached its duty of fair representation, in violation of 29 U.S.C. § 151, et seq. White’s legal theory supporting the fair representation charge was that, notwithstanding the fact that he had been fired on the last day of the 120-days worked probationary period, he was entitled to the benefit of the 90-days worked probationary period (and thus the just cause and arbitration provisions) of the contract in force at the time he was hired. In November 1980 White filed a proposed pre-trial order and proposed findings of fact and conclusions of law. In both, he admitted that he had been terminated on the final day of the 120-days worked probationary period; in both, he adhered to his assertion that his probationary period ended with his ninetieth day worked. ARCO and OCAW’s proposed pretrial order stated their agreement with White’s concession that he had been terminated on the final day of the 120-days worked probationary period. They defended by denying that racial discrimination had played any part in their respective decisions, and by arguing that White’s probationary term was governed by the 1975-77 collective bargaining agreement. In September 1981, White filed an amended complaint. It was in all respects identical to his original complaint, except that he added to the paragraph charging OCAW with breach of its duty of fair representation the assertion that “Plaintiff[] had a contractual right to be evaluated under the 90-day contract provision, and Defendant ARCO violated that right.” At trial, White testified that he was discharged after the expiration of the 90-days worked probationary period which, according to White, was the only probationary period applicable to him. At no time did White testify that his discharge occurred after the 120-days worked probationary period. Neither did any other witness. To the extent that it was discussed, the testimony was to the contrary. So matters stood until White submitted his post-trial proposed findings of fact and conclusions of law. In that memorandum, White reasserted his earlier-espoused theory that he was legally entitled to consideration under the superseded contract’s 90-days worked probationary period. But in addition he contended for the first time that he had completed the 120-days worked probationary period. He calculated the total number of working days elapsed between his first day and his discharge at 125. From that computation and from his claim of right to the original period, he argued that by any measure he was a nonproba-tionary employee on the date of his discharge. ARCO met White’s new factual assertion head on. Apparently eschewing argument that his earlier admissions, and failure to raise this theory during trial, barred its assertion post-trial, it contended that White’s computation was erroneous in its failure to deduct holidays and absences in order to arrive at days actually worked. The district court found that neither ARCO nor OCAW discriminated against White because of his race, and entered judgment for the defendant on White’s section 1981 claim. But as to his breach of contract and fair representation claims, the district court found for White wholly on the basis of his new theory. Taking judicial notice of the • calendar and subtracting weekends and holidays listed in the Union contract, it concluded that White was fired on his 125th day of work. The court buttressed this conclusion by reference to a written evaluation of White made by an ARCO employee and entered into evidence by ARCO, in which the employee stated that he had kept up with the day’s work by White and White had “made it” through probation. On the basis of that evidence, the court found that White was a nonproba-tionary employee on the date of his discharge. The court’s legal conclusions rested on that finding. The district court decided that “in making the decision to fire Mr. White, ARCO used standards appropriate for a probationary employee but inappropriate for a permanent employee subject to termination only for just cause.” As to OCAW, the district court found that “[t]he Union withdrew the grievance because it accepted without investigation the Company’s contention that Mr. White was a probationary employee and therefore not entitled to go through the grievance procedure” and because it believed that “Mr. White was not performing well enough to become a permanent employee.” The court concluded that “in accepting without question the Company position that Mr. White was on probation when fired, in failing to ascertain that Mr. White actually had completed probation at the time of his termination, and in dropping his grievance on the unfounded assumption that he was not entitled to go through the grievance procedure, the Union failed to represent Mr. White fairly.” It held ARCO liable for breaching the contract and OCAW liable for violating its duty of fair representation to White. ARCO and OCAW responded with a joint motion for reconsideration. They pointed out that White did not claim, either before or during trial, that he had completed the 120-days worked probationary period, but to the contrary had repeatedly admitted that he was terminated on the final day of that period. They noted that an accurate computation of days worked would require deduction of days absent. Finally, they asked that the court reopen the record to allow them to document the fact that White had not completed the 120-day period. The court refused, stating that it believed that White’s pleadings and testimony gave adequate notice that his completion of the 120-day period was at issue; it also rested its decision on ARCO’s failure to assert, in response to White’s post-trial proposed findings of fact, that the presence of the days-worked issue was a surprise. ARCO and OCAW appeal. II. As the district court correctly observed, the burden of adducing adequate, persuasive evidence fell to plaintiff White. In order to prevail on his claims that ARCO breached the Union contract and that OCAW failed fairly to represent him, White first had to establish that he was not a probationary employee and hence was entitled to the protection of the just cause and grievance procedure provisions of the contract. White ultimately relied on the assertion that he had worked more days than those constituting the probationary period in order to establish the critical prerequisite of nonprobationary status; the district court predicated its conclusions of liability on a finding that he indeed had completed the lengthier period. The question is whether that factual finding is clearly erroneous. The Supreme Court has held that a finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 1788 n. 14, 72 L.Ed.2d 66 (1982) quoting United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). This Court has elaborated on that explication with explanation that clear error exists where (1) the findings are without substantial evidence to support them, (2) the court misapprehended the effect of the evidence, and (3) if, although there is evidence which if credible would be substantial, the force and effect of the testimony, considered as a whole, convinces the Court that the findings are so against the great preponderance of the credible testimony that they do not reflect or represent the truth and right of the case. Merchants National Bank v. Dredge General G.L. Gil-lispie, 663 F.2d 1338, 1341 (5th Cir.1981), cert. dismissed, 456 U.S. 966, 102 S.Ct. 2263, 72 L.Ed.2d 865 (1982), citing Western Cotto-noil Co. v. Hodges, 218 F.2d 158, 161 (5th Cir.1954). Normally, factual assertions in pleadings and pretrial orders are considered to be judicial admissions conclusively binding on the party who made them, Myers v. Manchester Insurance & Indemnity Co., 572 F.2d 134 (5th Cir.1978); State Farm Mutual Auto Insurance Co. v. Worthington, 405 F.2d 688, 686 (8th Cir.1968); Mull v. Ford Motor Co., 368 F.2d 713, 716 (2d Cir.1966). ARCO and OCAW did not insist on strict adherence to this precept: instead of arguing when the issue came up that it was foreclosed by White's earlier admissions that he had been dismissed on the final day of the 120-days worked probationary period, they argued that White's computation of the number of days he had worked was incorrect because it omitted days absent. By failing to contend that White's admissions barred his subsequent assertion of the contrary position, they effectively waived the argument that the issue was irreversibly settled. Loose v. Offshore Navigation, Inc., 670 F.2d 493, 498 (5th Cir.1982); Genusa v. City of Peoria, 619 F.2d 1203, 1208 (7th Cir.1980). But although White's admissions can no longer be considered conclusive, they do still operate as adverse evidentiary admissions properly before the district court in its resolution of the factual issue. Frederic P. Wiedersum Associates v. National Homes Construction Corp., 540 F.2d 62, 65 (2d Cir.1976); see ante note 5. The relevant question is, then, whether White introduced at trial evidence sufficient to show that, notwithstanding his prior concessions to the contrary, he actually had worked more than 120 days. Our examination of the record leads us to the firm conclusion that he did not. At trial, he did not testify that he had worked more than 120 days, see ante note 3. The only witnesses mentioning the point at all were defense witnesses who testified that White had not completed the 120-days worked probationary period when he was terminated; White did not cross-examine those witnesses on the point. That the Union processed his grievance through the first three levels cannot be considered to raise an inference that he had finished probation: the district court specifically found that the Union did not consider his employment status until completion of the third level, when it accepted ARCO's position that he was still on probation when discharged. Neither can we attach persuasive import to the defendant's failure to introduce records showing that White missed work on scheduled working days. To do so would, in the absence of the defense's need to refute affirmative evidence that he indeed had completed probation, effectively shift the burden of proof to the defense. The only indication in the record that White had obtained permanent status was a co-worker’s statement, contained in a performance evaluation submitted by ARCO, that it “looked like” White had made it through his probationary period and “if” he made it, the company had “messed up.” The comment was not mentioned at trial. There is no evidence on what sources, if any, the employee relied in making his comment. Review of the record as a whole leads us to the conclusion that there is not substantial evidence to support the finding that White completed his probationary period before he was terminated. That finding, and the district court’s conclusions of liability predicated on it, must fall. This includes the finding of liability against the Union as well as the finding of liability against the Company. The district court found that the Union violated its duty of fair representation to White by dropping his grievance short of arbitration on the unfounded assumption that he was a probationary employee not entitled to the grievance procedure. A breach of the statutory duty of fair representation occurs only when a union acts arbitrarily, discriminatorily, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). In the instant case, the Union took White’s grievance through the first three steps of the grievance procedure. See ante 720 F.2d 1393 & n. 1. Only after proceeding through the third step and hearing testimony from supervisors and employees that White’s performance was unsatisfactory did the Union elect to withdraw the grievance. At this point, the Union concluded that ARCO was correct in contending that White was a probationary employee and that ARCO had offered adequate reasons to justify its decision to discharge him. The district court found that the Union did not act in good faith because it did not undertake an independent investigation of White’s probationary status. The court stated that it would have been a simple task for the Union to tabulate the number of days that White worked. Despite the simplicity of the task, however, any failure to calculate the number of days White worked does not establish bad faith on the part of the Union in the instant case. It was not until White filed his post-trial proposed findings of fact and conclusions of law that he contended for the first time that he had completed the 120-day probationary period. Since prior to that time White did not contest that he had been fired on the last day of the 120-day period and argued only that the 90-day period applied to him, the Union’s failure to investigate the number of days he had worked could not constitute action in bad faith. The district court incorrectly concluded, therefore, that the Union breached its statutory duty of fair representation. III. White has not asked this Court to rule on his original argument that he was legally entitled to the protection of the 90-days worked probationary period. Neither has he asked that the case be remanded to the district court for its consideration of that argument if the court’s initial disposition of this case is reversed. He has abandoned the argument. Richardson v. City of Indianapolis, 658 F.2d 494, 499 (7th Cir. 1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1442, 71 L.Ed.2d 657 (1982). In this circumstance, we can only reverse the district court’s judgment as to both the Company and the Union. REVERSED. . Under the 1975-77 Union contract, the filing of a written grievance constituted the first step of the grievance procedure. The second step of the grievance procedure was a meeting between the general foreman and chief committeeman. The third step was an appeal to the plant manager. The fourth step was arbitration. . He also included class allegations on behalf of similarly situated black and Mexican-American employees at the ARCO plant. White subsequently filed an unopposed motion to dismiss class allegations. The motion was promptly granted. . The pertinent portions of White’s testimony are as follows: Q. Can you tell from the last article, looks like 28, what the term of this new agreement is, when it was effective? A. This agreement shall be effective from January 8, 1975 through January 7, 1977 and thereafter for — from year to year unless terminated by either party. Q. It sounds like they finally reached an agreement in February and then made it effective back to January 8, 1975, isn’t that right? A. I don’t know if that’s right or not. Because I’m working with the same union and we changed a lot of things in the contract and a lot of things weren’t changed on the existing contract. Q. That’s the way it happens in negotiations. A. Right. But if I was on my same job, the ones who was hired under 90-day contracts, this 90 days binds regardless when January comes they get a new 120 days then under the old contract as far as the probation period. Q. There is no doubt in your mind that this new contract the one for 1975-77 had 120 working days probation in it? A. Right. I know that. But that’s the one I was hired under. Q. You were hired under contract that expired January 7, 1975? A. Right. * * * * * * Q. You didn’t know about the 120 days probation, you didn’t know about that? A. I wasn’t concerned really because I wasn’t under 120 days probation. I was going by what my representative I have tells me. I was under a 90 day probation period. I wasn’t concerned at the time with 120 days. . White does not appeal that decision. . Admissions made in superseded pleadings are as a general rule considered to lose their binding force, and to have value only as evidentiary admissions. 3 Moore's Federal Practice & Procedure ¶ 15.08[7] at 15-128 (1982), citing Borel v. United States Casualty Co., 233 F.2d 385, case 11(5th Cir.1956). But where, as in this case, the amendment only adds allegations, deleting nothing stated in the prior pleadings, admissions made in the prior pleadings continue to have conclusive effect. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 601 (5th Cir. 1981). . Careful examination of the district court's decision discloses that it accepted the defendants' interpretation of the probationary period to include only days actually worked, rather than working days elapsed since hire. Before trial, White's action was consolidated with a similar one brought by former ARCO employee Freddie Woods. Woods was hired on March 11, 1974 and discharged on July 19, 1974, in part for excessive absenteeism. Woods' attendance records, submitted into evidence by ARCO in support of his claim that it fired Woods for legitimate business reasons, showed that of 98 working days between his hire and discharge, he was absent 9 and worked 89. The district court found that Woods was discharged before he completed the 90-day probationary period then indisputably in effect. Refusal to accept the defendants' interpretation of the probationary period would have mandated a finding that Woods had attained permanent status before he was fired. . White and the district court draw a negative implication from the fact that ARCO submitted co-plaintiff Woods’ attendance record, but did not offer White’s. The comparison is flawed. Woods’ attendance was in dispute because that was one of the reasons given by ARCO for his discharge, see ante note 6. White was discharged for reasons other than absenteeism. As neither'the pleadings, the course of trial, nor defensive needs required the submission of White’s attendance records, no inferences can be drawn from their absence. . Pursuant to the collective bargaining agreement in the instant case, probationary employees were not entitled to the grievance procedures.

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 "labor relations".

What is the specific issue in the case within the general category of "labor relations"?

Dale HILLBURN, by his parents and next friends Ralph and Eleanor HILLBURN, James Corbett, by his next friend Roberta Reid, Sandra Fuchs, by her mother and next friend Florence Fuchs, Stephen Kaplanka and Mark Kaplanka, by their mother and next friend Dorothy Napolitano, Plaintiffs-Appellants-Cross-Appellees, v. Edward MAHER, Commissioner of the Connecticut Department of Income Maintenance, and New Brook Hollow Health Care Center, Inc., Defendants-Appellees, Edward Maher, Commissioner of the Connecticut Department of Income Maintenance, Defendant-Appellee-Cross-Appellant. Nos. 853, 897, Dockets 85-7900,85-7908. United States Court of Appeals, Second Circuit. Argued March 10, 1986. Decided June 30, 1986. David C. Shaw, Hartford, Conn. (Trow-bridge, Ide & Greenwald, P.C., Shelley White, Hartford, Conn., on brief), for plaintiffs-appellants-cross-appellees. Hugh Barber, Asst. Atty. Gen., Hartford, Conn. (Joseph I. Lieberman, Atty. Gen., Hartford, Conn., on brief), for defendant-appellee-cross-appellant. Public Interest Law Center of Philadelphia, Philadelphia, Pa. (Frank J. Laski, Judith A. Gran, Philadelphia, Pa. of counsel), filed a brief for amicus curiae The Ass’n for Retarded Citizens, Connecticut. Before KEARSE and CARDAMONE, Circuit Judges, and POLLACK, District Judge. Honorable Milton Pollack, Senior Judge of the United States District Court for the Southern District of New York, sitting by designation. KEARSE, Circuit Judge: Plaintiffs Dale Hillburn, et al., recipients of aid under the Medicaid program, Title XIX of the Social Security Act (“Title XIX” or “Medicaid Act”), as amended, 42 U.S.C. §§ 1396-1396p (1982 & Supp. I 1983 & Supp. II 1984), who reside in “skilled nursing facilities” (“SNFs”) in the State of Connecticut (“State”), appeal on behalf of themselves and a class of those similarly situated, from a final judgment entered in the United States District Court for the District of Connecticut after a bench trial before Jose A. Cabranes, Judge, granting the relief sought in their complaint to the extent of enjoining defendant Commissioner of the Connecticut Department of Income Maintenance (together “CDIM”) to ensure that SNFs with which CDIM has Medicaid provider agreements provide appropriate adaptive wheelchairs and related services to members of the plaintiff class, and to take “corrective action as needed” against SNFs that fail to provide such wheelchairs and services. On appeal, plaintiffs contend principally that the district court’s judgment is not broad enough and that the court should have considered plaintiffs’ claims relating to essential programs other than adaptive wheelchairs and “order[ed CDIM] to implement the federal Medicaid law in Connecticut SNFs.” CDIM cross-appeals, contending principally that the district court erred in finding its reviews of the care provided by SNFs inadequate, and that the injunction inappropriately requires CDIM to terminate its provider agreements with SNFs that fail to provide appropriate adaptive wheelchairs and related services even if the SNFs remain certified for participation in the Medicaid program by other regulatory bodies. We conclude that the injunction against CDIM was proper and that plaintiffs were not entitled to broader relief, and we accordingly affirm the judgment of the district court. I. BACKGROUND As the term is used in the Medicaid Act, an SNF is, essentially, an institution whose staff includes at least one registered professional nurse full time, whose policies are developed with the advice of a group of professional personnel including at least one physician, and which is engaged primarily in providing skilled nursing care and related services to resident patients who require medical or nursing care. See 42 U.S.C. § 1395x(j) (1982 & Supp. II 1984); id. § 1396a(a)(28). Plaintiffs were, at the time this suit was filed, disabled residents of SNFs in Connecticut. The principal defendant, and the only party against which the district court’s judgment is directed, is CDIM, which is the single Connecticut agency responsible for administering the State’s Medicaid plan. CDIM itself does not provide health care services but enters into “provider agreements” with Connecticut SNFs that are certified to participate in the Medicaid program. The provider agreements, which are renewed yearly, state that the SNF will provide care and services in conformity with Title XIX and will meet the conditions of participation detailed in regulations promulgated by the United States Department of Health and Human Services (“HHS”), see 42 C.F.R. §§ 405.1101-405.-1137 (1985). Under the federal Medicaid laws, CDIM has two methods of making payment for SNF care: (1) payments to SNFs according to per diem rates for “skilled nursing facility services,” as defined in 42 U.S.C. § 1396d(f) and 42 C.F.R. § 440.40(a) (1985), and (2) payments to suppliers for other Medicaid benefits. In general, CDIM pays SNFs for services rendered to Medicaid-eligible persons resident in such facilities principally on a per diem basis calculated with reference to the SNF’s costs, which include expenditures not only for salaries, fees, supplies, staff training, and so forth, but also for equipment purchased by the SNF. Under this method of payment, CDIM’s reimbursement of an SNF for a particular expenditure may take as long as 18 months. For certain equipment that may not fall within the definition of “skilled nursing facility services” (hereinafter “separate Medicaid benefits”), CDIM pays the supplier of the equipment directly, and the SNF incurs no cost. An adaptive wheelchair is a piece of equipment designed to support and properly position the body of a disabled person; it is used for a person whose disabilities preclude the effective use of a standard wheelchair. An adaptive wheelchair must be designed with a particular individual in mind and is usually unsuitable for use by any other individual. Such wheelchairs have only recently become commercially available for adults and may be expensive to purchase and maintain. A. The Complaint and CDIM’s Revision of Policy Prior to the commencement of this lawsuit in February 1982, CDIM’s policy was to reimburse SNFs for the cost of adaptive wheelchairs as part of their per diem rates rather than to pay the suppliers of such chairs directly. The thrust of plaintiffs' complaint was that this policy had resulted in SNFs’ failing to provide needed adaptive wheelchairs to their disabled Medicaid-eligible residents because the cost was great and the delay in reimbursement too long. Contending that CDIM’s policy therefore violated Medicaid regulations, plaintiffs sued on behalf of themselves and a class eventually certified as Plaintiffs also complained that as SNF residents they were treated differently from Medicaid-eligible persons who did not reside in SNFs. For the latter group, CDIM paid the suppliers directly for needed adaptive wheelchairs. Plaintiffs contended that CDIM’s policy of using only the per diem method of reimbursement for such chairs for Medicaid-eligible SNF residents thus discriminated against them in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982 & Supp. II 1984), and the Equal Protection Clause of the Constitution. [a]ll Medicaid recipients residing in or admitted to Skilled Nursing Facilities in the State of Connecticut on or after February 18, 1982, who, under defendant’s policies and practices, cannot obtain the adaptive wheelchairs necessary to maintain their health and insure their effective development. The complaint principally sought injunc-tive relief requiring CDIM and SNFs to provide adaptive wheelchairs to members of the plaintiff class and to provide “related professional support services necessary to ensure that such adaptive wheelchairs are safely and properly used.” A five-day trial was held between December 17, 1982, and April 3, 1984, with substantial continuances on consent of the parties in an effort to promote settlement. After several days of trial had been completed, CDIM amended its policy in October 1983 (and modified it further in February 1984), undertaking to make payment directly to suppliers for the cost of adaptive wheelchairs for Medicaid-eligible SNF residents. In light of its amended policy, CDIM moved in November 1983 for dismissal of the complaint, contending that its new payment system rendered the action moot. The district court denied the motion. It concluded that since, under the new policy, SNFs were given the responsibility for identifying those SNF residents who needed adaptive wheelchairs and for monitoring their use, “[i]t cannot be said with assurance that the new policy will cause adaptive wheelchairs to be provided to all members of the plaintiff class.” With its motion to dismiss, CDIM filed a motion in limine seeking to exclude all future evidence at trial “concerning the care, habilitation or development of retarded persons residing in [SNFs]... unless such testimony is strictly limited to what professional services are required to ‘adequately and safely use adaptive wheelchairs in nursing homes.’ ” The court stated that CDIM was perhaps attempting to tie plaintiffs too inflexibly to the language of the complaint, and it denied the motion without prejudice, noting that Fed.R.Civ.P. 1 provides that the Rules “shall be construed to secure the just, speedy, and inexpensive determination of every action,” and that Fed.R.Civ.P. 8(f) provides that, “[a]ll pleadings shall be so construed as to do substantial justice.” B. Plaintiffs’ Efforts To Broaden the Scope of the Action In June 1984, two months after the close of trial, plaintiffs moved to expand the definition of the plaintiff class in order to, inter alia, include in the class all persons who were or would be unable to obtain adaptive wheelchairs “as part of an overall therapeutic program that is necessary to maintain their health and insure their effective development.” CDIM objected to this redefinition on the ground that it in effect sought to amend the complaint to expand plaintiff’s claims into areas unrelated to adaptive wheelchairs; it argued that Fed.R. Civ.P. 15(b) did not authorize such a post-trial amendment of the complaint because these broader issues had not been tried with the express or implied consent of CDIM. The court denied plaintiff’s motion to redefine the class insofar as it sought expansion of the class’s substantive claims, noting that CDIM had “objected consistently to the introduction of evidence concerning programming to maximize the ‘physical, mental and psychosocial functioning’ of class members.” The court expressly intimated no view as to the appropriateness of a properly filed motion to amend the complaint. In October 1984, plaintiffs formally moved pursuant to Fed.R.Civ.P. 15(a) and (b) to amend the complaint, seeking principally to expand the action beyond the claims relating to adaptive wheelchairs and related services in order to demand “programming... to maximize the physical, mental and psychosocial functioning” of class members. After receiving extensive oral argument and briefing, the court observed that the motion had been inexplicably delayed, without permission, until long after the trial had ended and the case had been submitted to the court for decision; that CDIM had objected at trial to the introduction of evidence relating to these broader issues and would be prejudiced by the amendment; and that the amendment might necessitate supplemental evidentiary proceedings. Concluding that “[r]e-opening discovery and trial of the action at this late date would not serve the interests of justice,” the court denied the motion to amend the complaint. C. The District Court’s Findings, Conclusions, and Judgment In a Memorandum of Decision dated July 17, 1985 (“Opinion”), the court ruled that plaintiffs were entitled to some relief, although most of their claims had been mooted by CDIM’s new policy. First, the court found that adaptive wheelchairs are medical necessities for many severely disabled persons: 23. An adaptive wheelchair can be helpful in preventing the development of contractures____ Adaptive wheelchairs also reduce pain and discomfort caused by improper body positioning, and promote skin integrity by alleviating pressure points____ By providing appropriate body alignment, adaptive wheelchairs also facilitate safe and proper breathing, swallowing, and digestion____ 24. For many severely disabled persons, including some residents of SNFs, adaptive wheelchairs are a medical necessity---- Failure to provide an adaptive wheelchair can lead to deterioration of health and skills, and increases the risk of injury and death____ 25. An individual who needs an adaptive wheelchair and does not have one will not be able fully to benefit from the physical therapy that is necessary to promote his health and physical well-being— For this reason, some class members receive little or no needed physical therapy____ 26. Many residents of SNFs who have been provided with adaptive wheelchairs have exhibited noticeable improvement as a direct result of using their adaptive wheelchairs____ Opinion at 15-16. The court concluded that “the prescription of an adaptive wheelchair, like that of any necessary item of medical care, is a service that the SNF is required to provide as a condition of participation in the Medicaid program.” Id. at 38. The court held that insofar as plaintiffs had challenged CDIM’s failure to pay suppliers directly for adaptive wheelchairs for Medicaid-eligible SNF residents, their claims were mooted by CDIM’s 1983 amendment to its policy. The court decided, however, to construe the complaint as asserting also that CDIM had violated pertinent Medicaid standards by failing to ensure that SNFs properly (a) evaluated class members for appropriate adaptive wheelchairs and (b) provided appropriate services related to such wheelchairs. As thus construed, the complaint was not mooted by CDIM’s new policy. Under that policy, the SNFs, not CDIM, had the responsibility for identifying SNF residents needing adaptive wheelchairs, performing interdisciplinary assessments of each resident’s need, training their staffs in the safe and efficient use of such wheelchairs, and monitoring the residents who receive such chairs. The court noted that the costs incurred by SNFs in meeting these responsibilities would be reimbursed as part of their per diem rates, with the usual delays, and hence there still might exist some disincentive for SNFs to seek adaptive wheelchairs for their residents who are Medicaid recipients. The court concluded that CDIM had failed to comply with its obligations under federal law to ensure the adequacy of the SNFs’ provision of such wheelchairs and services. It noted that CDIM is obligated by 42 C.F.R. §§ 456.600-456.614 (1985) to have medical review teams make periodic inspections of the adequacy of the care and programs provided by SNFs with which CDIM has provider agreements, and to have these teams report on “(1) ‘the adequacy, appropriateness and quality of all services provided in the facility or through other arrangements, including physician services to recipients,’ and (2) ‘[sjpecific findings about individual recipients in the facility.’ 42 C.F.R. § 456.611.” Opinion at 40. It noted further that CDIM is required to “ ‘take corrective action as needed based on the report and the recommendations of the team....’ 42 C.F.R. § 456.613.” Opinion at 40. The court found that, notwithstanding these requirements, CDIM’s medical review teams made no effort to assess the appropriateness of the plan of care ordered by a physician for an SNF resident and hence CDIM could not properly evaluate the adequacy of care provided by SNFs. Thus, the court concluded that CDIM had failed to comply with its obligations under federal law to ensure the adequacy of the services provided by the SNFs with which it had provider agreements. Accordingly, the court entered judgment against CDIM (“Judgment”), enjoining it principally (1) to ensure that its medical review teams, in the course of the required inspections of the adequacy of care provided by SNFs, inspect and determine whether or not participating SNFs have (a) adequately evaluated class members’ needs for adaptive wheelchairs, and (b) arranged for the provision of such chairs and for related services necessary to ensure the safe and adequate use of such chairs in SNFs for class members who require such services; and (2) to “take corrective action as needed” if its medical review team finds that a participating SNF has failed adequately to assess the need for, provide, or provide needed services with respect to, adaptive wheelchairs for its resident Medicaid recipients. The Judgment defines “corrective action as needed,” which is not defined in the regulations, to “include[ ] those steps which [CDIM], or [its] designees, deem to be reasonable to ensure that [SNFs] provide adaptive wheelchairs and related services to class members, including, but not necessarily limited, to:” (1) consultation with the medical staff of the SNF, (2) requesting peer review by appropriate medical societies, and (3) filing complaints with appropriate State agencies such as the Connecticut Department of Health Services (“CDHS”), which could lead to the decertification of the SNF as a Medicaid provider. Judgment at 9-11. Finally, the Judgment provides that if the corrective action taken or initiated by CDIM fails to remedy the failure of a participating SNF to provide an appropriate adaptive wheelchair, or related services necessary to ensure its safe and adequate use, to one or more Medicaid recipients residing in the facility, CDIM shall terminate the facility’s provider agreement [with CDIM,] notwithstanding the fact that the facility is otherwise certified to participate in the Title XIX Medical Assistance Program by [CDHS] or [HHS] pursuant to the provision of 42 U.S.C. § 1396a(a)(9), 42 U.S.C. § 1396a (a)(33), 42 U.S.C. § 1396a(i), 42 U.S.C. § 1396i, 42 C.F.R. § 440.40 and 42 C.F.R. § 442.1-442.202, and there is no other basis in federal law (such as violation of civil right requirements) for a termination of the provider agreement. Judgment at 12-13. The Judgment provides that any such termination “shall comply with the procedural requirements of federal law, including the requirements of notice and an opportunity for an administrative hearing by the facility. See 42 C. F.R. § 431.151 — §' 431.154.” Judgment at 13. D. Issues on Appeal Plaintiffs seek affirmance of the Judgment so far as it goes, but they have appealed, contending principally that the district court erred in granting them only narrow relief. They argue that the court should have (1) made a finding of fact that the health of class members had deteriorated as a result of their failure to receive adaptive wheelchairs, (2) issued a broad injunction requiring CDIM to “implement the federal Medicaid law in Connecticut SNFs,” and (3) permitted them to amend the complaint to allege claims extending to programs and services other than those related to adaptive wheelchairs. CDIM has cross-appealed, contending principally that the district court erred (1) in finding that CDIM’s reviews of SNF care have failed to meet federal Medicaid standards, and (2) in enjoining CDIM to terminate its provider agreements with noncom-pliant SNFs that continue to be certified for Medicaid participation by HHS or CDHS. For the reasons below, we find merit in none of the arguments advanced in support of the appeal or the cross-appeal. We turn first to the cross-appeal issues, to determine whether such relief as was granted was proper, and then to the appeal issues, to determine whether the denial of additional relief was proper. II. CDIM’S CONTENTIONS The principal issues presented by CDIM’s cross-appeal are whether the district court erred in ruling that the reviews conducted by CDIM’s medical review teams failed to comply with Medicaid regulations, and whether the court could properly require CDIM to terminate its provider agreements with SNFs that fail to provide appropriate care for their Medicaid-eligible residents but continue to be certified by HHS or CDHS to participate in the Medicaid program. We find no clear error in the court's findings of fact, nor any misapplication of legal principles, nor any abuse of discretion in its fashioning of remedy. A. The Finding of Inadequate CDIM Review of SNF Care CDIM contends that the district court erred in ruling that the reviews of the care provided by SNFs conducted by CDIM’s medical review teams failed to comply with federal law. We find no error. The court found that although the evidence at trial was insufficient to show that the infrequency with which CDIM reviews were conducted violated Medicaid regulations, the evidence was ample to show that the content of those reviews failed to meet the requirements of federal law. The court’s findings of fact with respect to the substance of CDIM’s reviews of the adequacy of the care provided by SNFs included the following: (1) that CDIM has entered into an agreement with CDHS which requires CDHS to perform periodic survey and certification inspections of SNFs participating in the Medicaid program. The purpose of these inspections is to determine whether such SNFs satisfy the conditions prescribed by HHS for participation in the program; (2) that the survey teams sent out by CDHS determine whether assessments prescribed by SNF physicians have been performed, whether a physician has approved a plan of care, and whether the plan of care is being executed; but they do not attempt to assess whether the plan of care ordered by the SNF physician is appropriate; (3) that if the CDHS review team finds deficiencies affecting the SNF population as a whole, they will prepare reports that could lead to the decertification of the SNF; but they do not report deficiencies that affect only a single SNF resident; and (4) that CDIM’s own medical review teams also review physicians’ orders for Medicaid recipients and determine whether the physician’s orders are being executed; but they, like the CDHS survey teams, do not attempt to assess the appropriateness of the physician’s orders____ Accordingly, if the physician of an SNF resident has ordered that the resident be assessed for an adaptive wheelchair, [C]DIM’s inspection teams determine whether the assessment has been conducted. If no assessment has been ordered by a physician, the teams do not attempt to determine whether the resident has been assessed for an adaptive wheelchair, or whether such an assessment would be appropriate. Opinion at 23. The court found that if a CDIM review team finds a deficiency and the SNF fails to correct it, CDIM will discuss the matter with the SNF’s administrators; but CDIM “takes no action to compel the SNF to correct the deficiencies.” Id. The court noted that 42 C.F.R. § 456.611 requires that a Medicaid agency’s review team make “inspection reports [that] contain ‘observations, conclusions and recommendations’ concerning ‘the adequacy, appropriateness and quality of all services provided in the facility... including physician services... [,]’ 42 C.F.R. § 456.611...” Opinion at 41 (emphasis in Opinion), and that the agency is required to determine “whether the ‘services available in the facility’ are adequate ‘to meet [each resident’s] current health needs and promote his maximum physical well-being,’ ” id. at 42. It concluded that since CDIM’s inspection teams did not, as a general matter, attempt to determine whether SNF residents have been properly evaluated for adaptive wheelchairs, CDIM was not providing the supervision of SNF health care required by federal law. We find no error in the above findings of fact, and, indeed, CDIM, could hardly contend that they were erroneous: It entered into stipulations that squarely support them. Rather, CDIM contends that in seeking to determine what observations and evaluations CDIM’s medical review teams were required by law to make, the court should not have looked to § 456.611 of 42 C.F.R., which is entitled “Reports on inspections,” but rather should have looked to §§ 456.609 and 456.610, which are entitled, respectively, “Determinations by team,” and “Basis for determinations.” It argues that under the latter provisions, its reviews were not defective. This argument is poorly conceived and ill supported. First, in stating the requirements for the contents of review team reports, § 456.611 can hardly be thought to require that the report be more extensive than the investigation; if the matter must be reported, it must first be investigated. Thus the court did not err in looking to § 456.611 for guidance as to the requirements for the contents of the investigation. Further, the sections relied on by CDIM do not show that review teams are not required to evaluate the adequacy, appropriateness, and quality of all services, including physician services. Section 456.610 sets forth a number of items the team “may” consider; it does not purport to state that there are no other items that the team should consider. Certainly such a list of possible considerations cannot be read as nullifying express statements in other sections as to what must be determined. Section 456.609 is even less helpful to CDIM, for both its language and its effect appear to have been recognized by the court, That section states that [t]he team must determine in its inspection whether— (a) The services available in the facility are adequate to— (1) Meet the health needs of each recipient,...; and (2) Promote his maximum physical, mental, and psychosocial functioning. Although the district court’s opinion did not include a citation to § 456.609, the court's recognition that the review teams must “determine whether the ‘services available in the facility’ are adequate ‘to meet [each resident’s] current health needs and promote his maximum well-being,’ ” Opinion at 42, virtually recites the language of that section. And, as the court found, CDIM’s ’ team reviews could not meet these requirements: Since the team makes no attempt to determine whether it would have been appropriate to evaluate a given patient for an adaptive wheelchair — a device that is a medical necessity for some SNF residents — the team cannot determine whether the SNF’s service, in light of its failure to make such an evaluation, was adequate to meet the health needs of the patient. We conclude that the district court neither erred in its findings of fact nor failed to apply the correct legal standards, and that there is no basis for overturning its conclusion that CDIM’s inspections did not comply with federal law. B. The Propriety of the Injunction Requiring CDIM To Terminate Its Provider Agreements With Irremediably Noncompliant SNFs CDIM also contends that the district court “clearly erred by ordering [CDIM] to terminate Title XIX provider agreements with SNFs based on the findings of [CDIM’s] patient review teams on individual class members when the facility is certified to participate in” the Medicaid program. In support of this challenge, CDIM points out that Title XIX “links nursing facility participation in the program to the certification decision of [CDHS] or [HHS],” that CDIM is not the agency that makes certification determinations, and that CDIM thus cannot be required to terminate its provider agreements with SNFs that are certified. We are unpersuaded. First, as a practical matter, we note that CDIM appears to ignore the major thrust of the injunction entered against it. The Judgment does not require CDIM instantly to terminate a provider agreement upon the report of its review team that SNF care with regard to adaptive wheelchairs is inadequate. Rather, CDIM is enjoined to “take corrective action as needed” to attempt to remedy the deficiency. The Judgment defines “corrective action as needed” to include consultation by CDIM officials with the management of the SNF, the solicitation of peer review from medical societies, and the filing of complaints with other state agencies that could lead to the decer-tification of the SNF as a Medicaid provider. Only if the corrective actions taken or initiated by CDIM fail to induce the SNF to bring its services relating to adaptive wheelchairs into compliance with the law does the Judgment require CDIM to terminate its provider agreement with the SNF. The Judgment thus seems a prudent exercise of the district court’s discretion, and we find nothing in the Medicaid scheme that prohibits it. The fact that CDIM is not the agency responsible for certification of facilities as Medicaid providers is of no consequence. As the district court noted, the reason for the requirement that a state designate a “single State agency” to administer its Medicaid program, see 42 U.S.C. § 1396a(a)(5); 42 C.F.R. §§ 431.1 and 431.-10 (1985), was to avoid a lack of accountability for the appropriate operation of the program. See generally S.Rep.No. 404, 89th Cong., 1st Sess. (1965), reprinted in 1965 U.S.Code Cong. & Ad.News 1943, 2016-17 (suggesting that certain provisions of Medicaid bill were intended to achieve “simplicity of administration” and “assurance... that the States will not administer the provisions for services in a way which adversely affects the availability or the quality of the care to be provided.”). CDIM, as the single agency designated by Connecticut, retains the authority to “[e]xercise administrative discretion in the administration or supervision of the plan,” and to “[i]ssue policies, rules, and regulations on program matters.” 42 C.F.R. § 431.10(e). These regulations do not permit CDIM’s responsibility to be diminished or altered by the action or inaction of other state offices or agencies. Id. Nor does CDIM’s argument that certification is required before CDIM may enter into provider agreements carry the day. Although CDIM is prohibited from entering into such agreements with SNFs that are not certified, see, e.g., 42 C.F.R. § 442.-12(a) (1985), we find nothing in the Medicaid scheme that requires CDIM to maintain a provider agreement with an SNF simply because it is certified. Indeed there are provisions that suggest precisely the contrary. Sections 431.151-431.154 of 42 C.F.R., for example, set out the appeal procedures that the state must make available to an SNF when the state has terminated “certification or a provider agreement for the Medicaid program,” id. § 431.151 (emphasis added). Given that there can be no lawful provider agreement with a facility that is not certified, if the provider agreement could not be terminated while a facility remained certified, the use of the disjunctive in § 431.151 et seq. would be meaningless. More to the point of the substantive issue here, 42 C.F.R. § 442.12(d) (1985), as the district court noted, expressly allows the single state agency responsible for administering the Medicaid program to terminate, for good cause, a provider agreement with a certified SNF. That section provides as follows: (d) Denial for good cause. (1) If the Medicaid agency has adequate documentation showing good cause, it may refuse to execute an agreement, or may cancel an agreement, with a certified facility. (2) A provider agreement is not a valid agreement for purposes of this part even though certified by the State survey agency, if the facility fails to meet the civil rights requirements set forth in 45 CFR Parts 80, 84, and 90. (Emphasis in text added.) CDIM contends that this provision does not authorize the district court’s injunction that CDIM terminate provider agreements with SNFs as to which corrective action relating to adaptive wheelchairs has failed, because the section applies only to considerations unrelated to quality of care, such as civil rights requirements. We see no basis in law or in reason to find § 442.12(d)(1) so limited. The very purpose of the Medicaid program is to provide the needy with medical assistance, and many of Title XIX’s provisions are plainly designed to enhance the quality of care that is provided. Certainly the language of the section does not suggest that poor quality health care cannot be good cause for termination; and if the provision of poor quality health care cannot constitute good cause for the termination, the goal of the Medicaid program is thwarted. Thus, we conclude that the Medicaid scheme did not preclude the relief fashioned by the district court. To the extent that a facility engaged to provide appropriate medical care fails to do so and cannot be persuaded to do so by such methods as consultation or the commencement of de-certification proceedings, its provision of inadequate care and services may be found to constitute good cause for termination of the provider agreement. The Judgment's requirement that CDIM terminate its provider agreements with such recalcitrant SNFs was not improper. We have considered all of the arguments advanced by CDIM in support of its cross-appeal and have found them to be without merit. We conclude that the Judgment of the district court is proper as far as it goes, and we turn now to plaintiffs’ contentions that the Judgment did not go far enough. III. PLAINTIFFS’ CONTENTIONS Plaintiffs, while urging us to affirm the Judgment to the extent that it grants them relief, contend that the district court should have granted broader relief in their favor, and they ask that we “remand this case to the district court with instructions to order the defendant to implement Subpart I of 42 C.F.R. part 456 [i.e., §§ 456.600-456.614] fully and effectively.” In support of their appeal, they contend (1) that the district court erred in failing to find that the health of class members had deteriorated for want of adaptive wheelchairs; (2) that their complaint as filed was broad enough to justify the granting of more extensive relief; and (3) that if the complaint as filed was not broad enough, the court should have granted their motion to amend. We have considered all of plaintiffs’ arguments in support of a broader judgment and find no merit in any of them. A. The District Court’s Findings as to Injury In its assessment of the evidence at trial, the district court stated that it cannot be determined, on the basis of credible evidence in the record of this case, whether and to what extent the health of any particular class member has deteriorated since his admission into an SNF as a result of the SNF’s failure to provide him with an adaptive wheelchair. Opinion at 16. Plaintiffs contend that the “court’s failure to make any finding in this respect is... clearly erroneous.” Even if accepted, this contention provides no ground for a remand. As detailed in Part I.C. above, the court found, inter alia, that adaptive wheelchairs were, for many severely disabled persons, a medical necessity that SNFs are required to

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).

This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?

McCLURE et al. v. O. HENRY TENT & AWNING CO., Inc. No. 10446. United States Court of Appeals, Seventh Circuit. Nov. 28, 1951. Morris A. Haft, Chicago, Ill., for appellant. Jack I. Levy, Chicago, Ill. (Sonnenschein, Berkson, Lautmann, Levinson & Morse, Chicago, Ill., of counsel), for appellees. Before KERNER, FINNEGAN, and SWAIM, Circuit Judges. KERNER, Circuit Judge. On a previous appeal in this cause we held that the contract in suit had been breached by defendant, as found by the court. However, because of an error in law in the measurement of damages for such breach, we remanded the cause for further proceedings only as to the question of damages. 184 F.2d 636. Following remand of the cause, defendant filed its motion for hearing and for leave to introduce additional evidence without specifying the nature of the additional evidence, and plaintiffs filed their motion for additional findings of fact and judgment based on the evidence already of record in the cause. The court, without further hearing, adopted the findings proposed by plaintiffs and entered judgment based thereon for damages in the amount of $4,290.78, the game amount as had been decreed in the earlier judgment reversed by us. Defendant appeals. Since we briefly stated the essential evidence in our opinion on the earlier appeal, we shall not restate it. The error in law to which we called attention in our earlier opinion had to do with the date adopted by the court for measuring the damages which it had fixed as the difference between the contract price of the goods and the market price on the date of the filing of the suit. It appeared from the evidence that although the contract had called for the delivery of material of a specified quality and quantity at specified times, the plaintiffs had accepted materials of a different quality furnished after the due dates, hence there was shown, and the court found, an indefinite extension of delivery time by mutual consent. We therefore held that the damages should have been' determined as of the time of the termination of that extension, and remanded to enable the trial court to determine whether the indefinite extension had been duly terminated, and, if so, when. Defendant contends that it was error for the court, on remand, to render the finding of facts and enter judgment thereon without hearing additional evidence, and that the evidence already of record was insufficient to support this special finding which was as follows: “After, but not for some time after, May 21, 1946, the date on whioh defendant made the last shipment of material under the duck contract, plaintiffs again asked defendant to perform the duck contract. A reasonable time thereafter, i. e., August 14, 1946, defendant having failed to perform, plaintiffs’ attorneys demanded satisfaction from defendant upon threat of instituting this suit, thereby terminating the extensions for indefinite periods of the time for defendant to perform said contract. The market price of 30" 10.53 oz. army duck was 45.86 per yard on August 14, 1946, which price was 'in effect from August 5, 1946 until August 30, 1946.” We cannot agree with defendant’s contention that the court was compelled to hear additional evidence upon the remand of the cause. As we stated, the evidence as to a fact vital to the decision of the cause was in dispute, and it was the duty of the trial court to resolve that dispute. That did not mean that a new trial was necessary. Of course, had the court desired to hear additional evidence on the issue it was free to do so under our mandate. But it appears from its disposition of the cause that it was satisfied that there was sufficient evidence of- record upon which to base -its finding, and that further hearing was unnecessary. We cannot say that its disposition of the cause was clearly erroneous. The record presented on the original appeal discloses that the proofs had been fully developed, and we think they are sufficient to support the additional finding of facts. Under these circumstances it was not error for the court to dispense with further hearings. Goldstein v. Franklin Square Bank, 2 Cir., 107 F.2d 393. Compare United States v. Yellow Cab Co., 338 U.S. 338, 70 S.Ct. 177,94 L.Ed. 150. -Cases upon which defendant relies to the effect that “A lower Court has full power to consider and determine any question or matters which the decision and the mandate of the reviewing court have left open and undisputed, Sprague v. Ticonic National Bank, 307 U.S. 161 [59 S.Ct. 777, 83 L.Ed. 1184], and to take such further proceedings as may be necessary in the case to effectuate the decision of the Appellate Court, Illinois Bell Telephone Co. v. Slattery, [7 Cir.], 98 F.2d 930,” do not require a different conclusion under the facts here presented. Judgment affirmed.

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".

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?

Joseph KAUFFMAN, Appellant, v. Milton D. MOSS, District Attorney, W. H. Harner, Detective Captain, Charles Len-nox, County Detective, and Francis Lynch, Detective Sergeant. No. 17686. United States Court of Appeals Third Circuit. Submitted on Briefs Nov. 3, 1969. Decided Jan. 14, 1970. Maris, Circuit Judge, dissented in part. Joseph Kauffman, pro se. Richard A. Devlin, Paul W. Tressler, Asst. Dist. Attys., Norristown, Pa., for appellees. Before MARIS, SEITZ and STAHL, Circuit Judges. OPINION OF THE COURT STAHL, Circuit Judge. This is an appeal from an order dismissing a civil rights complaint. Appellant, according to his brief, was convicted by a jury of conspiracy to commit burglary, burglary and larceny in a Pennsylvania state court. He brought this suit for damages, pro se, under the Civil Rights Act, 42 U.S.C. §§ 1983, 1985, against the District Attorney of Montgomery County and three law enforcement officers, alleging that they had conspired to secure his convictions by the knowing use of perjured testimony. Ap-pellees’ motion to dismiss the complaint under FRCiv.P 12(b) was granted by the district court on the following grounds: (1) The issue of the veracity of the witnesses had been decided against appellant at his state criminal trial and, therefore, he was collaterally estopped from bringing a civil damage suit based on the alleged use of perjured testimony against him; and (2) Appellant’s complaint consisted of broad conclusionary allegations not supported by specific factual aver-ments. At the outset we note that apart from the reasons stated by the district court, the dismissal of the complaint as to the district attorney, Moss, was proper on other grounds and should, therefore, be affirmed. Appellees, including Moss, moved to dismiss the complaint on the ground, inter alia, that it failed to set forth a cause of action. Treating this as a Rule 12(b) motion for “failure to state a claim upon which relief can be granted,” the district court could properly have sustained the motion as to appellant Moss on the basis of prosecutorial immunity. A state prosecuting attorney is immune from liability under the Civil Rights Act, unless his alleged actions are clearly outside the scope of his jurisdiction. Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966). Here appellee Moss was acting within his jurisdiction in bringing a criminal charge against appellant for a claimed violation of state law regardless of the allegations that the subsequent conviction was the result of perjured testimony. We therefore affirm the district court’s dismissal of the complaint as to the district attorney on the ground that, because of his immunity from suit, the complaint failed to státe a claim upon which relief could be granted against him. Bauers v. Heisel, supra at 592. Having determined that the judgment of dismissal as to appellee Moss should not be disturbed, we now turn to a consideration of the grounds stated by the district court for dismissing the complaint against the remaining appellees. In determining that appellant’s civil rights suit was barred by his prior conviction, the district court relied on Curtis v. Tower, 262 F.2d 166 (6th Cir. 1959). In Curtis, decided prior to Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the court upheld the dismissal of a civil rights action, apparently on the basis of collateral estoppel, stating: The judgment of the State Court, if not vacated, corrected, or amended by the state reviewing courts, or set aside by the Federal Court for invasion of a federal constitutional right, must be accepted by us as in full force and effect unless it is vacated by a state or federal court for some invasion of federal constitutional right. * * * If the State Court judgment is valid, the appellant has not been injured and his complaint in the District Court sets forth no cause of action under the Civil Rights Act. 262 F.2d at 167. However, the language quoted above has subsequently been repudiated by the Sixth Circuit in Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968). In that case the plaintiff, who had been convicted of murder in the state court and was then serving his sentence, alleged a deprivation of civil rights by his arrest and seizure of his property without probable cause. The court of appeals reversed the dismissal of the civil rights claim, stating: [I] t is apparent that our statement in Curtis does not make sufficient allowance for the distinct federal interests which are protected by the Civil Rights Act. * * * While considerations of state-federal comity and judicial efficiency may dictate that a civil rights action be dismissed when the alleged deprivation has been examined fully during a state criminal trial or has been waived by the complainant, the simple fact of an unre-versed state conviction cannot by itself require dismissal. 389 F.2d at 232-233. We agree with the Sixth Circuit’s holding in Mulligan. We therefore proceed to determine whether in the circumstances of this case the district court properly dismissed the civil rights complaint on the ground of prior adjudication. The standard for determining if litigation of a question in a civil suit is barred by a prior criminal trial is whether the question was “ ‘distinctly put in issue and directly determined’ in the criminal prosecution. * * * In the case of a criminal conviction based on a jury verdict of guilty, issues which were essential to the verdict must be regarded as having been determined by the judgment.” Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 569, 71 S.Ct. 408, 414, 95 L.Ed. 534 (1951). Where a motion to dismiss is made on the basis of collateral estoppel, it is usually necessary for the court to examine the record of the prior trial, unless it appears on the face of the complaint that it is barred by issues decided in the prior adjudication. Reasonable doubt as to what was decided by a prior judgment should be resolved against using it as an estoppel. If, as is generally the case, the trial court must consider matters outside the complaint in deciding whether collateral estoppel is applicable, then the motion must be treated as one for summary judgment and be disposed of in accordance with Rules 12(b) and 56. The use of collateral estoppel in a civil rights case was dealt with by this court in Basista v. Weir, 340 F.2d 74 (3d Cir. 1965), a suit against police officers for assault and battery and false arrest, where it was held that the trial judge erroneously directed a verdict for the defendants on the ground, inter alia, of collateral estoppel. In that case the plaintiff had previously been convicted of assault and battery against the defendant police officers. On appeal, we held: [T]he transcript of the proceedings of Basista’s trial before the Court of Quarter Sessions was not admitted in evidence and therefore there could be no collateral estoppel. Lacking a certified copy of the transcript we are uninformed as to what acts of Basista furnished the foundation for his conviction on the charge of assault and battery. * * * [A]t best, the present Quarter Sessions judgment against Basista is ambiguous and therefore must be treated as insufficient to support collateral estoppel. 340 F.2d at 81-82. Similarly, in the instant case, without examination of the record in the appellant’s state trial, the court below could not know whether the veracity of the state’s witnesses had been adequately put in issue by appellant nor whether the general verdict of guilty was necessarily based on the acceptance by the jury of the truth of the alleged perjured testimonly so as to permit the state judgment to bar the present claim of perjury. While the case may be appropriate for summary judgment upon consideration of the criminal .trial record, it was error to dispose of the complaint by a motion to dismiss on the ground of estoppel. From the foregoing discussion, it is apparent that .the complaint should not have been dismissed provided a claim for relief was otherwise properly stated. The district court in its memorandum opinion characterized appellant’s complaint as “a series of conclusionary allegations unsupported by facts.” This court has adopted the rule that complaints in civil rights case must be specifically pleaded in order to avoid a motion to dismiss. Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967). While we adhere to this rule, we do not thereby intend to subvert the liberal policy favoring amendment of complaints as expressed in Rule 15(a). The considerations underlying the Negrich requirement must be balanced against the equally important policies that pro se litigants not be denied the opportunity to state a civil rights claim because of technicalities, and that litigation, where possible, should be decided on the merits. Here, since judgment has been entered on the motion to dismiss, appellant no longer has the right to amend his complaint as of course. Kelly v. Delaware River Joint Comm., 187 F.2d 93 (3d Cir.), cert. denied, 342 U.S. 812, 72 S.Ct. 25, 96 L.Ed. 614 (1950) However, under Rule 15(a), the district court is enjoined to “freely” permit amendment as a matter of discretion. We recognize that since the court below believed that the instant complaint was barred by collateral estoppel, it had no occasion to exercise its discretion to permit appellant to make a more specific pleading. In this case we are of the opinion, however, that such discretion should be exercised to permit amendment. We therefore affirm the judgment below as to appellee Moss, and remand the case to the district court with directions that the judgment with respect to the remaining appellees be vacated and leave granted to amend within such reasonable period after vacation of .the judgment as may be fixed by the court. The judgment of the district court will be affirmed in part and vacated in part and the case remanded to .the district court in accordance with this opinion. SEITZ, Circuit Judge, concurs in the result. . Appellant’s Appendix 12. The lower court’s memorandum opinion is presently unreported. . While the district court did not spe.cifically refer to the doctrine of collateral estoppel, that this was one of the grounds for the decision is clear from the court’s reliance on Curtis v. Tower, 262 F.2d 166 (6th Cir. 1959), discussed infra, and Gaito v. Strauss, 249 F.Supp. 923 (W.D. Pa.1966), affd on other grounds, 368 F. 2d 787 (3d Cir. 1966). . As an additional reason for dismissing the complaint, appellees, and the district court, cite Hurlburt v. Graham, 323 F. 2d 723 (6th Cir. 1963), for the proposition that allegations of conviction by perjured testimony are not sufficient to state a claim under the Civil Rights Act. In Hurlburt the court stated: Nor. do we think that giving a false version of the accident (which plaintiff claims the officers and other defendants did) would bring the case under the Civil Rights Act. If the rule were otherwise, any disgruntled litigant who lost his case in the state court could get a retrial * * * by alleging that his opponent gave a false account of the controversy. 323 F.2d at 725. No authority was cited in Hurlburt in support of this statement. Moreover, whatever the validity of this rule when applied to civil rights suits based on allegations of perjury alone, we believe that claims of a conspiracy by state officers to convict a person of a crime by the knowing use of perjured testimony, when set forth with sufficient specificity, are not categorically deficient in stating a claim under the Civil Rights Act. Pugliano v. Staziak, 231 F.Supp. 347 (W.D.Pa.1964), affd per curiam, 345 F.2d 797 (3d Cir. 1965), is not to the contrary. In Pugliano, a ease factually similar to the instant claim, the court granted summary judgment after an exhaustive examination of the affidavits, trial records and other documents on the ground that plaintiff had failed to “set forth specific facts showing that there [was] a genuine issue for trial,” as required by Rule 56(e). 231 F.Supp. at 352. We note in this connection that the Supreme Court has repeatedly held that the knowing use of false testimony by a state against an accused at a criminal trial offends fundamental fairness and constitutes a denial of due process of law guaranteed by the Fourteenth Amendment. Miner v. Pate, 386 U.S. 1, 87 S. Ct. 785, 17 L.Ed.2d 690 (1967) ; Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) ; Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942) ; Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L.Ed. 791 (1935). Cf. Curran v. Delaware, 259 F.2d 707 (3d Cir. 1958) ; United States v. Rutkin, 212 F. 2d 641 (3d Cir. 1954) ; United States ex rel. Almeida v. Baldi, 195 F.2d 815, 33 A.L.R.2d 1407 (3d Cir. 1952). . Appellees Harner and Lynch are members of the Cheltenham Township police department. Appellee Lennox is a county detective in Montgomery County. Po-iee officers, of course, are not immune from liability under the Civil Bights Act. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). . The district court also cited Gaito v. Strauss, 249 F.Supp. 923 (W.D.Pa.1966), as support for its conclusion that appellant was collaterally barred from bringing the instant suit. In Gaito, the district court dismissed a civil rights claim by a prisoner who alleged deprivation of liberty as a result of a conspiracy by the district attorney and others to convict him illegally. The dismissal of the complaint was based, inter alia, on the ground of prior adjudication at plaintiff’s criminal trial of. the issues raised in the civil rights suit, including the veracity and credibility of witnesses at the prior trial. As the district court in the present case recognized, however, this court affirmed Gaito on appeal solely on the ground that the statute of limitations had run against the civil rights claim and we therefore did not consider the propriety of the collateral estoppel ground. 368 F.2d 787. . In Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 569, 71 S.Ct. 408, 414, 95 L.Ed. 534 (1951), the Court said: [W]hat was decided by the criminal judgment must be determined by the trial judge hearing the * * * [civil] suit, upon an examination of the record, including the pleadings, the evidence submitted, the instructions under which the jury arrived at its verdict, and any opinions of the courts. Cf. Sealfon v. United States, 332 U.S. 575, 578-580, 68 S.Ct. 237, 92 L.Ed; 180 (1948) ; Cities Service Co. v. S. E. C., 257 F.2d 926, 928, 930 (3d Cir. 1958). . Palma v. Powers, 295 F.Supp. 924, 941 (N.D.Ill.1969) ; Jones v. Miller, 2 F.R.D. 479 (W.D.Pa.1942). Cf. Miller v. Shell Oil Co., 345 F.2d 891 (10th Cir. 1965) ; Southard v. Southard, 305 F.2d 730 (2d Cir. 1962). . Northern Oil Co. v. Socony Mobil Oil Co., 368 F.2d 384, 388 (2d Cir. 1966) ; Travelers Indemnity Co. v. Arbogast, 45 F.R.D. 87, 89 (W.D.Pa.1968). . See United States v. Fabric Garment Co., 366 F.2d 530, 533-534 (2d Cir. 1966) ; Moran v. Paine, Webber, Jackson and Curtis, 279 F.Supp. 573, 578 (W.D.Pa. 1967) ; Philadelphia Workingmen’s Saving Loan & Building Ass’n v. Albert M. Greenfield & Co., 9 F.R.D. 71 (E.D.Pa. 1949). Because the district court did not dispose of this case under Rule 56, and because there is no reference to the record of the prior trial in the lower court’s opinion, wé believe it is fair to assume that there was no examination of the criminal trial transcript. . We believe the principles expressed in this part of the opinion apply whether the issue as to which collateral estoppel is sought to be raised relates to truthfulness, i. e., perjury, or to other matters, such as search and seizure, assault and battery and the like. In our view, a guilty verdict per se no more establishes the veracity of every witness than it determines which of several alternative factual combinations the jury believed. . We note that appellant’s allegation that appellees conspired to commit perjury and subornation of perjury would not in itself be sufficient to avoid dismissal of the complaint or summary judgment for ap-pellees on the ground of collateral estop-pel. While it is clear that the conspiracy issue could not have been decided by appellant’s prior criminal conviction, nevertheless if appellant is barred from litigating the existence of perjury itself, then he has no right to recover for conspiracy to commit or suborn perjury. If appellant is unable to show that perjury was actually committed, then he has suffered no injury and is entitled to no redress. . See United States v. Fabric Garment Co., supra; United States v. Doman, 255 F.2d 865 (3d Cir. 1958), affirming summary judgments in civil suits brought by the Government, based on issues decided in prior criminal trials; Bradford v. Lefkowitz, 240 F.Supp. 969, 971 (S.D. N.Y.1965) ; United States v. Myers, 38 F.R.D. 194 (N.D.Cal.1964) ; United States v. Salvatore, 140 F.Supp. 470 (E.D.Pa.1956) ; cf. Breeland v. Security Insurance Co. of New Haven, 421 F.2d 918 (5th Cir. 1969), affirming, in a diversity case, summary judgment which was granted against a plaintiff on the ground that plaintiff’s prior criminal conviction for fraud in procurng an insurance policy barred relitigation of that issue in plaintiff’s subsequent civil action against the insurance company for the proceeds of the policy; United States v. United States Coin and Currency, etc., 379 F.2d 946, 947 (7th Cir. 1967), vacated and remanded, Stone v. United States, 390 U.S. 204, 88 S.Ct. 899, 19 L.Ed.2d 1035 (1968). . See also Goslee v. Crawford, 411 F.2d 1200 (3d Cir. 1969) ; Pusateri v. Johnston, 398 F.2d 327 (3d Cir. 1968) ; United States ex rel. Hoge v. Bolsinger, 311 F. 2d 215 (3d Cir. 1962), cert. denied, 372 U.S. 931, 83 S.Ct. 878, 9 L.Ed.2d 735 (1963). We recognize that other circuits seem to have taken a contrary position. See, e. g., Johnson v. Mueller, 415 F.2d 354 (4th Cir. 1969) ; Shock v. Tester, 405 F.2d 852, 854 (8th Cir.), cert. denied, 394 U.S. 1020, 89 S.Ct. 1641, 23 L.Ed. 2d 45 (1969) ; Dodd v. Spokane County, 393 F.2d 330 (9th Cir. 1968) ; Barnes v. Merritt, 376 F.2d 8 (5th Cir. 1967). For eases in accord with the Negrich rule, see Dunn v. Gazzola, 216 F.2d 709 (1st Cir. 1954) ; Ortega v. Hagen, 216 F.2d 561 (7th Cir. 1954), cert. denied, 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268 (1955). Compare Adickes v. S. H. Kress & Co., 409 F.2d 121, 126 (2d Cir. 1968), cert. granted, 394 U.S. 1011, 89 S.Ct. 1635, 23 L.Ed.2d 38 (1969), and Birnbaum v. Trussell, 347 F.2d 86 (2d Cir. 1965), with Church v. Hegstrom, 416 F.2d 449 (2d Cir. 1969), and Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968). . See United States v. Hougham, 364 U.S. 310, 316, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960) ; Schaedler v. Reading Eagle Publication, Inc., 370 F.2d 795 (3d Cir. 1967) ; 3 Moore, Federal Practice K 15.02 [1] (2d ed. 1968). . The reason for the Negrich exception to the general rule of “notice pleading” was well stated in Valley v. Maule, 297 F. Supp. 958 (D.Conn.1968). Citing Negrich, the court said: As a general rule notice pleading is sufficient, but an exception has been created for cases brought under the Civil Rights Acts. The reason for this exception is clear. In recent years there has been an increasingly large volume of cases brought under the Civil Rights Acts. A substantial number of these cases are frivolous or should be litigated in the State courts; they all cause defendants — public officials, policemen and citizens alike — considerable expense, vexation and perhaps unfounded notoriety. It is an important public policy to weed out the frivolous and insubstantial cases at an early stage in the litigation, and still keep the doors of the federal courts open to legitimate claims. Id. at 960. Cf. United States v. Gustin-Bacon Division, etc., 302 F.Supp. 759 (D.Kan.1969). . Lockhart v. Hoenstine, 411 F.2d 455, 458-459 (3d Cir. 1969) ; Picking v. Pennsylvania R. R., 151 F.2d 240, 244 (3d Cir. 1945). . Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). . But see Wright, Federal Courts § 66, p. 239 (1963). . See Ballou v. General Electric Co., 393 F.2d 398 (1st Cir. 1968) ; Bonanno v. Thomas, 309 F.2d 320 (9th Cir. 1962). Appellant’s brief to this court states that two of the witnesses appellees allegedly induced to give perjured testimony against him have never been charged or prosecuted although they allegedly confessed to participation in the same crime for which appellant was convicted. Appellant further states that District Attorney Moss made certain oral statements to the effect that he would “put appellant away for life.” While these claims, even if properly alleged, would not in themselves be enough to render the complaint sufficient, they are indicative of the possibility that appellant may be able to state an adequate claim for relief.

What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.

What is the number of judges who voted in favor of the disposition favored by the majority?

UNITED STATES ex rel. DONNER STEEL CO. Inc., v. INTERSTATE COMMERCE COMMISSION. (Court of Appeals of District of Columbia. Submitted October 5, 1925. Decided November 2, 1925.) No. 4303. I. Judgment <3=»589(l)— Judgment dismissing petition for mandamus, or in alternative for certiorari to review action of Interstate Commerce Commission, held res judicata. Judgment dismissing petition for mandamus, and in alternative for certiorari, to review action of Interstate Commerce Commission, holding that petitioner had been discriminated against in violation of Act to Regulate Commerce, §§ 1. 2, 3 (Comp. St. §§ 8563, 8564, 8565), but denying reparation, held res judicata on petition for certiorari only after Commission had granted rehearing, but adhered to its former ruling, notwithstanding question of certiorari was not seriously considered by either court or counsel on prior hearing. 2. Judgment <3^731 — Question raised in ease, and not reserved out of judgment, must be treated as res judicata, though not given serious consideration. Question expressly raised in case, and not reserved out of judgment, must be considered as adjudicated therein in subsequent case involving same question between same parties, though it was not given serious consideration, either by court or counsel. 3. Judgment <®=589(I)--Judgment dismissing petition for mandamus, and in alternative for eertiorari to review action of Interstate Commerce Commission, héid res judicata. Judgment dismissing petition for mandamus, and in alternative for certiorari, to review action of interstate Commerce Commission, holding petitioner had been discriminated against, in violation of Act to Regulate Commerce, §§ 1, 2, 3 (Comp. St. §§ 8563, 8564, 8565), but denying reparation, held res judicata on subsequent petition for certiorari only, although in meantime the Commission had granted rehearing and heard additional evidence; issues on rehearing being confined to those involved on first hearing and between same parties. Appeal from Supreme Court of District of Columbia. Petition by the United States, on the relation of the Donner Steel Company, Ine., for writ of eertiorari to review action of Interstate Commerce Commission, denying petitioner reparation for discrimination found to have been made against it. Prom a judgment dismissing the petition, petitioner appeals. Affirmed. See, also, 52 App. D. C. 221, 285 F. 955. J. L. O’Brian, of Buffalo, N. Y., and G. C. Todd, of Washington, D. C., for appellant. P. J. Farrell, of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. MARTIN, Chief Justice. The Donner Steel Co., Inc., owned and operated two manufacturing plants for the production of pig iron and steel, located in the state of New York. On January 17, 1919, it filed a complaint with the Interstate Commerce Commission against the Director General of Railroads and certain railroad companies, all common carriers, alleging that the said carriers were either performing the. service of spotting cars free within the plants of the complainant’s competitors, or in lieu thereof were making an allowance to them for the cost incurred by them in performing that service for themselves, but that at the same time the carriers refused either to perform the same service of spotting cars within complainant’s plants or in the alternative to pay complainant for the cost incurred by it in performing such service for itself, under substantially similar circumstances and conditions. The complaint alleged that this practice was a violation of sections 1, 2, and 3 of the Act to Regulate Commerce (Comp. St. §§ 8563, 8564, 8565), being an undue prejudice or discrimination by the carriers against the complainant, and that complainant had suffered damages because thereof in the sum of $498,000. It prayed for an order directing the carriers to cease from the discrimination complained of, and for an award to the complainant of its said damages. A trial upon evidence was had by the Commission, and on June 7, 1920, its decision was reported, sustaining the charge of discrimination as aforesaid, holding the same to be unlawful, and ordering the carriers to cease therefrom, holding, however, that the complainant had not shown that it had suffered any damage of which the discrimination was the proximate cause, and accordingly awarding no damages to it. Thereupon the complainant filed a petition in the Supreme Court of the District of Columbia against the Interstaie Commerce Commission, entitled a petition for mandamus or eertiorari, setting out the aforesaid facts and proceedings, first praying the court for a writ of mandamus directed to the Commission, commanding and directing it to ascertain, fix, and determine the reasonable cost to the complainant of performing its necessary car-spotting service, with its own facilities, during the period in question, and to make an award of damages to complainant, taking into account the reasonable cost of such service incurred and paid by complainant, and not incurred or paid by its said competitors, by reason of the discriminatory practices complained of, and next praying the court to issue a writ of eertiorari, directed to the Commission, directing it to certify to the court the record and proceedings in the case, and that the court should thereupon review the same, and take such further action and make such decision in and disposition of the case as might seem just and proper. A demurrer to this petition was filed by the Commission and was sustained by the court, whereupon the petitioner appealed to this court, which affirmed the judgment of the lower court. Donner Steel Co. v. Interstate Commerce Commission, 52 App. D. C. 221, 285 F. 955. The complainant thereupon applied to the Commission for a rehearing, which was granted. The Commission, however, affirmed its former finding, and again denied reparation. Thereupon the complainant filed a second petition in the Supreme Court of the District of Columbia, with the Interstate Commerce Commission as defendant, entitled a petition for eertiorari, setting out the aforesaid facts and proceedings, and praying that the court should “issue a writ of eertiorari, directed to the respondent, directing it to certify to this court the record and proceedings in this ease, and that this court thereupon review the same, and take such further action and make such decision in and disposition of this case as to it may seem just and proper.” ' This petition was dismissed by the court upon motion of the respondent, the court holding in effect, although not in terms, that the issue was res adjudicata. Thereupon the present appeal was taken by the petitioner. We think it is apparent upon the record that the petition in this ease presents the identical issues which were passed upon by the court in the former case between the same parties, and that it was rightly dismissed under the rule of res adjudicata. The appellant, however, contends that this court, in its opinion rendered in the former ease, held only that the lower court could not review or control the Commission’s decision by mandamus, and did n'ot decide whether a writ of certiorari could lawfully have been issued by the lower court in the case. That contention is answered by the fact that the actual judgment upon the issues presented in the former case was rendered by the trial court. The petitioner in the ease sought a remedy in that court by mandamus, or alternatively by eertiorari; but the court denied it any remedy whatever, and dismissed the petition. This was an adjudication of all the issues raised in the ease below, both as to substantive rights and the remedies sought. The judgment was affirmed by this court, without modification, and the force and effect of the adjudication remained as before the appeal. It is said by the appellant that the question of eertiorari was not given serious consideration, either by the court or counsel, in the former proceedings. This, however, does not alter the situation, for the question was expressly raised in the case, and it was not reserved out of the judgment. It must therefore be considered as adjudicated therein. In the ease of Gould v. Evansville & Crawfordsville R. Co., 91 U. S. 526, 23 L. Ed. 416, the Supreme Court said: “Except in special eases, the plea of res adjudicata applies, not only to points upon which the court was actually required to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of the allegation, and which the parties, exercising reasonable diligence, might have brought forward at the time. 2 Taylor’s Ev. sect. 1513; Henderson v. Henderson, 3 Hare, 115; Stafford v. Clark, 2 Bing. 382; Miller v. Covert, 1 Wend. [N. Y.] 487; Bagot v. Williams, 3 B. & C. 241; Roberts v. Heine [Heim] 27 Ala. 678.” The appellant also contends that the rule of res adjudicata does not now apply in this case, because of the fact that, after judgment was rendered in the former ease, a rehearing was granted by the Interstate Commerce Commission, at which additional testimony was taken, although it was followed by the same decision as before. It must be observed, however, that the rehear-, ing was confined to the same questions as were involved in the first hearing and was between the same parties; consequently the second petition, which was filed in the lower court, presented the same issues as were presented by the first one. In United States v. Moser, 266 U. S. 236, 45 S. Ct. 66, 69 L. Ed. 262, the Supreme Court said: “The general principle announced in numerous cases is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit .is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.” We affirm the judgment of the lower court, with costs.

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".

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?

Raymond GOFORTH, Plaintiff-Appellant, v. David B. POYTHRESS, etc., Herman Hansird et al., Defendants-Appellees. No. 80-7506 Summary Calendar. United States Court of Appeals, Fifth Circuit. Unit B Feb. 23, 1981. William E. Glisson, Dalton, Ga., for plaintiff-appellant. Arthur K. Bolton, Atty. Gen., Carol Atha Cosgrove, Asst. Atty. Gen., Atlanta, Ga., for Poythress. McCamy, Minor, Phillips & Tuggle, John P. Neal, III, Dalton, Ga., for Hansird. Dan Strain, pro se. Dale M. Schwartz, Gen. Counsel, Atlanta, Ga., for State Democratic Party. Before TJOFLAT, VANCE and THOMAS A. CLARK, Circuit Judges. PER CURIAM: The appellant contends that Ga.Code Ann. § 24-2801(c)(l)(E) operates to deny him the equal protection of the laws in violation of the fourteenth amendment. The district court, in the proceeding below, disagreed and refused to enjoin the statute’s enforcement. We affirm, adopting the reasoning of the district court in its “dispositive order” that appears in the attached appendix. AFFIRMED. APPENDIX UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ROME DIVISION RAYMOND GOFORTH, Plaintiff, v. DAVID B. POYTHRESS, Secretary of State of the State of Georgia, et a 1., Defendants. CIVIL ACTION NUMBER C80-110R ORDER HAROLD L. MURPHY, District Judge. This is an action filed pursuant to 42 U.S.C. § 1983, wherein plaintiff Raymond Goforth seeks a declaratory judgment pursuant to 28 U.S.C. § 2201, a preliminary injunction, a permanent injunction, and other relief to enjoin the alleged deprivation, under color of state law, of rights, privileges, immunities and the equal protection of the law, arising under the Constitution of the United States, and particularly under the Fourteenth Amendment thereto. Jurisdiction is conferred upon the. Court by 28 U.S.C. § 1343(a). In this case, Mr. Goforth contends that he attempted to qualify as a candidate with the proper authorities of Whitfield County, Georgia, that is the Democratic Party, for the office of Sheriff of Whitfield County and was rejected upon the ground that, inasmuch as he had only seven years of education, he did not meet the educational criteria provided by law under the statutes of the State of Georgia. He contends because of this rejection, that Ga.Code Ann. § 24-2801(c)(l)(E) is violative of the Equal Protection Clause of the Constitution. This statute provides that any candidate for Sheriff in Georgia must “have obtained a high school diploma or its recognized equivalent in educational training as established by the Georgia Peace Officers’ Standards and Training Counsel.” This case came on for a hearing before the Court upon Mr. Goforth’s motion for a temporary restraining order on Monday, June 9, and at that time the Court, after a hearing, denied that relief. On that date, the Court set the matter for the issue of the granting of a preliminary injunction for Friday, June 13,1980. The Court has heard from counsel for the parties and also heard oral testimony and received in evidence certain exhibits. I The Court finds as a matter of fact, that the plaintiff, Raymond Goforth, is a citizen and resident of Whitfield County, Georgia, and has been such a citizen and resident for 39 years, and that he is also a natural-born citizen of the United States. Within the time allowed by law for qualifying as a candidate for the Democratic nomination of Sheriff of Whitfield County, Mr. Goforth sought qualification before the proper authorities in Whitfield County. Raymond Goforth has only a seventh grade education and has not passed what is known as the GED examination, a test which has been recognized by the Georgia Peace Officers’ Standards and Training Counsel as the recognized equivalent in educational training to a high school diploma. Neither has Mr. Goforth passed the military equivalent of a GED examination, which is also a test which has been recognized by the Georgia Peace Officers’ Standards and Training Counsel as a recognized equivalent in educational training to a high school diploma. Due to Mr. Goforth’s failure to have a high school diploma or its equivalent, he has been unable to qualify as a candidate for the position of Sheriff of Whitfield County in the upcoming primary which is scheduled for August 5, 1980. The Georgia Peace Officers’ Standards and Training Counsel has, pursuant to statutory authority, passed regulations pursuant to the Georgia Administrative Procedure Act, Georgia Laws 1964, Page 338, as amended and codified in Georgia Code Annotated, Chapter Three A, which provide that a valid high school equivalency diploma awarded by any state on the basis of a general education development (GED) or United States Armed Forces Institute (USAFI) high school equivalency test may be accepted in lieu of a high school diploma. The Court further finds as a matter of fact that the plaintiff in the case has not offered himself as a candidate for any alternative equivalency to a high school education in order to meet any requirements set forth in the statute as to educational levels required for a candidate for sheriff. II In 1976, the Constitution of the State of Georgia was amended to contain the following: Any provision of this Constitution to the contrary notwithstanding, every sheriff shall possess the qualifications required by general law as minimum standards and training for peace officers. The General Assembly is hereby authorized to provide by law for higher qualifications for sheriffs. The provisions of this paragraph shall not apply to any sheriff in office on January 1, 1977. Ga.Const. Art. IX, Sec. I (proposed in Ga. Laws, 1975, p. 1682; ratified Nov. 2, 1976; codified in Ga.Code Ann. § 2-5808.1). Pursuant to this constitutional authority, the General Assembly of Georgia passed the legislation at issue here which states (c)(1) No person shall be eligible to hold the office of sheriff who does not have all of the following qualifications: (E) Have obtained a high school diploma or its recognized equivalent in educational training as established by the Georgia Peace Officer Standards and Training Council. Ga.Code Ann. § 24-2801(c)(l)(E). In order to prevail on his claim that this statute violates the Equal Protection clause of the Fourteenth Amendment, plaintiff Goforth must demonstrate a discrimination against him of some substance. Statutes create many classifications which do not deny equal protection; it is only “invidious discrimination” which offends the Constitution. American Party of Texas v. White, 415 U.S. 767, 781, 94 S.Ct. 1296, 1306, 39 L.Ed.2d 744 (1973). It is unnecessary to support with citations the observation that where a fundamental right is involved, slight discrimination is considered invidious. Thus the standard of review applicable in Equal Protection cases depends on the nature of the case. In Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), the Supreme Court applied a more rigorous standard of review than that of minimal scrutiny when confronted with an attack on the validity of a Texas statute which imposed filing fees ranging as high as $8,900.00 on certain candidates seeking to qualify to run for office. While noting that candidacy for public office is not a fundamental right per se, the Supreme Court acknowledged that laws affecting candidates always have at least some theoretical, correlative effect on voters. In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters. Id. In Bullock, the Court “closely scrutinized” the Texas filing-fee scheme and found it unconstitutional because its “patently exclusionary character” allowed a disparity in voting power based solely on wealth. Id. In the instant case, the Court is faced with a candidate qualification based on cognizable educational development rather than wealth. Plaintiff Goforth seems to concede that the statute must only survive minimal scrutiny by the Court. The minimal scrutiny standard requires only that there be a rational basis for the classification created by the statute. In the instant case, the purpose of the “educational” requirement is explicitly set out in the statute itself as being “to increase the effectiveness and capabilities of the several sheriffs of this State as a law enforcement officer to combat crime.” Ga.Code Ann. § 24-2801(a). It is irrelevant that there may be some who have not obtained a high school diploma or passed an equivalency exam, but who may yet be personally capable of performing adequately the duties of a sheriff in this state. It is reasonable to conclude, and the Court finds, that an education will facilitate the performance of those duties. There is a reasonable basis for a minimum education requirement and such a requirement can only be stated meaningfully by reference to a cognizable objective standard, such as a high school diploma or its equivalent. The classification here created readily survives minimal scrutiny. In Woodward v. City of Deerfield Beach, 538 F.2d 1081 (5th Cir. 1976), the court reviewed a number of Supreme Court decisions dealing with candidate qualifications and concluded that a balancing test was the best formulation of the standard to be applied. A court should consider the burdens on the candidates and voters, the interests of the state, and possible alternative means for satisfying those interests. Applying this test to the instant case, the Court reaches the same conclusion. The same conclusion as under the rational basis analysis above. The requirement of a high school diploma or its recognized equivalent does not put a great burden on either the candidate or the voters. Equivalency exams are given regularly and frequently. Plaintiff Goforth has not contended that one should not be “educated” in order to be sheriff. He has simply argued that the voters should be given the opportunity to choose him as their sheriff without his having to demonstrate his educational development formally. The Court does not agree. Furthermore, this requirement has not been demonstrated to be so restrictive as to deny a cognizable group a meaningful right of representation. See Plante v. Gonzalez, 575 F.2d 1119, 1126 (5th Cir. 1978). Thus, the requirement does not unduly burden either the candidate or the voter. The State’s interest has already been discussed. Certainly, the State has a strong interest in effective law enforcement. The Court finds that in light of the minimal burden placed on the candidate, possible alternative means for satisfying the State’s interest, if there are any, would not tip the balance in plaintiff’s favor. Therefore, applying the balancing test suggested in Deerfield Beach, 538 F.2d 1081, 1082 (5th Cir. 1978) (fn. 1), the Court must still conclude that the statute is constitutional. Finally, even if the Court should give the statute the “close scrutiny” of the Bullock decision, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), the statute would survive. Based on the same reasoning already set out herein, the Court finds that the educational requirement is “reasonably necessary to the accomplishment of legitimate state objectives.” Id. at 144, 92 S.Ct. at 856. With respect to plaintiff’s request for a preliminary injunction against the operation of Ga.Code Ann. § 24-2801(c)(l)(E), the Court finds that plaintiff has failed to demonstrate a substantial likelihood that he will prevail on the merits. Furthermore, for the reasons stated above, the Court finds that plaintiff’s complaint fails to state a claim for which relief can be granted. ACCORDINGLY, plaintiff’s motion for a preliminary injunction is denied and plaintiff’s complaint is dismissed. . Plaintiff Goforth feels that requiring him to take an equivalency exam invidiously discriminates against him and his fellow graduates of the “school of hard knocks.”

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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.

What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.

UNITED STATES of America, Plaintiff-Appellee, v. Frank RUSSELL, Eugene Van Aernam, John L. Dixon and Jack Murphy, Defendants-Appellants. No. 82-5086. United States Court of Appeals, Eleventh Circuit. April 25, 1983. Rehearing and Rehearing En Banc Denied June 9,1983. Stephen A. Kermish, Atlanta, Ga., for Van Aernam. Larry G. Turner, Gainesville, Fla., Robert S. Griseti, Tampa, Fla., for Dixon & Murphy. H.S. Henderson, III, Mitchell & Henderson, Joe M. Mitchell, Jr., Melbourne, Fla., for Frank Russell. David L. McGee, Asst. U.S. Atty., Pensacola, Fla., for plaintiff-appellee. Before RONEY and HILL, Circuit Judges, and MORGAN, Senior Circuit Judge. JAMES C. HILL, Circuit Judge: Each of the four defendants in this action was charged with two counts of criminal conduct; (1) conspiracy to possess approximately 25,000 pounds of marijuana with the intent to distribute and (2) conspiracy to import that controlled substance into the United States. The government employed Jesus Perez, an experienced drug smuggler, to pose as a smuggler seeking local officials’ protection and other services for unloading marijuana in Dixie and Taylor counties in Florida. Perez first contacted George Howard. (Howard eventually entered into a plea agreement in return for his testimony.) Perez told Howard that he wanted to bring a load of marijuana into the Dixie-Taylor county area and that he wanted official protection for the scheme. Howard agreed to contact others about obtaining protection, to act as a contact man in the area, to set up off-loaders, and to arrange for offload sites. Howard contacted John L. Dixon to obtain protection from the sheriff of Taylor county, Grady Murphy. Dixon and the sheriff’s nephew, Jack Murphy, agreed to obtain this protection for $75,000. Howard arranged a meeting between Dixon, Murphy, Perez, and himself which was tape recorded by Florida agent Ronnie Cornelius. At the meeting, the parties discussed, and agreed to undertake to provide, protection, off-loading sites, and the advantages of using a particular “water” crew for the unloading. Dixon later met with Howard and showed him several off-load sites and the boats that would be used. Subsequent to a meeting on April 29 between Dixon, Perez, Howard, and DEA agent George Villar, Howard began to doubt that Dixon and Murphy could or would produce the required protection. In view of these doubts and of a dispute between the Dixon-Murphy off-load crew and another off-load crew, Howard began to look for protection from other sources. Howard contacted Frank Russell, an official of Dixie County, who claimed that he had off-load sites, a crew, four deputy sheriffs, and a jailor who would aid the smuggling effort. Howard also met with Gene Van Aernam who offered to provide an off-load site and the services of the chief deputy of Dixie county and a jailor in protecting the enterprise. Van Aernam met with Howard and Perez on May 12,1981. In that conversation the parties discussed, and undertook to provide, off-load sites, off-loaders, and protection. Howard also told Van Aernam about his difficulties with the Dixon-Murphy group, mentioning Jack Murphy by name. The government also recorded a meeting between Howard, Perez, Van Aernam, and Russell held on June 2, 1981 where they discussed crews, sites, boats, and the availability of protection for the 25,000 pound load Perez said was available. The jury convicted each of the defendants on both counts after a trial involving all four defendants. Each of the defendants has filed a separate brief in this appeal. Finding no merit in any of the appellants’ contentions, we affirm. I. All four appellants challenge the joinder of defendants for trial. They emphasize that the Dixon-Murphy group never met with the Russell-Van Aernam group and argue that the government’s investigation shifted from Taylor to Dixie county after May 4. The appellants raise three basic issues: whether the joinder was permissible under Fed.R.Crim.P. 8, whether the joinder was permissible under Fed.R.Crim.P. 14, and whether an alleged evidentiary variance between the government’s charge of a single conspiracy and its alleged proof of multiple conspiracies tainted the convictions. Rule 8(b) allows joinder of two or more defendants if “they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Misjoinder under Rule 8(b) is prejudicial per se and would require a new trial. United States v. Kabbaby, 672 F.2d 857, 860 (11th Cir.1982). The government must show that the initial joinder is appropriate under Rule 8(b). United States v. Whitehead, 539 F.2d 1023, 1025 (4th Cir.1976). In order to determine whether the joinder is sound under Rule 8(b) we examine the face of the indictment. If the indictment’s allegations, taken as true, establish a single conspiracy, we must conclude that the initial joinder was proper. United States v. Levine, 546 F.2d 658, 663 (5th Cir.1977). We conclude that each of the defendants agreed to participate in a common enterprise — the smuggling of a load of Perez’s marijuana from Colombia to the Taylor-Dixie county area. Howard, who was not employed by the government as an informer, began the search for sources to help in the smuggling attempt. The imaginary nature of the marijuana load in this case enhances an image of separateness but does not compel us to conclude that the joinder was improper. The existence of a conspiracy does not depend on each conspirator’s participation in every phase of the criminal venture. Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947). Each conspirator need not know of the identity and role of each of his co-conspirators. Id. The unity essential to a conspiracy is derived from the assent of its members to contribute to a common enterprise. Seemingly independent transactions may be revealed as parts of a single conspiracy by their place in a pattern of regularized activity involving a significant continuity of membership. United States v. Grassi, 616 F.2d 1295, 1303 (5th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980). By alleging that each of the conspirators participated in a scheme to import a single 25,000 pound load of marijuana, the indictment satisfies the requirements of Rule 8(b). The appellants also argue that the joinder violated Fed.R.Crim.P. 14. This rule proscribes prejudicial joinder but leaves the decision regarding prejudice to the discretion of the trial judge. United States v. McLaurin, 557 F.2d 1064, 1074-75 (5th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 743, 54 L.Ed.2d 767 (1978). Appellants must show that they “received an unfair trial and suffered compelling prejudice against which the trial court was unable to afford protection.” United States v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir. Unit B 1981). Dixon argues that the compelling prejudice consisted of antagonistic and mutually exclusive defenses and of danger from evidentiary spillover from the government’s repeated references to the public corruption involved with the Russell-Van Aernam segment of the conspiracy. A careful review of the record indicates that appellants have failed to show compelling prejudice, see United States v. Zicree, 605 F.2d 1381, 1388-89 (5th Cir.1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980), and that the trial judge acted within his discretion in refusing to grant a severance on the Rule 14 motions. See United States v. Grimm, 568 F.2d 1186 (5th Cir.1978). Dixon argues that the government’s evidence proved multiple conspiracies, not the single conspiracy charged in the indictment. This proof, in Dixon’s view, constitutes a fatal variance from the offense charged in the indictment. The appellant must show that the variance affected his substantial rights. United States v. Sutherland, 656 F.2d 1181, 1190 n. 6 (5th Cir. 1981), cert. denied, 455 U.S. 949, 102 S.Ct. 1451, 71 L.Ed.2d 663, cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982). We conclude that the trial judge correctly allowed the jury, under proper instruction, to determine whether one or more conspiracies existed. United States v. Michel, 588 F.2d 986, 995 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979) (“Whether a scheme is one conspiracy or several is primarily a question for the jury”); United States v. Rodriguez, 509 F.2d 1342, 1348 (5th Cir.1975). II. Russell and Dixon argue that the trial court erred in permitting Cornelius to testify concerning the intentions of the various appellants and to interpret what they had said on the tapes. The appellants contend that Cornelius’ testimony invaded the province of the jury by offering opinion evidence based on the tape recordings which were themselves admitted into evidence. They also argue that Cornelius’ testimony that the defendants had engaged in a single conspiracy constituted an opinion of a non-expert witness. We disagree. Cornelius described conversations he had overheard between the defendants and Perez. Cornelius testified that there was a single plan that was discussed during the course of these meetings with each one of these persons. He further stated that during the conversations, he had overheard each of the defendants agree to perform certain specific tasks. We conclude that Cornelius’ testimony did not constitute opinion evidence; rather, the agent testified regarding the plan which Perez sought to implement and to authenticate the tape recordings. The district court did not err in admitting this description of facts as perceived by Cornelius. III. Van Aernam argues that the prosecutor made improper comments during his closing argument and rebuttal. In support of this position, Van Aernam points to comments by the prosecutor in which he states that the inconsistencies in the evidence indicate that certain witnesses lied. Having failed to object to the prosecution’s argument at trial, defendant can succeed only if the remarks were so prejudicial that they constituted plain or fundamental error. Kruglak v. Purdy, 578 F.2d 574, 575 (5th Cir.1978); United States v. Blakely, 491 F.2d 120, 122 n. 2 (5th Cir.1974). Plain error consists of error which, when examined in the context of the entire case, is so obvious that failure to notice it would seriously affect the fairness, integrity and public reputation of judicial proceedings. United States v. Fowler, 605 F.2d 181, 184 (5th Cir.1979), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 785 (1980). A close examination of the prosecutor’s closing argument reveals that Van Aernam’s contention lacks merit. A prosecutor may not impugn the credibility of witnesses by hinting at evidence outside the record, by stating his belief as if he was telling the truth, or by stating that the hard work of the police had been successful. See United States v. Weinrich, 586 F.2d 481,497 (5th Cir.1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979). A prosecutor does not commit error in attacking witness credibility on the basis of inconsistencies between his testimony and other evidence. See United States v. Morris, 568 F.2d 396, 398, 400-02 (5th Cir.1978). All of the prosecutor’s remarks cited by the appellant constitute fair comment on the evidence in the record and do not approach the standard of plain error. IV. Russell argues that the trial court abused its discretion in excluding testimony from defense witnesses Peter Thurman and Jesse Brunnell and in limiting Alfred Dowdell’s testimony in appellant’s efforts to impeach the credibility of government witness Jerry Harrison. Determinations of admissibility of evidence rest largely within the discretion of the trial judge and will not be disturbed on appeal absent a clear showing of an abuse of discretion. United States v. Gorel, 622 F.2d 100, 105 (5th Cir.1979); United States v. Grimm, 568 F.2d 1136, 1138 (5th Cir.1978). Russell contends that the proffered testimony was to the effect that he had discussed performing undercover work as a government agent. In her proffered testimony, Brunnell stated that Russell had provided government agents with information in solving a homicide. Even if this testimony impeached Harrison’s testimony, the trial judge acted within his discretion in excluding Brunnell’s testimony as relating to a collateral matter. Fed.R.Evid. 608(b). The trial judge also acted within his discretion in- excluding Dowdell’s testimony by which Russell sought to introduce evidence of specific, though unrelated, good acts of Russell to prove that “he was a good county commissioner.” “Evidence of noncriminal conduct to negate the inference of criminal conduct is generally irrelevant.” United States v. Grimm, 568 F.2d at 1138. Finally, the trial judge did not abuse his discretion in determining that Thurman’s testimony was irrelevant. The preferred testimony that Special Agent Harrison had asked Thurman to wear a microphone to a proposed meeting with Russell clearly did not relate either directly to an issue in the case or to impeaching Harrison’s credibility. V. Each of the appellants challenge the sufficiency of the evidence relating to various aspects of the charges. In reviewing these contentions, we must make all reasonable inferences 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). Russell argues that the government failed to prove that the marijuana which Russell planned to off-load was to come from outside the United States. This contention clearly lacks merit. In the June 2 tape, Russell and his co-conspirators discussed the plan to bring approximately 25,-000 pounds of marijuana to the Gulf coast of Florida at Taylor county. They discussed off-loading the marijuana by boats and referred to the marijuana as coming from “over there.” It takes fifteen days to get “over there” by boat and seven to eight days to get back. Russell also suggests that in off-loading, the boat need not “be any closer than 60 miles out....” Van Aernam argues that the government failed to prove that he intended to distribute the marijuana. The government must show both general criminal intent and the specific intent to distribute. United States v. Pope, 561 F.2d 663, 670 (6th Cir.1977). The tape recordings of May 12 and June 2 clearly evidence Van Aernam’s involvement in the planning of delivery of 25,000 pounds to Perez. The jury could infer the intent to distribute from the quantity of contraband. United States v. Cuni, 689 F.2d 1353 (11th Cir. 1982); United States v. Bulman, 667 F.2d 1374, 1378-79 (11th Cir.), cert. denied,-. U.S.-, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). Van Aernam contends that notwithstanding his active participation in the importation phase of the conspiracy, the government did not prove that “he had any knowledge of the operation other than importation .... ” Van Aernam’s Brief at 10. This argument misperceives the nature of the government’s burden and cannot succeed. The government proved beyond a reasonable doubt that Van Aernam knew of, and voluntarily participated in, the general conspiratorial agreement that contemplated the importation and distribution of a large quantity of marijuana. The government need not prove Van Aernam’s participation in every phase of the conspiracy, United States v. Nickerson, 669 F.2d 1016, 1022 (5th Cir. Unit B 1982). Every member of the conspiracy need not be an active participant in every phase of the conspiracy so long as he is a party to the general conspiratorial agreement. United States v. Cuni, 689 F.2d at 1356. The government sufficiently proves knowledge by proving that the defendant knew the essential object of the conspiracy, in this case the successful importation of Perez’s marijuana. Id. By proving appellant’s involvement in the importation scheme, the government has satisfied its burden. Dixon and Murphy argue that the government has failed to prove that they intended to join the conspiracy and has shown only that they intended to steal Perez’s and Howard’s money. The evidence taken in the light most favorable to the government, Glasser v. United States, 315 U.S. at 80, 62 S.Ct. at 469, indicates that Dixon agreed to do far more than bribe law enforcement officers. He agreed to provide the off-load site, the off-loaders, and the boats to haul the marijuana from the big boat back to shore. He also agreed to be present at the off-load site himself. Similarly, the government presented sufficient evidence against Jack Murphy to convict him of the charged conspiracies. When he agreed to participate with Howard in the planned smuggling venture, Dixon stated that he was bringing Jack Murphy into the plan. Dixon and Murphy came together to a meeting with Perez and Howard on April 14 in Tallahassee where the participants discussed the details of the smuggling operation. Jack Murphy discussed the bribery of the sheriff, indicated that he and Dixon had arranged for such a bribe, and warned Perez and Howard to stay away from a man named Frank who Murphy said was cooperating with law enforcement. After the meeting disbanded, Murphy drove Dixon and Howard back to Perry, Florida. During the trip, they discussed “in general about bringing the load in and where we would go and do it.” Viewed in the light most favorable to the government, the evidence against Murphy was clearly sufficient. VI. Van Aernam has raised two issues with respect to the sufficiency and accuracy of the trial judge’s instructions to the jury. First, Van Aernam complains that the district judge failed to instruct on “ ‘intent to distribute,’ an essential element of the offense .... ” The transcript indicates that the instruction was given. Volume 26 at 193. Second, Van Aernam argues that the trial judge erred in failing to instruct the jury that the government must prove an overt act in furtherance of the alleged conspiracies. The government, however, need not prove an overt act in a drug conspiracy case. United States v. Davis, 666 F.2d 195, 201 n. 9 (5th Cir. Unit B 1982); United States v. Lee, 622 F.2d 787, 790 (5th Cir. 1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981). VII. Van Aernam argues that the trial court improperly made its James determination by examining the transcript of the recorded conversations rather than admissible evidence. In United States v. James, 590 F.2d 575, 580-81 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), the court held'that without substantial evidence independent of the statement to be introduced showing the existence of a conspiracy to which the appellant belonged, Fed.R.Evid. 801(d)(2)(E) would not apply and the statement of a co-conspirator would be inadmissible. The court held that Fed.R.Evid. 104(a) requires the trial judge alone to determine the admissibility of the conspirator’s statement. Id. at 579-80. We hold that the trial judge did not err in determining the admissibility of the co-conspirators’ statements based on a reading of the tape transcripts. In United States v. Miller, 664 F.2d 826, 827-28 (11th Cir.1981), the court emphasized that the James holding did not require the trial judgé to follow a specific procedure in determining the admissibility of the statements. The transcripts provide substantial evidence that Van Aernam was a member of the conspiracy and that the declarations were made in furtherance of the conspiracy. See United States v. Kopituk, 690 F.2d 1289, 1324 (11th Cir.1982) (standard of proof governing the admissibility of the declarations in a James context is one of substantiality). Similarly, Murphy argues that his statements and those of his co-conspirators were inadmissible because there was no independent evidence of the conspiracy. The record reveals adequate evidence of conspiracy without consulting what would otherwise have been hearsay. Murphy attempts to construct another argument about the overheard and often taped conversations of the conspirators. His premise is that the statements then made amount to admissions or confessions and should not have been admitted without corroboration. See generally, Wong Sun v. United States, 371 U.S. 471, 488-89, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). The short answer is that his premise is incorrect. Those statements were not admissions of having committed a crime; the conspiratorial conversations were the commission of the crime, itself. Eye-witness, overheard, and taped proof of the commission of the crime of conspiracy is admissible. Conclusion Having concluded that none of the contentions raised by the appellants contain merit, we affirm the convictions on all counts charged. AFFIRMED. . Murphy also argues that he was tried for crimes other than those charged in the indictment. Specifically, he claims that though he was indicted for conspiracy to import and to possess marijuana, he was tried for conspiracy to bribe a sheriff. This argument is clearly frivolous. The government proved Murphy’s knowledge of the conspiracy and his participation in agreeing to perform a task important to the conspiracy’s success — the bribery of law enforcement officers.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).

This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?

Clifton BYRD et al., Plaintiffs-Appellants, v. CITY OF SAN ANTONIO, TEXAS et al., Defendants-Appellees. No. 77-1014. United States Court of Appeals, Fifth Circuit. Jan. 2, 1979. Rehearing and Rehearing En Banc Denied Feb. 2,1979. Craig L. Austin, San Antonio, Tex., for plaintiffs-appellants. F. W. Baker, Jon C. Wood, Crawford B. Reeder, Asst. City Atty., Jane H. Macon, City Atty., San Antonio, Tex., for defendants-appellees. Before GEE and VANCE, Circuit Judges, and HUNTER, District Judge. United States Senior District Judge for the Western District of Louisiana, sitting by designation. EDWIN F. HUNTER, Jr., District Judge: Plaintiffs instituted this suit to redress the alleged deprivation of federal constitutional and statutory rights. It is in essence a frontal attack upon what plaintiffs refer to as “self perpetuation of the control and management of a municipal bureaucracy, the City Public Service Board of San Antonio.” They contend that the procedure utilized in selecting Board members deprives them of their right to vote, and constitutes a denial both of Equal Protection and the right to a Republican Form of Government. The district court dismissed the action, finding that each claim alleged was, as a matter of law, wholly without merit. We AFFIRM. I. FACTUAL BACKGROUND In 1942, the City of San Antonio acquired ownership of the gas and electric utility system in that city. This purchase was financed by the proceeds from the sale of $33,950,000 first mortgage bonds. The bonds were issued pursuant to Article 1111, et seq., of the Texas Civil Statutes, which allow Texas cities to purchase utility systems through the issuance of bonds secured by a pledge of the revenues from operation of the systems, provided that such obligations shall never be a debt of the City but solely a charge upon the revenues of the encumbered systems. Article 1115 provides for the management and control of such systems during the time of encumbrance to be placed either in the City Council or in a Board of Trustees, to be named in the contract of encumbrance, having not more than five members, one of whom must be the mayor of the city. The statute further provides: The terms of office of such board of trustees, their powers and duties, the manner of exercising same, the election of their successors, and all matters pertaining to their organization and duties may be specified in such contract of encumbrance. Pursuant to this authority, the Trust Indenture securing the original issue of bonds vested management of the systems in a five-member board, including the mayor as an ex officio member. The other initial members were appointed by the City Council. Any vacancy on the Board is filled by a majority vote of the remaining board members. The term of membership is fixed at five years. The individual members of the Board cannot “perpetuate” themselves in office because the indenture limits members to two terms of service. This 1942 indenture, authorized by an ordinance of the City Council, was superseded by an indenture dated February 1, 1951, also adopted as an ordinance, and contained identical selection provisions. The 1951 indenture was amended by seven supplemental indentures, each duly authorized by a city ordinance. The management provisions of the 1951 indenture were incorporated by reference into each supplemental indenture. The three most recent issues of revenue bonds occurred in 1975, 1976 and 1977. These are referred to as “New Series” Revenue Bonds and were issued under ordinances authorizing a Board selection method different from that prescribed in the 1951 indenture. The new procedure may be utilized only upon the payment of all the Old Series Bonds. The basic claim of constitutional deprivation is premised on the presumption that the Board is “a form of government” subject to strictures of republicanism and federal voting controls. This premise is incorrect. The only “governmental body” of San Antonio to which the constitutional and statutory provisions urged by appellants would apply is the City Council. Only it can issue bonds for extending or improving the system. Only the Council can review, revise or set rates. Only the Council can authorize condemnation of land. The district court’s holding that the Board “is not a form of government but is a board of managers of the municipally-owned San Antonio Electric and Gas system held and operated as a corporate and proprietary activity of the City of San Antonio” is precisely correct. See San Antonio Independent School District v. City of San Antonio, 550 S.W.2d 262, 264 (Tex.1976). There is no statute or constitutional provision which requires election — or appointment by elected officials — of the persons who carry out this proprietary and non-governmental function. The appellants cite neither judicial nor statutory law which would hold that the officers in question are legislative officers under the appropriate federal standards, or that their selection by the methods appellants urge would be required as a matter of law. See Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967); Rosenthal v. Board of Education, 385 F.Supp. 223 (E.D. N.Y., 1974), aff’d. 420 U.S. 985, 95 S.Ct. 1418, 43 L.Ed.2d 667 (1975); Benner v. Oswald, 444 F.Supp. 545 (M.D.Pa., 1978). Appellants insist that the vacancy selection procedure denies them the Republican Form of Government guaranteed by the Constitution, because the Board has been effectively removed from direct or indirect accountability to the electorate. The Supreme Court has consistently held that the Guaranty Clause is primarily political in nature, and its enforcement is a matter for Congress rather than the courts. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912); Ohio ex rel. Bryant v. Akron Metropolitan Power District, 281 U.S. 74, 50 S.Ct. 228, 74 L.Ed. 710 (1930); Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946). Someday, in certain circumstances, the judicial branch may be the most appropriate branch of government to enforce the Guaranty Clause. This is definitely not such a case. The City Public Service Board does not usurp from the City of San Antonio nor can it, as a matter of law, exercise in its own right any governmental powers which would result in constituting it either a “form of government” or a “governmental body.” In the area in which we are involved — federal constitutional and statutory law — we find no support for plaintiffs’ contentions. They insist that the ordinances and indentures, pursuant to which the Council delegated to the remaining members of the Board the power to fill vacancies, exceeded the authority granted to the Council under the state statute. The problem presented by that contention is, of course, simply a matter of interpretation of state law, and does not present a federal question. The judgment of the district court is AFFIRMED. . United States Constitution, Amendment XIV, § L . United States Constitution, Article IV, § 4. . We are not suggesting that the City of San Antonio is powerless to change the existing selection process now. Indeed, it has consistently expressed its preference to retain the present selection procedure until all of the Old Series bonds have been retired. There are now $195,000,000 in bonds still outstanding which contain the provisions for management in the trust indentures issued from 1951 through 1974. There are $170,000,000 in bonds issued under the New Series. . Appellants insist “that elections be promptly held in order that new members of the Board may be Constitutionally selected or, in the alternative, order that Defendants * * * as members of the City Council of the City of San Antonio, fill the existing vacancy and appoint trustees to serve the remainder of the appointive members terms;” . The majority concurring opinion by Judge Wisdom in Kohler v. Tugwell, 292 F.Supp. 978, 985 (E.D.La.1968), aff'd 393 U.S. 531, 89 S.Ct. 879, 21 L.Ed.2d 755 (1969). . One of the many allegations of the complaint is that the vacancy appointment procedure “is for the purpose and has the effect of continuing racial and ethnic discrimination * * * by the virtual exclusion of Mexican-Americans and the total exclusion of Blacks from the City Public Service Board of San Antonio.” It was revealed during argument that there are now four (4) appointed members. Two are Mexican-Americans, one of whom is Chairman. One member is Black. One member is Anglo.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").

This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.

Ruth H. GRAY and Chester H. Gray, Appellants, v. EVENING STAR NEWSPAPER COMPANY et al., Appellees. No. 15424. United States Court of Appeals District of Columbia Circuit. Argued Feb. 2, 1960. Decided April 7, 1960. Petition for Rehearing Denied May 18, 1960. Mr. David G. Bress, Washington, D. C. , with whom Lucien Hilmer, Washington, D. C., was on the brief, for appellants. Mr. Jeremiah C. Collins, Washington, D. C., with whom Messrs. Frank F. Roberson and David N. Webster, Washington, D. C., were on the brief, for appellees. Before Prettyman, Chief Judge, and Bazelon and Burger, Circuit Judges. BURGER, Circuit Judge. Actions to recover $50,000 for personal injuries to appellant Ruth Gray and $20,000 for loss of her services were brought in the District Court and certified by that court to the Municipal Court under Title 11 D.C.Code § 756 (Supp. VII, 1959). Under this section the District Court may transfer an action to the Municipal Court if satisfied that “the action will not justify a judgment in excess of $3,000.” By the very nature of the object to be accomplished as well as by the langauge of the statute, broad discretion is vested in the District Court. Barnard v. Schneider, 1957, 100 U.S.App.D.C. 152, 243 F.2d 258; Melton v. Capital Transit Co., 1958, 102 U.S.App.D.C. 306, 253 F.2d 42; Davis v. Peerless Ins. Co., 1958,103 U.S.App.D.C. 125, 255 F.2d 534. Moreover, the Municipal Court jury is explicitly empowered to award whatever verdict the evidence warrants, even though in excess of $3,000. The District Court had before it the pleadings, a deposition of Mrs. Gray describing her injuries and their treatment, a report of her physician and a report from a physician who had examined her on behalf of the appellees. Medical expenses of $1,000 were alleged and no challenge to this appears. On the basis of this information the District Court transferred the cause. Appellants moved for reconsideration, quoting pertinent parts of Mrs. Gray’s deposition and supplementing the record with more detailed reports by her physicians, and emphasizing the special damages. The motion was denied and this appeal followed. From the admitted fact that the District Judge examined reports of medical examinations made on behalf of all parties, appellants infer that the District Court weighed the report of appellees’ doctor against those of appellants’ physicians and discounted appellants’ medical reports. This, it is argued, is error requiring reversal of the order certifying the case to the Municipal Court. On this record we have no way of knowing whether, as appellants infer, the District Judge did in fact undertake to weigh the reports of appellees’ medical examiner against those of the appellants in a comparative sense or discount the extent of the claimed injuries by reason of what the appellees’ medical examiner reported. Such a course would be plainly an erroneous application of Section 756 for that is not the time or place for comparative evaluations of evidence. No comparative appraisal could be made adequately at that stage; it would involve, among other things, the comparative credibility of witnesses. In deciding whether to retain or certify a case to the Municipal Court, the District Court should act on the basis of the data presented under the Rules by the parties prior to trial, including the pre-trial hearing. But a comparative evaluation of conflicting evidence is not part of the function of the court at that stage of the litigation. True comparative consideration of conflicting evidence is reserved for the trial when witnesses can be examined and cross-examined fully. The data before the District Court indicated medical expenses of the plaintiffs in excess of $1,000. Such a figure might conceivably forecast a verdict for total damages in excess of $3,-000, and the District Court might properly keep such a case on its own calendar; but discretion is an area not a line or a point, and our scope of review of this kind of order is necessarily very limited. The issue for us is not whether the District Court wisely exercised its discretion but whether in certifying the case to the Municipal Court it acted arbitrarily and thus abused its discretion. We are unable to conclude that the action was arbitrary or that there was an abuse of discretion. Affirmed.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.

This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?

STATE OF ALABAMA, etc., et al., Plaintiffs-Appellees, Cross-Appellants, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and Lee M. Thomas, Defendants-Appellants, State of Texas; and Chemical Waste Management, Inc., Intervenors-Appellants, Cross-Appellees. STATE OF ALABAMA, ex rel. Don SIEGELMAN, Attorney General, and Guy Hunt, Don Siegelman and Leigh Peques, individually as citizens of the State of Alabama, Plaintiffs-Appellees, Cross-Appellants, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas, Administrator of the United States Environmental Protection Agency, Defendants-Appellants, Cross-Appellees, Chemical Waste Management, Inc., State of Texas, Intervenors-Appellants, Cross-Appellees. Nos. 88-7677, 89-7024. United States Court of Appeals, Eleventh Circuit. April 18, 1989. John P. Scott, Jr., Marshall Timberlake, Balch & Bingham, Birmingham, Ala., R. Craig Kneisel, Office of the Atty. Gen., Robert D. Tambling, Asst. Atty. Gen., Montgomery, Ala., for State of Ala., Guy Hunt, Don Siegleman & Leigh Pegues. James Eldon Wilson, U.S. Atty., Montgomery, Ala., for E.P.A. Maynard, Cooper, Frierson & Gale, P.C., Fournier J. Gale, III, H. Thomas Wells, Jr., Alfred F. Smith, Jr., Birmingham, Ala., for Chemical Waste Management. John R. Carter, Environmental Protection Division, Austin, Tex., for State of Texas. David C. Shilton, U.S. Dept, of Justice, Appellate Section, Washington, D.C., for intervenors-appellants, cross-appellees. Before JOHNSON, HATCHETT and COX, Circuit Judges. JOHNSON, Circuit Judge: This appeal arises from the issuance of a temporary injunction preventing the shipment of soil contaminated with PCBs and other toxic wastes from the Geneva Industries, Inc., toxic waste site in South Houston, Texas, to Chemical Waste Management (CWM)’s toxic waste treatment facility in Emelle, Alabama. The State of Alabama and its governor, attorney general, and head of the department of environmental management, acting in their capacities as private citizens, filed suit in federal district court seeking to enjoin shipment of these wastes. Plaintiffs asserted both constitutional claims and claims based on the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. A. § 9601 et seq. (CERCLA). The district court issued a preliminary injunction halting EPA’s participation in the remedial action selected to clean up the Geneva Industries site, and the EPA, along with intervenors State of Texas and CWM, appealed. During the pendency of the appeal, the district court granted partial summary judgment to plaintiffs enjoining the EPA from implementing its remedial action plan to clean up the Geneva Industries site until plaintiffs have had the opportunity to comment on the remedial action plan. This Court granted defendants’ motion to consolidate the appeal from the preliminary injunction with the appeal from the grant of summary judgment. We reverse the grant of preliminary injunction, reverse the grant of summary judgment, dissolve the permanent injunction, and dismiss this case for lack of subject matter jurisdiction. I. FACTS In 1983, Texas submitted the site of Geneva Industries, Inc.’s former petrochemical plant in South Houston, Texas, to be included on the National Priorities List for cleanup by the EPA pursuant to CERCLA. The site is contaminated with polychlorinat-ed biphenyls (PCBs) and other toxic chemicals. The EPA placed this site on the National Priorities List, where it ranked number 37 out of over 700 sites listed. In 1983 and 1984, EPA conducted a planned removal to stabilize the site and to reduce the immediate health and safety risks of the contamination to residents in the area. In 1984, the Texas Department of Water Resources, the state agency operating in cooperation with the EPA to clean up the site, contracted for a Remedial Investigation and Feasibility Study. This is a preliminary step in cleaning up a hazardous waste site under CERCLA. The contractor evaluated alternative remedial action plans and presented them to the state. In 1986, the Feasibility Study describing the alternatives was released for public comment and review. A public meeting was held in May 1986, and the public comment period was held open until June 10, 1986. On September 18, 1986, the Regional Director of the EPA issued the Record of Decision memorializing the alternative chosen to clean up the Geneva Industries site. The EPA selected offsite disposal of the hazardous wastes. At the time, there were only a limited number of treatment facilities in the United States capable of handling these toxic wastes. Among those facilities was CWM’s hazardous waste treatment facility in Emelle, Alabama. There are two separate federal statutes regulating the Emelle, Alabama, facility. The Toxic Substances Control Act, 15 U.S. C.A. § 2601 et seq. (TSCA), regulates the handling, storage, and disposal of wastes contaminated with PCBs. The Resource Conservation and Recovery Act, 42 U.S. C.A. § 6901 et seq. (RCRA), regulates other hazardous wastes. CWM’s Emelle, Alabama, facility is licensed under both federal statutes and under complementary state regulations to handle the wastes located at the Geneva Industries toxic waste site. The TSCA and the RCRA ensure that CWM’s toxic waste storage and treatment facility poses the least possible risk to human health and safety. The TSCA establishes a regulatory framework for the safe handling and disposal of certain highly toxic wastes. Regulations adopted pursuant to the TSCA control the storage and disposal of PCBs. See 40 C.F.R. § 761.75(b)(8). The regulations establish very specific soil, hydrological, geological, and topographical requirements for facilities that dispose of wastes contaminated with PCBs. 40 C.F.R. § 761.75(b)(1), (2), (3), (4), and (5). The regulations also provide for monitoring the groundwater in the vicinity of the chemical waste landfill. 40 C.F.R. § 761.75(b)(6). The permit application process ensures that licensed treatment facilities comply with these requirements. 40 C.F.R. § 761.75(c)(3). The RCRA establishes a framework for regulating the storage and disposal of hazardous wastes in general. Operators of hazardous waste treatment, storage, and disposal facilities must comply with detailed operating regulations. 42 U.S.C.A. § 6924; see generally 40 C.F.R. Part 264. This includes stringent permit application requirements and regulations. See 42 U.S. C.A. § 6925; see generally 40 C.F.R. Part 270. The regulations promulgated pursuant to the RCRA ensure that facilities disposing of hazardous wastes do so in a manner consistent with eliminating health and environmental risks caused by the hazardous wastes. A permit is valid only for a maximum term of ten years, 40 C.F.R. § 270.50(a), and each permit for a land disposal facility is reviewed after five years and is subject to modification at that point. 40 C.F.R. § 270.50(d). A permit may be terminated for noncompliance with any of its conditions, 40 C.F.R. § 270.43(a)(1), for failure to disclose material information or misrepresentation of material facts, 40 C.F. R. § 270.43(a)(2), or if the activity “endangers human health or environment” and can be regulated only through modification or termination of the permit. 40 C.F.R. § 270.43(a)(3). CWM’s Emelle, Alabama, hazardous waste treatment facility received permits under both the TSCA and the RCRA. This facility thus has complied with elaborate federal regulations designed to ensure the safe disposal of hazardous wastes, including wastes contaminated with PCBs. To the extent these federal regulations can and do provide for the safe treatment and disposal of toxic wastes, CWM’s Emelle, Alabama, facility poses no threat to the health and safety of the residents of Emelle or to other Alabama residents. This applies to the material shipped from South Houston, Texas, as well as to the material the facility has handled from Tennessee and from locations within the State of Alabama. The State and citizens of Alabama participated throughout the process by which CWM received permits to handle hazardous wastes at its Emelle facility. At the time of the original application in May 1978, the State of Alabama strongly supported the grant of the permits. The facility began operating under interim status authorization in November 1980. See 42 U.S.C.A. § 6925(e). In December 1984, EPA, CWM, and the state entered into a Consent Agreement authorizing the facility to handle PCBs. In 1985, citizens of the State of Alabama received notice of the proposed licensing of the Emelle facility for disposal of PCBs under the TSCA. EPA provided twice the period for public comment normally accorded such decisions, held a public information session lasting 7-V2 hours in Livingston, Alabama, and held an open public meeting. EPA received 78 oral and 145 written comments on the proposed permit, and responded in detail to each comment. The PCB disposal permit was challenged unsuccessfully in federal court under the Administrative Procedure Act. After response in an acceptable manner to all challenges, the final permit became effective July 11, 1988. CWM received the contract to dispose of the Geneva Industries site wastes pursuant to a closed bidding contractor selection process. In January 1988, the Texas Water Commission, successor to the Texas Department of Water Resources, solicited sealed bids from contractors for the various projects called for in the Record of Decision. In response, CWM offered the lowest bid for disposal of the contaminated soil, and received the contract on April 8, 1988. The EPA did not select CWM’s Emelle, Alabama, toxic waste treatment facility in the Record of Decision for cleanup of the Geneva Industries site. In the Record of Decision, the EPA decided only that offsite disposal was the best way to clean up the Geneva Industries site. The EPA made this decision in September 1986. The sealed bid solicitation process followed, and EPA granted CWM the contract to dispose of the wastes in April 1988. In June 1988, Alabama legislators, including Governor Hunt and Attorney General Siegelman, learned of the proposed shipment of toxic wastes from Texas to Alabama. On June 22, 1988, Governor Hunt wrote to the Administrator of the EPA requesting a delay in the shipment. On June 23, 1988, Attorney General Siegel-man wrote to the Administrator requesting information about the nature of the Geneva Industries site toxic wastes. The EPA delayed the shipment to respond to the letters in detail. EPA officials also met with Alabama Congressmen and state legislators to address their concerns. After considering the concerns expressed by the State of Alabama, the EPA decided to follow the original remedial action plan set out in the Record of Decision. Shortly thereafter, the State of Alabama and three individual citizens of Alabama, Governor Hunt, State Attorney General Siegelman, and Leigh Pegues, head of the state department of environmental management, filed suit against the EPA seeking to enjoin shipment of the hazardous wastes from Texas to Alabama. The district court granted a preliminary injunction enjoining the EPA and its administrator and employees from executing the Geneva Industries site remedial action plan, from funding the remedial action, or from approving or otherwise facilitating the transportation of hazardous wastes from Texas to Alabama. CWM and the State of Texas intervened, and, along with the EPA, appeal the grant of this preliminary injunction. Prior to our consideration of this appeal, the district court granted partial summary judgment to the plaintiffs, ordered EPA to reopen its Record of Decision for the Geneva Industries site, and dismissed the remainder of the case. Defendants appealed. We consolidated the appeals and address both in this decision. II. DISCUSSION The district court had jurisdiction to grant summary judgment and to dismiss the suit despite the pending interlocutory appeal. Cf. United States v. White, 846 F.2d 678, 693 n. 23 (11th Cir.1988). However, that decision did not divest this Court of its jurisdiction over the interlocutory appeal of the preliminary injunction. See generally Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam). Although the injunction itself did not survive the grant of summary judgment and dismissal, Cypress Barn, Inc. v. Western Electric, 812 F.2d 1363 (11th Cir.1987), we still have jurisdiction over this appeal. Cf. University of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (fact that preliminary injunction itself is moot does not moot appeal from grant of preliminary injunction). In addition, although no final judgment has been entered pursuant to Fed.R.Civ.P. 54(b), we have jurisdiction over the appeal from the grant of summary judgment because the district court granted a mandatory permanent injunction compelling EPA to reopen its Record of Decision. See 28 U.S.C.A. § 1291. Plaintiffs challenge the EPA’s failure to provide them with notice and a hearing before choosing the appropriate remedial action for the Geneva Industries toxic waste site in South Houston, Texas. These claims have two bases, the first constitutional and the second statutory. Plaintiffs argue that the EPA could not implement this remedial action plan without providing them with notice and an opportunity for a hearing without violating the due process clause of the fifth amendment. The State of Alabama argues it is an “affected state” within the meaning of 42 U.S.C.A. § 9604(c)(2), and thus was entitled to notice and an opportunity to participate in the choice of offsite disposal as the appropriate remedial action for the Geneva Industries toxic waste site. The individual plaintiffs assert they were entitled to notice and an opportunity to participate pursuant to 42 U.S.C.A. § 9613(k)(2)(B). Finally, all plaintiffs argue EPA failed to comply with the publication requirements of 42 U.S.C.A. § 9617. Plaintiffs base jurisdiction on four separate provisions: 28 U.S.C.A. § 1331, which gives federal courts jurisdiction over claims arising under the Constitution; 42 U.S.C.A. § 9613(b), which gives federal courts jurisdiction over challenges to actions taken pursuant to CERCLA; 42 U.S. C.A. § 9659(a), which gives persons authority to challenge remedial actions selected under CERCLA; and 5 U.S.C.A. § 702, which gives federal courts jurisdiction over challenges to administrative agency actions. We address each of these claims in turn. A. Constitutional Claims Plaintiffs assert that the denial of notice and opportunity for a hearing before implementation of the remedial action plan violates their due process rights under the fifth amendment. Standing is a jurisdictional prerequisite to suit in federal court. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475-76, 102 S.Ct. 752, 760-61, 70 L.Ed.2d 700 (1982). The State of Alabama is not included among the entities protected by the due process clause of the fifth amendment, South Carolina v. Katzenbach, 383 U.S. 301, 323, 86 S.Ct. 803, 816, 15 L.Ed.2d 769 (1966), and lacks standing to claim that the EPA was constitutionally compelled to provide it with notice and an opportunity to be heard. See generally Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 218-19, 94 S.Ct. 2925, 2930-31, 41 L.Ed.2d 706 (1974) (plaintiff must assert legally cognizable injury in fact, whether real or threatened, before federal courts have jurisdiction). The individual plaintiffs also fail to satisfy the standing requirements necessary for the exercise of federal jurisdiction over their constitutional claims. Standing involves two aspects. The first is the minimum “case or controversy” requirement of Article III. That requirement mandates that the plaintiff himself or herself suffer actual or threatened injury, resulting from the action challenged, that is likely to be redressable in a judicial action. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). In addition, the Supreme Court has established several requirements based on prudential considerations. A litigant generally may not assert the rights of another person, Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984), or present generalized grievances about the conduct of government which are more appropriately addressed in the representative branches, United States v. Richardson, 418 U.S. 166, 174-75, 94 S.Ct. 2940, 2945-46, 41 L.Ed.2d 678 (1974), and the litigant’s complaint must fall within the “zone of interests” protected by the law invoked. Association of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970). Plaintiffs allege two types of real or threatened injury caused by defendants’ actions. First, plaintiffs argue that shipment of these toxic wastes will cause increased expenditures of tax revenues through increased costs of highway maintenance and environmental safety measures. Plaintiffs base standing on their status as taxpayers. This does not satisfy the minimum constitutional requirement of injury in fact necessary for the exercise of federal jurisdiction. See generally Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979) (plaintiff must allege “he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant”). Although an injury need only be “trifling,” it must nevertheless be a real or threatened injury suffered by one of the plaintiffs. See Schlesinger, 418 U.S. at 220-21, 94 S.Ct. at 2931-32 (“Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution.”). In certain limited circumstances, where an expenditure itself would violate an express constitutional provision, a taxpayer may have standing to challenge the expenditure. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (taxpayer could challenge expenditure that violated establishment clause). Otherwise, however, plaintiffs as taxpayers do not have standing to challenge governmental action. See, e.g., Valley Forge, 454 U.S. at 476-82, 102 S.Ct. at 760-64 (taxpayers lacked standing to challenge government transfer of property to religious organization on establishment clause grounds); Schlesinger, 418 U.S. at 222, 94 S.Ct. at 2932-33 (citizens as taxpayers have no standing to compel governmental compliance with federal statute). In this case, plaintiffs do not allege that the increased expenditure of state funds, if it occurs, would violate any constitutional provision. Thus, plaintiffs lack standing to challenge this action based on their status as taxpayers alone. Second, plaintiffs allege injury based on the threat to the environmental quality of the State of Alabama. This claim alleges the requisite injury in fact for the federal court to exercise subject matter jurisdiction. See generally Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (whale watching group has standing to challenge failure of Secretary of Commerce to cite Japan for overharvesting whales); United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) (potential adverse environmental impact of railroad rate change sufficient); cf. Callaway v. Block, 763 F.2d 1283 (11th Cir.1985) (peanut farmers had standing to appeal denial of injunction against Secretary of Agriculture preventing implementation of new regulations). There must also be a connection between the injury alleged and the challenged action, however. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976) (injury must be able to be traced to the challenged action). Generalized grievances about the conduct of government are insufficient. See United States v. Richardson, 418 U.S. 166, 175, 94 S.Ct. 2940, 2945-46, 41 L.Ed.2d 678 (1974). The injury must be a consequence of the challenged action. See Valley Forge, 454 U.S. at 473, 102 S.Ct. at 759 (“The exercise of judicial power... is therefore restricted to litigants who can show ‘injury in fact’ resulting from the action which they seek to have the court adjudicate.”) (emphasis added). In this case, there is no necessary causal connection between the injury to Alabama’s environment and the lack of notice and opportunity to participate in the selection of the remedial action for the Geneva Industries site. Plaintiffs do not challenge the shipment of wastes from Texas to Alabama directly. To the extent the injury alleged may result from the operation of CWM’s Emelle, Alabama, facility, plaintiffs do not challenge the permits that allow CWM to receive PCBs. Rather, plaintiffs seek only a hearing in which to express their views about the appropriate remedial action for this site. The threat to Alabama’s environment, however, results solely from the actual shipment and receipt of the wastes. Plaintiffs’ injury thus does not result from their lack of participation in the development of the Record of Decision. Plaintiffs’ injury also is not likely to be redressed by a reopening of the Record of Decision. Because they have failed to allege “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief,” Allen v. Wright, 468 U.S. at 751, 104 S.Ct. at 3324, the individual plaintiffs lack standing to challenge this shipment under the fifth amendment. Plaintiffs argue that this is their only chance to challenge this decision. Even assuming this assertion is true, “[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.” Schlesinger, 418 U.S. at 227, 94 S.Ct. at 2935. Plaintiffs simply are not entitled to raise these constitutional claims. Consequently, the constitutional claims raised by the plaintiffs must be dismissed for lack of standing. B. Statutory Claims Alabama argues that it is an “affected state” within the meaning of 42 U.S.C.A. § 9604(c)(2), and that it was entitled to receive notice and an opportunity for a hearing before final selection of the remedial action plan. The individual plaintiffs assert that they were entitled to notice and an opportunity to comment on the remedial action plan prior to implementation under 42 U.S.C.A. § 9613(k)(2)(B). Plaintiffs also assert EPA failed to publish the Record of Decision according to the requirements of 42 U.S.C.A. § 9617. Plaintiffs assert they have the authority to bring this action to compel compliance with the provisions of CERCLA under section 310(a), 42 U.S.C.A. § 9659(a). That section allows any person to commence a civil action against the EPA to compel compliance with CERCLA’s.pro-visions. See 42 U.S.C.A. § 9659(a)(2). “Person” includes the State of Alabama. 42 U.S.C.A. § 9601(21). Plaintiffs base federal jurisdiction over their statutory claims on two provisions. First, plaintiffs assert that the 1986 amendments to CERCLA grant federal courts jurisdiction over this action. Plaintiffs rely on section 113(b), 42 U.S.C.A. § 9613(b), which grants federal courts exclusive original jurisdiction over controversies arising under CERCLA, and section 310(a), 42 U.S. C.A. § 9659(a), the general citizen suit enforcement provision. Second, plaintiffs base federal jurisdiction on the Administrative Procedure Act, 5 U.S.C.A. § 701 et seq. (APA).'The APA provides, “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C.A. § 702. We review jurisdiction under CERCLA and under the APA separately. 1. CERCLA Plaintiffs argue that the district court has jurisdiction over these claims under section 113(b) of CERCLA, 42 U.S.C.A. § 9613(b). Section 113(b) provides: “Except as provided in subsections (a) and (h) of this section, the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter, without regard to the citizenship of the parties or the amount in controversy.” Defendants argue that section 113(h), 42 U.S.C.A. § 9613(h), removes these challenges from federal jurisdiction. Defendants argue that section 113(b) grants jurisdiction to the federal courts over controversies arising under CERCLA; that section 113(h) removes from federal jurisdiction challenges to remedial actions selected under section 104, 42 U.S.C.A. § 9604; and that section 113(h)(4) then restores federal jurisdiction over suits brought under section 310 once the remedial actions are taken under section 104 or secured under section 106. Defendants argue that under section 113(h)(4), no action may be brought under section 310(a) until the remedial action is actually taken. We agree. Section 113(h) clearly removes this challenge from federal jurisdiction, providing: “No Federal court shall have jurisdiction under Federal law... to review any challenges to removal or remedial action [sic] selected” except as section 113(h)(l)-(4) provides. Section 113(h)(4) in general addresses the timing of judicial review of EPA cleanup efforts. The plain language of the statute indicates that section 113(h)(4) applies only after a remedial action is actually completed. The section refers in the past tense to remedial actions taken under section 104 or secured under 106. Absent clear legislative intent to the contrary, this language is conclusive. See Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The legislative history behind this section supports rather than clearly contradicts this conclusion. Judicial review is to be delayed until “all the activities set forth in the Record of Decision for the surface cleanup phase have been completed.” H.Conf.Rep. No. 962, 99th Cong., 2d Sess. 224, reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 3317. See, e.g., H.R. Rep. No. 253(1), 99th Cong., 2d Sess. 81, reprinted in 1986 U.S.Code Cong. & Admin.News 2863 (“The section [113] is intended to codify the current position of the Administrator and the Department of Justice with respect to preenforcement review: there is no right of judicial review of the Administrator’s selection and implementation of response actions until after the response action [sic] have been completed....”); H.R.Rep. No. 253 (III), 99th Cong., 2d Sess. 22, reprinted in 1986 U.S. Code Cong. & Admin.News 3045 (“Therefore, the Judiciary Committee amendment reaffirms that, in the absence of a government enforcement action, judicial review of the selection of a response action should generally be postponed until after the response action is taken.”). This Court has already recognized that “the primary purpose of CERCLA is the prompt cleanup of hazardous waste sites.” Dickerson v. Administrator, EPA, 834 F.2d 974, 978 (11th Cir.1987) (quoting J.V. Peters & Co. v. Administrator, EPA, 767 F.2d 263, 264 (6th Cir.1985)). Prior to the 1986 amendments that enacted section 113(h), courts uniformly held that challenges to a Record of Decision were barred before full implementation. See, e.g., Wagner Seed Co. v. Daggett, 800 F.2d 310, 314-15 (2d Cir.1986); Lone Pine Steering Committee v. EPA, 777 F.2d 882, 886-87 (3rd Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). Most of the courts that have addressed this issue after the 1986 amendments have reached the same conclusion. See, e.g., Frey v. Thomas, slip op. 88-948-c, (S.D.Ind. December 6, 1988) (“In light of this legislative history, the Court finds that 42 U.S.C.A. § 9613(h)(4) permits citizens’ suits challenging EPA actions only once a remedial action or discrete phase of a remedial action has been completed.”); Chemical Waste Management, Inc. v. EPA, 673 F.Supp. 1043, 1055 (D.Kan.1987) (“the legislative history of section 113(h) establishes that it was designed to preclude piecemeal review and excessive delay of cleanup”); cf. Dickerson, 834 F.2d at 977 (“42 U.S.C.A. § 9613(h) clearly provides that federal courts do not have subject matter jurisdiction for preenforcement review of EPA removal actions pursuant to section 9604.”); but see Cabot Corp. v. EPA, 677 F.Supp. 823 (E.D.Pa.1988) (allowing preimplementation review under section 9613(h)(4)). Because this challenge does not fit within section 113(h)(4), we lack jurisdiction over this challenge to the implementation of the remedial action plan under section 113(h). Plaintiffs argue that the action that caused the injury was the decision to employ an offsite remedial scheme and to solicit bids for the disposal of the toxic waste. Plaintiffs argue that this decision has already been taken, and that therefore they fit within section 113(h)(4)’s exception to section 113(h). This argument fails, however, because plaintiffs challenge the implementation of the remedial action plan selected, not the selection of an offsite remedial action plan in general. The district court found that section 113 does not remove this case from federal jurisdiction because of the last sentence of section 113(h)(4), which provides: “Such an action [under section 310] may not be brought with regard to a removal where a remedial action is to be taken at the site.” This sentence has no bearing on whether section 113(h) applies in this case, however. Plaintiffs challenge not a removal but a remedial action. The EPA has already conducted an onsite removal action. The district court seems to read “removal” as “transportation.” Compare 42 U.S.C.A. § 9601(23) (removal “means the cleanup or removal of released hazardous substances from the environment”) with 42 U.S.C.A. § 9601(26) (defining transportation). The district court also seems to read the last sentence of section 113(h)(4) to require neutralization of the hazardous wastes prior to implementation of any offsite remedial action. That is simply incorrect. The district court also found that a September 18, 1988, amendment to CWM’s disposal contract constituted a substantial alteration of the original Record of Decision, and that that alteration required notice to the State of Alabama and an opportunity for “reconciliation” among the States of Alabama and Texas and the EPA. The district court apparently relied on section 117(c), 42 U.S.C.A. § 9617(c), which provides: “After adoption of a final remedial action plan... if [a subsequent remedial action] differs in any significant respects from the final plan, the President or the State shall publish an explanation of the significant differences and the reasons such changes were made.” In this case, EPA and CWM increased the amount of hazardous wastes to be shipped from 36,-000 tons to 47,000 tons. The plan itself remained offsite treatment and disposal. This alteration does not cause the remedial action to differ significantly from the original plan within the meaning of section 117(c). Even if this change were deemed significant within the meaning of section 117(c), however, the only consequence would be publication of the significant differences and the reasons for the changes in a major local newspaper. See 42 U.S.C.A. § 9617(d). Section 117 does not authorize private parties to halt implementation of a remedial action plan. We hold that the district court lacked jurisdiction over this action to the extent plaintiffs challenge EPA’s remedial action plan. Plaintiffs argue that this is not a challenge to the remedial action plan selected for the Geneva Industries site, and that therefore section 113(h) does not apply. Plaintiffs’ complaint belies this assertion. In paragraph B of their prayer for relief, for example, plaintiffs requested a preliminary injunction enjoining the EPA from participating in the shipment of these wastes from Texas to Alabama and in any further remedial action to be taken in connection with the Geneva Industries site. In paragraph C, plaintiffs requested a permanent injunction along the same lines. In paragraph D, plaintiffs requested the district court to reverse the EPA’s selection of this remedial action plan on numerous substantive grounds. In paragraph E, plaintiffs requested a mandatory injunction compelling EPA to reopen its Record of Decision. To the extent plaintiffs’ complaint may in part be read as not challenging the remedial action plan and therefore not removed from federal jurisdiction by section 113(h), we address the merits of plaintiffs’ claims briefly. The district court held that under CERCLA, plaintiffs were entitled to notice and an opportunity to participate in the development of the Record of Decision issued regarding the Geneva Industries site. The State of Alabama argues it is an affected state within the meaning of section 104(c)(2), and therefore was entitled to notice and an opportunity to participate in the public hearings regarding the appropriate remedial action for the cleanup. The Record of Decision was issued September 18, 1986. Alabama only arguably became “affected” within the meaning of section 104 in April 1988, when CWM received the contract to dispose of these hazardous wastes at its Emelle, Alabama, facility. See 42 U.S.C.A. § 9604(c)(1) (addressing “the State or States in which the source of the release is located”). Alabama thus was not

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 "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.

This question concerns the second listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?

AMERICAN METAL PRODUCTS CORPORATION, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. ADLER METAL PRODUCTS CORPORATION, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Nos. 16605, 16606. United States Court of Appeals Eighth Circuit. March 29, 1961. B. L. Liberman, and Gene M. Zafft, St. Louis, Mo., for petitioners. Burt J. Abrams, Atty., Dept, of Justice, Washington, D. C., for respondent. Abbott M. Sellers, Acting Asst. Atty. Gen., and Lee A. Jackson and Robert N. Anderson, Washington, D. C., were with him on the brief. Before SANBORN, VAN OOSTERHOUT, and MATTHES, Circuit Judges. MATTHES, Circuit Judge. The ultimate question we have for determination in this proceeding to review the decisions of the Tax Court, is whether American Metal Products Corporation was availed of during 1952, 1953 and 1954, and Adler Metal Products Corporation was availed of during 1952 and 1954 for the purpose of avoiding the imposition of the surtax, or “income tax” upon their respective shareholders by permitting earnings or profits to accumulate beyond the reasonable needs of the business instead of being divided or distributed within the meaning of § 102 Internal Revenue Code 1939, 26 U.S.C.A. § 102, and §§ 531-537 Internal Revenue Code 1954, 26 U.S.C.A. §§ 531-537. The Commissioner had made determination of deficiencies as follows: Adler American 1952 ......$ 9,672.25 $11,028.33 1953 ...... 16,490.75 10,263.06 1954 ...... 11,193.94 9,401.90 Totals ...$37,356.94 $30,693.29 The asserted deficiencies resulted from (1) finding that petitioners had been availed of for the purpose of avoiding imposition of the surtax upon the shareholders and (2) payment of excessive rents in each of the years in question. The Tax Court sustained the Commissioner in part and found that Adler was availed of during each of the years 1952 and 1954 and that American was availed of during each of the years 1952, 1953 and 1954 for the purposes proscribed by the statutes. The rent issue was resolved in favor of petitioners. The Tax Court found deficiencies accordingly, as follows: Adler American 1952 ......$ 3,152.25 $ 8,420.33 1953 ............. 7,655.06 1954 ...... 4,729.35 6,793.90 The two basic contentions presented by petitioners are, (1) The Tax Court erred in holding that the ultimate burden of proof was upon petitioners to prove that they were not availed of for an improper purpose, and that compliance with § 534 could only shift a limited burden of proof pertaining to accumulations beyond the reasonable needs of their businesses ; (2) The Tax Court erred in holding that the petitioners did not reasonably need for their businesses and proposed modernization and expansion, amounts in excess of the accumulated earnings and profits available to them at the beginning of the taxable years in question and in holding that petitioners were availed of for the purpose of preventing the imposition of the surtax, or “income tax” upon their shareholders. After giving careful consideration to the record in its entirety, we are firmly persuaded that the burden of proof issue, resting as it does on § 534 of the 1954 Code, need not be resolved on this review. Even assuming, without deciding, that the burden of proof was on the Commissioner, we conclude from the record as a whole that there was substantial probative evidence to support the Tax Court’s findings, both as to an unreasonable accumulation of earnings, and accumulation for the purpose prohibited by the statute. Cf. Kerr-Cochran, Inc. v. Commissioner of Internal Rev., 8 Cir., 253 F.2d 121, 125; I. A. Dress Co. v. C. I. R., 2 Cir., 273 F.2d 543, certiorari denied, 362 U.S. 976, 80 S.Ct. 1060, 4 L.Ed.2d 1011; Smoot Sand & Gravel Corporation v. C. I. R., 4 Cir., 274 F.2d 495, 504, certiorari denied 362 U.S. 976, 80 S.Ct. 1061, 4 L.Ed.2d 1011. Before reaching the question of the reasonableness of the accumulations, we accord attention to background information deemed necessary to a proper understanding and disposition of this primary issue. Adler and American, Missouri corporations, were incorporated on November 4, 1927 and October 25, 1934, respectively. Originally, each had an authorized capital of $10,000. Subsequently, the authorized capital was increased by issuance of stock dividends so that since November, 1940, Adler and American have had capital stock issued and outstanding of $220,-000 and $105,000, respectively. At the beginning of the first taxable year in question, 1952, in addition to this prior capitalization of earnings and profits, Adler had an accumulated surplus of $646,-935.92 and American a surplus of $455,-961.54. During the three taxable years involved in this proceeding all of the stock of Adler, except qualifying shares, was owned by Jack Adler, and of the 1,050 shares of American, Jack Adler owned 840 shares, Mary Ann Adler (Jack’s wife) 105 shares, and Edward A. Adler (Jack’s brother) 105 shares. Jack has been president and chief executive officer of both corporations throughout the entire existence of each. Adler manufactures and sells filing cabinets and steel items or equipment used in the cabinets, selling to American, which purchases all of its products from Adler, and to dealers and retailers. American is strictly a sales corporation, being primarily a retailer, although making some sales to dealers. Since 1942 and during the three years under consideration, petitioners’ operations were carried on in a building owned by Jack Adler located at the corner of Laclede and Vandeventer Avenues in St. Louis, Missouri. The balance sheets for each of the corporations for the years 1951 to 1954, and statements of their sales, inventories, receivables and reserves for the years 1946-1954 are all correctly incorporated in the opinion of the Tax Court (found at 34 T.C. No. 10). Appropriate reference will be made to this data throughout this opinion in demonstrating that the decisions of the Tax Court were correct and must be affirmed. We first review briefly the statutes which are pertinent here: Section 102(a) of the 1939 Internal Revenue Code and §§ 531, 532 of the 1954 Code, impose a penalty tax upon “accumulated taxable income,” to be assessed to corporations “formed or availed of for the purpose of avoiding the income tax with respect to its shareholders,” by permitting earnings and profits to accumulate. Section 533 of the 1954 Code further provides: “(a) For purposes of section 532, the fact that the earnings and profits of a corporation are permitted to accumulate beyond the reasonable needs of the business shall be determinative of the purpose to avoid the income tax with respect to shareholders, unless the corporation by the preponderance of the evidence shall prove to the contrary.” Section 537 of the 1954 Code provides that for purposes of the tax, the term “reasonable needs of the business” includes reasonably anticipated needs of the business. Coming to the issues before us, while the ultimate determination concerns the presence of a purpose to avoid income tax upon shareholders, the real controversy, as perhaps is the situation in most cases of this type, concerns the presence or absence of a valid business reason for accumulating earnings. Simply stated, the petitioners contend there was a valid, existing business reason — the Tax Court found there was not. More particularly, as grounds for their contention that the business requirements of the corporations necessitated accumulation of these surpluses, the petitioners alleged in their statements (designed to comply with § 534 of the 1954 Code) that a plan was evolved to vastly expand the facilities of the two corporations, that a large demand existed for filing cabinets and that accordingly, the inventories of Adler and American should be increased to $471,250 and $375,000, respectively. Additionally, the statements alleged that the sum of $400,000 would be required by Adler for the purpose of replacing obsolete plant equipment and machinery, and the sum of $200,000 for the purpose of repair and addition to Adler’s plant. As to American, in addition to the $375,000 for inventory expansion, it was alleged that the sums of $200,000 for expanded accounts receivable, $200,000 for plant expansion and additional warehouses, and $150,000 for establishment of a printing plant and advertising program would be required. According to corporate minutes found in the record, these plans for expansion were conceived in 1947. However, it stands conceded, without serious dispute, that as of the time of the trial before the Tax Court in December, 1958, none of these plans had been carried out in any specific form whatsoever. Petitioners’ explanation for the delay in planned expansion rested solely upon a contention that a serious steel shortage had existed, asserting that during the taxable years in question, the shortage was brought about by the Korean conflict which prevented Adler from obtaining steel in a sufficient quantity to supply Adler and American needs, which in turn resulted in loss of prospective sales, thus prejudicing the plans for expansion. From the record it appears that the issues were submitted to the Tax Court on numerous exhibits, a stipulation of facts offered jointly, and the-testimony of Jack Adler and several other witnesses presented by petitioners. In this posture, the argument is here advanced that the record is void of any evidence which impeaches or contradicts the amounts calculated by petitioners to be-necessary for their stated purposes. Boiled down, petitioners’ contention is-that there is no evidence to support the findings and conclusion of the Tax Court. This attack cannot be sustained in the-face of controlling principles of law. The-Tax Court, as trier of the facts, was not obliged to accept as true Jack Adler’s testimony bearing upon the intention and' purposes of the corporations, which for all practical purposes were owned and controlled by him. Helvering v. Nat. Grocery Co., 304 U.S. 282, 295, 58 S.Ct. 932, 82 L.Ed. 1346; Latchis Theatres of Keene v. Commissioner of Int. Rev., 1 Cir., 214 F.2d 834, 836. We do not try the issues de novo, which, in effect, petitioners would have us do. See Helvering v. Nat. Grocery Co., supra, 304 U.S. at page 294, 58 S.Ct. at page 938. Where, as here, it is clearly demonstrated that the Tax Court reached its findings and conclusions upon a fair appraisal of all of the evidence, our function is to determine whether the Tax Court’s findings and ultimate decisions are supported by substantial evidence upon the record as a whole, and are not against the clear weight of the evidence or induced by an erroneous view of the law. If this question is answered in the affirmative, we have no right to set aside the result below. Sachs v. C. I. R., 8 Cir., 277 F.2d 879, 881, certiorari denied 364 U.S. 833, 81 S.Ct. 63, 5 L.Ed.2d 59; Crown Iron Works Co. v. Commissioner of Internal Rev., 8 Cir., 245 F.2d 357, 360; Kerr-Cochran, Inc. v. Commissioner of Internal Rev., supra, 253 F.2d at pages 124-125; Latchis Theatres of Keene v. Commissioner of Int. Rev., supra, 214 F.2d at page 835. The questions of whether accumulations are in excess of the reasonable needs of the business, and of whether the corporation has been availed of to avoid imposition of surtax on shareholders by accumulating earnings or profits, are essentially ones of fact for the Tax Court’s determination on the whole of the particular situation. Kerr-Cochran, Inc. v. Commissioner, supra, 253 F.2d at page 124, and cases there cited. In making this determination the Tax Court is entitled to draw whatever inferences and conclusions it deems reasonable from the facts, Helvering v. Nat. Grocery Co., supra, 304 U.S. at page 294, 58 S.Ct. at page 938, and even though the facts may be stipulated or undisputed, the issue is no less factual in nature. Boehm v. Commissioner of Internal Revenue, 326 U.S. 287, 293, 66 S.Ct. 120, 90 L.Ed. 78; Sachs v. C. I. R., supra, 277 F.2d at pages 881, 882. Tested by the foregoing guides, we are satisfied that the Tax Court’s findings have adequate factual support. The numerous circumstances together with inferences reasonably to be drawn therefrom which support the findings and conclusions, are exhaustively reviewed in the Tax Court’s opinion, and in our view repetition thereof is wholly unnecessary. Examination of the more pertinent circumstances will suffice to demonstrate the correctness of the result. 1. Although the corporations adopted formal resolutions in January, 1947, showing an intention to expand their facilities and businesses, we find no specificity therein with respect to plans, types of building, machinery, etc. These resolutions establishing the reserve funds do not themselves substantiate the purported objectives. 2. As we have observed, although petitioners had, by adoption of the resolution in January, 1947, indicated the intention to expand, neither Adler nor American had made any commitments or taken any steps toward realization of purposes expressed in the resolution at the time of the hearing before the Tax Court on December 2, 1958. As stated by the Court in Smoot Sand & Gravel Corp. v. Commissioner of Int. Rev., 4 Cir., 241 F.2d 197, at page 202, certio-rari denied 354 U.S. 922, 77 S.Ct. 1383, 1 L.Ed.2d 1437, “The intention claimed must be manifested by some contemporaneous course of conduct directed toward the claimed purpose.” And see Smoot Sand & Gravel Corporation v. C. I. R., supra, 274 F.2d 495, at pages 497, 498. 3. The record does not conclusively support the assertion that the failure to move forward with expansion was attributable solely to steel shortage as contended by petitioners. Exclusive of general statements of Jack Adler, and several letters from steel companies dated in 1956, there was no evidence to show steel was unavailable to petitioners during all the years since 1946. The income of petitioners from 1946 to 1951, inclusive, exceeded pre-World War II levels, but no effort was made by either corporation to make the alleged contemplated expansion. 4. There was lack of reasonable relationship between petitioners’ established course of business and their plans for expansion. Thus the Adler figure of $471,-250 for inventory expansion was more than five times the largest inventory held by it from October 31, 1943 through December 31,1954. American stated its inventory requirements to be $375,000, whereas it had no closing inventories in 1946, 1947 and 1948, and only nominal closing inventories from 1949 to 1953, inclusive. It had no inventory at the end of 1954. 5. As shown by the analysis of petitioners’ surplus accounts, appearing at page 14 of the Tax Court opinion [advance copy slip opinion], Adler’s surplus at the end of 1951 amounted to $646,-935.92, and at the end of 1954 amounted to $676,070.27; American’s surplus at the end of 1951 was $455,961.54 and at the end of 1954 was $515,027.73. As thus reflected, the Tax Court was fully justified in concluding that the financial position of petitioners at the beginning of and during each of the taxable years under consideration was completely adequate to the take care of their immediate and reasonably anticipated needs. 6. During 1952, 1953 and 1954, Jack Adler was in tax brackets of 77%, 72% and 72%, respectively, with income of approximately $76,500 annually from petitioners for salary and rent. If the corporations had distributed their earnings to Adler and his wife during these years, they would have been subject to additional income taxes of $27,784.90, $43,484.44 and $23,968.30, respectively. 7. During the years in question Adler and American assets were extremely liquid. At the end of 1954, Adler had $813,-978.50 invested in United States Government bonds. Their liabilities were comparatively negligible, and as observed by the Tax Court, the pertinent ratios of current assets to current liabilities were as follows: Adler American 1952 ........ 33 to 1 21 to 1 1953 ........ 26 to 1 39 to 1 1954 ........106 to 1 43 to 1 Without discussion of other elements such as the fact that both corporations had consistently accumulated earnings, paying small dividends only on three separate occasions since their incorpora-tions, in 1927 and 1934, we are convinced that on the overall aspects of all of the circumstances, there was ample support for the finding that each of the petitioners had permitted earnings and profits to accumulate beyond the reasonable needs of its business, and that Adler was availed of during each of the years 1952 and 1954, and that American was availed of during each of the three years for the purpose prohibited by the statute. The decisions of the Tax Court are Affirmed. . We shall hereafter sometimes refer to American Metal Products Corporation and Adler Metal Products Corporation, respectively, as “American” and “Adler” and sometimes as “petitioners.” . There was actually a decrease in the surplus account of Adler for the year 1953. . "§ 534. Burden of proof. “(a) General rule. — In any proceeding before the Tax Court involving a notice ' of deficiency based in whole or in part on the allegation that all or any part of the earnings and profits have been permitted to accumulate beyond the reasonable needs of the business, the burden of proof with respect to such allegation shall— $ $ $ * $ “(2) if the taxpayer has submitted the statement described in subsection (c), be on the Secretary or his delegate with respect to the grounds set forth in such statement * * * * * * * * “(c) Statement by taxpayer. — Within such time * * * after the mailing of . the notification [informing taxpayer that proposed notice of deficiency includes an amount with respect to the accumulated earnings tax imposed under § 531] * * * the taxpayer may submit a statement of the grounds (together with facts sufficient to show the basis thereof) on which the taxpayer relies to establish that all or any part of the earnings and profits have not been permitted to accumulate beyond the reasonable needs of the business.” There is no comparable section in the 1939 Code, but by amendment to § 534 in 1955, the above provisions were made retroactive and applicable to cases tried on the merits after 1955. See Act of August 11, 1955, c. 805, 69 Stat. 689, 690, §§ 4, 5, 69 Stat. 690, 691. . Similar provisions appear in § 102(c) of the 1939 Code. . The 1939 Code contains no similar provision.

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".

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?

BLUE MOUNTAIN CONSTRUCTION COMPANY, a Corporation, Appellant, v. H. C. WERNER and Tauf Charneski, Appellees. No. 16206. United States Court of Appeals Ninth Circuit. Aug. 19, 1959. Rehearing Denied Sept. 21, 1959. Healy, Circuit Judge, dissented. Cashatt & Williams, Jerome Williams, Spokane, Wash., for appellant. Norman B. Kobin, Leo Levenson, Portland, Or., for appellees. Before HEALY, ORR and FEE, Circuit Judges. ORR, Circuit Judge. On the 4th day of April, 1958, appellant filed in the United States District Court of Oregon a complaint seeking damages for alleged breaches of three sub-contracts entered into with appellees. On April 28, 1958, defendants served and filed their answer. No affirmative relief was sought. On May 19, 1958, appellant moved for a dismissal of the action without prejudice under Rule 41(a) (2), F.R.Civ.P., 28 U.S.C.A. No supporting affidavit was presented and no reasons were given for the dismissal. Appellee objected to the dismissal on the ground that appellee had “undertaken at considerable expense to go through this thing and prepare ourselves for our answer and also to prepare ourselves for trial.” The court denied the motion. Whether or not a dismissal will be granted is within the sound judicial discretion of the court. Ockert v. Union Barge Line Corp., 3 Cir., 1951, 190 F.2d 303; Rollison v. Washington National Ins. Co., 4 Cir., 1949, 176 F.2d 364. We think it follows that each case must be determined on its own particular facts. We find no abuse of discretion in the denial of this motion. There was no showing whatever in support of the motion. It was no more than a request. Counsel for appellants, other than the one making the first motion, evidently sensing the inadequacy of the showing made in support of said motion, on May 23, 1958 filed a second motion entitled “Motion for Reconsideration of and Renewing Plaintiff’s Motion for a Voluntary Dismissal Without Prejudice pursuant to Rule 41(a) (2).” This motion was supported by an affidavit setting forth the reasons why the dismissal was desired. In essence the supporting affidavit stated: that plaintiff’s attorney had erroneously concluded that the only forum available to appellants to obtain redress on its alleged causes of action was by an action in the United States District Court of Oregon, inasmuch as the appellees were residents of Oregon and could not be reached in a suit instituted in the state of Washington ; that thereafter appellant’s attorney determined that this theory was erroneous and further determined that his clients had a cause of action under the Miller Act, §§ 270a and 270b, 49 Stat. 793 (1935), 40 U.S.C.A. §§ 270a and 270b, and that under the terms of said act an action under it could only be brought in the district court having jurisdiction of the area in which the work was performed, in this case the Eastern District of Washington. Thus we have appellant squarely representing to the trial court that their purpose in requesting a dismissal in the Oregon District was to enable them to institute an action in the Eastern District of Washington. The trial court had before it this picture upon which to act in exercising its discretion whether to dismiss. The dismissal was desired in order to permit an action in the State of Washington because under appellant’s theory a suit under the Miller Act, which they wished to bring, could only be brought where the contract was to be performed. According to appellees this is a debatable question because, as they argue, the requirement of the Miller Act relates only to venue, citing Texas Construction Company v. United States, 5 Cir., 1956, 236 F.2d 138. That case does not depart from the established rule that a competent court could have jurisdiction of a case and try it where improper venue was laid only in the event the parties agreed. Of course the trial court here could not speculate as to whether the sureties would waive venue in the event they were made parties in the Oregon suit, nor did it try. However it nowhere appears that it was necessary to sue the sureties, no showing being made that the appellees are insolvent. Appellant’s complaint alleges three causes of action, two based on breach of contract and one for reformation of contract. The first cause of action was for damages for failure to complete the concrete lining of a tunnel in time. The second cause of action was also for failure to complete the concrete lining of a tunnel in time. The third cause of action was for reformation so as to include certain provisions for the method of lining the tunnels and a time element. The Miller Act provides that the requirement of the bond shall be for insuring payment of all persons “supplying labor and material.” (See note 2, supra). Appellees have argued that the causes of action alleged in the complaint in the Oregon Court could not have been brought under the Miller Act, hence the reasons given for dismissal had no validity. We expressly refrain from passing on this question. It is, we understand, before the District Court of Washington at this time. It should be noted, however, that the trial court in Oregon offered to dismiss the action there founded, as we have said, on breach of contract and for a reformation without prejudice if appellant would agree not to sue on said causes of action in Washington. What if any effect such an agreement would have had on the future right to litigate said causes of action in Oregon we are unable to say. As against this lack of showing on the part of appellant, the trial court was justified in turning to the other side of the coin. The defendants have been brought into court in the State of their residence, a matter of great convenience to them. We understand that their witnesses reside in that jurisdiction. To require them to pull up stakes and move to another state would entail considerable additional expenses of hotel accommodations for the litigants and witnesses and the trial court could reasonably conclude that appellees’ lawyers would require additional fees and expenses to travel to a foreign state to try the case. It may be argued that appellees would have been subjected to these same expenses had appellant seen fit to sue in Washington in the first instance. That may be so, but we think that a court in exercising its discretion as to whether a dismissal for the express purpose of allowing a plaintiff to bring an action in a foreign state should be granted, is entitled to consider whether a plaintiff should be allowed to snatch from a defendant certain monetary advantages and conveniences which appellant has conferred by its voluntary act. After the denial of their motion to dismiss, appellant informed the court that they refused to proceed further. Appellant took this position at its peril. If the trial court was in error in refusing to dismiss without prejudice appellant was on safe ground, but on the other hand, as we find there was no abuse of discretion then the subsequent action of the court in dismissing the action with prejudice for want of prosecution was proper. The trial court set the case for pretrial conference on July 21, 1958. The matter came on for pre-trial conference on said date. No appearance was made for or on behalf of appellant. In view of the information given the court that appellant would not proceed further, it justifiably concluded that there was a failure to prosecute and dismissed the action with prejudice under Rule 17 of the Oregon District Court and Rule 41(b) F.R.Civ.P. Subsequent to the denial of the motion to dismiss and the later order of the trial court dismissing with prejudice, appellant endeavored to have this court by means of a Writ of Mandamus order the trial court to dismiss without prejudice. This court refused the Writ stating that in its opinion the trial court did not abuse its discretion. Later appellees endeavored to have this appeal dismissed on the ground that the refusal of the Writ of Mandamus controlled. A different panel of the court heard the motion to dismiss and denied it. This action in refusing to dismiss the appeal may have detracted from the controlling effect of the holding in the mandamus proceeding, but the finding by this court in the Mandamus action that the trial court did not abuse its discretion is at least persuasive. Under the facts and circumstances presented, the judgment of dismissal with prejudice is affirmed. . Rule 41 (a) (2) provides that “except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. * * * ” Paragraph (1) of the subdivision provides that “an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.” . “270a. Before any contract, exceeding $2,000 in amount, for the construction * * * of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds * * * (1) a performance bond * * * for the protection of the United States. (2) A payment bond * * * for the protection of all persons supplying labor and material in the prosecution of the work provided for in .said contract for the use of each such person. * * * ” “270b. Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which .a payment bond is furnished under section 270a of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last act of labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount * * * unpaid at the time of institution of such suit * * . The part of § 270b in issue states “every .suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court foi any district in which tlie contract was to be performed and executed and not elsewhere. * * * ” . “All actions filed must be prosecuted with due diligence, and any action not so prosecuted may be dismissed for want of prosecution.” . “For failure of the plaintiff to prosecute or to comply with * * * any order of the court, a defendant may move for dismissal of an action or any complaint against him. * * * Unless the court in its order 'for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.”

What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.

What is the number of judges who voted in favor of the disposition favored by the majority?

Harold Lamont OTEY, Appellee, v. Frank X. HOPKINS, Warden of the Nebraska Penal and Correctional Complex, Appellant. No. 92-2733. United States Court of Appeals, Eighth Circuit. Submitted Aug. 4, 1992. Decided Aug. 4, 1992. James R. Mowbray and Dorothy A. Walker, Lincoln, Neb., argued, for appellant. J. Kirk Brown and Donald Andrew Kohtz, Lincoln, Neb., argued, for appellee. Before JOHN R. GIBSON, BOWMAN and MAGILL, Circuit Judges. JOHN R. GIBSON, Circuit Judge. Harold Otey is scheduled for execution August 6, 1992, and the district court has stayed execution to permit consideration of a petition for writ of habeas corpus raising new issues. Order of July 30, 1992. A motion to vacate the stay of execution is before us, and we deny the motion. Otey’s petition for writ of habeas corpus is directed to the commutation hearing before the Nebraska Board of Pardons conducted in June 1991. The Board of Pardons denied commutation by a vote of two to one. Otey attacked the commutation proceedings in state court. The Nebraska Supreme Court ruled against him in Otey v. State of Nebraska, 240 Neb. 813, 485 N.W.2d 153 (1992), which was filed on May 29, 1992. The Nebraska Supreme Court held that in Nebraska as a matter of law the judicial branch has no jurisdiction to review the granting or denial of clemency in a death sentence case by the Board of Pardons, 485 N.W.2d at 163, and further held that the clemency decision by the Nebraska Board of Pardons did not implicate any interest protected by the due process clause of the federal or state constitutions. Id. at 167. The petition claims constitutional violations in that the attorney general participated in conflicting capacities in the Board of Pardons proceedings, acting simultaneously as prosecutor and witness before that Board; sitting as a decisionmaker on the Board; and directing the Nebraska Board of Parole not to make a recommendation to the Nebraska Board of Pardons. The district court denied the state’s motion to dismiss on the ground that Otey’s claims are not properly the subject of a petition for habeas corpus under 28 U.S.C. § 2254 (1988). The court reasoned that a habeas petition may attack executive restraints on liberty, including a parole board’s decision and a decision of the executive branch of government with respect to insanity, citing Peyton v. Rowe, 391 U.S. 54, 58, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Harris v. Nel son, 394 U.S. 286, 291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969); Burnside v. White, 760 F.2d 217, 219 (8th Cir.), cert. denied, 474 U.S. 1022, 106 S.Ct. 576, 88 L.Ed.2d 559 (1985); and Ford v. Wainwright, 477 U.S. 399, 410-12, 106 S.Ct. 2595, 2602-03, 91 L.Ed.2d 335 (1986). Order of July 30,1992, slip op. at 2-3. The district court, in considering the application for stay of execution, concluded that the unusual constitutional issues required more thorough examination than could be given before the scheduled execution date of August 6, not only because the legal issues are new, but because the record is not yet fully developed. Id. at 5-6. The district court stated that it was apparent that an evidentiary hearing may be necessary, that the claims are not frivolous, and under this court’s standard in Mercer v. Armontrout, 864 F.2d 1429, 1431-32 (8th Cir.1988), a stay was required in order to give the necessary careful study to the constitutional issues raised. Order of July 30, 1992, slip op. at 5-6. Hopkins’ reliance on Bundy v. Wainwright, 808 F.2d 1410 (11th Cir.1987), with its recitation of the four factors to be considered in granting a stay, 808 F.2d at 1421, is unavailing. The holding in Bundy is directly contrary to Hopkins’ position. Bundy demonstrates that nothing in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), which deals primarily with stays in the courts of appeal, alters the pleading obligations for habeas cases set out in the rules governing section 2254 cases. 808 F.2d at 1421. Here, the district court has rejected summary dismissal as provided for in Rule 4 of the section 2254 rules, has found the claim is not frivolous, and has ordered the parties to brief the question of whether a hearing is necessary. Order of July 30, 1992, slip op. at 5-6. As the issues raised in this case arise from proceedings in June 1991, it is evident that the petition raises a claim that is neither successive (i.e., it has not been raised before), nor abusive (i.e., it does not raise grounds that were available but ignored in an earlier petition). Thus, the concerns expressed in Delo v. Stokes, 495 U.S. 320, 110 S.Ct. 1880, 109 L.Ed.2d 325 (1990), and the cause and prejudice analysis in McCleskey v. Zant, — U.S. -, ---, 111 S.Ct. 1454, 1470-75, 113 L.Ed.2d 517 (1991), are not applicable. Hopkins and the dissent argue that Otey’s claims are foreclosed by Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981). It is first interesting to note that Hopkins filed no response in the district court within the time allotted by local rules or before the district court entered its order granting the stay now before us. Dumschat was raised only in the motion for reconsideration. Dumschat states that “[a] state-created right can, in some circumstances, beget yet other rights to procedures essential to the realization of the parent right.” 452 U.S. at 463, 101 S.Ct. at 2464. Dumschat dealt with a very limited argument that there was an expectation of actually receiving a commutation and the state had to explain its reasons for denying the commutation. Otey’s argument is far different as it is based on the expectation of receiving a meaningful commutation process, which he argues was denied him by the actions of the Attorney General. The district court order states only that this is a claim that is not frivolous and must be thoughtfully and fully considered. We reject the argument that Dumschat, with its differing facts, requires us to vacate the stay, enter a decision on the merits in favor of Hopkins, and permit execution of Otey. As the district court aptly stated, this case involves unusual constitutional issues requiring development of a factual record, and an evidentiary hearing may well be necessary. Order of July 30, 1992, slip op. at 5-6. Because we do not deal with a successive or abusive petition, and the district court has made a clear statement that the claims are not frivolous, a stay is required to fully and diligently consider the issues raised. Mercer, 864 F.2d at 1431-32. The district court set a schedule for the parties to file briefs on August 12 and 19, 1992, to be followed by an August 28, 1992, conference regarding issues and procedures. Slip op. at 6-7. It is evident that the court is giving this new petition expedited consideration. We can anticipate that the experienced district judge will issue a decision with due dispatch. To vacate the stay would require summary disposition of issues the district court has held to be not frivolous and to require development of a record. When human life is at stake, we would be derelict in our judicial duty to so rule. Mercer, 864 F.2d at 1431-32. The motion to vacate the stay is denied. . The Honorable Warren K. Urbom, Senior United States District Judge for the District of Nebraska. . Otey’s petition was filed June 16, 1992, and the district court issued its order July 30, 1992. The district court denied a motion for reconsideration on August 3, 1992.

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.

What is the number of judges who dissented from the majority?

INTERNATIONAL SHOE MACHINE CORPORATION, Plaintiff, Appellant, v. UNITED SHOE MACHINERY CORPORATION, Defendant, Appellee. No. 6043. United States Court of Appeals First Circuit. March 11, 1963. Breck P. McAllister, New York City, with whom Morton Myerson, Boston, Mass., Roger J. Hawke, Frank G. Dawson, New York City, Malloy, Sullivan & Myerson, Boston, Mass., and Donovan, Leisure, Newton & Irvine, New York City, were on brief, for appellant. Ralph M. Carson, New York City, with whom Robert Proctor, Boston, Mass., Theodore Kiendl, New York City, Robert D. Salinger, John B. Reigeluth, Boston, Mass., and Louis L. Stanton, Jr., New York City, were on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. HARTIGAN, Circuit Judge. This is an appeal from a judgment of the United States District Court for the District of Massachusetts dismissing the complaint entered upon a special verdict of the jury in an action brought by plaintiff-appellant, International Shoe Machine Corporation, against defendant-appellee, United Shoe Machinery Corporation, under Sections 4 and 5 of the Clayton Act (Act of October 15, 1914, c. 323, §§ 4 and 5, 38 Stat. 731, 15 U.S.C. §§ 15 and 16) to recover treble damages for violation of Section 2 of the Sherman Act (Act of July 2, 1890, c. 647, 26 Stat. 209, 15 U.S.C. § 2). Plaintiff is a Massachusetts corporation which manufactures machinery for use in the “lasting operation” of shoe construction. Defendant, a New Jersey corporation, manufactures machinery for use in all phases of shoe construction, including that used in the lasting operation. The complaint, which was filed on December 14, 1956, alleged that beginning some time prior to 1938 and continuing to the date of the filing of the complaint, defendant had monopolized trade and commerce in the shoe machinery industry and the parts thereof in violation of Section 2 of the Sherman Act and had thus prevented plaintiff from obtaining a fair competitive share of the market in such industry. The complaint alleged a substantial loss of profits to plaintiff owing to the alleged monopolization and prayed judgment for three times the damages sustained. The complaint further alleged that on February 18, 1953, in the case of United States v. United Shoe Machinery Corp., D.C., 110 F.Supp. 295 (aff’d per curiam 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910 (1954)), a final decree was entered in the United States District Court for the District of Massachusetts finding that appellee had violated the antitrust laws and further stated that “Pursuant to Section 5 of the Clayton Act, plaintiff intends to use said final decree against defendant as prima facie evidence as to all matters respecting which the said final decree would be an estoppel between the parties thereto.” The defendant answered and relying upon the 1955 amendments to the Clayton Act (69 Stat. 283, 15 U.S.C. § 15(b)), moved under Rule 56(b), 28 U.S.C., for partial summary judgment insofar as the plaintiff’s complaint purported to assert any cause of action arising more than four years prior to the filing of the complaint, that is prior to December 14, 1952. The district court denied this motion and defendant appealed. In our opinion reversing the district court, United Shoe Mach. Corp. v. International Shoe Mach. Corp., 275 F.2d 459 (1st Cir., 1960), we agreed with defendant that the statute of limitations precluded plaintiff from asserting any cause of action which might have accrued prior to December 14,1952. The thrust of this ruling was to require plaintiff to demonstrate injury resulting from antitrust violations in the four year period immediately prior to the filing of the complaint — December 14, 1952 through December 14, 1956 — if it was to be successful in the instant action. At a pre-trial conference on August 21, 1961 plaintiff requested an order permitting introduction, at any time during the trial, of the final decree, parts of the findings of fact and the opinion in the so-called “Government case,” stating that said decree and findings should constitute prima facie evidence. Plaintiff also requested an order permitting introduction into evidence of the parties’ background and competitive activities since 1938, and of customers’ reasons for refusing to deal with plaintiff. On October 24, 1961 the district court issued a pre-trial order which included the following: “4. Decision on the admissibility of the decree, findings, or any portion whatever of the proceedings before Wyzanski, D. J. in the case of United States v. United Shoe Machinery Corporation, 110 F.Supp. 295, is deferred until the close of plaintiff’s other evidence at the trial, at which time decision can be made in the light of this fully developed evidence. Until the Court decides what, if any, of said material is admissible, no reference to any aspect of the ease of United States v. United Shoe Machinery Corporation, supra, shall be made in the hearing of the jury by the parties in either the opening or at any other time prior to said ruling. “5. Either party may introduce relevant evidence as to the background of the parties and of the shoe machinery industry at any time since the founding of plaintiff corporation in 1938, provided that nothing in this clause shall in any way modify or affect the provisions regarding order of proof or exclusion of evidence established by any other clause of this pretrial order.” At the close of plaintiff’s evidence on monopolization and injury, the admissibility of the decree and findings in the Government case was again argued. On April 2, 1962 the court again held these to be inadmissible and amended the pretrial order as follows: “1. No part of the decree, findings of fact, or conclusions of law from United States v. United Shoe Machinery Corporation, supra, will be admitted in evidence as evidence of violation of the Antitrust laws of the United States; * * Defendant moved for a directed verdict at the close of plaintiff’s case and again upon the completion of the whole case. The court reserved decision, and submitted to the jury the following five special questions posed pursuant to the provisions of Fed.Rules Civ.Proc.Rule 49, 28 U.S.C., to which neither party objected: “Question 1. Do you find by a preponderance of the evidence that during the period from December 14, 1952 to December 14, 1956, the defendant United Shoe Machinery Corporation committed acts of monopolization so as to control and dominate interstate trade and commerce in the distribution of shoe machinery (other than Dry Thread Sewing Machines) in the United States, to such an extent as to exclude actual and potential competitors from that field of interstate commerce? Answer yes or no. “Question 2. Do you find upon a preponderance of the evidence that during the period from December 14, 1952 to December 14, 1956, defendant United Shoe Machinery Corporation committed acts of monopolization so as to control and dominate interstate commerce in side and toe lasting machines to such an extent as to exclude actual and potential competitors from interstate commerce in side and toe lasting machines? Answer yes or no. “Question No. 3: “Do you find upon a preponderance of the evidence that such acts of monopolization during that period were the proximate cause of injury to the business or property of the plaintiff? Answer yes or no. “Question No. 4: “Do you find upon a preponderance of the evidence that such injury as you have found to the business or property of the plaintiff in the period December 14, 1952 to December 14, 1956, did proximately cause monetary damage in the form of lost profits to the plaintiff in the period beginning December 14, 1952 and ending December 31,1959, which are capable of reasonable calculation and determination? “Question No. 5: What is the amount, if any, measured in dollars, which you find from the preponderance of the evidence that the plaintiff was damaged? State such amount or ‘none’ in the following blank space to indicate your finding.” The jury answered the first question— relating to defendant’s monopolization in the distribution of shoe machinery generally — in the affirmative. However, it answered question 2 — relative to defendant’s monopolization in the special area of side and toe lasting machinery— in the negative. The jury also answered “no” to question 3 concerning putative injury to plaintiff by defendant during the limitations period. Thereupon, it was unnecessary for the jury to answer questions 4 and 5. Judgment for the defendant was entered upon this verdict on May 14, 1962. Plaintiff moved to vacate judgment and for a new trial on the grounds, inter alia, that the jury’s answers to questions 1 and 2 were inconsistent and against the weight of the evidence, and that the decree and findings in the Government case should have been allowed in evidence. The trial court denied this motion. International Shoe Mach. Corp. v. United Shoe Mach. Corp., 206 F.Supp. 949 (D.C.Mass.1962). Plaintiff’s argument on this appeal rests principally on the asserted error of the trial judge in excluding the final decree and certain findings of fact and conclusions in United States v. United Shoe Machinery Corporation, supra, (hereinafter the “Government case”). It is plaintiff’s contention that the decree, findings and conclusions were admissible under Section 5 of the Clayton Act and were “relevant” both to plaintiff’s proof of monopolization during the limitations period from December 14, 1952 to December 14, 1956 and to plaintiff’s alleged damages. The legislative history is clear that Congress enacted Section 5 of the Clayton Act to encourage treble damage suits by lessening the plaintiff’s required proof and litigation expenses in the usually complex, time consuming and expensive area of antitrust litigation. See H.R.Rep. No. 627, 63 Cong.2d Sess. 14; S.Rep.No. 698, 63 Cong.2d Sess. 45; 51 Cong.Rec. 9270, 9490, 13851; see also Hamilton & Till, Antitrust In Action 83 (T N E C Monograph 16, 1940). To this end, Congress embodied as Section 5 a provision allowing treble damage plaintiffs to make use of judgments obtained by the Government in a prior action. This provision permits private plaintiffs to utilize “A final judgment or decree” as prima facie evidence of “all matters respecting which [the] judgment or decree would be an estoppel as between the” defendants and the Government. The question here, as before the trial court, is the proper evidentiary effect to be accorded the prior Government decree. In Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951), the Court in defining the relevant principles as to the scope of Section 5 stated that the prima facie effect of a prior judgment “ * * * extends only to questions ‘distinctly put in issue and directly determined’ in the [prior proceeding] * * * [and that] plaintiffs are entitled to introduce the prior judgment to establish prima facie all matters of fact and law necessarily decided by the conviction and the verdict on which it was based.” 340 U.S. at 569, 71 S.Ct. at 414. Emich, consequently, indicated that recourse should be had to the principles of collateral estoppel in ascertaining the issues on which the prior judgment is evidence. See also, Fifth and Walnut, Inc. v. Loew’s Incorporated, 176 F.2d 587, 593 (2nd Cir., 1949), cert. denied 338 U.S. 894, 70 S.Ct. 242, 94 L. Ed. 549. In effect, under traditional principles, the evidentiary impact of Section 5 should be limited to those issues which were “actually litigated and determined” by the judgment or decree in the prior case. See Restatement, Judgments, § 68(1) (1942). Moreover, for a private litigant to derive the benefits of Section 5 from a prior Government judgment, he must not only meet the estoppel requirements of the section but must also show that the former decree or judgment is relevant to his own cause of action. This is to say that it is not enough for a plaintiff to demonstrate that a defendant has violated the antitrust laws generally. Rather, he must show that his claimed injury stemmed directly and proximately from the same type of practice condemned in the prior Government action. Monticello Tobacco Co. v. American Tobacco Co., 197 F.2d 629, 631 (2nd Cir., 1952), cert. denied, 344 U.S. 875, 73 S.Ct. 168, 97 L.Ed. 678. See, Eagle Lion Studios, Inc. v. Loew’s, Inc., 248 F.2d 438, 444, 445 (2nd Cir., 1957), aff’d per curiam by an equally divided Court, 358 U.S. 100, 79 S.Ct. 218, 3 L.Ed.2d 147 (1958); Shotkin v. General Electric Co., 171 F.2d 236, 238 (10th Cir., 1948). In short, before a plaintiff can invoke the mantle of Section 5 he must successfully meet both the statutory requirements of estoppel as well as the generic evidentiary test of admissibility' — relevancy. In excluding the prior decree, findings and conclusions, the trial court predicated its decision on the ground that: “In the Government case Judge Wyzanski closed the taking of evidence as of a date in June of 1951, some 18 months prior to the period which is open to the plaintiff in the instant case, namely, the period December 14, 1952 to December 14, 1956. “I do not read Judge Wyzanski’s findings of fact as reflecting that any conduct of defendant which occurred between December 14, 1952 and December 14, 1956 was put in issue or litigated in the Government case.” In sum, taking the closing of the evidence in the Government case — June 1951 — as the determinative date, the trial court rested its decision on a difference in the time periods involved in the two actions. In plaintiff’s view, focusing on the date of “the close of the evidence” was the trial court’s basic error. According to plaintiff, the date on which the evidence closes has no significance in terms of Section 5'since the statute speaks in terms of a “final judgment or decree” which “shall be prima facie evidence.” Consequently, according to plaintiff, in assaying a putative difference in the time periods of the actions under scrutiny, the determinative reference is to the date of the final decree. Briefly stated, the chronology of the terminal stage of the Government case is as follows: (1) Date of the close of evidence— June, 1951; (2) Decree, findings of fact and conclusions of law entered by District Court — February 18, 1953; (3) Affirmance by Supreme Court— May 17, 1954; (4) Approval by District Court of a final plan for terminating the proscribed practices — June 1, 1955. Upon examination of the foregoing chronology it is apparent, as pointed out by the district court, that the date of the close of the evidence antedates the limitations period open to plaintiff by some eighteen months. On the other hand, the other cited dates are within the limitations period — December 14, 1952 to December 14, 1956. Selection of the determinative date has significant consequences. If the identical anti-competitive practices proscribed by the Government proceedings occurred during the same time period as that involved in the subsequent private action, there is little question that the estoppel requirements of Section 5 would be satisfied since the subject matter of the private suit could be regarded as but a contemporaneous manifestation of the activities condemned in the Government case. It would appear that this is the classical situation contemplated by Section 5. In such a case, with the estoppel requirements of Section 5 satisfied, relevancy could be assumed. However, if the pertinent practices involved in the Government case were adjudicated against the background of a time period different from that involved in the subsequent private proceeding, then, under traditional principles, Section 5’s estoppel requirements seemingly would not be satisfied and a relevancy question would not arise. “Traditional” principles which would apparently render inapplicable invocation of collateral estoppel considerations include the rule that the passage of time may evoke change of circumstances which preclude the creation of an estoppel. See, e. g., City of Shreveport v. Shreveport Ry. Co., 38 F.2d 945, 69 A.L.R. 340 (5th Cir., 1930), cert. denied, 281 U.S. 763, 50 S.Ct. 462, 74 L.Ed. 1172, and the principle that matters adjudged as to one time period are not necessarily an estoppel as to other time periods. Cf., Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948). As was stated in Third National Bank of Louisville v. Stone, Auditor, 174 U.S. 432, 434, 19 S.Ct. 759, 760, 43 L.Ed. 1035 (1899) : “A question cannot be held to have been adjudged before an issue on the subject could possibly have arisen.” In many instances courts have noted a difference in the time periods involved in the Government and subsequent private actions in rendering the prior judgment inadmissible under Section 5. Park Neponset Corporation v. Smith, 258 F. 2d 452 (1st Cir., 1958); Eagle Lion Studios Inc., v. Loew’s Inc., supra; Paramount Film Distributing Corp. v. Village Theatre, 228 F.2d 721 (10th Cir., 1955); Robbinsdale Amusement Corp. v. Warner Bros. Pictures Distributing Corp., 141 F.Supp. 134 (D.C.Minn. 1955). Cf. Shotkin v. General Electric Co., supra; Wolfe v. National Lead Co., 15 F.R.D. 61 (N.D.Cal.1953), aff’d, 225 F.2d 427 (9th Cir., 1955), cert. denied, 350 U.S. 883, 76 S.Ct. 135, 100 L.Ed. 778 (1955). As was stated in Orbo Theatre Corporation v. Loew’s, Incorporated, 156 F.Supp. 770, 777 (D.C.D.C.1957), aff’d, 104 U.S.App.D.C. 262, 261 F.2d 380 (1958), cert. denied, 359 U.S. 943, 79 S.Ct. 725, 3 L.Ed.2d 677 (1959), “It should be emphasized that under the above quoted statute [Section 5] the [prior] decree is prima facie evidence only of a conspiracy covering the same area and existing during the same time as that involved in the case on trial.” (Emphasis supplied.) In Park Neponset, supra — a treble damage suit — we approved the action of the district court in completely excluding from evidence the findings, conclusions and decree entered in a prior Government case. There we pointed out that while the excluded findings related to the competitive situation of 1945, the'plaintiff’s theatre did not commence operation until 1947. Consonant with the principles evoked in the above cited cases, the district judge in the instant case excluded the Government decree on the ground that the activities found illegal in the prior proceeding did not, in the language of Orbo Theatre Corp., supra, exist “during the same time as that involved in the case on trial,” but, at least, some eighteen months prior thereto. Plaintiff, while apparently conceding the correctness of the result in a case such as Park Neponset, supra, attempts to distinguish it on the basis that in that case the findings were “expressly stated” to show the situation in 1945 while the plaintiff did not commence operation, as noted above, until 1947. Here, plaintiff continues, “the relevant findings in the Government case upon which appellant relies are not limited to any specific date.” Plaintiff then seeks to buttress this distinction by noting that the findings of the district judge in the Government case “speak in the present tense throughout” and, consequently, “all of the * * * findings are made as of the date of their making on February 18, 1953 by the very words that are used.” The net of this argument, of course, would be to move the Government action within the “same time per-iod” as that open to plaintiff and obviate the obstacles to the Section 5 estoppel considerations canvassed above. We are unwilling to accept plaintiff’s contentions because they not only emphasize form over substance but ask us to close our eyes to the realities of what occurred in the Government case. It is undisputed that the last item of evidence which the district judge received in the Government case and upon which he rested his decision was admitted as of a date in June, 1951. There is no contention that any evidence touching on the environmental and competitive context of the shoe industry came to the court’s attention in the interim period between the close of evidence and the announcement of findings. Perforce, quite apart from whether or not the findings of the trial judge “were expressly stated to show the situation” as of the date in June, 1951, when the evidence closed, they plainly could not reflect a competitive situation subsequent to that date, else they would be grounded on speculation and not evidence. Findings, to use Justice Frankfurter’s phrase in another context, are “not drawn, like nitrogen, out of the air.” Rather, they can only have been quarried from the evidence adduced at the trial, upon which they must be bottomed and from which they cannot be severed without mutilating their significance. In the Government ease, the development of the evidential complex terminated in June, 1951 and so far as the findings and the decree are concerned, they can speak no later than this date. The Government case, to use the district court’s own words, involved “a trial of prodigious length.” Some five years elapsed between the filing of the complaint on December 15, 1947 and the close of the evidence in June, 1951. Thousands of exhibits, interrogatories, depositions and a wealth of testimony had to be sifted and evaluated by the district judge in making his findings and formulating an appropriate decree. Appraisal and evaluation of the plethora of evidence required thoughtful consideration and this, in turn, required time, without which there could be neither the reflection nor the deliberation essential to a knowledgeable judgment. In the Government case this period extended for some eighteen months. In view of the scope and complexity of the issues there involved, the elapse of this time is not surprising. The point is that however long may be required for the trial judge to weigh the evidence, find the facts, decide the issues and formulate the decree, the ultimate judgment relates only to the period embraced by the evidence adduced at the trial. Cf., United States v. Waskowski, 158 F.2d 962 (7th Cir., 1947); Johnson v. Flemming, 264 F.2d 322 (10th Cir., 1959). Thus, evidentially speaking, though the decree was handed down in 1953 it spoke — so far as the determinative time period for our purposes is concerned — as of June, 1951. Nor can we attach significance to plaintiff’s argument that the trial judge’s language was cast “in the present tense.” We do not believe that considerations of estoppel should turn on the happenstance of style or syntax when the record clearly indicates that the language, though speaking in the present tense, related to a date at least eighteen months in the past. It is of course true that Section 5 speaks in terms of “a final judgment” which “shall be prima facie.” However, notwithstanding that fact, we believe that plaintiff reads too much into this language when it argues that the “trial court erred in giving any significance to the date of the close of the evidence [since] that date has no significance under the statutory language.” The statutory requirement that the judgment or decree be final before it may be admitted into evidence in a subsequent proceeding contemplates a “final disposition of the case, i. e., a final judgment by reason of failure to appeal within the statutory period, or a final judgment by reason of an affirmance of the appeal by the court of last resort.” Twin Ports Oil Co. v. Pure Oil Co., 26 F.Supp. 366, 369 (D.C.Minn.1939), aff’d, 119 F.2d 747 (8th Cir., 1941), cert. denied, 314 U.S. 644, 62 S.Ct. 84, 86 L.Ed. 516 (1941). See, Fifth and Walnut, Inc., v. Loew’s Incorporated, 176 F.2d 587, 592-594 (2nd Cir., 1949); Duluth Theatre Corporation v. Paramount Pictures, 72 F.Supp. 625 (D.C.Minn.1947). These cases recognize the principle that until there has been a terminus to the litigation, the judgment or decree is not final and may not be utilized as prima facie evidence. Needless to say, if there remains the possibility that the result dictated by the action of an inferior court may be reversed by a higher tribunal, the evidentiary impact of the judgment will be delusively imprecise. To obviate such a contingency, the statute imports the salutary principle of finality of judgment. However, to say that a judgment must be final before a plaintiff may introduce it under Section 5 is not to imply that in assaying the estoppel requirements of this same action, a court must close its eyes or “attach no significance” to the date of the close of the evidence. We believe that this date may, as in this case, have a relevance and a significance in providing the chronological guidelines and fixing the time period limitations as to what “questions [were] ‘distinctly put in issue and directly determined’ [in the prior proceeding].” Emich Motors Corp., supra, 340 U.S. at 569, 71 S.Ct. at 414. In the Government case the court found the defendant’s leasing activity to be violative of the Sherman Act on the ground that certain provisions of the leases were inimical to the development of competition “in the context of the present shoe machinery market”. Plaintiff has placed great reliance on the fact that the record in the instant case indicates that the same leases involved in the Government case were utilized by the defendant during the limitations period of the present case. And, in plaintiff's words, this fact makes the decree, findings and conclusions in the Government case “relevant prima facie evidence to which appellant is entitled under Section 5.” Again, we believe that plaintiff confuses relevancy with the estoppel requirements of Section 5. As noted above, under Section 5, relevancy does not become material until a plaintiff has cleared the statutory hurdle of estoppel and, in this case, we do not believe that plaintiff has done so. We do not read the trial court’s ruling in the Government case as holding that •leases of the kind utilized by the defendant are per se violations of the antitrust laws. Cf., International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947). Rather, in the language of the trial court: “In short, the leases themselves are not forbidden; only when they are used as an instrument for seeking [or maintaining] market control is the lessor to be charged with [restraint of trade or monopolizing].” United States v. United Shoe Machinery Corp., supra, 110 F.Supp. at 346. Again, the violation in the Government case was found in the “context” of the shoe machinery field during the time period there under scrutiny; a period which, in our view, could be of a date no later than June, 1951 and, from many of the trial judge’s specific references, was essentially bottomed on the defendant’s competitive posture in the 1947-49 market. In at least one significant facet, this was not the same “context” which existed in the shoe machinery industry — and specifically in the specialized market of side and toe lasting machinery at issue here— during the instant limitations period. Two of plaintiff’s three major pieces of equipment were commercially introduced into the market after the close of the evidence in the Government case. One of these machines apparently embodied a technological break-through which produced spectacular commercial success for plaintiff; with a demand which far outstripped supply and which strained plaintiff’s productive capacity to the utmost. This machine was apparently a highly coveted item in many segments of the industry and its availability was a competitive factor which was missing from the “context” of the side and toe lasting market in the Government case. It cannot be gainsaid that in any meaningful appraisal of the adverse or anti-competitive effects of devices alleged to restrict the freedom of buyers to purchase from competing suppliers, the extent to which there is a diminution of competition in the relevant market, will depend upon the degree of need for the controlled product and the availability of adequate and desirable substitutes. The machines which plaintiff introduced into the post-1951 market were assuredly pertinent factors in any assessment of the context of the competitive environment and structure within the relevant market for side and toe lasting machinery. Failure to accord due emphasis to changed competitive conditions, such as those cited above, would amount to a judgment on the sum of the many market relationships called competition which had scarcely more validity than “a guess in the dark.” Standard Oil Co. v. United States, 337 U.S. 293, 322, 69 S.Ct. 1051, 93 L.Ed. 1371 (1949) (dissenting opinion). For the foregoing reasons we believe that the trial court was correct in holding inadmissible under Section 5 the decree, findings and opinion in the Government case. The next question concerns the plaintiff’s argument that these items should have been admitted as “background” evidence. In the words of plaintiff: “Even if we are incorrect in urging that the operative date under Section 5 is the effective date of the final decree on June 1, 1955, the decree and the findings and conclusions are still relevant and material as essential background to appellant’s other proof of monopolization of lasting machines and of injury to its business or property in the limitations period itself.” Again we are unwilling to accept plaintiff's contention. While plaintiff continually stresses the relevancy of these matters, relevancy is not the only factor to be considered by a court in determining the admissibility of evidence of this character. Courts traditionally must weigh the probative value of the evidence sought to be admitted against the capacity for prejudice which the evidence might engender. Where the prejudice quotient is high, this fact will frequently render inadmissible evidence which— from a purely logical standpoint — may have a significant probative thrust. See generally, McCormick, Evidence, 315-21 (1954). As was stated in Loew’s, Inc. v. Cole, 185 F.2d 641, 661 (9th Cir., 1950), cert. denied, 340 U.S. 954, 71 S.Ct. 570, 95 L.Ed. 688 (1951): “ ‘[I]f certain evidential material, having a legitimate probative value, tends nevertheless to produce also, over and above its legitimate effect, an unfair prejudice to the opponent, * * * there is good ground for excluding such evidence, unless it is indispensable for its legitimate purpose.’ ” (Quoting Wigmore on Evidence.) We believe this principle is particularly apposite in the present proceeding. Whether admitted purely as “background” evidence or not, evidence of a judicial determination of prior illegal conduct on the part of the defendant cannot help but have a great emotive impact on a jury. As Wigmore states: “The deep tendency of human nature to punish, not because our victim is guilty this time, but because he is a bad man and may as well be condemned now that he is caught is a tendency which cannot fail to operate with any jury, in or out of court.” 1 Wigmore, Evidence, § 57 (3d ed. 1940). It is of course well settled that evidence that a. defendant had, in the past, committed illegal acts is not admissible to show that he has a proclivity towards similar wrongs in a subsequent proceeding. See generally, Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 Harv.L.Rev. 954 (1933); Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988 (1938). 1 Wigmore, Evidence, § 64 (3d ed. 1940). Moreover, it is clear that if common law rules of admissibility were applied, a plaintiff would be unable to derive evidentiary benefit from the prior Government judgment. Buckeye Powder Co. v. E. I. DuPont de Nemours Powder Co., 248 U.S. 55, 63, 39 S.Ct. 38, 63 L.Ed. 123 (1918). Until the advent of Section 5, these judgments were unavailable to a private plaintiff. In making this change, Congress delimited use of the prior judg ment to those precisely defined situations meeting the requirements of Section 5. Where, as here, a plaintiff does not meet the statutory requirements of Section 5, we believe that it would be unwarranted to allow it to attempt to do indirectly what it is foreclosed from doing directly. Absent the mantle of Section 5, if a plaintiff has the independent evidence to demonstrate antitrust violation and injury during the appropriate limitations period, then it would seem that he would not have to resort to a judgment obtained in a prior proceeding as “background.” If he does not have the independent evidence, we do not believe that he should be able to use the prior judgment as a crutch in the attempt to supply the essential elements of his action. It would be subversive of the purpose of Section 5 to permit the introduction of a prior decree or judgment “merely for its aura of guilt, or ‘to imply new wrongdoing from past wrongdoing.’ ” Monticello Tobacco Co. v. American Tobacco Co., 197 F.2d 629, 632 (2nd Cir., 1952), cert. denied, 344 U.S. 875, 73 S.Ct. 168, 97 L.Ed. 678. Finally, plaintiff argues at length that the trial court committed prejudicial error in limiting its development of the evidence in the pre-limitations period. Plaintiff urges that the trial court erroneously regarded the limitations period as controlling the admissibility of evidence, It is of course true that the statute of limitations does not govern the admissibility of evidence and that this question is controlled by rules independent of a limitations question.

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".

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?

UNION PACIFIC RESOURCES COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Amoco Production Company, Undersigned Producers, Arkla Exploration Company, Conoco, Inc., Exxon Corporation, Coastal Gas Marketing Company, Colorado Interstate Gas Company, Natural Gas Pipeline Company of America, Intervenors. ASHLAND EXPLORATION, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Undersigned Producers, Arkla Exploration Company, Exxon Corporation, Coastal Gas Marketing Company, Colorado Interstate Gas Company, Natural Gas Pipeline Company of America, Intervenors. Nos. 90-1370, 90-1378. United States Court of Appeals, District of Columbia Circuit. Argued May 20, 1991. Decided June 25, 1991. Richard E. Powers, Jr. with whom Steven A. Adducci for Ashland Exploration, Inc., Kerry R. Brittain, Philip D. Gettig, David B. Robinson and Andrew S. Newman for Union Pacific Resources Co., were on the joint brief, for petitioners in Nos. 90-1370 and 90-1378. John K. McDonald also entered an appearance for petitioner. Jill Hall, Atty., F.E.R.C., with whom William S. Scherman, Gen. Counsel, Joseph S. Davies, Deputy Sol. and Timm L. Aben-droth, Atty., F.E.R.C., were on the brief, for respondent in Nos. 90-1370 and 90-1378. Jerome M. Feit, Atty., F.E.R.C., also entered an appearance for respondent. John E. Dickinson, with whom Carolyn S. Hazel for Conoco, Inc., Douglas W. Rasch for Exxon Corp., Paul F. O’Konski and R.C. Burton for Mitchell Energy Corp., Marge O’Connor for Mobil Natural Gas, Inc., Michael L. Pate for Oxy USA, Inc., Larry Pain and Luke A. Mickum for Phillips Petroleum Co. and Phillips 66 Natural Gas Co., Mickey Jo Lawrence for Texaco, Inc., and Timothy J. Jacquet for Union Texas Petroleum, were on the joint brief, for intervenors Undersigned Producers in Nos. 90-1370 and 90-1378. Gerald P. Thurmond for Chevron, USA, Bruce A. Connell for Conoco, Inc., and C. Roger Hoffman for Exxon Corp. also entered appearances for intervenor Undersigned Producers. Andrea Studzinski and Paul E. Goldstein, Lombard, Ill., entered appearances, for in-tervenor Natural Gas Pipeline Co. of America in Nos. 90-1370 and 90-1378. Jack M. Wilhelm entered an appearance for intervenor Amoco Production Co. in No. 90-1370. James J. Holcker entered an appearance for intervenor Arkla Exploration Co. in Nos. 90-1370 and 90-1378. G. Mark Cook, Elizabeth Mack, Washington, D.C., and Eric B. Brown, Indianapolis, Ind., entered appearances, for intervenor Coastal Gas Marketing in Nos. 90-1370 and 90-1378. Daniel F. Collins, Katharine L. Henry and James Howard, Washington, D.C., entered appearances, for intervenor Colo. Interstate Gas Co. in Nos. 90-1370 and 90-1378. Before SILBERMAN, WILLIAMS and THOMAS, Circuit Judges. Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS. STEPHEN F. WILLIAMS, Circuit Judge: Effective January 1, 1993 the Natural Gas Wellhead Decontrol Act of 1989, Pub.L. No. 101-60, 103 Stat. 157 (1989), repeals all of the price controls imposed by the Natural Gas Policy Act of 1978, 15 U.S.C. § 3301 et seq. (1988), on “first sales” (typically wellhead sales) of natural gas. It also provides for earlier decontrol of certain wellhead sales by adding § 121(f) to the NGPA, 15 U.S.C.A. § 3331(f) (Supp. 1991). In dispute here is new subsection 121(f)(2): (2) Expiring or terminating contracts. — In the case of natural gas to which a first sale contract applies on [the date of enactment of the Decontrol Act], but to which such contract ceases to apply after such date, [the NGPA price ceilings] shall not apply to any first sale of such natural gas delivered after such contract ceases to apply. 15 U.S.C.A. § 3331(f)(2) (Supp. 1991). The final sentence of the added § 121(f) embellishes the concept of “apply”, stating that for purposes of the subsection a first sale contract applies to natural gas when the seller has a contractual obligation to deliver such natural gas under such contract. 15 U.S.C.A. § 3331(f) (Supp.1991). The Federal Energy Regulatory Commission has read the provision as decontrolling gas that has been temporarily released from a pre-enactment contract (i.e., a contract in effect on the date of enactment of the Decontrol Act) and is then sold to a new purchaser under a post-enactment contract. Order No. 523, Order Implementing the Natural Gas Wellhead Decontrol Act of 1989, FERC Stats, and Regs. ¶ 30,887 (1990); Order No. 523-A, 52 FERC ¶ 61,013 (1990) (Order Denying Rehearing). Petitioners challenging the decision are producers of natural gas that is deregulated under the Commission’s view. They oppose the ruling because for gas sold before December 31, 1990, they were entitled to tax credits on their production of “tight formation” gas only if the gas was subject to federal price controls. See § 29(e)(2)(B)(i) of the Internal Revenue Code, 26 U.S.C. § 29(c)(2)(B)(i) (1988). Because we find the Commission’s interpretation of § 121(f) reasonable, we deny the petitions for review and affirm Orders No. 523 and No. 523-A. The apparent logic of the Decontrol Act is to achieve full decontrol by January 1, 1993, but to accelerate the process where doing so will not injure expectations based on pre-enactment contracts. As we have seen, subsection 121(f)(2) addresses contracts that cease to apply during the transition period. Subsection 121(f)(1) provides immediate decontrol for gas to which no first sale contract applies on the date of enactment, and subsection 121(f)(3) does so where buyer and seller have agreed (after a specific date in 1989) that the gas should not be subject to the wellhead ceilings. The legislative history confirms this view of Congress’s animating principle. A Senate Report states broadly, “Wellhead sales of gas subject to a contract entered into after the date of enactment are decontrolled.” S.Rep. No. 38, 101st Cong., 1st Sess. at 7 (1989); see also id. (“At such time as the seller is no longer contractually obligated to continue delivering the gas, that gas is decontrolled.... Many different factors can combine to produce this result.... The bill focuses on the result, not how it is reached.”) (emphasis added); H.R.Rep. No. 29, 101st Cong., 1st Sess. at 5 (1989), U.S.Code Cong. & Admin.News 1989, pp. 51, 54 (similar). Against its recognition that wellhead price controls “frustrated rational decisions to produce on the basis of real economic cost”, S.Rep. No. 38, supra, at 4, Congress balanced expectations based upon existing contracts and their interaction with the price ceilings, observing that “no provision of this bill ... invalidates, abrogates or otherwise mandates the renegotiation of existing wellhead sales contracts”, id. at 8. As a pure matter of language, the Commission’s reading of the statute readily fits its terms, though there is an ambiguity in § 121(f)’s references to “natural gas”, “such natural gas” and “such gas”. If these refer to the particular molecules of gas being sold at a given time, as the Commission implicitly held, then deliveries of gas made by virtue of a temporary post-enactment release are not governed by a pre-enactment contract (and are thus decontrolled). For the petitioners to prevail, the terms must refer to the total quantity of gas committed under a pre-enactment contract, so that such a contract “applies” to any gas sold on a particular day if it still applies to any of the reserves that the contract originally committed. Petitioners offer no theory of congressional purpose that would support their reading. The legislative history, however, offers them some help. One sentence reads as follows: Consequently, in a case where the seller has been released temporarily from its delivery obligation to the original buyer, but there remains an underlying contractual obligation to deliver gas when the release period ends, neither the delivery of the released gas nor the delivery of the gas covered by the underlying contractual obligation is decontrolled. S.Rep. No. 39, 101st Cong., 1st Sess. at 13 (1989). The Commission suggests, however, that the passage as a whole supports its interpretation. It notes that the sentence was part of a broader discussion aimed at assuring that the Decontrol Act would not abrogate or alter any pre-enactment contract. Thus, the quoted language (in its view) stands for the proposition that the bill would not automatically decontrol gas temporarily released before the date of enactment; it would do so only as to sales -of released gas pursuant to agreements entered into after enactment, when both parties to the new contract could be presumed to be aware of the Decontrol Act. Although the Commission’s analysis leaves us less than thoroughly convinced as to the meaning of the sentence, it does undercut petitioners’ view that the sentence — despite the existence of a logically coherent alternative view entirely consistent with the statute itself — represents an explicit congressional answer to the question. Compare Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). Petitioners also point out that Congress was sensitive to the tax implications of its work, the very point that accounts for their present challenge. The Senate Committee did declare that it did “not intend for its approval of [the Decontrol Act], including repeal of the NGPA sections referenced in section 29 [of the Internal Revenue Code], to reflect an adverse judgment by the Committee as to the merits of tax credits for any categories of natural gas production that might be affected by such action.” See S.Rep. No. 38, supra, at 9. (As we noted above, § 29 provided tax credits for “tight formation” gas only so long as it was subject to continued price regulation.) Congress’s alertness to the tax credit issue, however, is not the same as a determination that the Decontrol Act should have no effect on the credits. In fact, Senator Wallop of Wyoming explicitly recognized the adverse effect in a separate statement: Unfortunately, and quite unintentionally, the decontrol legislation currently before the committee could impact the section 29 credit ... First, the legislation removes all price controls, thus rendering tight formation gas ineligible for the section 29 credit.... S.Rep. No. 38, supra, at 35 (statement of Senator Wallop). Moreover, the full Congress has since recognized the impact of the Decontrol Act, amending the tax code to remove the requirement of price regulation (for gas produced after December 31, 1990). See Section 11501(b)(2) of the Omnibus Budget Reconciliation Act of 1990, Pub.L. No. 101-508, 104 Stat. 1388 (1990), codified at 26 U.S.C.A. § 29(c)(2)(B)© (Supp.1991). Petitioners’ tax-driven view would twist the statute. In order to address a tax problem that affects only a tiny subset of price-controlled gas, it would read the statute as maintaining price controls on all temporarily released gas, though nothing in the statute’s basic structure or theory supports that reading. In sum, then, the petitioners are able to point only to a single sentence of legislative history that seems to support their reading of § 121(f)(2), plus a vague aura of congressional concern about loss of tax credits. When these points are balanced against the availability of a reading that implements a coherent view of the statute (a view, moreover, reflected in the legislative history and statutory language), and the explicit congressional recognition that the bill would have unsought effects on tax credits, they seem clearly inadequate to render the Commission’s reading unreasonable. Thus, even if the Commission’s reading does not capture the “clear” “intent of Congress”, Chevron, 467 U.S. at 842, 104 S.Ct. at 2781, which would require its adoption, it is surely a reasonable one to which we must defer, id. at 843-45, 104 S.Ct. at 2781-83. The petitioners also complain that the Commission provided inadequate notice and opportunity to comment on the released gas issue. They note that the Notice of Proposed Rulemaking made no reference at all to the regulatory status of temporarily released gas. The Commission’s initial Notice was perhaps marginally adequate under the Administrative Procedure Act, 5 U.S.C. § 553 (1988). It stated that the Commission was “proposing] to amend its regulations to reflect the provisions of the [Decontrol] Act that decontrol gas prior to January 1, 1993.” 54 Fed.Reg. 51,902, 51,903/2 (1989). It also stated the Commission view that “[g]as subject to post-enactment contracts is also decontrolled.” Id. Moreover, it specifically noted the tax credit issue, id. at 51,903/3, which is of such concern to petitioners as producers of “tight formation” gas. Despite the silence on the specific question of temporarily released gas, parties on both sides of the issue, including one of the petitioners, submitted in-depth comments on the issue, though, to be sure, all but one of these were late-filed. See Joint Appendix at 147-48 (comments of Texas Gas Transmission Corp.); id. at 181-84 (comments of Marathon Oil Company); id. at 196-99 (comments of Columbia Gas Transmission Corp.); id. at 205-10 (Comments of Union Pacific Resources Company). The Commission is also somewhat assisted here by § 19 of the Natural Gas Act, 15 U.S.C. § 717r (1988), which requires persons seeking judicial review to apply first for rehearing before the Commission. As a result, Commission decisions have a somewhat contingent character until rehearing applications are addressed or time-barred. While we do not suggest that the availability of rehearing under § 19 can justify a total failure to afford initial notice, it helps in a case of ambiguity or partial incompleteness. See Common Carrier Conference v. United States, 534 F.2d 981, 983 (D.C.Cir.1976) (noting agency consideration of issue on petition for reconsideration). We believe that the combination — a marginal initial notice, the fact that several affected parties (including a petitioner) spotted the issue, and the opportunity for further vetting of the issue in the rehearing application phase — is enough, if only barely so. “To remand would be an idle and useless formality.” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6, 89 S.Ct. 1426, 1430 n. 6, 22 L.Ed.2d 709 (1969) (plurality opinion). The petition for review is Denied. . A recent amendment to § 29 allows the credit for “tight formation" gas that is not subject to NGPA controls, but only as to gas produced after December 31, 1990. See below at pp. 1313 -1314. . An explicit reference to expectations in the legislative history states that the bill "offers some protection to investors who committed capital to natural gas production under the expectation of continued price control.” S.Rep. No. 39, 101st Cong., 1st Sess. at 13 (1989) (emphasis added). The apparent focus on producers may be because contracts have commonly provided for escalation of prices to the highest applicable ceiling price (or to the highest "just and reasonable” rate, later construed to encompass NGPA ceilings, see, e.g., South Dakota Public Utilities Commission v. FERC, 934 F.2d 346 (D.C.Cir., 1991)). Thus price ceilings may give a producer a contract right to a higher price than it could otherwise secure under its sales contract. Compare FERC v. Martin Exploration Mgt. Co., 486 U.S. 204, 208, 108 S.Ct. 1765, 1768, 100 L.Ed.2d 238 (1988). .See note 2 above. . The parties have left us in the dark as to how much otherwise price-controlled "tight formation” gas is actually at stake here. Martin Exploration upheld the Commission’s decision that “new tight formation gas” (i.e. gas from tight formation wells drilled after enactment of the NGPA), see 18 CFR § 274.205(e)(1) (1990), was decontrolled, since that gas by definition qualifies for deregulated treatment. See Martin Exploration, 486 U.S. at 211-13, 108 S.Ct. at 1770-71. The only tight formation gas left subject to price controls is evidently "recompletion tight formation gas”. See id. § 274.205(e)(2); Deregulation and Other Pricing Changes on January 1, 1985, Under the Natural Gas Policy Act, 49 Fed. Reg. 46,874, 46,880 n. 18 (1984). In any event, by 1988 all price-controlled § 107 gas had evidently dwindled to less than one percent of total price-controlled gas sales. See Petitioners’ Statutory Addendum at 175 (submission of Energy Information Administration to House Subcommittee on Energy and Power).

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.

This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?

The BABCOCK & WILCOX COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmith, Forgers and Helpers, AFC-CIO, /R, Intervenors. No. 81-1787. United States Court of Appeals, Fourth Circuit. Argued March 1, 1982. Decided July 22, 1982. Rehearing and Rehearing En Banc Denied Sept. 1, 1982. William A. Ziegler, New York City, for petitioner. Linda B. Weisel, Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Bernard P. Jeweler, Washington, D. C., on brief), for respondent. Before WINTER, Chief Judge, and ERVIN and CHAPMAN, Circuit Judges. ERVIN, Circuit Judge: This is a petition for review of an order of the National Labor Relations Board (Board) and a cross-application for enforcement of the Board’s order. The Board found that the petitioner, Babcock & Wilcox Company (Company), had violated § 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3) (1973), by discharging employee Robert Hall and had violated § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1) (1973), by instructing a temporary foreman to observe Hall’s working habits. We hold that there is substantial evidence to support the Board’s finding of a discriminatory discharge under § 8(a)(3). That part of the order is affirmed and enforcement hereby is granted. We find that there is not sufficient evidence of a § 8(a)(1) violation, however, and accordingly vacate that part of the order and deny enforcement. I. Robert Hall was discharged by the Company on March 24, 1980. At that time, he had been employed as an inspector in the quality control department for ten years. On three previous occasions Hall had been active in union organizing campaigns. During the unionization drives he wore pro-union buttons, was a campaign organizer, and recently was an election observer for the union. At the time of Hall’s discharge, rumors of another union campaign were known to supervisors and workers throughout the department. When Hall was asked about the rumors by his foreman, he responded that he hoped they were true. Hall’s pro-union sentiments were well known among his superiors. On one occasion, shift foreman Paul Goff instructed acting foreman Franklin Metz to observe Hall closely because he drifted around the plant frequently, was a troublemaker, and was involved with the union. (See section II, infra). On March 17, 1980, Hall observed some irregularities in a component he was inspecting. There were no existing company standards for the particular irregularities, so he solicited the opinions of co-workers. When no consensus could be reached among the inspectors, acting foreman Marshall Cunningham was summoned and asked about the acceptability of the component. Cunningham responded that the defects did not violate a “damn thing.” Hall became angry, criticized what he considered to be “getting the runaround,” and threw a radius gauge. The Company contends that the gauge was thrown at Cunningham, missing him by a dangerously narrow margin, and justifying the dismissal of Hall for committing a violent act. The Administrative Law Judge (ALJ) found, to the contrary, that Hall merely threw the gauge at a wall and that the Company used this event as an excuse to discharge Hall. We are bound to accept the findings of the ALJ, unless they are not supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 476, 95 L.Ed. 456 (1950). The only witnesses who actually observed the throwing of the gauge were Hall and Cunningham. Others in the area of the component testified only as to the demean- or of the two main characters or as to the locations of people in the inspection area. Cunningham testified that the thrown gauge came within two inches of his head, while Hall stated that the instrument was thrown directly at the wall. Immediately after the throwing incident Hall invited Cunningham to go with him to see Ron Jessee, the department supervisor. Foreman Cunningham refused to go to a higher authority, so Hall returned to his workbench. Cunningham subsequently mentioned the incident to shift foreman Goff, and Goff instructed him to write up the incident. Goff then escorted Cunningham through the personnel channels with the incident becoming more serious with each recitation, until Hall, was discharged for “insubordination.” At the administrative law hearing, General Counsel produced evidence of similar occurrences at the plant in which vociferous arguments were had or things were thrown at others. Two such incidents, in fact, involved the throwing of a data pack and a five pound plastic block at foreman Cunningham. In none of these instances were argumentativeness or the throwing of materials found to be insubordinate or justification for discharge. Disparity of treatment may be evidence that a company intentionally discriminated against an employee because of his union views. American Thread Co. v. NLRB, 631 F.2d 316 (4th Cir. 1980). The only evidence of consistent treatment offered by the Company involved fisticuffs between a supervisor and employee. Both pugilists were discharged by the Company. The ALJ found that this incident was not analogous to the one currently under consideration, because there the supervisor did bodily harm to the employee and the supervisor was hired within two weeks after his discharge at another plant owned by the Company in the same town. We hold that there is substantial evidence to support the Board’s finding that the gauge throwing incident was not the reason for the Company’s actions and that the discharge of employee Hall was discriminatory. The remedy of reinstatement with back pay is appropriate in this instance. II. The Board also upheld the finding of the ALJ that the Company had committed a coercive unfair labor practice. The conclusion of the Board was that “(b)y requesting an employee to engage in surveillance of the union activity of other employees, Respondent violated Section 8(a)(1) of the Act.” The questionable conduct occurred when Franklin Metz was acting foreman or shift leader in charge of Robert Hall’s crew. Paul Goff, shift foreman, and the immediate superior to Metz, instructed Metz that in the context of carrying out his duties as acting foreman he should observe Hall closely. In particular, Metz testified that: We were standing in the main aisle and Mr. Goff pointed to Mr. Hall and told me to keep a close eye on him, that he drifted around the plant quite a bit and he was known to be a troublemaker and he was heavily involved with union activity. When General Counsel asked if Goff made any other comments, Metz responded that “(h)e said That if he had the opportunity that he would like to get rid of (Hall), that the company would be better off without him.” Id. The statements attributed to Goff by Metz are certainly strong evidence of anti-union bias and probative as to the discriminatory discharge of Hall. (See section I, supra.) The issue for the purpose of a § 8(a)(1) violation, however, is whether the employer has coerced, restrained, or interfered with the rights of the employees. This question is further complicated by the fact that the ALJ first stipulated that Metz was not a supervisor but later stipulated that Metz was a supervisor at the time Goff instructed him to watch out for Hall. We find that there is not substantial evidence to support the Board’s conclusion that the remarks by Goff to Metz were coercive toward Metz as an employee. The already difficult task of distinguishing a supervisor from an employee for the purposes of the Act is made more arduous when the ALJ stipulates that one person is both. The distinction is blurred even more when comments made to a person regarding his duties as a supervisor are construed to be “felt” by him as an employee and, therefore, coercive. The Board’s holding that instructions to a person in a supervisory capacity affect that person as an employee is contrary to congressional intent that management should instruct supervisors to carry out company policy in the employer’s best interest. The Act defines “supervisor” in § 2(11), 29 U.S.C. § 152(11)(1973). We consistently have held that § 2(11) is to be read in the disjunctive, and if a person performs any function listed by the statute, that person is a supervisor. See, e.g., Jeffrey Mfg. Div., Dresser Ind., Inc. v. NLRB, 654 F.2d 944, 950 (4th Cir. 1981). How frequently the person exercises the listed function is irrelevant. Id. We do not suggest, however, that once one is a supervisor he may never become an employee. The demotion or promotion of a worker may change his status for some purposes of the Act. We recognize that in some situations, a decision must be made as to whether a worker who frequently shifts from supervisory jobs to typical employee functions is ultimately a “supervisor” or an “employee.” The circumstances of this case, however, do not require that Metz be considered solely a supervisor or an employee. The ALJ implicitly recognized this fact when he allowed the stipulation that Metz was normally an employee but later stipulated that Metz was a supervisor at the time of the allegedly coercive statement. The double stipulation and the bold assumption that Metz “felt” the coercive effect as an employee instead of in the context in which the statement was made, make for scant evidence of an unfair labor practice. The context of the conversation between Goff and Metz raises an additional policy argument against the enforcement of this part of the Board’s order. This circuit has long recognized that in passing § 2(11), “Congress was concerned about the effect of unrestricted unionization of first-line supervisors. Congress believed that fraternal union feelings would tend to impair a supervisor’s ability to apply his employer’s policy to subordinates according to the employer’s best interests. (Citations omitted)” NLRB v. Pilot Freight Carriers, Inc., 558 F.2d 205, 207 (4th Cir. 1976), cert. denied, 434 U.S. 1011, 98 S.Ct. 723, 54 L.Ed.2d 754 (1978). To hold that a person who is given reasons and instructions in his capacity as a supervisor is the victim of an unfair labor practice undermines the spirit of the holding in Pilot Freight Carriers. Because a supervisor should be free to apply the company’s policy without a conflicting interest in union objectives, it is inconsistent to say that the instructions to the supervisor with respect to his duties are grounds for a § 8(a)(1) violation. An employer should not be deterred from voicing his concerns to temporary supervisors by the fear of committing an unfair labor practice. For these reasons, we find that there has been no § 8(a)(1) violation. III. As to the § 8(a)(3) violation, the Board is affirmed and the order enforced. As to the § 8(a)(1) finding by the Board, its decision is reversed and enforcement is denied. ENFORCEMENT GRANTED IN PART AND DENIED IN PART. . A radius gauge is an “L”-shaped gauge, with each arm being about the width of a dime and IV2 inches long. . The ALJ found that this was not a dual motive case, but that the only motive of the Company was the discriminatory discharge of Hall. . Section 2(11) states that “supervisor” means: any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. . In Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151 (7th Cir.), cert. denied, 400 U.S. 831, 91 S.Ct. 63, 27 L.Ed.2d 62 (1970), the Seventh Circuit permitted the Board to use a 50% formula to determine whether certain workers could vote in a union election. Under that formula, if a worker held a supervisory position for more than 50% of the time he was considered a supervisor and unable to vote. The worker was an employee and allowed to vote if he assumed a supervisory position for less than 50% of the time. Without making any decision as to the acceptability of this formula in the Fourth Circuit when a change of jobs is at question, we note that the Seventh Circuit limited its holding to the question of who may vote in a union election as related to the facts of that case. Id. at 1158. . We note that our holding touches upon the problem of employers who try to make employees appear as supervisors in order to remove them from the protection of the Act. In this case, the allegiance of Metz to his employer was unquestionable; he had been a company observer at the last union election and frequently had been called upon to be a temporary supervisor. There is no evidence that the comments to him were intended to be, or taken as, anything other than advice to him in his capacity as supervisor and reasons for that advice. We certainly do not condone bad faith efforts to make an employee appear to be a supervisor in order that coercive tactics may be used.

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 "labor relations".

What is the specific issue in the case within the general category of "labor relations"?

Dr. Pedro SILVA et al., Plaintiffs-Appellees, v. SECRETARY OF LABOR et al., Defendants-Appellants. No. 74-1410. United States Court of Appeals, First Circuit. Argued March 6, 1975. Decided June 10, 1975. James P. Morris, Atty., Dept, of Justice, with whom John L. Murphy, Chief, Government Regulations Section, Crim. Div., Washington, D. C., James N. Gabriel, U. S. Atty., Boston, Mass., and Paul G. Gorman, Atty., Dept, of Justice, Washington, D. C., were on brief, for defendants-appellants. S. Joseph Ciccia, Springfield, Mass., with whom Lawrence J. Kenney, Springfield, Mass., was on brief, for plaintiffsappellees. Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. This is an appeal by the Government from an order of the district court setting aside the Secretary of Labor’s refusal to issue an alien labor certification in favor of Miss Laurinda Pires, a citizen of Portugal, who has agreed to work as a live-in maid at the home of Dr. Pedro Silva in Springfield, Massachusetts. The court directed the Secretary to issue the certification. Alien labor certification is provided for in section 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(14). Aliens “seeking to enter the United States for the purpose of performing skilled or unskilled labor” comprise one of a number of categories excluded from admission, “unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.” Dr. Silva, a gynecologist and obstetrician, sought to obtain certification for Miss Pires in the fall of 1972 by filing with the Massachusetts Division of Employment Security in Springfield the completed forms and back-up papers required under the Secretary’s regulations. 29 C.F.R. § 60.2. As we must decide in the course of this appeal whether or not the Secretary’s denial was arbitrary or unlawful, we set forth in rather elaborate detail the information furnished therein and the proceedings generally as they appear in the record. A form entitled “Statement of Qualification of Alien”, executed by Miss Pires, was submitted. She indicated that she had had 30 years experience as a maid, cook and domestic servant, and was seeking work as a “domestic.” In a companion form, “Job Offer for Alien Employment,” Dr. and Mrs. Silva attested that they would hire a qualified U.S. worker if one were available; that efforts had been made to fill the job through the “Unemployment Office, bulletins at three hospitals”; that the job to be performed was “House cleaning, cooking, mending, washing, ironing and occasional child care”; that the total number of hours per week was “40 hours” (the space for overtime was left blank); that “basic” and also “overtime” pay would be $2.00 per hour; that room and board would be provided and the employee would have a private room; and “some knowledge of Portuguese language is helpful.” In a third form entitled “Supplemental Statement for Live-at-work Job Offers,” Dr. Silva indicated that his household contained two adults and three children, ages six to eleven, and that the alien would be paid $80.00 weekly, with $5 to be deducted weekly for 57 weeks in order to repay anticipated advances for visa, medical fees and travel from Portugal to Springfield. Dr. Silva reported that there had been no respondents to job advertisements he had placed at the hospitals. Under the question, “if alien will be required to give special care or attention to any persons, please explain,” Dr. Silva replied “None.” Submitted with the forms was a copy of the employment contract signed by the Silvas and Miss Pires. Miss Pires was described as a “live-in domestic.” Her workweek was to be 40 hours. The “exact hours of daily employment” were described as from 8 a. m. to 5 p. m. with one hour off for lunch Monday through Friday. The employee was to be “free to leave the premises of the employer at all other times except that she may work overtime paid at the hourly rate of $2.00 U.S. dollars.” Further it was “understood that the employee will reside on the employer’s premises,” and no money was to be advanced “except if the employee needs the same.” Shortly after the above forms had been filed, the Manpower Administration in Boston asked the Silvas and state employment security officials for further information as to what had been done to locate legal resident workers for the job, especially day workers. The following were then submitted: 1. Form executed on behalf of the local Springfield office of the Massachusetts Division of Employment Security that the prevailing wage in that area for a Maid General (Dom. Ser.) was $2.00 per hour plus room and board, and that the regular and overtime wage Dr. Silva offered equalled the prevailing wage. The form included the statements, “We have been unable to refer any qualified applicants for live in domestic employment,” and that “Workers are not available in this occupation (live in domestics).” The number of “active applications on file” was “21” [presumably meaning day worker applicants]. 2. Statements under oath by Reverends George Farland and Edward Kennedy of the Sacred Heart Parish that they had attempted unsuccessfully to locate someone who would work for the Silvas as a live-in maid. 3. Statement under oath of Phyllis O’Brien, director of Social Services at Mercy Hospital, of unavailing efforts for a considerable period of time to find a live-in maid for the Silvas, “as most of the people were only available for part-time work and were not able to provide the range of services the doctor needed.” 4. Affidavit of Dr. and Mrs. Silva attesting to unavailing efforts through employment agencies listed in the Yellow Pages of the phone book as well as through his parish and hospital to secure a live-in maid. Dr. Silva also replied to the few newspaper ads found in local newspapers, finding more often than not that they are “for part-time situations and by people more involved in cleaning rather than cooking, etc.1 went on to say, Dr. Silva “The reason why a day worker would not be suitable for this position is that as a doctor of Obstetrics and Gynecology, I am working long hours and irregular hours, and I am out of my home a great deal. My demands of my wife are great in terms of helping me in communications with patients in being in attendance at social functions, meetings, conferences and seminars out of the city and in addition to having an unusually large home which needs a lot of attention. She has also been doing some volunteer teaching. It is important that someone be physically present in our home with whom our children will be comfortable at meals and other times without their mother and father present. A person living in our home would also be more available for our irregular schedule and also for overtime in unusual time demanding situations. A special relationship through her physical presence with the children would facilitate keeping the children on a regular schedule. We have employed day workers from time to time and this has not proved successful at all in terms of availability and capability. . . .” On December 14, 1972, the Secretary’s certifying officer in Boston issued a form response to Dr. Silva, to the effect that the Secretary could not issue the certification required by section 212(a)(14) because “Available job market information will not warrant a certification of unavailability of workers in the U.S.” Dr. Silva promptly sought review of the decision, in accordance with the Seeretary’s procedures. Dr. Silva’s counsel, by letter dated February 14, 1973, listed as the grounds for review that all available information, from both private and public sources, continued to demonstrate the unavailability of persons who could be hired. Further, it was urged that Dr. Silva’s and his wife’s need was “compelling”. Accompanying was a psychiatrist’s letter to the effect that she had examined Mrs. Silva on February 14, and that Mrs. Silva had described complaints dating from June, 1972, involving “intermittent spells of severe anxiety, accompanied by nightmares, insomnia and severe irritability.” Reference was made to weight loss and impulses to run away. These symptoms occurred exclusively at night, when Dr. Silva was out on call. Dr. Silva had attempted to cope by installing an expensive alarm system. The psychiatrist wrote that Mrs. Silva had been “chronically depressed by her geographic separation from her extended family”, and recommended, “a live-in companion ... to protect this woman’s mental health during her husband’s frequent absences. In my opinion she suffers from severe and disabling anxiety neurosis which is exacerbated by her being left alone in the house.” Together with the psychiatrist’s letter was an affidavit of Dr. Silva, relating that he had made continued, unavailing efforts to secure a worker, and that the Massachusetts Division of Employment Security had not produced any prospective workers even for interview. In addition, Dr. Silva said that the hours of his work caused him to be absent from home many hours during the evening and early morning, and that notwithstanding installation of an alarm, his wife’s needs persisted. The denial for certification was thereafter reviewed by the Assistant Regional Manpower Administrator, see 29 C.F.R. § 60.4, who on March 26, 1973, notified Dr. Silva’s attorney that, after review, he failed to find any grounds warranting reversal of the certifying officer’s decision. He went on to state, “The concerns raised by Dr. E. Deborah Gilman, M.D. [the psychiatrist] strongly limit any reasonable access to possibly qualified and available applicants from the resident U.S. labor force, under the job classification cited by your client (Domestic Live-in). To the contrary, the duty requirements cited by Dr. Gilman to ‘protect this woman’s mental health’ are above and beyond those normally expected for the occupational classification requested at the wage offered.” Upon receipt of this letter, Dr. Silva’s attorney submitted a further letter from Dr. Gilman, to the effect that she never meant to say that Mrs. Silva was in need of any kind of professional or paraprofessional psychiatric nursing attention. Rather, given Dr. Silva’s frequent and irregular absences from his home during the night, she needed a live-in servant to provide her “the reassurance that only another adult in the home can give.” This, the psychiatrist stated, could be adequately fulfilled by a domestic servant. On April 28, 1973, the reviewing officer wrote that he had again reviewed the case in light of the enclosure and found no grounds to reverse. Thereafter appellees commenced suit in the district court, seeking a declaratory judgment and review under 28 U.S.C. § 2201 and section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 70A-06. The thrust of the complaint was that given the abundant evidence that United States labor to fulfill the job requirements was unavailable, it was arbitrary for the Secretary to deny certification. The Government moved to dismiss. It argued that the certification statute was not designed to protect potential employers but only the American labor market; therefore, it was claimed, Dr. Silva lacked standing. See Braude v. Wirtz, 350 F.2d 702, 706-08 (9th Cir. 1965). With this argument was coupled the argument that labor certification was non-reviewable as “agency action committed to agency discretion by law. . . . ” 5 U.S.C. § 701(a)(2). Finally the Government argued that it was not an abuse of discretion for the Labor Department to determine that day workers could adequately fulfill the job requirements and were available in the Springfield area. The Government pointed to the 8 a. m. to 5 p. m. hours of employment listed in Silvas’ contract with Miss Pires. It also urged that the purpose of the statute — to protect American workers — would be eroded by creating subclassifications within the domestic help category. Plaintiffs, in turn, moved for summary judgment. The court then entered a Memorandum ruling that appellees had standing, and finding that the Secretary and Regional Manpower Administrator had been advised by the Massachusetts Division of Employment Security that its local Springfield office had not been able to refer qualified applicants for live-in domestic employment to plaintiffs, and that such live-in workers were not available. The court went on to say that while the Division of Employment Security advised that day workers were available for domestic work, “Nothing in the administrative record . . . demonstrates that defendants had information from other sources of any worker to meet plaintiff Silva’s job requirements. Nor does the record show any finding or determination by defendants of any workers ‘able, willing, qualified, and available ... at the place to which the alien is destined to perform . ’, within the meaning of 8 U.S.C. § 1182(a)(14). There are no facts set out in the administrative record that support the conclusory statement of reasons assigned for the decision that ‘Available job market information will not warrant a certification of unavailability of workers at the place of intended employment, viz. Springfield.’ ” The court thereupon remanded to defendants for the limited purpose of furnishing “a statement of the specific factual basis on which the decision rests.” The court indicated that it was persuaded to adopt this course by our decision in Digilab, Inc. v. Secretary of Labor, 495 F.2d 323 (1st Cir.), cert. denied, 419 U.S. 840, 95 S.Ct. 70, 42 L.Ed.2d 67 (1974). See also Bitang v. Regional Manpower Administration, 351 F.Supp. 1342 (N.D.Ill.1972). Eventually, after delay, a statement was produced (executed and one might suppose prepared by the local Assistant United States Attorney handling the case rather than by Labor Department officials). It recited that defendants “hereby furnish to the court a statement of the specific and factual basis supporting their decisions of December 11, 1972, March 26, 1973, and April 25, 1973.” However, the contents of the statement added nothing to the existing record and were simply arguments for the result reached, to wit: 1. The live-in requirement was arbitrary and restrictive and intended to preclude legal residents from the offered employment. This was so because the contract was for daytime hours and the employee would be free to leave the premises (except for overtime). Thus day workers who were available could allegedly have performed the necessary services. 2. Referrals from the eligible pool of household day workers maintained by the Massachusetts Division of Employment Security were supposedly not sought. 3. The presence of another adult in the house to provide reassurance was not a reasonable basis for issuance of a labor certification because that consideration was not “related to the usual job duties performed by a Maid, General”. In an ensuing Memorandum and Order, the court found the Government’s statement to be argumentative and unresponsive to its order requiring a statement of the specific factual basis “on which the decision rests.” It was found not to furnish any factual data not already before the court. The court said that it would not remand a second time for a statement of facts, and would decide on the existing record. The court held that plaintiff’s job specifications required more than merely 8:00 a. m. to 5:00 p. m. domestic work; they required also that the worker live in and perform some additional duties. According to the court, “No such workers were available to perform such duties in Springfield, Massachusetts, according to the Massachusetts Division of Employment Security. Without any proof offered to the court, the defendants view the live-in requirement as ‘arbitrary and restrictive and intended to preclude legal residents from the offered employment'. This is clearly an attack upon the good faith of the plaintiff’s personnel requirements, an exercise in which the defendants have no right to engage absent proof . . .. Moreover, defendants have declared that the offered employment can fully be met by day domestic workers, and thus they seek to exercise the privilege of determining the - qualifications for the job to be filled, a privilege which they do not possess.” The court concluded that the decisions of defendants were arbitrary, an abuse of discretion, and contrary to law. They were ordered set aside and plaintiffs’ request for alien labor certification was remanded to defendants with directions to grant the same. I The present case presents a question comparable to that in Digilab, supra, where the Secretary denied certification of an electrical engineer of very specialized skills sought by Digilab, on the ground that there were 200 unemployed engineers listed in a Registry maintained in California. Id., 495 F.2d at 326. Judge Moore, writing for the court, agreed with the district court that a showing that there were numerous unemployed engineers did not indicate that there were other workers in the United States “able, willing, qualified, and available” to do the specialized work required. In the present case the Secretary believes that the active applicant file of the Massachusetts Division of Employment Security, showing 21 persons registered in Springfield for housework of some variety, established that United States workers were available to perform Dr. Silva’s work. Yet the Massachusetts Division asserted that none of these were available to live in. Moreover, it is not clear that any of the day-workers would be available for fulltime work, or possessed the cooking or other skills sought. Miss Pires attested in her qualifications form to 30 years experience as maid, cook, and domestic servant. Details of her previous employments were provided, and her last employer certified that she was “a most reliable person and an excellent cook.” There is no showing that comparable workers were available even by the day. Indeed, the only evidence in the record is to the contrary. Dr. Silva stated in his affidavit that when he followed up newspaper ads, he found that most people were interested in part-time work and in cleaning, not cooking. He said the Silvas had employed day workers from time to time and “this had not proved successful at all in terms of availability and capability.” He spoke, moreover, of a desire to find someone with whom the children will be “comfortable at meals and other times without their mother and father present.” Thus the record is less than persuasive even as to the availability of day workers suited to the Silvas’ needs. The more basic question, however, is, assuming the availability of day household workers of some kind, whether the Secretary may for that reason refuse to certify an alien live-in domestic. It is undisputed that legal resident live-ins were unavailable. The Secretary argues that because Miss Pires’ contract hours were to be from 8:00 a. m. to 5:00 p. m., and because she would be free to leave the premises at will, she would be no different from a day worker. This reasoning borders on the absurd. The contract requires Miss Pires to live on the premises and provides for overtime. Obviously there would be marked advantages and convenience to the Silvas from such a live-in arrangement. Anyone of advanced years or a mother with infant children and an absent husband appreciates the difference between a domestic worker who is frequently on the premises and one present only during regular working hours. Even if the live-in worker performs no actual overtime work (and of course her constant availability for that purpose is itself a decided benefit), her off-duty presence in the house is a reassurance in the event of illness or emergency. It is true, of course, that a live-in employee may be more readily induced to provide extra work — such as baby sitting or answering the phone — for no extra pay; and the ever-present risk of exploitation may entitle the Secretary, as the protector of United States resident labor, to examine the position suspiciously. But these issues, further discussed below, are not the same as whether a live-in housekeeper-maid is the functional equivalent of a day worker. In the present case, plaintiffs represented that Mrs. Silva was nervous and apprehensive during the frequent absences of her husband, a busy obstetrician. The Secretary’s attempt, without supporting evidence, to belittle these understandable assertions does not commend itself to us anymore than it did to the district court. Nor does the Secretary’s studied effort to pretend that what the Silvas wanted was a psychiatric nurse. It is true that Mrs. Silva’s nervousness was not brought to the fore until after the original adverse decision. Yet the Secretary’s own instructions encourage the submission of additional evidence at the review stage. And the Silvas may well not have known how strong a showing of need was required. The Secretary’s policies are not spelled out, and the applicant is not in a position to know in advance what drift his case may take. We do not think that the Secretary can summarily reject the Silvas’ assertion, supported by a psychiatrist’s letter and by the facts of Dr. Silva’s job, that Mrs. Silva’s nervousness was a factor in designing the job requirements. If not, it is obvious that a day worker cannot fulfill the Silvas’ job requirements. We thus agree with the district court that the certifying officer’s laconic finding that there were United States workers available was arbitrary and, in fact, simply wrong. Part (A) of section 1182(a)(14) attaches to the concept of availability that the workers be “able,” “willing” and “qualified.” The record does not support a finding that the kind of domestic coverage desired by the Silvas was available in Springfield from local labor sources. II The Secretary does not now seriously argue that the local labor market could fulfill the Silvas’ requirements, especially with respect to companionship for Mrs. Silva during Dr. Silva’s absences. Rather he argues that the latter function is an impermissible utilization of a domestic worker. Mrs. Silva must choose, it is said, between a day worker and being in such dire need as to hire a nurse attendant. By this logic, an 85-year old person in good health desirous of a live-in housekeeper as a reassurance in the event of sudden illness would have to choose between a day worker and an unwarranted, expensive, round-the-clock service. The logical intermediate choice of a live-in worker would be denied. The District of Columbia Circuit recently supported the Secretary’s right not to honor the full gamut of an employer’s requirements. In Pesikoff v. Secretary of Labor, 163 U.S.App.D.C. 197, 501 F.2d 757, cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974), a case also involving a physician’s request for live-in help (but without the added aspect of Mrs. Silva’s disability and Dr. Silva’s irregular hours), the court held that the Secretary could treat “Dr. Pesikoff’s live-in requirement for his maid as a personal preference irrelevant to determination of whether there was ... a pool of potential workers willing to perform the Pesikoff’s domestic tasks.” 501 F.2d at 762. The court reached this result (and its Orwellian designation of the employer’s needs as irrelevant “personal preferences”) in light of its reading of the entire statute. It pointed out that prior to enactment of the 1965 Amendments to the Immigration and Nationality Act, section 212(a)(14) was structured to permit entry of aliens seeking to perform work in the United States unless the Secretary certified that there were sufficient American workers to perform the labor of that the employment of aliens would adversely affect the wages and working conditions of American workers. The 1965 Amendments reversed the language so as to create a presumption against entry. It follows that the burden is on the alien or his prospective employer to prove that it is not possible for the employer to find a qualified American worker. This burden of proof, however, seems to us a different point from the Secretary’s purported right to treat as irrelevant the employer’s job preferences. That right, if it exists, would seem to rest not on part (A) of the statute (dealing with whether resident workers are available to perform the desired task) but on part (B), requiring the Secretary to find, as a further prerequisite to certification, no adverse effect on the wages and working conditions of the workers in the United States similarly employed. Conceivably the sheer administrative difficulty of making refined distinctions and the need to guard against cheating by employers, Pesikoff, supra at 763, coupled with the fact that more competent and more highly skilled aliens will threaten the job opportunities of marginally qualified Americans in similar if not identical employment, might lead the Secretary to refuse to certify live-in domestics even though available American day workers are demonstrably less satisfactory from the employer’s viewpoint. See The Elton Orchards, Inc. v. Brennan, 508 F.2d 493 (1st Cir. 1974), rev’g 382 F.Supp. 1049 (D.N.H.1974). Were live-in domestic workers to be treated separately from day workers, the Secretary might fear such a steady influx as to curtail the day-work jobs available for residents. Under a broad reading of the words “similarly employed,” the Secretary might be empowered to guard against that danger. But if the Secretary intends to limit live-in domestic entries on this ground, it would seem necessary for him to express this policy openly, rather than by basing individual denials on the specious ground that there are available and qualified United States workers when, in fact, there are none. On the present record, we do not decide to what extent the Secretary may subordinate the employer’s reasonable needs to the welfare of American labor. Undoubtedly the statute has a major, perhaps even dominant, purpose to protect American workers (although in Digilab, supra at 326, we said that it had both that purpose and the purpose of admitting and absorbing skilled workers from other lands). But whatever can be said about the Secretary’s power under part (B) of the statute, we think our review limited to the ground stated by the Secretary— the purported availability of United States workers. That ground, as we have stated, is unsupported in the record, hence the Secretary’s finding is arbitrary and capricious, and must be set aside. 5 U.S.C. § 706. Ill We must also decide whether to affirm the district court’s order directing the Secretary to grant certification. The district court was understandably frustrated by the inexcusable failure of the Secretary to comply with its request for a factual explanation. Power to compel agency action is limited, however, to action “unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706. Congress has invested the Secretary with very substantial discretion in this area, and while the Secretary’s actions to date, based on the reasons he has provided, were arbitrary and capricious, we cannot quite say that they are unlawful or an effort to delay an inevitable result, in the sense that the Secretary could on no conceivable ground decline to certify. See, e. g., SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). However, time is running out. Accordingly we vacate the district court’s judgment insofar as it orders the matter remanded to the Secretary with instructions to grant a certificate. Instead, while ordering that the Secretary’s decision be set aside insofar as it holds that there are available United States workers for the task sought to be performed, we direct, modification of the Court’s judgment so as to remand to the Secretary for further consideration of Dr. Silva’s request in light' of this opinion. Given the unfairness with which the Silvas have been treated to date, we would anticipate prompt certification unless, on sufficient grounds other than the one we have ruled invalid, the Secretary feels compelled to rule that he cannot conscientiously make the requisite certification. Such grounds, if found to exist, should be stated, and their adequacy may be reviewed in the district court. We would note by addendum that much, of the confusion in this area could be avoided were the Secretary to promulgate suitable regulations with respect to domestic workers, live-in and day, rather than to formulate general* policy case-by-case. We can appreciate that there are problems of delicacy in adjusting the needs of United States employers to those of resident workers.. But in an area where the Secretary has considerable power under general statutory standards and must decide numerous cases in a routine fashion, the clarification of policy through rules or published pronouncements would protect against arbitrary action. At present the regulations contain nothing material but a flat prohibition against alien domestic workers with less than a year’s experience. Until a rule or governing policy is clearly adopted and published with respect to live-ins, prospective employers like the Silvas will expend time and effort seeking to hire an alien, only to be turned down for reasons they could not have' anticipated. Thus if, for example, alien live-ins are to be certified to meet only particular needs — such as to work for shut-ins, the elderly, and the like— such policies should be announced. The present case in large measure reflects a lack of coherent announced policies. Affirmed in part and remanded to the district court for remand to the Secretary for further proceedings in accordance herewith. . The Secretary’s regulations list certain skilled occupations as to which he has found an insufficient supply of U. S. workers and no adverse affect on wages and conditions of those similarly employed. 29 C.F.R. § 60.7, Schedule A. In Schedule B are listed other occupations found by the Secretary not to qualify for certification. Household Domestic Service Workers having less than one year of experience are listed in Schedule B. Because she had extensive experience, Miss Pires’ eligibility was unaffected by Schedule B. No other public expressions of policy, in regulation form or otherwise, have been called to our attention, although at oral argument counsel for the Secretary seemed to indicate that the Secretary had a policy against admitting live-in domestics except, perhaps, in some exceptional circumstances. . At about the same time in a letter to Senator Edward W. Brooke, the Acting Regional Manpower Administrator wrote, in the same vein, “On the basis of labor market information that legal resident domestic household service workers were available in the Springfield, Massachusetts, area, the certification required by Section 212(a)(14) could not be issued.” . A form attached to the certifying officer’s determination provided information as to how to seek review. It advised that “any new or additional matters not previously considered” should be presented with the request for a formal review. . The Immigration and Nationality Act does not establish any special procedure for review of certification decisions, nor does it preclude judicial review. The Government has not questioned standing and reviewability on appeal. The district court correctly ruled in appellees’ favor on both scores. See Digilab, Inc. v. Secretary of Labor, 495 F.2d 323 (1st Cir.), cert. denied, 419 U.S. 840, 95 S.Ct. 70, 42 L.Ed.2d 67 (1974); Pesikoff v. Secretary of Labor, 163 U.S.App.D.C. 197, 501 F.2d 757, cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974). . Using denigrating language to transform an employer’s reasonable requirements into something less seems to us unfair. It may be that to protect United States resident workers the Secretary is empowered to deny certification even where the alien labor would clearly prove more satisfactory from the employer’s viewpoint. We would rather say so than belittle the employer’s job description. . Nothing herein, of course, is to be construed as passing one way or the other on the validity of any such regulation or policy. Our point is not to suggest here what policies the Secretary should adopt but merely that they should be articulated so as to avoid the sort of injustice and confusion reflected in this case.

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 5. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 5? Answer with a number.

AUGUSTA POWER COMPANY, Appellant-Appellee, v. UNITED STATES of America, Appellee-Appellant. UNITED STATES of America, Appellee-Appellant, AUGUSTA POWER COMPANY, Appellant-Appellee. No. 18150. United States Court of Appeals Fifth Circuit. April 11, 1960. Rehearing Denied Aug. 30, 1960. C. A. Mays, Marshall T. Mays, Greenwood, S. C., for appellant. Harold S. Harrison, Roger P. Marquis, S. Billingsley Hill, Attys., Dept, of Justice, Washington, D. C„ Perry W. Morton, Asst. Atty. Gen., W. Reeves Lewis, Asst. U. S. Atty., Savannah, Ga., William C. Calhoun, U. S. Atty., Augusta, Ga., for appellee. _ . -r.TTr_„ . . Before RIYES, Chief Judge, and ., T . CAMERON and WISDOM, Circuit Judges‘ RIVES Chief Judge. In view of United States v. Chandler-Dunbar Water Power Co., 1913, 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063, and United States v. Twin City Power Co., 1956, 350 U.S. 222, 76 S.Ct. 259, 100 L. Ed. 240, forbidding an award against the United States in eminent domain proceedings for hydroelectric power value in an interstate navigable stream, the main problem is to discover the basis, if any, for an award to the Augusta Power Cornpany for its flowage easements over fast lands adjacent to the Savannah River, Thg United States filed and served on Augusta Power Company its petitions for condemnation and declarations of taking in four dvü actions in the South_ em District of Georgia, and also in certain actions in the Western District of South Carolina; which are not invoived in this appeal. In its answers to these petitions, Augusta Power Company, alleged that the lands taken were part of its holdings of approximately 1,257 acres owned in fee and lying on both sides of the Savannah River and approximately 362 acres over which it had flowage easements in the Southern District of Georgia. All issues of just compensation were referred to commissioners under Rule 71A(h), Federal Rules of Civil Procedure, 28 U.S.C.A. The amounts fixed by the Commission as compensation for the tracts over which Augusta Power F°raPaiiy he’d *ee simPle title weire p,ald and ^cepted leaving for con^deration only the five tracts over which Augusta Power Company held flowage easements. The instruments upon which the flow-age easement claims are based, executed in 1906, provided that the rights granted „. „ , , . , were to overflow and back water upon , ,. ¿ , . . .j any such portion of said tract of land and islands as they or their heirs or assigns may deem advisable in the erection any dam or dams f°r devel°P™ent of a waterpower on the Savannah River * * *” The Augusta Power Cornpany conceded that the only use of these flowage easements by anybody would be in connection with and based upon the development of a dam for water power purposes in the Savannah River.” The Commission found that the fee value of the land taken in 1947 was $40 per acre and that the fee value of the land taken in 1950 was $45 per acre. It went on to hold that 70% of the value of the land taken in 1947 and 75% of the value of the land taken in 1950 represented the value of the flowage easements. On this basis the Commission arrived at awards as follows: Tract E-404: 41.7 acres at $40 an acre equals $1,-668 00 70% of o,-, i an which is $1,167.-gQ ’ m . T, „ .<«,r Tract E-442: 101.69 acres at $45 an , acre equals $4,-576.05, 75% of which is $3,-432.04. Tract E-443: 88.59 acres at $45 an acre equals $3,-986.55, 75% of which is $2,-989.91. Tract E-444: 128.39 acres at $45 an acre equals $5,-777.55, 75 % of which is $4,-333.I6. Tract E-458: 37.68 acres at $45 an acre equals $1,-695.60, 75% of which is $1,-271.70. . . . , , „ ,, _ Accordingly the total award of the Commissl°n0 AUIUSt! P°Ter, ?r?any was $13,194.41 with interest at 6% from the respective dates of taking. The district court affirmed the Commission s re- , port m all respects. ^ , i i .i tt .. Both parties have appealed, the United States asserting that no compensation whatsoever should have been allowed for the flowage easements, and Augusta Power Company asserting that the amounts fixed as compensation for the flowage easements are too low. In an extensive opinion accompanying its order affirming the report of the Commission and again in an opinion overruling the motion of the United States for new trial, the district court held that the United States had constructive or actual notice of the flow-age easements of Augusta Power Cornpany, and, hence, that Augusta Power Company was not bound by prior judgments purporting to fix the value of the fee or the entire value in the lands taken “ proceedings of which the Augusta Power Company had no notice. We agree wl™ folding- We agree also with that part of the opinions of the district ,, . , , court holding the easement deeds valid and enforceable as between the owners of „ 1 . , _ „ the fee and Augusta Power Company, * The district court followed opinions of the Fourth Circuit in United States v. 2979.72 Acres of Land, etc., 1956, 235 F. 2d 327, on rehearing, 237 F.2d 165, and in United States v. Twin City Power Company, 1957, 248 F.2d 108, in holding that the decision of the Supreme Court in the Twin City case, supra, does not preclude the payment of substantial cornpensation to the Augusta Power Company for its flowage easements. The district court thought it “quite clear that the government should pay a just compensation for the taking of these lands at a fain value for agricultural and forestry purposes”; and it approved the Commission’s method of apportioning that value, viz.: “The criterion for dividing the value of the land is ‘the difference in ^ yalue of the land with and without the flowage easement’.” We agree that Twin Cjty doeg ^ dg ^ ment of substantial compensation to the A , ^ „ Augusta Power Company for its flowage , . , , easements, but we disagree as to the , , . n , method of measurin^ that compensation, The Government insists that “the Power Company neither had nor claimed anything but a right to flood the lands in connection with the erection of a dam or dams for the development of water power on the Savannah River — the very thing which the Supreme Court has held to be noneompensable as against the United States.” The Twin City opinion, however, expressly “put aside such cases as United States v. Kansas City Life Ins. Co., 339 U.S. 799, [70 S.Ct. 885, 94 L.Ed. 1277] where assertion of the dominant servitude in the navigable river injured property beyond the bed of the stream.” 350 U.S. at page 225, 76 S.Ct. at page 261. In the case referred to, United States v. Kansas City Ins. Co., it was held that “ * * * the navigation servitude does not extend to land beyond the bed of the navigable river.” [339 U.S. 799, 70 S.Ct. 889.] Indeed, Twin City itself approves the test of United States v. Appalachian Electric Power Co., 1940, 311 U.S. 377, 427, 61 S.Ct. 291, 309, 85 L.Ed. 243, If the Government were now to build, the dam, it would have to pay the fair va ue, judicially determined, for the fast land; nothing for the water power. 350 U.S. at page 227, 76 S.Ct. at page 262. Very clearly, the United States is m error when it claims on page 18 of its brief that it “has a dominant servitude which it can exercise m its discretion and without compensation. If Augusta Power Company had been successful in assembling the necessary lands, and in securing approval of the Federal Power Commission, 5and thereafter had actually exercised its easements by permanently flooding the lands, their value for agricultural and forestry purposes would have been destroyed. If, with that status, the United States had condemned the lands, the compensation due would be payable to Augusta Power Company. That compensation would not include the hydroelectric power value, but it would embrace Augusta Power’s property right to destroy the value of the lands for agricultural and forestry purposes. At the other extreme, if factors such as difficulty of assemblage of all necessary lands, the increasing economic advantage of steam plants over hydroelectric plants, the need for additional power in the particular area, etc., had made it certain that the flowage easements would never be exercised by the Augusta Power Company or its assigns, excluding the United States, then such compensation as might be due would be payable to the owners of the fee title and nothing to the Augusta Power Cornpany. Between the two extremes just illustrated, the respective values of the £ee and 0f the easement would fluctuate from time to time depending on the probability or imnrobability of actual exerdse of the easement by the Augusta Power Company or its assigns. H a]1 interested parties were before the Court, ^ maximum which the United States would fce required to pay would be the yalue q£ the landS; not including their vajue for hydroelectric power purposes, That is, however, a maximum, and not necessarily the measure of what the United States would have to pay under any and all circumstances. As said by Mr. Justice Holmes, speaking for the Court in Boston Chamber of Commerce v. City of Boston, 1910, 217 U.S. 189, 195, 30 S. Ct. 459, 460, 54 L.Ed. 725: “But the Constitution does not require a disregard of the mode of ownership, — of the state of the title, jb doeg require a parcel of land to be valued as an unencumbered whole when it is not held as an unencumbered whole. It merely requires that an owner of property taken should be paid for what is taken from him. It deals with persons, not with tracts of land. And the question is what has the owner lost, not what has the taker gained. We regard it as entirely plain that the petitioners were not entitled, as matter of law, to have the damages estimated as if the land was the sole property of one owner * * *.” See also, United States v. Chandler-Dunbar Water Power Co., supra, 229 U.S. at page 80, 33 S.Ct. at page 678. The compensation to be paid is the value of the interest taken. United States v. General Motors Corporation, 1945, 323 U.S. 373, 379, 65 S.Ct. 357, 89 L.Ed. 311. The flowage easement doubtless lessens the value of the fee-owner’s interest, but it does not necessarily follow that the amount of such decrease and the value of the flowage easement to its owner are identical. The Augusta Power Company is limited to the value of the legal rights which it possesses. As said by this Court in Messer v. United States, 5 Cir., 1946, 157 F.2d 793, 795, note 5: “Where, as here, the Government settles with the owner of one interest, the question of compensation „ n .... . i , i for all interest is irrelevant; only the question of just compensation for the interest taken concerns the Government. United States v. Petty Motor Co., 1946, 327 U.S. 372, 374, 66 S.Ct. 372 [596] [90 L.Ed. 729].” „ Thus,jve agree with the Fourth Circuit that the Twin City case does not n 7 . » , , , preclude the payment of substantial compensation for flowage easements over fast lands adjoining a navigable stream, but, with much deference, we disagree with its holding that the compensation to be paid is not the value of the easement to its holder “but the difference in the value of the land with and without the flowage easement, not considering its value for water power purposes.” United States v. 2979.72 Acres of Land, etc., on rehearing, 1956, 237 F.2d 165, 166. It seems to us that the maximum cornpensation payable for the flowage easement under any conceivable cireumstances is so much of the value of the lands for agricultural and forestry purposes and for any other uses, not including hydroelectric power value, as the easement owner has a right to destroy or depreciate. That maximum is more simply expressed in the criterion adopted by the Commission, i.e., “the difference jn ^he value of the land with and without the flowage easement.” Subject to that maximum, the actual measure of cornpensation payable for the flowage easement is the vaiue of the easement to its owner. “The question is, What has the owner lost? not, What has the taker gained ?” 1 Orgel on Valuation Under Eminent Domain, p. 352. The United States insists that the Augusta Power Company failed to show any gubstantial vaIue for ita ease. ^ . ments, while the Power Company asserts „ , ’ J - 7 that tne amounts fixed as compensation for the flowa»e easements are too low. Since an erroneous standard was used for valuing the flowage easements, and since much confusion and uncertainty existed as to what was the correct standard, we congider it „juflt under the drcumstanc- „« , , , , es to reverse the judgment and re- , ,. , , ^ mand the cause for ?urther proceedings. not ^consistent with this opinion, and ^ so ordered. Reversed and remanded. . Summarized as follows: Traet Acreage Fee Owner E-404 41.70 Savannah River Electric Company E-444 128.39 Savannah River Electric Company E-443 88.59 Twin City Power Company E-458 37.68 Roy Edmunds and Wayne Goolsby E-442 101.69 Fannie Beck Reid . To which may now be added the opinion on a subsequent appeal in United States v. 2979.72 Acres of Land, etc., 1959, 270 F.2d 707. . Compare United States v. Cooper, 5 Cir., 277 F.2d 857, and cases cited. . _ x See 16 U.S.C.A. § 797(e) et seq. . The United States must he excluded as a possible assignee in determining the value of the easement, because the value of the easement must not be enhanced by the special need which the Government has for it. The Government should not, in fairness, be required to pay a value created by itself. United States v. Cors, 1949, 337 U.S. 325, 333, 334, 69 S.Ct. 1086, 93 L.Ed. 1392; see also United States v. Chandler-Dunbar Water Power Co., 1913, 229 U.S. 53, 76, 33 S.Ct. 667, 57 L.Ed. 1063. . Sec, also, the holding on original hearing that “the government must make compensation on the basis of the difference in the value of the land with and without the easement taken * * *” United States v. 2979.72 Acres of Land, etc., 4 Cir., 1956, 235 F.2d 327, 329. United States v. Twin City Power Co., 4 Cir., 1957, 248 F.2d 108, 113, 114; United States v. 2979.72 Acres of Land, etc., 1959, 270 F.2d 707, 709. . 28 U.S.C.A. § 2106.

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".

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?

FREIGHTLINER CORP. et al. v. MYRICK et al. No. 94-286. Argued February 22, 1995 Decided April 18, 1995 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., concurred in the judgment. Charles Fried argued the cause for petitioners. With him on the briefs were Richard G. Taranto, Edgar A. Neely III, Richard B. North, Jr., James A. Jacobson, and Cindy F. Wile. Paul R. Q. Wolfson argued the cause for the United States as amicus curiae in support of respondents. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Douglas N. Letter, Paul D. Scott, Paul M. Geier, and Phillip R. Recht. Michael H. Gottesman argued the cause for respondents. With him on the brief were Arthur H. Bryant, Leslie A. Brueckner, Robert M. Weinberg, Andrew D. Roth, James E. Carter, Raymond Brooks, and Charles A. Mathis, Jr. Briefs of amici curiae urging reversal were filed for the American Automobile Manufacturers Association et al. by David M. Heilbron and Leslie G. Landau; for the American Trucking Associations, Inc., et al. by Kenneth S. Getter, Erika Z. Jones, John J. Sullivan, Daniel R. Barney, Lynda S. Mounts, and Jan S. Amundson; for the Product Liability Advisory Council, Inc., by Malcolm E. Wheeler and Richard P. Barkley; and for the Truck Trailer Manufacturers Association by Glen M. Darbyshire. Briefs of amicus curiae urging affirmance were filed for the Association of Trial Lawyers of America by Jeffrey Robert White and Larry S. Stew art; for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley; and for Public Citizen, Inc., by Alan B. Morrison, Cornish F. Hitchcock, and David C. Vladeck. Justice Thomas delivered the opinion of the Court. By statute, the Secretary of Transportation has the authority to issue appropriate safety standards for motor vehicles and their equipment. Respondents filed lawsuits under state common law alleging negligent design defects in equipment manufactured by petitioners. Petitioners claim that these actions are pre-empted by a federal safety standard, even though the standard was suspended by a federal court. We hold that the absence of a federal standard cannot implicitly extinguish state common law. I This case arises from two separate but essentially identical accidents in Georgia involving tractor-trailers. In both cases, 18-wheel tractor-trailers attempted to brake suddenly and ended up jackknifing into oncoming traffic. Neither vehicle was equipped with an antilock braking system (ABS). In the first case, respondent Ben Myrick was the driver of an oncoming vehicle that was hit by a tractor-trailer manufactured by petitioner Freightliner. The accident left him permanently paraplegic and brain damaged. In the second case, the driver of an oncoming car, Grace Lindsey, was killed when her vehicle collided with a tractor-trailer manufactured by petitioner Navistar. Respondents independently sued the manufacturers of the tractor-trailers under state tort law. They alleged that the absence of ABS was a negligent design that rendered the vehicles defective. Petitioners removed the actions to the District Court for the Northern District of Georgia on the basis of diversity of citizenship. They then sought summary judgment on the ground that respondents’ claims were pre-empted by the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act or Act), Pub. L. 89-563, 80 Stat. 718, as amended, 15 U. S. C. § 1381 et seq., and its implementing regulations. In respondent Myrick’s case, the District Court held that the claims were pre-empted by federal law and granted summary judgment for petitioner Freight-liner. Myrick v. Fruehauf Corp., 795 F. Supp. 1139 (ND Ga. 1992). Following the opinion in the Myrick case, the District Court granted summary judgment in the Lindsey action in favor of petitioner Navistar. The Court of Appeals for the Eleventh Circuit consolidated the cases and reversed. Myrick v. Freuhauf Corp., 13 F. 3d 1516 (1994). It held that under its previous decision in Taylor v. General Motors Corp., 875 F. 2d 816 (CA11 1989), cert. denied, 494 U. S. 1065 (1990), the state-law tort claims were not expressly pre-empted. The Court of Appeals rejected petitioners’ alternative argument that the claims were pre-empted due to a conflict between state law and the federal regulatory scheme. We granted certiorari, 513 U. S. 922 (1994). We now affirm. II In 1966, Congress enacted the Safety Act “to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents.” 15 U. S. C. § 1381. The Act requires the Secretary of Transportation to establish “appropriate Federal motor vehicle safety standards.” § 1392(a). The Act defines a safety standard as “a minimum standard for motor vehicle performance, or motor vehicle equipment performance, which is practicable, which meets the need for motor vehicle safety and which provides objective criteria.” § 1391(2). The Safety Act’s express pre-emption clause provides: “Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard. Nothing in this section shall be construed as preventing any State from enforcing any safety standard which is identical to a Federal safety standard.” § 1392(d). The Act also contains a saving clause, which states: “Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law.” § 1397(k). The Secretary has delegated the authority to promulgate safety standards to the Administrator of the National Highway Traffic Safety Administration (NHTSA). 49 CFR § 1.50(a) (1994). In 1970, the predecessor to NHTSA issued regulations concerning vehicles equipped with air brakes, which are used in trucks and tractor-trailers. Known as Standard 121, this regulation imposed stopping distances and vehicle stability requirements for trucks. See 36 Fed. Reg. 3817 (1971). Because these stopping distances were shorter than those that could be achieved with brakes without ABS, several manufacturers notified NHTSA that ABS devices would be required. Some manufacturers asked NHTSA to alter the standard itself because they believed that ABS devices were unreliable and rendered vehicles dangerously unsafe when combined with new, more effective brakes. In 1974, NHTSA responded that Standard 121 was practical and that ABS devices did not cause accidents. See generally Paccar, Inc. v. NHTSA, 573 F. 2d 632, 637-638 (CA9), cert. denied, 439 U. S. 862 (1978). Several manufacturers and trade associations then sought review of Standard 121 in the Court of Appeals for the Ninth Circuit. That court remanded the case to NHTSA because “a careful review of the extensive record” indicated that “the Standard was neither reasonable nor practicable at the time it was put into effect.” 573 F. 2d, at 640. The court found that NHTSA had failed to consider the high failure rate of ABS devices placed in actual use, id., at 642, and that “there [was] a strong probability that [ABS] has created a potentially more hazardous highway situation than existed before the Standard became operative,” id., at 643. Until NHTSA compiled sufficient evidence to show that ABS would not create the possibility of greater danger, the court concluded, the Standard would remain suspended. Ibid. After the Ninth Circuit’s decision in Paccar, the agency amended Standard 121 so that the stopping distance and lock-up requirements no longer applied to trucks and trailers. NHTSA nevertheless left the unamended Standard 121 in the Code of Federal Regulations so that “the affected sections [could] most easily be reinstated” when the agency met Paccar’s requirements. 44 Fed. Reg. 46849 (1979). NHTSA also stated that the provisions would remain in place so that manufacturers would know “what the agency still considers to be reasonable standards for minimum acceptable performance.” Ibid. Although NHTSA has developed new stopping distance standards, to this day it still has not taken final action to reinstate a safety standard governing the stopping distance of trucks and trailers. Ill Despite the fact that Standard 121 remains suspended, petitioners maintain that respondents’ lawsuits are expressly pre-empted. We disagree. The Act’s pre-emption clause applies only “[w]henever a Federal motor vehicle safety standard ... is in effect” with respect to “the same aspect of performance” regulated by a state standard. 15 U. S. C. § 1392(d). There is no express federal standard addressing stopping distances or vehicle stability for trucks or trailers. No NHTSA regulation currently establishes a “minimum standard for . . . motor vehicle equipment performance,” § 1391(2), nor is any standard “stated in objective terms,” § 1392(a). There is simply no minimum, objective standard stated at all. Therefore, States remain free to “establish, or to continue in effect,” their own safety standards concerning those “aspect[s] of performance.” § 1392(d). Petitioners insist, however, that the absence of regulation itself constitutes regulation. Relying upon our opinion in Ray v. Atlantic Richfield Co., 435 U. S. 151 (1978), petitioners assert that the failure of federal officials “ ‘affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute.’” Id., at 178 (quoting Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U. S. 767, 774 (1947). Unlike this case, however, we found in Ray that Congress intended to centralize all authority over the regulated area in one decisionmaker: the Federal Government. 435 U. S., at 177. Here, there is no evidence that NHTSA decided that trucks and trailers should be free from all state regulation of stopping distances and vehicle stability. Indeed, the lack of federal regulation did not result from an affirmative decision of agency officials to refrain from regulating air brakes. NHTSA did not decide that the minimum, objective safety standard required by 15 U. S. C. § 1392(a) should be the absence of all standards, both federal and state. Rather, the lack of a federal standard stemmed from the decision of a federal court that the agency had not compiled sufficient evidence to justify its regulations. IV Even if § 1392(d) does not expressly extinguish state tort law, petitioners argue that respondents’ lawsuits are preempted by implication because the state-law principle they seek to vindicate would conflict with federal law. We have recognized that a federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively, English v. General Elec. Co., 496 U. S. 72, 78-79 (1990), or when state law is in actual conflict with federal law. We have found implied conflict pre-emption where it is “impossible for a private party to comply with both state and federal requirements,” id., at 79, or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U. S. 52, 67 (1941). A As an initial matter, we must address the argument that we need not reach the conflict pre-emption issue at all. According to respondents and the Court of Appeals, Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992), held that implied pre-emption cannot exist when Congress has chosen to include an express pre-emption clause in a statute. This argument is without merit. In Cipollone we did hold that the pre-emptive scope of the two statutes at issue was governed by the language in each Act. That conclusion rested on a familiar canon of statutory construction and on the absence of any reason to infer any broader pre-emption. Instead of announcing a categorical rule precluding the coexistence of express and implied pre-emption, however, the relevant passage in the opinion stated: “In our opinion, the pre-emptive, scope of the 1965 Act and the 1969 Act is governed entirely by the express language in § 5 of each Act. When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a ‘reliable indicium of congressional intent with respect to state authority,’ Malone v. White Motor Corp., 435 U. S., at 505, ‘there is no need to infer congressional intent to preempt state laws from the substantive provisions’ of the legislation. California Federal Savings & Loan Assn. v. Guerra, 479 U. S. 272, 282 (1987) (opinion of MARSHALL, J.). Such reasoning is a variant of the familiar principle of expressio unius est exclusio alterius: Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted. In this case, the other provisions of the 1965 and 1969 Acts offer no cause to look beyond § 5 of each Act. Therefore, we need only identify the domain expressly pre-empted by each of those sections. As the 1965 and 1969 provisions differ substantially, we consider each in turn.” Id., at 517. The fact that an express definition of the pre-emptive reach of a statute “implies” — i. e., supports a reasonable inference — that Congress did not intend to pre-empt other matters does not mean that the express clause entirely forecloses any possibility of implied pre-emption. Indeed, just two paragraphs after the quoted passage in Cipollone, we engaged in a conflict pre-emption analysis of the Federal Cigarette Labeling and Advertising Act, 79 Stat. 282, as amended, 15 U. S. C. § 1331 et seq., and found “no general, inherent conflict between federal pre-emption of state warning requirements and the continued vitality of state common-law damages actions.” 505 U. S., at 518. Our subsequent decisions have not read Cipollone to obviate the need for analysis of an individual statute’s pre-emptive effects. See, e. g., CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 673, n. 12 (1993) (“We reject petitioner’s claim of implied ‘conflict’ pre-emption ... on the basis of the preceding analysis”). At best, Cipollone supports an inference that an express pre-emption clause forecloses implied pre-emption; it does not establish a rule. B Petitioners’ pre-emption argument is ultimately futile, however, because respondents’ common-law actions do not conflict with federal law. First, it is not impossible for petitioners to comply with both federal and state law because there is simply no federal standard for a private party to comply with. Nothing in the Safety Act or its regulations currently regulates the use of ABS devices. As Standard 121 imposes no requirements either requiring or prohibiting ABS systems, tractor-trailer manufacturers are free to obey state standards concerning stopping distances and vehicle stability. Second, we cannot say that the respondents’ lawsuits frustrate “the accomplishment and execution of the full purposes and objectives of Congress.” Hines, supra, at 67. In the absence of a promulgated safety standard, the Act simply fails to address the need for ABS devices at all. Further, Standard 121 currently has nothing to say concerning ABS devices one way or the other, and NHTSA has not ordered truck manufacturers to refrain from using ABS devices. A finding of liability against petitioners would undermine no federal objectives or purposes with respect to ABS devices, since none exist. For the foregoing reasons, the judgment of the Court of Appeals for the Eleventh Circuit is affirmed. It is so ordered. Justice Scalia concurs in the judgment. ABS “helps prevent loss of control situations by automatically controlling the amount of braking pressure applied to a wheel. With these systems, the Electronic Control Unit (ECU) monitors wheel-speeds, and changes in wheel-speeds, based on electric signals transmitted from sensors located at the wheels or within the axle housings. If the wheels start to lock, the ECU signals a modulator control valve to actuate, thereby reducing the amount of braking pressure applied to the wheel that is being monitored.” 57 Fed. Reg. 24213 (1992). Standard 121 required air-brake equipped vehicles to stop within certain distances at various speeds without deviating from a 12-foot-wide lane, and without any wheel lock-up. 49 CFR § 571.121 S5.3.1 (1972). The initial stopping distance requirement from 60 miles per hour was 217 feet on a dry surface. The regulation also established brake actuation and release times, as well as other aspects of brake performance. Ibid. Because no federal safety standard exists, we need not reach respondents’ argument that the term “standard” in 15 U. S. C. § 1392(d) pre-empts only state statutes and regulations, but not common law. We also need not address respondents’ claim that the saving clause, § 1397(k), does not permit a manufacturer to use a federal safety standard to immunize itself from state common-law liability.

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.

What is the issue of the decision?

FACTORS ETC., INC. and Boxcar Enterprises Inc., Plaintiffs-Appellees, v. PRO ARTS, INC. and Stop and Shop Companies, Inc., Defendants-Appellants. No. 655, Docket 77-7544. United States Court of Appeals, Second Circuit. Argued May 8, 1978. Decided June 27, 1978. Raymond E. Scott, Detroit, Mich. (Ralph T. Rader, Burke, Va., Cullen, Settle, Sloman & Cantor, Detroit, Mich., Kane, Dalsimer, Kane, Sullivan & Kurucz, Joseph C. Sullivan, and John F. Boyle, New York City, of counsel), for defendants-appellants. Michael C. Silberberg, New York City, and Arthur Fields, Beverly Hills, Cal. (Ervin, Cohen & Jessup, Beverly Hills, Cal., of counsel and Golenbock & Barell, New York City), for plaintiffs-appellees. Before WATERMAN, INGRAHAM and MANSFIELD, Circuit Judges. Of the United States Court of Appeals for the Fifth Circuit, sitting by designation. INGRAHAM, Circuit Judge: Plaintiffs-Appellees, Factors Etc., Inc. (Factors) and Boxcar Enterprises, Inc. (Boxcar), sued Defendants-Appellants, Pro Arts, Inc. (Pro Arts) and Stop and Shop Companies, Inc. (Stop and Shop), for injunc-tive relief and damages based upon defendants’ alleged misappropriation and unauthorized use of the name and likeness of Elvis Presley (Presley). The trial court granted the plaintiffs’ preliminary injunction upon its findings that the exclusive right to market Presley memorabilia survived the death of Presley, and the Presley poster printed by defendants allegedly in derogation of this right was not privileged as the publication of a newsworthy event. This is an interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1). Because the facts are not in dispute, we need not describe them in detail. During Presley’s career as an entertainer, Colonel Tom Parker (Parker) served as his close friend, mentor and personal manager. This professional relationship between the two parties began on March 26, 1956, with the execution of the first contract between them. Parker immediately began the task of creating the “Elvis persona.” In so doing, both he and Presley capitalized upon the marketing of merchandise bearing the Elvis name and likeness. Parker directed this effort until Presley’s death, a task reflected by the numerous extensions of the contract between the two parties. Boxcar Enterprises, a Tennessee corporation controlled by Presley and Parker, was the vehicle through which the commercial Elvis Presley rights were marketed. Boxcar sublicensed other companies to do the actual manufacturing and distributing of each specific item, receiving royalties from the sales. On August 16, 1977, Elvis Presley died suddenly and unexpectedly. His father, Vernon Presley, was appointed executor of his estate. On August 18, 1977, two days after Presley’s death, Boxcar granted Factors the exclusive license to exploit commercially the name and likeness of Elvis Presley. Factors paid Boxcar $100,000 on execution of the agreement against a guarantee of $150,000. Vernon Presley, as executor of the estate, signed the agreement licensing Factors, at the same time warranting that Boxcar was the sole and exclusive owner of the commercial Elvis Presley rights. The agreement was also approved by Parker. Immediately following Presley’s death, Pro Arts decided that it too wanted a share in the market for Elvis Presley memorabilia. It purchased the copyright in the photograph of Presley from a staff photographer of the Atlanta (Georgia) Journal. On August 19,1977, three days after his death, Pro Arts published a poster using the photograph and filed an application for registration of copyright. The poster is entitled “IN MEMORY” and below the photograph of Presley the poster bears the dates “1935-1977.” On the same day that the poster was published, Pro Arts began to market it. One of its first customers was co-defendant Stop and Shop Companies, which thereafter sold the poster through its Bradlees Stores Division in the Southern District of New York. On August 24, 1977, five days after its poster was placed on the market, Pro Arts notified Boxcar Enterprises that it was offering “a memorial ‘Elvis’ poster to meet the public demand.” When Factors was informed of the letter, it replied to Pro Arts claiming the exclusive right to manufacture, sell and distribute all merchandise utilizing the name and likeness of Elvis Presley. Factors also warned Pro Arts that if it did not discontinue sale of the poster, it would be subject to a lawsuit for injunctive relief, damages and an accounting. Instead of ceasing distribution of the poster, Pro Arts filed suit in the United States District Court for the Northern District of Ohio seeking a declaratory judgment of non-infringement of the rights claimed by Factors. When Factors discovered that it had been sued in Ohio, it responded by instituting this action against Pro Arts and Stop and Shop in United States District Court for the Southern District of New York. This later action was filed on September 26, 1977, just five days after Pro Arts’ action. Upon the filing of the complaint in this action, the district judge entered an “order to show cause” requiring Pro Arts to show cause why an injunction should not issue against it. Pro Arts responded with a motion to dismiss, stay or transfer the suit to the Northern District of Ohio. On October 13, 1977, the New York court filed an opinion and order of preliminary injunction against Pro Arts. The injunction restrained Pro Arts during the pendency of the action from manufacturing, selling or distributing (1) any more copies of the poster labeled “IN MEMORY . . . 1935-1977,” (2) any other posters, reproductions or copies containing any likeness of Elvis Presley, and (3) utilizing for commercial profit in any manner or form the name or likeness of Elvis Presley. The order also denied Pro Arts’ motion to dismiss, stay or transfer. Pro Arts has duly perfected this interlocutory appeal from the order. Before addressing the merits, we must first dispose of Pro Arts’ contention that the trial court abused its discretion in denying Pro Arts’ motion to stay or transfer the present action to the Northern District of Ohio. Pro Arts first argues that the ease should have been transferred under 28 U.S.C. § 1404(a) (1976) for the convenience of parties and witnesses. According to Pro Arts, none of the parties are residents of New York, but instead each is incorporated and a resident of another state — Factors (Delaware), Boxcar (Tennessee), Pro Arts (Ohio), Stop and Shop (Massachusetts). Furthermore, Pro Arts contends that it is the chief defendant in the case and its principal place of business is located in Ohio, the state where all of its records, officers and witnesses are located. Defendant Stop and Shop, on the other hand, is merely a “straw man” joined to make possible a New York suit, and has nothing to do with the printing or manufacturing of the poster. There can be no doubt that the burden is on the defendant, when it is the moving party, to establish that there should be a change of forum. See Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950); New York v. General Motors Corp., 357 F.Supp. 327, 328 (S.D.N.Y.1973); C. Wright, A. Miller and E. Cooper, 15 Federal Practice and Procedure 244 (1976) [hereinafter cited as Federal Practice and Procedure]. When a party seeks the transfer on account of the convenience of witnesses under § 1404(a), he must clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover. 15 Federal Practice and Procedure 270. See, e. g., Mendelson v. Fleischmann, 386 F.Supp. 436, 439 (S.D.N.Y.1973). Not only was no such demonstration attempted, but Pro Arts did not even urge the convenience of witnesses and parties below as a ground for § 1404(a) transfer. Because the issue was not raised in the district court and supported by affidavits, there could be no abuse of discretion in not granting transfer on these grounds. Pro Arts argues in the alternative that the case should have been transferred to Ohio under § 1404(a) or stayed pending resolution of the Ohio action, since essentially the same lawsuit involving the same parties and the same issues had been filed in Ohio before the New York case was filed. The rule in this circuit is that the first suit should have priority, “ ‘absent the showing of balance of convenience in favor of the second action’ ... or unless there are special circumstances which justify giving priority to the second.” William Gluckin & Co. v. International Playtex Corp., 407 F.2d 177, 178 (2d Cir. 1939), quoting Remington Products Corp. v. American Aerovap, Inc., 192 F.2d 872 (2d Cir. 1951). The Supreme Court has articulated the test to be “wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation . . .” Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952). In deciding between competing jurisdictions, the balancing of convenience should be left to the sound discretion of the district court. Id. at 183-84, 72 S.Ct. 219; William Gluckin & Co. v. International Playtex Corp., 407 F.2d at 178. We conclude that the district court did not abuse its discretion by allowing the later filed action to proceed. First, at the time that this case was filed, two additional lawsuits against other defendants by Factors presenting the identical issue for resolution were pending in the Southern District of New York. Efficient and responsible judicial administration dictated that these three cases be tried before the same forum. Id. See Remington Products Corp. v. American Aerovap, Inc., 192 F.2d 872, 873 (2d Cir. 1951). Second, Pro Arts’ suit for declaratory judgment was filed in apparent anticipation of Factors’ New York suit. When the declaratory judgment action has been triggered by a notice letter, this equitable consideration may be a factor in the decision to allow the later filed action to proceed to judgment in the plaintiffs’ chosen forum. Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967). Accord, Columbia Pictures Industries, Inc. v. Schneider, 435 F.Supp. 742, 747 (S.D.N.Y.1977). As Mr. Justice Brennan has observed, “[t]he federal declaratory judgment is not a prize to the winner of a race to the courthouses.” Perez v. Ledesma, 401 U.S. 82, 119 n. 12, 91 S.Ct. 674, 694, 27 L.Ed.2d 701 (1971) (Brennan, J. dissenting). In short, we find no abuse of discretion by the district court in its decision not to grant Pro Arts’ motion to transfer the case to Ohio under § 1404(a) or stay the proceedings pending resolution of the Ohio action. We now proceed to the determination of the principal issue in this case — whether or not the preliminary injunction was improvidently granted. In order to be granted a preliminary injunction under Rule 65(a), Fed.R.Civ.P., the movant must make “ ‘a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.’ ” Trieb-wasser & Katz v. American Tel. & Tel. Co., 535 F.2d 1356,1358 (2d Cir. 1976) (emphasis in original), quoting Sonesta International Hotels Corp. v. Wellington Assoc., 483 F.2d 247, 250 (2d Cir. 1973). The trial court employed the first prong of the test, finding that Factors had demonstrated probable success on the merits and possible irreparable injury. Because Pro Arts does not challenge the trial court’s finding of possible irreparable harm, we need only address the first of the two requirements, that of probable success on the merits. In concluding that Factors would likely prevail on the merits at trial, the court found that Elvis Presley exercised his right of publicity during his lifetime by giving Parker the exclusive authority to exploit his image through Boxcar Enterprises. This exclusive authority survived Presley’s death, after which it was validly assigned to Factors. For this reason Pro Arts was enjoined from manufacturing, distributing, selling of otherwise profiting from merchandise bearing the name or likeness of the late Elvis Presley. It is beyond cavil that the grant or denial of preliminary injunctive relief “ ‘will not be disturbed [on appeal] unless there is an abuse of [the trial court’s] discretion . or unless there is a clear mistake of law.’ ” New York v. Nuclear Regulatory Commission, 550 F.2d 745, 751 (2d Cir. 1977), quoting Triebwasser & Katz v. American Tel. & Tel. Co., 535 F.2d at 1358. On appeal, Pro Arts alleges two errors of law on the part of the trial court. According to Pro Arts, the trial court erred first in concluding that the right of publicity could survive the death of the celebrity. Second, Pro Arts argues that even if the right did so survive, Pro Arts was privileged, as a matter of law, in printing and distributing its “memorial poster” of Presley, because the poster celebrated a newsworthy event. The first issue, the duration of the so-called “right of publicity,” is one of state law, more specifically the law of the State of New York. Because of the dearth of New York case law in this area, however, we have sought assistance from federal court decisions interpreting and applying New York law, as well as decisions from courts of other states. As the district court noted, much confusion shrouds the so-called “right of publicity,” largely because it has often been discussed under the rubric “right of privacy.” As Dean Prosser has stated, the right of privacy embraces “four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff ‘to be let alone.’ ” W. Prosser, Torts 804 (4th ed. 1971). Prosser has classified the four species of this tort as (1) intrusion upon the plaintiff’s physical solitude or seclusion, id. at 807, (2) public disclosure of private facts, id. at 809, (3) false light in the public eye, id. at 812, and (4) appropriation of plaintiff’s name or likeness for defendant’s benefit, id. at 804. The fourth type, appropriation of plaintiff’s name or likeness for defendant’s benefit, has in recent years acquired the label, “right of publicity.” The distinguishing feature of this branch of the tort is that it involves the use of plaintiff’s protected right for defendant’s direct commercial advantage. The nature of the remedy also separates the right of publicity from the other three species of the tort. To protect his interest with respect to the first three, the injured party attempts to minimize the intrusion or publication of the damaging matter. In contrast, the right of publicity plaintiff does not necessarily object to the commercial exploitation — so long as the exploitation is at his behest and he is receiving the profits. This point was recently underscored by the Supreme Court in Zac-chini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977). According to the Court, the interest protected: is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feeling or reputation. Id. at 573, 97 S.Ct. at 2856. [The rationale is thus] “one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.” Id. at 576, 97 S.Ct. at 2857, quoting Kalven, Privacy in Tort Law — Were Warren and Brandeis Wrong? 31 Law & Contemp.Prob. 326, 331 (1966). The State of New York provides a statutory right for the protection of a living person from commercial exploitation of his name and picture by others without his written consent. This statutory right, also called a “right of privacy,” is predicated upon the classic right of privacy’s theoretical basis which is to prevent injury to feelings. Price v. Hal Roach Studios, Inc., 400 F.Supp. 836, 843 (S.D.N.Y.1975); Lombardo v. Doyle, Dane & Bernbach, 58 A.D.2d 620, 396 N.Y.S.2d 661 (1977). In Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.), cert. denied, 346 U.S. 816, 74 S.Ct. 26, 98 L.Ed. 343 (1953), we recognized that the right of publicity exists independent from the statutory right of privacy and that it can be validly transferred by its owner: We think that, in addition to and independent of that right of privacy (which in New York derives from statute), a man has a right in the publicity value of his photograph, i. e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made “in gross,” i. e., without an accompanying transfer of a business or of anything else. Whether it be labelled a “property” right is immaterial; for here, as often elsewhere, the tag “property” simply symbolizes the fact that courts enforce a claim which has pecuniary worth. Id. at 868. Since the landmark Haehn Laboratories, Inc. case, several decisions by courts applying New York law have labeled the right of publicity as a valid transferable property right, see, e. g., Price v. Hal Roach Studios, Inc., 400 F.Supp. at 844; Groucho Marx Productions, Inc. v. Playboy Enterprises, Inc., No. 77-1782 (S.D.N.Y. Dec. 30, 1977); Lombardo v. Doyle, Dane & Bernbach, 58 A.D.2d 620, 396 N.Y.S.2d 661 (1977), as well as recent decisions by courts applying the law of other states, see, e. g., Cepeda v. Swift & Co., 415 F.2d 1205, 1206 (8th Cir. 1969); Memphis Development Foundation v. Factors, Etc., Inc., 441 F.Supp. 1323, 1329 (W.D.Tenn.1977). There can be no doubt that Elvis Presley assigned to Boxcar a valid property right, the exclusive authority to print, publish and distribute his name and likeness. In so doing, he carved out a separate intangible property right for himself, the right to a certain percentage of the royalties which would be realized by Boxcar upon exploitation of Presley’s likeness and name. The identification of this exclusive right belonging to Boxcar as a transferable property right compels the conclusion that the right survives Presley’s death. The death of Presley, who was merely the beneficiary of an income interest in Boxcar’s exclusive right, should not in itself extinguish Boxcar’s property right. Instead, the income interest, continually produced from Boxcar’s exclusive right of commercial exploitation, should inure to Presley’s estate at death like any other intangible property right. To hold that the right did not survive Presley’s death, would be to grant competitors of Factors, such as Pro Arts, a windfall in the form of profits from the use of Presley’s name and likeness. At the same time, the exclusive right purchased by Factors and the financial benefits accruing to the celebrity’s heirs would be rendered virtually worthless. Though no New York court has directly addressed this issue, the only two cases on point agree with our conclusion that the right of publicity should survive the celebrity’s death. See Memphis Development Foundation v. Factors, Etc., Inc., 441 F.Supp. 1323 (W.D.Tenn.1977); Price v. Hal Roach Studios, Inc., 400 F.Supp. 836 (S.D.N.Y.1975). Of these two cases the Price case is particularly persuasive since it is a decision of a United States District Court purportedly applying New York law. Price involved a dispute over the ownership of the commercial right to use the names and likenesses of Stanley Laurel and Oliver Hardy (“Laurel and Hardy”) following the death of the renowned comedians. The exclusive right to exploit the comedy team commercially was assigned to co-plaintiff Larry Harmon Pictures Corporation by Stan Laurel during his lifetime, by Oliver Hardy’s widow and sole heir under Hardy’s will, Lucille Hardy Price, and by Laurel and Hardy’s production company, Laurel and Hardy Feature Productions. Several years later, when the Price defendants sought to utilize the name and likenesses of Laurel and Hardy, the owners sued. The "district court held that the deaths of the actors did not extinguish the right of publicity held by the grantee of the right. This conclusion was found to be inherent in the distinction between the right of publicity and the right of privacy: Since the theoretical basis for the classic right of privacy, and of the statutory right in New York, is to prevent injury to feelings, death is a logical conclusion to any such claim. In addition, based upon the same theoretical foundation, such a right of privacy is not assignable during life. When determining the scope of the right of publicity, however, one must take into account the purely commercial nature of the protected right. Courts and commentators have done just that in recognizing the right of publicity as assignable. There appears to be no logical reason to terminate this right upon death of the person protected. 400 F.Supp. at 844. In sum, we hold that Boxcar’s exclusive right to exploit the Presley name and likeness, because exercised during Presley’s life, survived his death. The right was therefore validly transferred to Factors following Presley’s death. Pro Arts’ final argument is that even if Factors possesses the exclusive right to distribute Presley memorabilia, this right does not prevent Pro Arts from publishing what it terms a “memorial poster” commemorating a newsworthy event. In support of this argument, Pro Arts cites Paulsen v. Personality Posters, Inc., 59 Misc.2d 444, 299 N.Y.S.2d 501 (Sup.Ct.1968), a case arising out of the bogus presidential candidacy of the television comedian Pat Paul-sen. Paulsen sued defendant for publishing and distributing a poster of Paulsen with the legend “FOR PRESIDENT.” The court refused to enjoin sale of the poster because Paulsen’s choice of the political arena for satire made him “newsworthy” in the First Amendment sense. We cannot accept Pro Arts contention that the legend “IN MEMORY . . . ” placed its poster in the same category as one picturing a presidential candidate, albeit a mock candidate. We hold, therefore, that Pro Arts’ poster of Presley was not privileged as celebrating a newsworthy event. In conclusion we hold that the district court did not abuse its discretion in granting the injunction since Factors has demonstrated a strong likelihood of success on the merits at trial. Factors possesses the exclusive right to print and distribute Elvis Presley memorabilia, a right which was validly transferred to it from Boxcar following Presley’s death. Pro Arts infringed this right by printing and distributing the Elvis Presley poster, a poster whose publication was not privileged as a newsworthy event. We affirm the action of the district court and remand for further proceedings. . At the time of his death, Presley was operating under an agreement with Parker, who was doing business as “All Star Shows.” The agreement was executed on May 25, 1963, and was thereafter extended several times. The last extension occurred on January 22, 1976, and granted merchandising rights to Parker for another seven years. . Parker owned 56% of the shares; Presley and Tom Dishkin, President of Boxcar, each owned 22%. . When Boxcar licensed a merchandising item, Presley received 20% of the royalties, Parker received 20%, and Dishkin received 10%. The remaining 50% went to Boxcar. . Contemporaneous with this agreement, Vernon Presley wrote to Parker, asking him to “carry on according to the same terms and conditions as stated in the contractual agreement [between Presley and Parker] dated January 22, 1976” (See n. 1, supra). . Jurisdiction was predicated upon the diversity of citizenship between the parties. 28 U.S.C. § 1332. . 28 U.S.C. § 1292(a)(1). See, e. g., Morning Telegraph v. Powers, 450 F.2d 97 (2nd Cir. 1971), cert. denied, 405 U.S. 954, 92 S.Ct. 1170, 31 L.Ed.2d 231 (1972). . On appeal, Pro Arts has apparently abandoned its earlier contention that the New York court lacked personal jurisdiction or venue over the parties, arguing only that the action should have been transferred or stayed on grounds of convenience and other equitable considerations. . These two cases are Factors Etc., Inc. v. Creative Card Co., 444 F.Supp. 279 (S.D.N.Y.1977), and Factors Etc., Inc. v. The Wild Side, Inc., 77 Civ. 4705 (S.D.N.Y. Oct. 14, 1977). . N.Y. [Civil Rights] Law §§ 50-51 (McKinney). . We do note, however, dicta from a recent appellate division opinion, Lombardo v. Doyle, Dane & Bernbach, 58 A.D.2d 620, 396 N.Y.S.2d 661 (2d Dept. 1977), to the effect that “while a cause of action under the Civil Rights Law is not assignable during one’s lifetime and terminates at death, the right to publicity, e. g., the property right to one’s name, photograph and image is under no such inhibition.” . Because the right was exploited during Presley’s life, we need not, and therefore do not, decide whether the right would survive the death of the celebrity if not exploited during the celebrity’s life.

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.

Are there two issues in the case?

NORTH AVONDALE NEIGHBORHOOD ASSOCIATION et al., Plaintiffs-Appellants, v. CINCINNATI METROPOLITAN HOUSING AUTHORITY et al., Defendants-Appellees. No. 72-1168. United States Court of Appeals, Sixth Circuit. July 20, 1972. Marvin Kraus, Cincinnati, Ohio, for plaintiffs-appellants; E. Winther Mc-Croom, Cincinnati, Ohio, on brief. Booth Shepard, and Charles H. To-bias, Jr., Steer, Strauss, White & To-bias, Grayce Ruehlman, Asst. U. S. Atty., Cincinnati, Ohio, for defendantsappellees. Before EDWARDS, PECK and MILLER, Circuit Judges. PER CURIAM. Appellants appeal from the denial of a petition for preliminary injunction entered by the United States District Court for the Southern District of Ohio, Western Division. Appellants are a neighborhood association (and individuals associated therewith) representing North Avon-dale, an area of the City of Cincinnati in which the Department of Housing and Urban Development proposed to build (and has now built) a 48-unit public housing project. Appellants’ complaint was filed May 26, 1971, but no motion for preliminary injunction was filed until August 10, 1971. This was after the site had been selected, after the builder had been selected, after he had purchased the site, after he had secured a building permit, after he had let seven subcontracts, and after substantial work had been done on the site. The District Judge held hearings on the motion for preliminary injunction and entered an order denying it on September 17, 1971. On October 14, 1971, appellants filed a motion for reconsideration of the District Court’s conclusion to deny the motion for preliminary injunction and further motions and proceedings were terminated by an order denying temporary injunction and disposing of other motions entered on December 23, 1971. Appellants’ notice of appeal was filed January 14, 1972, but no motion for stay of proceedings or preliminary injunction was ever filed in this court. As of the date of hearing on this appeal on June 2, 1972, the court was advised that the project as to which the restraining order and preliminary injunction were sought has been completed, with the exception of some interior work, which is still proceeding. The thrust of appellants’ brief and oral argument on appeal is that the location of this housing project in a “neighborhood” asserted to be “95% Negro” is a violation of the fair housing standards of the Civil Rights Act of 1968, 42 U.S. C. §§ 3601, 3608(d) (5) (1970), which will be subsequently referred to and quoted in full. The District Judge, taking into account the total housing project proposed by defendant housing authority, which included 48 units to be built in a largely white neighborhood, as well as these 48 units to be built in North Avondale, found an insufficient showing on appellants’ part of such violations of the standards of the Civil Rights Act of 1968 as to suggest that appellants had “borne the burden of ‘probable success’ on the merits.” At oral hearing of this appeal counsel for appellants conceded that the project had been constructed and was very near completion. Asked what relief this court could render under these circumstances, he ultimately proposed the entry of an order finding the statutory violations referred to above and requiring the destruction of the housing. The issue as to whether or not there have been violations of either the Civil Rights Act of 1968 or the Fair Housing Acts or regulations relied on by appellants will be squarely before the District Court on trial of the principal complaint and we see no need for this court to pass on these issues at this time. At the hearing upon the merits, the past history of the Metropolitan Housing Authority’s site selection and tenant selection policies may be shown. Likewise, the tenant selection policies contemplated for the housing projects herein referred to may be shown. If violations of national standards are shown, the District Judge has remedial powers to order a plan developed and implemented “to provide, within constitutional limitations, for fair housing.” 42 U. S.C. § 3601 (1970). Petitions for preliminary injunctions are addressed in the first instance to the judicial discretion of the District Judge. In determining on appeal whether that discretion has been abused, four standards have been suggested: 1) Has petitioner made a strong showing of probable success at trial? 2) Has petitioner shown irreparable injury? 3) Would issuance of the preliminary injunction cause substantial harm to others ? 4) Where lies the public interest? Virginia Petroleum Jobbers Assoc. v. Federal Power Commission, 104 U.S. App.D.C. 106, 259 F.2d 921, 925 (1958); Hamlin Testing Laboratories, Inc. v. United States Atomic Energy Comm’n, 337 F.2d 221, 222 (6th Cir. 1964). We believe that this record mandates a negative answer as to the first of these, and inconclusive answers as to the others. The District Judge found on this record that there is a serious housing shortage in the Cincinnati area, and there is evidence to support his finding. We reject the suggestion that this court should order destruction of these homes at this stage of the proceedings and before a full evidentiary hearing has been held as to the claimed violations. The judgment of the District Court is affirmed and the case is remanded to the District Court for further proceedings in accordance with the statutory standards set out below: "§ 3601. It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. § 3601 (1970). “§ 3608(d). The Secretary of Housing and Urban Development shall * * * “(5) administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this subehapter.” 42 U.S.C. § 3608(d) (5) (1970). . The record establishes the following chronology : May 26, 1970 — Contractor selected. June 29, 1970 — “Tentative selection” of site. Sept. 1, 1970 — Real estate acquired. May 13, 1971 — Building permit issued. May 26, 1971 — Complaint filed. June 17, 1971 — Contract signed. Aug. 10, 1971 — Motion for preliminary injunction. Sept. 17, 1971 — Motion for preliminary injunction denied. Jan. 14, 1972 — Notice of appeal filed.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").

This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.

SARLOT-KANTARJIAN, a General Partnership composed of Raymond R. Sarlot and Karl G. Kantarjian, Plaintiff/Appellant, v. FIRST PENNSYLVANIA MORTGAGE TRUST, a voluntary association organized under the laws of the Commonwealth of Massachusetts and Associated Advisers, Inc., a Delaware Corporation, Defendants/Appellees. No. 77-3232. United States Court of Appeals, Ninth Circuit. July 2, 1979. Jerome Zamos, Zamos, Hofmann & Roberts, Santa Barbara, Cal., for plaintiff/appellant. Fred F. Gregory, Gibson, Dunn & Crutch-er, Los Angeles, Cal., for defendants/appel-lees. Before HUFSTEDLER and WALLACE, Circuit Judges, and FITZGERALD , District Judge. Honorable James M. Fitzgerald, United States District Judge, District of Alaska, sitting by designation. FITZGERALD, District Judge. Sarlot-Kantarjian, a partnership engaged in real estate development, appeals from a summary judgment entered in favor of First Pennsylvania Mortgage Trust, a real estate investment fund, in an action for recovery of usurious interest and for declaratory relief. The district court concluded that the parties’ selection of Massachusetts law in the loan agreement was valid and binding although the interest rate allowable under Massachusetts law was greater than the maximum permitted under California law. We affirm. Sarlot-Kantarjian (S-K) is a California general partnership consisting of Sarlot, a contractor, and Kantarjian, a lawyer, both knowledgeable and experienced in construction and real estate ventures. In September 1973, S-K sought construction financing for a proposed 66-unit condominium project to be built in the Bel Air section of Los Angeles. S-K engaged a mortgage company to assist it in obtaining a two year construction loan of $3.2 million dollars at a rate of 5% over the prime rate. In October 1973, the mortgage company was notified by Associated Advisers, Inc., a New Jersey firm employed by defendant First Pennsylvania Mortgage Trust, that S-K’s loan application had been conditionally approved. First Pennsylvania Mortgage Trust is a real estate investment trust organized under the laws of Massachusetts for the purpose of lending money for construction or improvement of real property. The Trust maintains its principal place of business in Boston and has never maintained an office or any employees in California. In November 1973, First Pennsylvania’s Board of Trustees met in Boston, considered and approved a loan to S-K. A commitment letter was sent to the mortgage company setting forth the terms and conditions of the proposed loan to S-K. The letter fixed Boston as the locale for the closing of the loan and repayment of any monies lent. It further specified that all “documents executed in connection with this loan are and shall be governed by and construed according to the statutes and laws of Massachusetts.” S-K signed the commitment letter, and Sarlot has acknowledged that he read the quoted language, understood it and intended Massachusetts law to apply. After the commitment letter was received by Associated Advisers in early December, Pennsylvania Trust engaged California legal counsel to prepare the loan documents. These documents were submitted to S-K for review prior to closing of the loan. Sarlot and Kantarjian then trav-elled to Boston for the closing and to obtain the initial disbursement of funds. The closing was delayed a day pending resolution of certain engineering and technical problems relating to the project, and negotiations regarding these problems were held in New Jersey with Associated Advisers. The loan closed in Boston on December 21, 1973 with the execution of an amended commitment letter and the various loan documents. The loan proceeds were disbursed out of Pennsylvania Trust’s operating account in Boston into S-K’s transfer account in Boston. S-K also maintained a disbursement account in a California bank to facilitate payment of the project’s construction expenses. In May and June 1975, the parties agreed to modify the December 21, 1973 loan by reducing the interest rate and the amount of payments required to obtain a release of the mortgage lien on constructed condominium 'units. At the same time, the parties agreed to a second loan in the amount of $250,000. All loan repayments by S-K were paid into Pennsylvania Trust’s operating account in Boston and the entire loan has been satisfied. Pennsylvania Trust maintains that the interest paid on the combined total of the two notes was 13.47% averaged over the life of the loan, while S-K contends that the actual effective rate of interest approached 18%. It is conceded, however, that the interest charged exceeds 10%, and therefore would be usurious under California Jaw. California choice of law rules properly govern the question of whether the contractual choice-of-law clause is valid, for it is well established that the conflict of law rules to be applied by a federal court in a diversity case must conform to those prevailing in the state in which the federal court is located. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Strassberg v. New England Mutual Life Insurance Co., 575 F.2d 1262, 1263 (9th Cir. 1978). Under California law, contractual choice of law provisions will be respected unless the transaction falls into either of two exceptions outlined by the Restatement 2d, Conflict of Laws, Section 187: 1) the chosen state has no substantial relationship to the parties or the transaction, or 2) application of the law of the chosen state would be contrary to a fundamental policy of the state. See Smith, Valentino & Smith, Inc. v. Superior Court of Los Angeles Co., 17 Cal.3d 491, 494, 131 Cal.Rptr. 374, 376, 551 P.2d 1206, 1208 (1976). Neither of the exceptions applies in this case. As the facts demonstrate, Massachusetts had very significant contacts with the transaction at issue here. The making of the contract and its performance, i. e. repayment of the loan, both took place in Massachusetts. Moreover, the funds were disbursed in Massachusetts. These factors, as well as the Trust’s location in Massachusetts, support a finding of substantial connection with Massachusetts even though the loan was secured by real estate in California. See Ury v. Jewelers Acceptance Corp., 227 Cal.App.2d 11, 38 Cal.Rptr. 376 (1964); see also Gamer v. duPont Walston, Inc., 65 Cal.App.3d 280, 135 Cal.Rptr. 230 (1976). S-K’s reliance on Continental Mortgage Investors v. Sailboat Key, Inc., 354 So.2d 67 (Fla.App.1977) is misplaced. There the trial judge found that Massachusetts had no real connection with the transaction and that the contractual choice of law was a scheme to evade Florida’s usury law. The loan was negotiated in Florida, loan documents were prepared in Florida, the lender’s adviser was located in Florida, and the funds were disbursed to the borrower in Florida; the only connection with Massachusetts was that the borrower and the lender’s officer flew together to Continental’s offices in Boston to execute the documents, thereafter returning to Florida. Id. at 72. Thus, Continental is clearly distinguishable. California’s public policy against usury is not offended by the adoption of Massachusetts law in this case, and therefore the second exception to the rule that contractual choice of law provisions will be respected is also inapplicable. In this regard it is noteworthy that contractual choice of law provisions resulting in interest rates as high as 20.3% being charged a commercial borrower have been approved in California. Ury v. Jewelers Acceptance Corp., supra. Here the loan agreement provided for no specific interest percentage rate, but rather was based on an agreed-upon percentage over the prime rate. The rate of 13.47% to 18% charged S-K, being well within the rate upheld in Ury, was not so excessive as to violate California’s policy against usury. We conclude that the selection of Massachusetts law by the parties fully meets the Restatement rule followed by California courts, and therefore, the judgment of the district court is in all respects affirmed. . Section 187(2) of the Restatement provides in pertinent part as follows: The law of the state chosen by the parties to govern their contractual rights and duties will be applied . unless either, a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which . would be the state of the applicable law in the absence of an effective choice of law by the parties. Restatement 2d, Conflict of Laws, Section 187(2). . Under Massachusetts law, the parties to a loan such as the loan in this case may agree on the interest rate, and therefore, the interest charged would be lawful in Massachusetts. Mass.Ann.Laws: Ch. 107, Section 3. . In the instant case the prime rate quoted by New York banks at the time the loan was negotiated was approximately 10%. Findings of Fact, H No. 13, Record on Appeal at 1064.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.

This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?

MESARD v. BRENNER. In re AMERICAN MOTOR PRODUCTS CORPORATION. No. 164. Circuit Court of Appeals, Second Circuit. April 10, 1939. David W. Kahn, of New York City, for appellant. Copal Mintz, of New York City, for appellee. Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges. CHASE, Circuit Judge. The plaintiff; as trustee in bankruptcy of American Motor Products Corporation, brought, on April 19, 1938, his bill of complaint in equity in the District Court for the Southern District of New York to set aside the transfer by the bankrupt to the defendant of a negotiable warehouse receipt issued by Baker & Williams Storage Warehouses. The receipt was for 795 cartons and 1 keg of automobile parts and the transfer was claimed to be voidable upon four grounds, viz: that it was a preferential transfer under the Bankruptcy Law; also under Sec. 15 of the New York Stock Corporation Law, Consol.Laws, c. 59; was made without consideration and with intent to hinder, delay and defraud creditors; and, being without consideration, was in violation of Sec. 274 of the New York Debtor and Creditor Law, Con-sol.Laws, c. 12. The defendant moved to dismiss the bill on the ground that the plaintiff had an adequate remedy at law and in the alternative requested a transfer of the cause to the law side of the district court under Equity Rule No. 22, 28 U.S.C. A. following section 723. The transfer to the law side was ordered. The plaintiff then moved for leave to amend the bill of complaint in equity. Leave so to do was granted and an amended bill was filed. The amended bill alleged that the American Motor Products Corporation filed its petition for reorganization under 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, in the District Court for the Southern District of New York on May 28, 1937; that its petition was approved the same day and that thereafter, on October 22, 1937, an order in such proceedings was duly entered adjudging it a bankrupt and providing for its liquidation. The plaintiff was appointed trustee in bankruptcy on November 9, 1937. The transfer of the warehouse receipt between May 24, and May 28, 1937, was alleged together with the facts on which it was claimed to be voidable. These allegations were accompanied by others to the effect that the merchandise had been sold free and clear of liens on January 17, 1938, under an order of the referee in bankruptcy; that $5,000 had been realized on the sale; and that the plaintiff was holding those proceeds in a separate fund pending the determination of the claims of the defendant. It was also alleged that the plaintiff and the defendant had on March 16, 1938, entered into a stipulation, duly approved by the referee in bankruptcy, which was attached to the bill as Exhibit A. The material parts of that stipulation follow: “1. The $5,000 now held by the Trustee as the proceeds óf the sale of the warehoused merchandise shall, for all purposes, be deemed and accepted as the full substitute for, and equivalent of, the merchandise previously in the warehouse of Baker & Williams, under a negotiable warehouse receipt held by Brenner, without prejudice to the rights and status of the respective parties. “2. The Trustee shall, within thirty (30) days from the date hereof, commence, and thereafter prosecute, a plenary action in the United States District Court for the Southern District of New York, in which shall be determined the rights of the respective parties to said money as the substitute of said merchandise. Save that the Trustee shall proceed by plenary action, no stipulation is hereby made as to form of action or remedy. “3. The above mentioned warehouse receipt shall, without prejudice, be delivered to David W. 'Kahn, Esq., to be held by him, pending the final determination of the plenary suit to be brought as aforesaid, but, regardless of the outcome of the said suit, no action shall be brought on said warehouse receipt, the fund of $5,000 realized on the sale of the merchandise in the warehouse to stand, for all purposes, in place thereof. If the transfer of the warehouse receipt is set aside in the plenary suit it shall be surrendered to the warehouse. On the other hand, if the transfer of the said receipt by the bankrupt to Brenner is sustained, Brenner shall receive the fund aforementioned. “4. Brenner shall discontinue, without costs, the action commenced by him in the Supreme Court, New York County, against Baker & Williams, and no further suit will be instituted against the Warehouse in the future. “5. Brenner shall desist from any further or additional objection to, or attack upon, the above mentioned orders. The Trustee waives costs, if any, on the appeal taken and motion for leave to appeal. The .Trustee consents that the appeal bond posted by Brenner be cancelled. “6. The motion now pending before Judge Caffey for an injunction against Brenner shall be withdrawn. “7. The Trustee shall apply to the Referee for an order approving and putting into effect the provisions hereof.” The relief sought included a determination of the rights of the parties in respect to the proceeds of the sale and an injunction to restrain the defendant from instituting any suit or "proceeding either against the plaintiff or others “for the recovery or conversion of the merchandise embraced by the warehouse receipt aforementioned or the proceeds realized upon the sale of said merchandise ;***”. After the amended bill was filed the district judge remained of the opinion that the cause should be transferred to the law side and so ordered with leave to the plaintiff to amend his complaint “to plead such action at law as he may deem advisable”. The appeal is from this order. Though the bill contains a prayer for an injunction it is to be noted that there is no allegation whatever that the defendant has not complied^n all respects with the stipulation entered into before this suit was brought; nor that he has threatened not to comply with it; nor that the^plaintiff has any reason whatever for believing, or that he does believe, that the defendant will not •comply with the terms of the stipulation. In the absence of any such allegations the bill shows on its face that the prayer for an injunction was absolutely groundless. The plaintiff’s own attorney had possession, in accordance with the stipulation, df the warehouse receipt and the fund realized from the sale of the merchandise covered by it was held by the plaintiff and was to be 'treated in all respects as the merchandise itself “without prejudice to the rights and' status of the respective parties”. The defendant had discontinued his suit against the warehouse and agreed not to bring another; had agreed not to attack the orders which had been made and the plaintiff had agreed that the pending motion for an injunction against the defendant would be withdrawn. Since the bill itself completely negatives the right of the plaintiff to an injunction, no need for injunctive relief prevented the court from ordering the cause transferred to the law side in the exercise of its discretion. King Mechanism & E. Co. v. Western Wheeled Scraper Co., 7 Cir., 59 F.2d 546; Root v. Lake Shore & M. S. Ry. Co., 105 U.S. 189, 26 L.Ed. 975. The order was, therefore, without error provided the plaintiff had a 'plain, adequate and complete remedy at law.. 28 U.S.C.A. § 384. In so far as the action wás one to recover a preferential transfer, he had such a remedy at law. Schoenthal v. Irving Trust Co., 287 U.S. 92, 53 S.Ct. 50, 77 L.Ed. 185. It is doubtful whether the bill does adequately allege any cause‘of action for a fraudulent transfer. At any rate no distinction between the counts has been made and we therefore treat them, as have the parties, alike to the extent that the proper disposition of the preference counts will also control as to the others. The clear showing that the plaintiff had no-adequate remedy at law which is necessary to entitle him to equitable relief was not made and so error in ordering the transfer to the law side of the court has not been shown. Schoenthal v. Irving Trust Co. supra. Affirmed.

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.

What is the number of judges who dissented from the majority?

NEW JERSEY EDUCATION ASSOCIATION, Paterson Education Association, Camden Education Association, Education Association of Passaic, Newark Teachers Association, West New York Education Association, Union City Education Association, New Jersey Corporations, Jose Yi and Manny DePara, Appellants, v. Fred G. BURKE, Commissioner of Education, as Commissioner and Individually, Ruth H. Mancuso, President of the New Jersey State board of Education, as President and Individually and the New Jersey State Board of Education. No. 77-1828. United States Court of Appeals, Third Circuit. Argued Feb. 24, 1978. Decided May 3, 1978. William S. Greenberg, Greenberg & Melik, Trenton, N. J., for appellants. William F. Hyland, Atty. Gen. of N. J., Trenton, N. J., Erminie Conley, Deputy Atty. Gen., Trenton, N. J., of counsel, Mark D. Schorr, Deputy Atty. Gen., on the brief, for appellees. Before ADAMS and HIGGINBOTHAM, Circuit Judges, and BECHTLE, District Judge. Louis C. Bechtle, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. OPINION OF THE COURT ADAMS, Circuit Judge. Legal precepts tend to expand, inexorably and sometimes imperceptibly. This is so, at least in part, because a broadly-formulated legal principle is by its very nature applicable to a wide range of situations. In any particular ease, advocacy impels each party to claim the benefit of a potentially applicable doctrine, and in the absence of countervailing principles, consistency leads courts to decide in accordance with the suggested rule. But as a doctrine travels beyond the circumstances which generated it, the reasons which gave rise to that doctrine grow more attenuated, and the court is progressively more likely to encounter offsetting policies not present in the original application. The abstention doctrine of Younger v. Harris has undergone such an expansion in recent years, as its equitable barrier to federal intrusion upon pending state prosecutions has been broadened to encompass a variety of other proceedings. In the present case, where we are called upon to review the application of Younger to a civil proceeding in which the state is a defendant, we must determine whether, in this new setting the policies undergirding Younger are sufficiently applicable to warrant further extension of the rule. A. THE FACTS On September 15, 1976, the New Jersey State Board of Education amended regulations governing the qualifications of teachers in bilingual/bicultural education programs so as to require that all teachers— whether or not they held tenure — attain fluency in English, even if their teaching is conducted in Spanish. A month later, a statutory appeal from those regulations was filed in the New Jersey Superior Court on behalf of a class consisting of all bilingual/bicultural education teachers in New Jersey. Upon being assured that no teacher would be terminated as a result of a denial of interlocutory relief, the Superior Court, without prejudice, denied a motion “for Emergency Ad Interim Stay of Enforcement”. On November 17, 1976, the Superi- or Court again denied a motion for interim relief without prejudice. The class thereupon, on November 22, 1976, filed an action in the New Jersey District Court. The federal action challenged the regulations under 42 U.S.C. § 1983, on a number of constitutional grounds, and requested injunctive relief and declaratory judgment. After a hearing held on April 22, 1977, Judge George Barlow dismissed the complaint, on the ground that Younger v. Harris interdicted injunc-tive relief, despite the teachers’ offer to dismiss their state court action. An appeal from that dismissal was timely filed. In the interval between Judge Barlow’s order and the oral argument before us, there were several relevant developments in the state courts. Thus, on April 25,1977, the New Jersey Superior Court granted a stay against the operation of the challenged regulation. However, on July 12, 1977, the Superior Court sustained the regulations in a three-page per curiam opinion. That opinion, in addition to rejecting a number of purely state law challenges, held that the regulations were not “arbitrary or unreasonable” and went on to state: To the extent appellants are concerned with that which they describe as an “irrefutable presumption,” disfavored in law we observe that the result in Berger v. Board of Psychologist Examiners [172 U.S.App.D.C. 396], 521 F.2d 1056 (D.C.Cir.1975) would unquestionably have been different had Berger there had the opportunity for individual review provided here....We leave the application of the regulations to any individual to the particular record he established in such a case. The teachers’ request for certification was denied by the New Jersey Supreme Court, and no attempt was made to seek review in the United States Supreme Court. New Jersey now contends that the appeal from the district court should be dismissed on the grounds of res judicata in light of the New Jersey court’s actions. Two issues are therefore presented in this proceeding: (1) the propriety of Judge Barlow’s dismissal of the federal action on Younger grounds, and (2) the res judicata effect on the federal action of the subsequent state court determination. B. YOUNGER ABSTENTION 1. The Realm of Younger Judge Barlow decided this case after the Supreme Court handed down Juidice v. Vail. Based on the holding in Juidice that Younger forbade an injunction against state contempt proceedings, even though such proceedings arose out of a dispute between private parties, Judge Barlow concluded that “because the plaintiffs have at least some prospect of vindicating their constitutional rights in the state court, this Court will not intervene in the controversy.” Such a declaration would represent a significant extension of the Younger doctrine. The heart of Younger lay in the area of a pending criminal prosecution. The “traditional reluctance” of courts of equity to enjoin on-going criminal proceedings was combined with the somewhat distinct interest of comity, that federal courts not interfere unnecessarily with a state’s attempts to enforce its criminal law in its own courts. The result was a bar to federal interference in on-going state prosecutions, absent extraordinary circumstances. In contrast, the requested relief in the present controversy would affect a wholly civil proceeding brought by a private litigant. This distinction in our view takes the case before us outside the ambit of Younger. Juidice is the only case in which the Supreme Court has accorded Younger deference to a private action in a state court. It is, moreover, one of only three cases in which Younger has been applied by the Supreme Court outside the domain of criminal proceedings. And the facts of Juidice may well make it sui generis. Federal tribunals, the Court in Juidice decided, could not enjoin a state court’s enforcement of a contempt citation. The contempt power used by the state courts to assure respect for their workings lies, as the Court in Juidice specifically noted, “at the core of the administration of a State’s judicial system.” Direct interference with a state contempt citation, even though civil in nature, is close to the type of intervention into state criminal processes condemned in Younger; it invades the right of the state to vindicate its authority in its own courts. To bar such an incursion carries few implications for the broad range of civil proceedings, a fact which the five-man majority in Juidice explicitly recognized. Similarly, in Trainor v. Hernandez, which held Younger applicable to an action taken by a state “in its sovereign capacity” to recoup fraudulently obtained welfare benefits, Justice White, for a five-man majority, pretermitted the question whether “ Younger principles apply to all civil litigation.” Justice Blackmun, the fifth subscriber to the majority’s position in Trainor, wrote a separate concurrence. In it, he reaffirmed the language of Justice Black’s original formulation in Younger, asserting that “the concept does not mean blind deference to states’ rights” but only the avoidanee of “unduly interfere with the legitimate activities of the state.” Pursuing what he described as the “requirement of balancing federal and state interests,” Justice Blackmun noted that except for Huffman and Juidice, Younger had previously been limited to criminal proceedings. The factual situations in Huffman and Juidice, he declared, were of special interest to the state. Regarding the proceeding before him, Blackmun wrote: I, too, find significant the fact that the state was a party in its sovereign capacity to both the state suit and the federal suit. Ante at 444 [97 S.Ct. at 1918]. Here, I emphasize the importance of the fact that the state interest in the pending proceeding was substantial. In my view, the fact that the state had the option of proceeding either civilly or criminally to impose sanctions... demonstrates that the underlying state interest is of the same order of importance as the interest in Younger and Huffman. The propriety of abstention should not depend on the state’s choice to vindicate its interest by a less drastic, or perhaps more lenient route. Undertaking the type of balancing employed by Justice Blackmun, who cast the deciding vote for reversal in both Juidice and Trainor, it seems to us that the policies weighing in favor of Younger abstention have been significantly diluted in this case. Unlike Trainor and Huffman, the statute at issue here is unrelated to the enforcement of the state’s criminal laws; indeed, citizens rather than the government initiated action in the New Jersey state court. Neither the traditional equitable aversion toward in-termeddling in criminal processes, nor the state’s interest in enforcing its laws in its own forum is present. In further contrast to Juidice, the adjudication of the constitutionality of administrative regulations is not a “core” function of the state judiciary. Federal equitable action addressed to administrative regulations would not ordinarily endanger the smooth functioning of the state judicial system. Moreover, the relief sought includes a declaration of rights and an injunction against state administrative agencies, rather than an injunction against state court action, a procedure which the plaintiff offered to withdraw. Thus, the result reached by Judge Barlow is not compelled by the holdings of the previous cases in the Younger line. And, as explicated below, other principles counsel against such an extension. 2. Countervailing Considerations; The Values of Federal Jurisdiction Judge Barlow’s opinion suggests that Younger bars federal intervention whenever a remedy might be available in a state criminal or civil action. But such an exhaustion doctrine has been explicitly rejected by the Supreme Court in the context of § 1983 proceedings. In Monroe v. Pape, the Court held that: It is no answer [to a suit under § 1983] that the state has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy and the latter need not be first sought and refused before the federal one is invoked. The rule of Monroe, we believe, has not been debilitated by the development of Younger. But even if Judge Barlow’s interpretation of Younger were limited to erecting a rampart against federal adjudication whenever a state case is pending, it would be at odds with a basic premise of our federal judicial system. It is fundamental that where Congress has granted concurrent jurisdiction, a plaintiff is free to bring suit in both the state and federal forums for the same cause of action. As Justice Rehnquist noted this term: The traditional notion is that in personam actions in federal and state court may proceed concurrently, without interference from either court.... We have never viewed parallel in personam actions as interfering with the jurisdiction of either court; as we stated in Kline v. Burke Construction Co., 260 U.S. 226, [43 S.Ct. 79, 67 L.Ed. 226] (1922): [A]n action brought to enforce [a personal liability] does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata....” According to Justice Black’s seminal opinion, the Younger doctrine finds its roots in the “slogan, ‘Our Federalism,’ born in the early struggling days of our Union of States.” Since the traditional right of the plaintiff to proceed simultaneously in state and federal forums has an equally long lineage it would seem to follow that the plaintiffs’ right is not alien to the counsels of Younger, and therefore that abstention was improper in this case. Finally, we note that the more broadly the Younger doctrine is pressed, the more it encroaches upon explicit congressional grants of equitable jurisdiction. The extreme of the extension would be an assertion that Younger precludes federal injunctions whenever any state proceeding is pending. Such an approach would seem clearly inappropriate. Since 1793 Congress has specifically prohibited by statute — now codified as 28 U.S.C. § 2283 — the issuance of federal injunctions to stay state court actions except in limited circumstances. If the principles of federalism and comity bar issuance of such injunctions in all civil cases, § 2283 would be superfluous. Moreover, such an expansion of Younger would be repugnant to those federal statutes which “expressly authorize” injunctions to stay proceedings in a state court. A more moderate extension would still generate tension with Congressional policies. And while such discord may not alone preclude expansion of Younger’s injunctive bar, frustration of Congressional policy weights heavily against it. Here, the appellants claimed a violation of their constitutional rights under 42 U.S.C. § 1983, and invoked federal jurisdiction under 28 U.S.C. § 1343(3). In Mitchum v. Foster, without dissent, the Supreme Court held that § 1983 is an expressly authorized exception to the general statutory bar to injunctions against state court proceedings. And in Vendo Co. v. Lektro Vend, all of the members of the Court accepted Mitchum as an authoritative exposition of the law regarding § 1983. The plurality, per Justice Rehnquist, restated the holding in Mitchum: We recounted in detail that statute’s history which made it abundantly clear that by its enactment Congress [had] demonstrated its direct and explicit concern to make the federal courts available to protect civil rights against unconstitutional actions of state courts. We summarized our conclusion in these words: This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state in-strumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts. Mitchum, 407 U.S. at 242, 92 S.Ct. 2151, at 2162. In light of the policy embodied in § 1983 and reiterated in Vendo, we are most reluctant to stretch the equitable doctrine of Younger beyond its prior boundaries to encompass a situation in which the only pending proceeding is a civil action filed by a federal plaintiff in a state court. As the Supreme Court stated in England v. Board of Medical Examiners, “There are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claim can be compelled without his consent and through no fault of his own, to accept instead a state court’s determination of those claims.” 3. The Balance Younger and its offspring “express equitable principles of comity and federalism.” The application of these principles, in turn, requires “sensitivity to the legitimate interests of both state and national governments” as well as consideration for the rights of litigants. In this case, we review a decision advancing the Younger doctrine well beyond the perimeter which it previously occupied. Such a salient, moreover, thrusts into an area in which both the traditions of our dual court system, and congressional efforts to protect constitutional rights favor the allowance of federal relief. Accordingly, we believe Younger is not controlling. Our conclusion is strengthened by the sole Supreme Court case which we have found to be directly on point. In Sweet Briar Institute v. Button, a college brought suit in federal court to enjoin state officials from enforcing a racially restrictive covenant contained in a bequest to the college. In view of the fact that the college’s constitutional challenges had been rejected in a pending action in state court, the federal tribunal stated that policies of comity and res judicata precluded its entertaining the suit. Although the district court asserted that dismissal was warranted, it deferred such action to await the final resolution of the state proceeding. On appeal, the Supreme Court reversed in a brief per curiam opinion, citing England and Kline, and remanded for consideration on the merits. Though decided before Younger, Sweet Briar is a substantive adjudication and it is procedurally identical with the case before us. It is thus persuasive support for the conclusion that the dismissal by the district court here was improper. C. THE IMPACT OF THE STATE COURT JUDGMENT The determination that Younger did not bar adjudication by the district court, however, carries us only part of the distance toward resolving the issues of this case. If Judge Barlow improperly dismissed on Younger grounds — -as we hold he did — -we must deal with the question of the proper effect to be given to the state court ruling. 1. The Rule Younger, itself, erects a barrier against federal action in the face of a pending state prosecution. But Younger’s definition of “pending” prosecution has also manifested a proclivity to cast its shadow broadly. Language in Huffman v. Pursue, Ltd., where federal action was foreclosed by a state tribunal’s ruling which the federal plaintiff declined to appeal, may be read to imply that the principles underlying Younger require a federal court to give broad preclusive effect to unappealed state court judgments. Such an intimation, however, is substantially weakened by later cases. In Ellis v. Dyson, the plaintiff had been convicted in a municipal court proceeding of the crime of loitering. Rather than appeal his conviction and commence a trial de novo, the plaintiff brought a declaratory judgment action in federal court challenging the statute under which he had been prosecuted. On appeal the Supreme Court declined to dismiss on Younger grounds. More recently, in Wooley v. Maynard, a plaintiff challenged a New Hampshire ordinance forbidding the defacing of the motto “live free or die” on license plates. Although he had three times pleaded not guilty on the ground that displaying the motto violated his religious convictions, the plaintiff had thrice been found guilty of misdemeanors for covering the motto, and had declined to appeal his convictions. Rather, he brought an action for an injunction in federal court. The Supreme Court upheld the issuance of an injunction against further enforcement of the statute, commenting that the Huffman result arose out of the fact that the suit there attempted to enjoin the enforcement of a state court decree that ordered the plaintiff’s theater closed as a public nuisance. Thus, not only was Younger held to be inapposite, but an unappealed judgment resulting from a previous suit raising identical issues was apparently not given binding effect. Although Huffman is not controlling, the question here should still be resolved on the basis of principles which take into account the nature of our federal court system and the constitutional imperatives which it protects. Rather than Huffman, the applicable precedent is England v. Louisiana State Board of Medical Examiners. In England, the plaintiffs had been remitted under Pullman abstention to a Louisiana state court. After the plaintiffs’ return to federal court following state litigation, the United States Supreme Court refused to grant preclusive effect on a federal constitutional issue to the judgment of the Louisiana Supreme Court. The United States Supreme Court stressed the importance of the “right to litigate his federal claims fully in the federal courts,” and the potentially decisive importance of federal fact-finding, deprive a litigant of a federal forum against his will, the Court declared, would “be at war with the unqualified terms in which Congress, pursuant to constitutional authorization, has conferred specific categories of jurisdiction....” Instead, it held, “the litigant is in no event to be denied his right to return to the District Court unless it clearly appears that he voluntarily... [and] fully litigated his federal claims in state courts.” To England implies that the state court determination in this case should not govern the issues here unless the plaintiffs could be said to have waived their rights to litigate in federal court by fully and unreservedly litigating their claims in state court. The preclusive effect of prior state court judgments on § 1983 suits has, however, evoked a spectrum of overlapping and inconsistent precedent and commentary. One relatively clear line of cases, looking to the principles of res judicata which govern the effect of prior judgments generally holds that where “a federal constitutional claim is based on the same asserted wrong [which] was the subject of a [prior] state action, and where the parties are the same, res judicata will bar the federal constitutional claim, whether it was asserted in state court or not.” Such an interpretation is not compelled by the terms of the England decision. Indeed, England’s broad discussion of the right to a federal forum and the necessity of “unreserved litigation” to waive that right would seem to point to an equally broad right to reserve federal constitutional claims. And while a policy of discouraging vexatious litigation and conserving judicial resources can apply to the interaction between state and federal decisions as well as to the binding effect of a judgment rendered by the same judicial system, a restrictive concept to the right to a federal forum has significant disadvantages. To hold that state court litigation bars a federal forum from deciding any claims which might have been raised before the state court would turn the state court into quicksand. It would not only serve as a trap for unwary plaintiffs who desire a federal tribunal, but encourage competently represented litigants to forego any venture into state jurisdiction to exhaust state administrative and judicial procedures on pain of losing their right to a federal hearing. Such results are hardly salutary. In our view, at least where a federal suit is commenced before a final decision by the state court, the proper rule is that enun-dated by the Second and Seventh Circuits: a state court judgment forecloses a § 1983 litigant from raising grievances in federal court only if such claims have been pressed before, and decided by, a state tribunal. Such a rule avoids the tendency of the “could-have-litigated” test to discourage the use of state forums to determine matters of state law, while at the same time giving due regard to matters actually decided by the state tribunals. Further, it responds to the particular concern for assuring the right to a federal forum in which to assert constitutional claims. And finally, it captures the substance of the Supreme Court’s holding that: If a party freely and without reservation submits his federal claims for decision by the state courts, litigates them there and has them decided there... he has elected to forego his right to return to the District Court. 2. The Application The question with regard to the New Jersey judgment thus is whether the plaintiffs in this case “freely and without reservation” litigated their grievances in state court. We conclude that such litigation could be said to have occurred only with respect to a portion of their claims. As noted above, the filing of a federal declaratory and injunctive action here occurred before any determination by the state court other than denial of preliminary relief without prejudice. In addition, the plaintiffs offered to dismiss the state court action. But this offer was rejected, and the plaintiffs were remitted to their state court suit on twin Younger/Pullman grounds. The situation is therefore analogous to the England paradigm, in that the federal action, when filed, impinged upon no final state judgments. Accordingly, insofar as plaintiffs did not “fully litigate” the issues in state court, they should be permitted to return to the federal forum. There is no evidence that the contentions regarding ex post facto violations, unconstitutional impairment of the obligation of contracts and uncompensated taking of private property were pressed in the state proceedings. Indeed, this is admitted by the defendants in their brief in support of their motion to dismiss. With respect to these claims, the rule we adopt mandates federal consideration on the merits. Plaintiffs’ due process and equal protection challenges present a more difficult problem. In their brief before the New Jersey Superior Court, the plaintiffs pressed these contentions in terms quite similar to those asserted before us. The New Jersey Court apparently resolved these issues against the plaintiffs on the merits. The conditions for an England waiver consequently may well be met on these points, and a federal court may be barred from allowing relitigation of the equal protection and due process challenges. However, res judicata is an affirmative defense, dependent here on the factual issue of what submissions were actually made to the state court. Since we do not have before us a full record, it is appropriate to remand the case to the district court to allow such factual issue to be litigated there in the first instance. D. CONCLUSION The district court erred in abstaining on Younger grounds. However, the explicit holdings of the New Jersey courts on plaintiffs’ due process and equal protection challenges may be res judicata, and the dismissal of these claims will be reversed and remanded for the purpose of ascertaining whether such contentions were fully and freely litigated in the state courts. Plaintiffs’ remaining claims will be remanded to the district court for proceedings on the merits. . The complaint alleged violations of the equal protection and due process clauses as well as ex post facto violations, impairment of the obligations of contact, and uncompensated taking of private property. . 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). . Judge Barlow also concluded that it was appropriate for him to abstain from deciding this case under the doctrine of Railroad Commn. of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Since questions were raised as to the proper effect to be given to the challenged regulation (e. g. availability of waivers) and the propriety of the regulation on state law grounds, it would seem that Pullman abstention was not inappropriate as a means of avoiding unnecessary decision of constitutional issues. However, Pullman does not authorize dismissal. See American Trial Lawyers v. New Jersey Supreme Court, 409 U.S. 467, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973) (trial court’s dismissal on Pullman grounds reversed; Supreme Court held that “proper course” is to retain jurisdiction). In any event, since a final adjudication of the propriety of the regulations on state law grounds has occurred, the strictures of Pullman have been fulfilled. . 76a. The brief submitted in the New Jersey state court case was substantially equivalent on constitutional issues to the one submitted to our Court, raising equal protection, and due process challenges. It did not deal with the allegations in the federal complaint of ex post facto violations, unconstitutional impairment of the obligation of contracts, or uncompensated taking of private property. . Although New Jersey’s motion to dismiss is phrased in terms of a claim of “mootness,” discussion of the contention revolves around the assertion that the New Jersey judgments preclude federal litigation. . 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1972). . 38a. . Huffman v. Pursue Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). . “Comity” has been defined as the interest in assuring “proper respect for state functions.” Younger v. Harris. 401 U.S. 37. 44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The definition is less than clear cut, but the scope of this interest has not been accurately delineated by subsequent cases. . See, e. g. Bonnet v. Trustees of Schools of Twp. 41, 563 F.2d 831, 834 (7th Cir. 1977) (in diversity action regarding title, Younger does not mandate abstention in favor of parallel state proceedings): Marshall v. Chase Manhattan Bank, 558 F.2d 680, 683-84 (2d Cir. 1977) (Younger does not require abstention in favor of previously commenced state “winding up” proceeding for a corporation). . See Huffman v. Pursue Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); cf. Mitchum v. Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (reserving question). The recent extensions of Younger have evoked a significant amount of unfavorable scholarly commentary suggesting that such extensions are unsupported by precedent and policy. E. g. L. Tribe, American Constitutional Law, 152-56 (1978); Fiss, Dombrowski, 86 Yale L.J. 1103 (1977); Soifer & Macgill, The Younger Doctrine: Reconstructing Reconstruction, 55 Texas L.Rev. 1141 (1977); Weinberg, The New Judicial Federalism, 29 Stanford L.Rev. 2291 (1977); Note, Post-Younger Excesses in the Doctrine of Equitable Restraint, A Critical Analysis, 1976 Duke L.Rev. 523; see e. g. Zeigler, An Accommodation of the Younger Doctrine and the Duty of Federal Courts to Enforce Constitutional Safeguards in State Criminal Processes, 125 U.Pa.L. Rev. 266 (1977); Developments in the Law, Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1327-1330 (1977). See generally id. at 1274-1327. . 430 U.S. 327, 335, 97 S.Ct. 1211, 1217, 51 L.Ed.2d 376; cf. Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). . Cf. Gipson v. New Jersey Supreme Court, 558 F.2d 701, 703-04 (3d Cir. 1977) (“In view of the special relationship between state courts and members of their bars, we hold that the doctrine of federal non-interference is appropriate in suits concerning pending state attorney disciplinary proceedings.”). But cf. Morial v. Judiciary Committee, 565 F.2d 295, 298-99 (5th Cir. 1977) (en banc) (Younger does not bar review of requirement that state judges leave the bench before running for office). . 430 U.S., at 336 n. 13, 97 S.Ct., at 1218 (“we save for another day ‘the applicability of Younger to all civil litigation’ ”). But cf. id., at 345 n. *, 97 S.Ct. 1211 (Brennan, J. dissenting) (suggesting that reservation of the applicability of Younger to all civil litigation is “tongue in cheek”). . 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). . Id. at 444 — 445 n. 8, 97 S.Ct. at 1919. . Id. at 448, 97 S.Ct. at 1920. . Id. at 448, 97 S.Ct. at 1920. . Id. at 448^49, 97 S.Ct. 1911. . 431 U.S. at 449-50, 97 S.Ct. at 1921. . The appellee’s brief suggests that the importance of the state’s role in providing education, cited in Brown v. Bd. of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954), furnishes justification for invoking the Younger bar. Such an argument uses the words of Brown to mock its substance. Brown’s holding sanctioned extensive judicial intervention in educational affairs to vindicate federal rights. We do not understand Younger and its progeny to have cast any aspersions on the viability of Brown. . Cf. Juidice v. Vail, 430 U.S. 327, 335, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). . 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). . See Zablocki v. Redhail, 434 U.S. 374, 379-380 n. 5, 98 S.Ct. 673, 677, 54 L.Ed.2d 618, 626 (1978) (father need not petition court for exemption to marriage requirement or raise constitutional objection in state court before challenging it in federal court). Moore v. City of East Cleveland, 431 U.S. 494, 497 n. 5, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (exhaustion of zoning variance proceeding not necessary in challenge to constitutionality of ordinance); Ellis v. Dyson, 421 U.S. 426, 432, 95 S.Ct. 1691, 1695, 44 L.Ed.2d 274 (1975) (“Exhaustion of state judicial or administrative remedies in Steffel [v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)] was ruled not to be necessary, for we have long held that an action under § 1983 is free of that requirement”); Leonard v. City of Columbus, 551 F.2d 974, 978 aff'd en banc 565 F.2d 957 (5th Cir. 1977) (exhaustion of administrative and judicial remedies not necessary to challenge police firing); Morial v. Judiciary Commission, 565 F.2d 295 (5th Cir. 1977) (en banc) (Younger inapplicable where no enforcement proceeding is in progress). But cf. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 140, 51 L.Ed.2d 711 (1977) (availability of state criminal and tort sanctions held to satisfy “due process” required for corporal punishment in schools). We have recently surveyed the plethora of decisions rejecting an exhaustion requirement for § 1983. U. S. ex rel. Ricketts v. Lightcap, 567 F.2d 1226, 1229-31 (3d Cir. 1977); see Hochman v. Bd. of Educ., 534 F.2d 1094, 1096-97 (3d Cir. 1976). The implication in Huffman v. Pursue Ltd. that Younger mandated exhaustion of state

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.

This question concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?

LOCAL 369, UTILITY WORKERS UNION OF AMERICA, AFL-CIO and Utility Workers Union of America AFL-CIO, Plaintiffs, Appellees, v. BOSTON EDISON COMPANY, Defendant, Appellant. No. 84-1522. United States Court of Appeals, First Circuit. Argued Nov. 5, 1984. Decided Dec. 26, 1984. Glenn E. Dawson, Boston, Mass., with whom Keith H. McCown and Morgan, Brown & Joy, Boston, Mass., were on brief for defendant, appellant. Joanne F. Goldstein, Framingham, Mass., for plaintiffs, appellees. Before CAMPBELL, Chief Judge, COFFIN, Circuit Judge, and WYZANSKI, Senior District Judge. Of the District of Massachusetts, sitting by designation. COFFIN, Circuit Judge. The defendant-appellant Boston Edison Company (Company) appeals from an order of the district court, 588 F.Supp. 800 (1984), remanding to arbitration a dispute arising from the collective bargaining agreement between the Company and plaintiffs-appellees, Local 369, Utility Workers Union of America, AFL-CIO and Utility Workers Union of America, AFL-CIO (Union). Following the district court, we conclude that even under the most deferential review of the arbitral decision, the award failed to “draw[ ] its essence from the collective bargaining agreement.” United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960) (Enterprise Wheel). Accordingly, we affirm the judgment below. The collective bargaining agreement between the parties incorporates the Industrial Accident Disability Benefits Plan (Plan), which provides supplemental payments to employees who are receiving Workers’ Compensation due to work-related disability. According to the terms of the Plan, “[t]he administration of the Plan” is under the direction of the Company’s medical director and the vice president of employee relations (Administrators) “whose decisions with respect to all questions arising thereunder, including questions respecting the duration of total and partial incapacity for work, shall be final.” Paragraph eight (¶ 8) of the Plan. Under paragraph four (¶! 4) of the Plan, an employee’s entitlement to benefits ends when, among other reasons, an employee “is retired or when his employment is otherwise terminated.” The present dispute arose as a result of the Administrators’ decision to discontinue Plan benefits for Mr. Clegg, an employee on total disability who was placed on layoff status due to a reduction in the workforce. The Administrators concluded that an employee on layoff status has been “terminated” for purposes of the Plan and is thus ineligible to receive benefits under II4 of the Plan. The Union filed a grievance and sought arbitration concerning the discontinuance of Mr. Clegg’s supplemental disability benefits for the period of the layoff. Boston Edison contended that the grievance was not arbitrable because the authority of the Plan Administrators is “final” under ¶ 8 of the Plan. The parties agreed to submit to the arbitrator only the question of jurisdiction, whether the issue raised presents an arbitrable difference between them under the collective bargaining agreement (Agreement). Both sides claim to have reserved their right to seek judicial review of the arbitrator’s award. Acknowledging that the scope of the contract’s arbitration clause was “admittedly broad” and that (unlike certain other matters) the Plan was nowhere expressly excluded in the contract from the grievance and arbitration process, the Board of Arbitration chaired by Arbitrator John Conlon (Conlon Award) held that the underlying grievance was not arbitrable because the Plan conferred on the Administrators “final” (non-reviewable) authority to decide “all questions” arising under the Plan. The Union sought judicial review of the Conlon Award under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) and argued below, as it has done here, that it is entitled to an independent determination of arbitrability claiming that the question of arbitrability of a particular grievance is one appropriately addressed, in the first instance, to the court. See Mobil Oil Corp. v. Local 8-766, Oil, Chemical & Atomic Workers, 600 F.2d 322, 324-25 (1st Cir.1979). The district court correctly rejected this claim noting that: “[cjontrary to the union’s assertions, the only precedents for independent judicial determination of arbitrability involved cases in which the parties had not expressly committed arbitrability to the arbitrator for determination. For this reason ... Mobil Oil ... [does not address] the issue that is presented here. In Mobil Oil, the parties submitted to arbitration a grievance concerning the employer’s subcontracting practices. The parties disagreed whether the dispute was arbitrable, but did not submit the arbitrability issue to the arbitrator. The First Circuit held that, in these circumstances, the district court, in reviewing the arbitrator’s award, must make its own independent determination of the threshold issue of arbitrability. Id. at 325. The court did not address the role of the district court in reviewing an arbitrator’s determination of arbitrability where the parties had agreed, by contract or post-dispute stipulation, to submit the issue of arbitrability to arbitration.” The Union here specifically agreed to submit the issue of arbitrability to arbitration. Accordingly, the district court concluded that the “deferential standard of judicial review that applies to an arbitrator’s award in a dispute arising out of a collective bargaining agreement” is likewise applicable here, notwithstanding the parties’ decision to submit a legal question, ordinarily within the court’s jurisdiction, to the arbitrator for decision. George Day Construction v. United Brotherhood of Carpenters, 722 F.2d 1471, 1477 (9th Cir.1984); see also United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 583 n. 7, 80 S.Ct. 1347, 1353 n. 7, 4 L.Ed.2d 1409 (1960) (Warrior & Gulf). Decisions on questions expressly committed to the arbitrator for determination are reviewable only to the extent necessary to determine if the arbitral award “draws its essence from the collective bargaining agreement.” Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361. Applying this limited standard, the district court found that it could not enforce the Conlon Award on the arbitrability question because the award manifests an “infidelity to the agreement between the parties.” The argument was made by the Company that despite the protestations of the trial court, it did not review the arbitrator’s determination with the appropriate deference. Had the court applied only a limited review, the Company argues, it could not have overturned the arbitrator’s finding of nonarbitrability. This claim is superficially supported by the length of the court’s discussion and the detailed bases for its conclusions. Upon closer scrutiny, however, we believe that the district court, in its limited review, noted basic legal flaws in the Conlon Award which made deference to the arbitrator’s award impossible under any standard. The district court offered a number of reasons why the arbitrator was wrong. A principal reason, which we find persuasive, is the court’s conclusion that 118 of the Plan cannot logically be read as the arbitrator would have it to vest the Administrators with the authority not only to administer the plan and make fact-specific decisions, but to determine with utter finality all legal standards or rules applicable to the whole class of Plan beneficiaries. The present dispute is not, after all, a dispute of fact bearing upon an employee’s claim of benefits under the Plan, but rather one implicating a policy issue as to “whether undisputed facts about the circumstances of being laid off constitute being ‘terminated’ as that term is used in II4 of the Plan.” A decision on the meaning of “terminated” resolves not only the standard to be applied to Mr. Clegg’s particular claim, but the standard to be applied to all employees who are, or may become, laid off under the Plan. The parties clearly bargained for the Administrators to make fact-specific decisions about the disability of a particular employee. The use of the term “administration” in 11 8 of the Plan is entirely consistent with that intent by empowering the company representatives to determine facts and to apply the provisions of the plan to them. But these decisions, the district court pointed out, do not involve determinations of standards or rules. To the contrary, the court continued: “[i]t would be extraordinary, indeed, that a collective bargaining agreement would leave issues of on-going standards of dispute resolution to be resolved by representatives of one party, whether employer or union. In the instant case, the Plan administrators conferred with the company’s bargaining representative in reaching their decision concerning Clegg’s status. Although the occurrence of such consultation does not alone establish bad faith, the very fact that the Plan administrators recognized the interest of the bargaining representative in their decision reinforces the conclusion that this was not the kind of issue the parties contemplated committing to company-only representatives.” On this basis the district court concluded that “118 will not bear the construction that the interpretation of ‘terminated’ in II4 was committed to the Plan administrators for final [non-arbitrable] determination.” The correctness of this holding may be tested by assuming, contrary to the district court, that the arbitrator’s decision did draw its essence from the collective bargaining agreement. If such were the case, we would uphold the award even though we might not have agreed that the Plan Administrators’ ruling as to “termination” was “final.” Bettencourt v. Boston Edison Co., 560 F.2d 1045, 1049 (1st Cir.1977). If we were obliged to defer to the arbitrator in this case, we would be required to adopt an untenable posture on review of the arbitrator’s award. As the district court noted: “The Board of Arbitration interpreted II8 of the Plan as, first, vesting in the Plan administrators the power to interpret the meaning of ‘terminated’ as used in II4 and second, making the Plan administrators’ interpretation ‘final’ in a sense that precluded arbitration of the dispute over the meaning of ‘terminated.’ Implicit is the further consequence that if this court does not vacate the arbitrator’s decision of nonarbitrability then this court must either accept jurisdiction to hear de novo the dispute over [the] meaning of ‘terminated’, or else recognize the Plan administrators’ decision as ‘final’ — either in a sense permitting some form of deferential review or else in a sense precluding any review, even by the most deferential standard.” In other words, upholding the award leaves no room for any sensible theory of judicial review. On the one hand, if we infer from the Conlon Award that the Administrators’ decision is non-reviewable we would be placing authority in the Administrators to unilaterally reshape the Plan in most significant ways to suit the Company’s immediate policy interests. If, on the other hand, the Conlon Award mandates a de novo review of the Administrators’ decision, see Hurd v. Illinois Bell Telephone Co., 136 F.Supp. 125 (N.D.Ill.1955), aff'd, 234 F.2d 942 (7th Cir.1956), cert. denied sub nom, Seybold v. Western Electric Co., 352 U.S. 918, 77 S.Ct. 216, 1 L.Ed.2d 124 (1956), the court would be required to assess the intent and policies of the parties to a collective bargaining agreement, where that agreement specifically envisions dispute resolution through arbitration. See Art. XXXIII of the Agreement. This result would be completely anomalous; just because deference had been accorded the arbitrator’s award, no deference at all would, under de novo review be accorded a decision-maker more subordinate than the arbitrator. Enforcement of the Conlon Award, therefore, leads us to equally unsatisfactory alternatives for judicial review and, moreover, fails to clearly guide our choice. We simply cannot believe that the parties intended such a chaotic result. Perhaps we are in this awkward posture because of the incomplete nature of the question presented to the arbitrator in the first instance. The district court found, that the “agreement to arbitrate the arbitrability issue was illusory”, and noted that the Board of Arbitration was incapable of resolving all of the questions raised by the Union’s grievance if they answered only the question submitted: “The parties did not agree, nor did they authorize the Board of Arbitration to decide, who would resolve the question of contract interpretation underlying the union’s grievance if the Board determined that the grievance was not arbitrable____ [The parties] purported to submit for arbitration only one aspect of an indivisible set of questions involving not only the arbitrator’s jurisdiction but also the court’s jurisdiction to review or decide de novo the questions regarding the meaning of ‘terminated.’ What appeared superficially to be a classic 'meeting of the minds’ was in legal effect no agreement at all.” We recognize that judicial review of arbitral awards is extremely limited. Enterprise Wheel, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424. This policy is based on the recognition that the Board of Arbitration and not the courts have the expertise and familiarity required to most fairly and economically resolve labor disputes. See Devine v. White, 697 F.2d 421, 435 (D.C.Cir.1983). Our decision today is not intended to undermine the authority of and respect owed to the arbitrators. To the contrary, we struggled long and hard to arrive at a decision upholding the arbitration award, but because of the peculiar posture of this case we are unable to do so. For all of these reasons, we feel compelled to uphold the judgment of the district court. ■We add that in rejecting the notion of non-arbitrability we do not purport to limit the arbitrator’s determination as to whether and how much deference is to be owed to the Plan Administrator’s interpretation of the word “terminated” and other words. We hold only that in light of the comprehensive arbitration clause in the contract and the breadth of the question in this case, the arbitrator's determination that they were without arbitral jurisdiction did not draw its essence from the collective bargaining agreement. Affirmed. . Mr. Clegg was placed on layoff status from October 14, 1978 through April 28, 1979, at which time he was recalled by the Company to full employment status. Mr. Clegg’s Workers’ Compensation benefits continued for the entire period of his layoff. . The collective bargaining agreement between the parties contains a broad grievance provision, stating as follows: “Any dispute arising between the parties during the term of this Agreement concerning the true interpretation and meaning of this Agreement or respecting rates of pay, wages, hours or employment, or other conditions of employment which have not been settled by this agreement shall be treated as a grievance . Another reason which, in our view, supports the court's determination is the lack of anything in the contract excluding the Administrator’s determination from the arbitration clause, which, as noted, refers to “any dispute ... concerning the true interpretation and meaning of this Agreement.” While the arbitrator may determine that some measure of deference, perhaps considerable deference, is required to be given to the Administrator’s resolution, there is nothing to indicate that a dispute of this nature is to be exempt from the arbitral process.

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 "labor relations".

What is the specific issue in the case within the general category of "labor relations"?

SBICCA-DEL MAC, Inc., et al. v. MILIUS SHOE CO. No. 12774. Circuit Court of Appeals, Eighth Circuit. Nov. 18, 1944. George T. Bean and Theodore S. Kenyon, both of New York City (Delos G. Haynes, of St. Louis, Mo., and Frederick Bachman, of New York City, on the brief), for appellants. John H. Cassidy, of St. Louis, Mo. (Joseph J. Gravely and J. Sydney Salkey, both of St. Louis, Mo., on the brief), for appellee. Before GARDNER, THOMAS, and RIDDICK, Circuit Judges. THOMAS, Circuit Judge. This is an appeal by the plaintiffs from a decree for the defendant in a suit involving the alleged use by the defendant of the inventions set forth in two patents owned by the plaintiffs: Sbicca reissue patent No. 20,274 and Maccarone patent No. 1,988,281. The controversy involves claims 1, 2, 3, 4, 9, 10, and 13 of the Sbicca patent and claims 3 and 5 of the Maccarone patent. Claims 9 and 10 of Sbicca are for a complementary insole-outsole combination shoe, and claims 1, 2, 3, 4, and 13 are for a method of making the shoe. Claims 3 and 5 of the Maccarone patent are both for a method of making the Sbicca shoe. The patents relate particularly to the art of making women’s shoes. The complaint is in three counts. The first count or cause of action is for infringement and asks for an injunction and an accounting for profits and for damages. The defenses are (1) invalidity, (2) non-infringement, and (3) unclean hands. The second cause of action is for judgment for royalties and interest under a license agreement dated May 1, 1933. The defenses are (1) nonuse, (2) ouster, and (3) waiver. The third cause of action is for judgment for royalties based upon a license agreement dated September 1, 1937. The defenses are (1) nonuse, (2) a special agreement, and (3) unclean hands. The District Court held all the claims in issue in both the Sbicca reissue patent No. 20,274 and the Maccarone patent No. 1,988,-281 invalid “because of lack of invention in view of the prior art.” In finding the patents invalid the court cited Harmer (Australian) 4066/17; Maccarone 1,569,823; Kelly 1,593,264; and Ruggiero 1,728,366. Any minor differences that may exist, the court found, “are only in matter of form or degree and lie well within the skill of an expert shoemaker.” In addition to these examples of the prior art the defendant in its brief cites Lentz No. 307,780 (Nov. 11, 1884) ; Nevins No. 459,166 (Sept. 8, 1891) ; Scott No. 462,594 (Nov. 3, 1891) ; and Scott No. 467,441 (Jan. 19, 1892) ; and, as particularly applicable to Maccarone, French No. 344,659; Beach 488,303 (1892); Engel 1,068,489 (1913) and 1,313,887 (1919); and Caggiano 1,904,405 (1933). Plaintiffs contend that the court’s findings are clearly erroneous in that they are not supported by substantial evidence, are contrary to the weight of the evidence, and are the result of an erroneous view of the law. The manufacturing of shoes has been a progressive art. Advance has been marked by improved methods of shoemaking and by improved machinery for use in cutting, forming and shaping leather, and for other purposes. The patents in issue are improvement patents. Formerly most shoes were made with two soles, an outsole and an insole. Shoes so made were heavy, stiff, and uncomfortable to wear. Shoemakers came to realize that there was a demand for shoes light in weight, durable in quality and, especially since high heels came into fashion, having soles flexible at the juncture of the instep or shank and the ball line. In addition to these qualities manufacturers were interested in the difficulties and costs of manufacturing, and in the sale price. The first shoe that seemed to embody many of the qualities desired by the users is known as the turn shoe. This was a single sole shoe in which the upper was sewed directly to the sole. To-produce a smooth surface for the foot there was a channel around the top margin -of the sole to receive the “lasting allowance” of the upper and a slit to bury the seam. This type of shoe was difficult to make. In the course of manufacture it was necessary to turn the shoe inside out; and uniformity in size was frequently lacking. These and other difficulties presented the problem to the solution of which the patents in issue have contributed. Sbicca and Maccarone solved the problems and overcame the difficulties and disadvantages of the older methods by splitting a single sole blank and using the flesh side for an insole and the other side of the leather for the outs&le. By first attaching the upper of the shoe over a last to the insole and afterward adding the outsole the necessity for turning the shoe inside out in the course of manufacture was obviated; and by leaving, in the splitting-process, the full thickness of the outsole at the ball, the point of greatest wear, durability is achieved. By this means lightness, uniformity and flexibility, as well as durability, labor saving.and cost of manufacturing, were accomplished. The Sbicca patent, No. 20,274, is a reissue of original No. 1,902,725, issued March 21, 1933. Claims 9 and 10 of the reissue patent are for a composite sole, that is, an article or product patent, and claims 1, 2, 3, 4, and 13 are for a method of producing such a sole. Claims 9 and 13 are representative. They are set out in the footnote. The Maccarone patent, No. 1,988,281, issued January 15, 1935, is a method patent for cutting the complementary outsoles and insoles described in the Sbicca patent from a single blank. Claim 3 of the patent, set out in the footnote, is illustrative. It will be observed that in the Sbicca patent the operation of splitting the blank consists of three or four steps, while in the Maccarone patent the same result is accomplished in two steps. Neither patent covers the tool to be used in performing the splitting process. However, it appears that Sbicca contemplated the use of a knife held in the hand of the artisan or shoemaker, and Maccarone provides that the blank, after depressing an area at the ball, shall be passed between the rollers of a conventional leather splitting machine in which the splitting blade is positioned to cut above the bottom o f the depressed area. Harmer No. 4066/17 (Australian), referred to by the court, conceived the idea of cutting (in the language of the art, skiving) away a portion of both an outsole and an insole, providing an opening or aperture in the insole at the ball in front of the shank to receive a similarly shaped surface, not skived away, of the outsole, with a space above to be filled with cork or soft leather. That part of the two soles skived away was waste. Harmer’s patent did not meet with success and the method disclosed by him did not come into use. The patent, however, suggests a complementary out-sole-insole shoe in which a projecting surface of the outsole through an opening in the insole is called an island, the surrounding remains of the insole a rand, and the insole a skeleton insole. Maccarone in his first patent, No. 1,569,-823 (1926), for the purpose of eliminating the necessity of turning the shoe, described a method almost identical with the Harmer patent, lie used two sole blanks and skived them to produce a skeleton insole from one blank and a complementary outsole from another. He achieved lightness and flexibility, and avoided turning the shoe in the process of manufacture. But there was great waste, and the method was not adopted by himself or other manufacturers. In the same year, 1926, Kelly described a method for making a single sole shoe without turning it by using a thin narrow strip of material instead of an inner sole to serve as a binder between the upper and the single sole. In 1929 Ruggiero accomplished what Kelly had done and in substantially the same way by cutting the narrow strip, called by him a welt, from the margin of the single sole, and by attaching the upper first to the welt and then cementing the sole over the welt and the exposed part of the upper. The welt was held in place on the last by an anchor piece of fabric during the process of constructing the shoe. The method of cutting the welt is not described, “this part of the procedure”, he says, “being a mechanical detail which forms no part of the invention.” The Lentz, Nevins and Scott patents comprise leather cutting and splitting machines which, it is claimed, by minor variations and adaptation requiring only mechanical skill, can be made to split a sole blank according to the specifications of the Maccarone patent. They are early patents covering the period from 1884 to 1892. They are machine or tool patents, and the District Court does not refer to them in its findings. The Beach, Engel and Caggiano patents are cited as examples of machines for skiving leather and by use of templates or “pattern pieces” producing layers for heels and other parts of the shoe of different forms and thickness. Comparison with the prior art makes clear the fact that Sbicca and Maccarone did not discover the art of splitting leather nor did they discover the advantages of the skeleton insole and its complementary out-sole. Splitting machines were old in the art and Harmer revealed the skeleton insole with a complementary outsole. Kelly and Ruggiero taught a method of making a single sole shoe without turning the shoe inside out during the process of manufacture. And the use of the die and matrix together with templates in splitting leather in varying forms and of uneven thickness was in practice prior to 1931. When the state of the prior art is given full consideration, however, it can not be denied that the contribution made by Sbicca and Maccarone, although consisting of a combination of old elements, was new and useful. They were the first to conceive the idea of producing a skeleton insole and a complementary outsole by splitting a sole blank from heel to toe in a simple and practical way without waste of material and with economy of labor. The concept included not only a new method of manufacture but also a composite outsole-insole which could be produced from a single sole blank. In determining the validity of the patents, therefore, the question presented is whether these advances constitute invention within the meaning of 35 U.S.C.A. § 31. The statute provides that “Any person who has invented or discovered any new and useful art, machine, manufacture v * * or any new and useful improvements thereof * * * not known or used by others * * * may * * * obtain a patent therefor.” We think the Sbicca and Maccarone patents disclose a new and useful contribution to the art of shoemaking. The patents are not valid, however, unless they reveal invention or discovery. Not every new and useful improvement in an art is patentable. Since 1850 the courts have said that such an improvement requires the application of “more ingenuity and skill” than that of “an ordinary mechanic acquainted with the business.” Hotchkiss v. Greenwood, 52 U. S. 248, 266, 267, 11 How. 248, 13 L.Ed. 683. Whether the improvement “relied upon in a particular case is anything more than ordinary mechanical skill is a question which cannot be answered by applying the test of any general definition.” McClain v. Ortmayer, 141 U.S. 419, 427, 12 S.Ct. 76, 78, 35 L.Ed. 800. It is.argued that the standard of originality and skill stated in the Hotchkiss case, supra, has been' raised by recent decisions of the courts. In Cuno-Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 91, 62 S.Ct. 37, 41, 86 L.Ed. 58, the Supreme Ccfurt said- that a “new device, however useful it may be, -must reveal the flash of creative genius not merely the skill of the calling. If it fails, it has not established its right to a -private grant on the public domain.” - In Picard v. United Aircraft Corp., 2 Cir., 128 F.2d 632, 636, a case involving a patent -for a lubricating and cooling system for “radial” air-cooled combustion engines, Judge Learned Hand, sp.eaking negatively, said: “Unless we are to mistake for invention the slow but inevitable progress of an industry through trial and error, and confer a monopoly merely upon the exercise of persistent and intelligent search for improvement”, there is no invention. Judge Lenroot of the Court of Customs and Patent Appeals, having considered these and other cases in Re Shortell, Cust. & Pat.App., 142 F.2d 292, 295, concluded that all that is intended by these judicial statements is that “the thing patented must involve more than the skill of the art to which it relates.” It is not believed - that they were intended to be amendments to the law. The rule of the Hotchkiss case, supra, was apparently intended to clarify the law as it existed prior to that time. Before 1850 Chief Justice Tindall of England had said that “if the invention be new and useful to the public, it is not material whether it be the result of long experiments and profound research, or whether by some sudden and lucky thought or mere accidental means.” Crane v. Price, 1 Webs. Pat.Cas. 411. Chancellor Kent had said (2 Kent, Com. 371): “The law has no regard to the process of the mind by which the invention was accomplished, whether the discovery be by accident or by sudden or by long and laborious thought.” And Mr. Justice Story had said, “It is of no consequence, whether the thing” be discovered “by accident, or by long, laborious thought, or by an instantaneous flash of mind.” Earle v. Sawyer, Fed.Cas.No.4247, 4 Mason 1, 6. In invention what constitutes the “flash of genius”, that is, “more” than the “skill of an ordinary mechanic acquainted with the business”, must still be determined without the aid of any statutory or judicial definition in each particular case, and sometimes by judges without ordinary skill in the particular art. Under the circumstances present in this case the rule has often proved helpful and has frequently been applied that “the man who has taken the final step which has turned a failure into success” is entitled to a patent; that “it is the last step that wins”; and that where a series of inventors are groping to attain a certain result, the last one who grasps the idea which renders the article or method useful and effective is entitled to a patent — -that his thought constitutes invention. Washburn & Moen Mfg. Co. v. Beat ’Em All Barbed Wire Co. (The Barbed Wire Patent), 143 U.S. 275, 283, 12 S.Ct. 443, 36 L.Ed. 154; Consolidated Safety-Valve Co. v. Crosby Steam Gauge & Valve Co., 113 U.S. 157, 159, 5 S.Ct. 513, 28 L.Ed. 939; Saranac Automatic Machine Corp. v. Wirebounds Patents Co., 282 U.S. 704, 709, 51 S.Ct. 232, 75 L.Ed. 634; Smith v. Snow, 294 U.S. 1, 14, 55 S.Ct. 279, 79 L.Ed. 721; Montgomery Ward & Co. v. Clair, 8 Cir., 123 F.2d 878, 881, and cases cited. We have heretofore applied the rule stated by the Supreme Court in Expanded Metal Co. v. Bradford, 214 U.S. 366, 381, 29 S.Ct. 652, 656, 53 L.Ed. 1034, to determine whether a given improvement is a result of the skill of the art or of the creative faculty amounting to invention. The Court there said: “It may be safely said that if those skilled in the mechanical arts are working in a given field, and have failed, after repeated efforts, to discover a certain new and useful improvement, that he who first makes the discovery has done more than make the obvious improvement which would suggest itself to a mechanic skilled in the art, and is entitled to protection as an inventor. * * * It is perfectly well settled that a new combination of elements, old in themselves, but which produce a new and useful result, entitles the inventor to the protection of a patent.” In the present case the prior art discloses that the problem involved here had existed as early at least as 1917 when Harmer attempted to solve it. Thereafter the record shows that many skilled shoemakers endeavored for many years prior to Sbicca’s contribution to solve the problem and had failed. The history of patent law shows that not all improvements discovered by workers in an art must be denied a patent. Most advances and improvements are discovered by the persistent efforts of those skilled in the arts to which they belong. The “flash of thought”, which is inventive genius, does not often occur to one who is not skilled in the particular art to which the invention belongs. Necessity is still the mother of invention and the thought of a new and improved combination or method usually flashes first in the mind of one who realizes the problem and searches for a solution. With these things in mind, and considering the novelty, the utility and the commercial success of Sbicca and Maccarone’s inventions, we are inclined to hold both patents involved valid. Were the question of invention doubtful commercial success and need in the industry may be considered as evidence thereof. DeForest Radio Co. v. General Electric Co., 283 U.S. 664, 665, 51 S.Ct. 563, 75 L.Ed. 1339; Simplex Paper Box Corp. v. Rosenthal Paper Co., 8 Cir., 104 F.2d 349, 353. Here the record shows that no skeleton insole shoes were on the market prior to the adoption of the Sbicca process. When the defendant began the manufacture of shoes under its first license in 1933 it advertised the Sbicca Method as “probably the most perfect construction of fine shoes ever developed”; and within ten years thereafter the annual production of shoes by that method rose to approximately 20,000,000 pairs. But Sbicca’s original patent No. 1,-902,725, dated March 31, 1933, of which No. 20,274, dated February 16, 1937, is a reissue, was held invalid in view of the prior art by Judge Campbell of the Eastern District of New York in Sbicca-Method Shoes v. M. Wolf & Sons, 11 F.Supp. 239, affirmed by the Second Circuit Court of Appeals without an opinion April 20, 1936, 82 F.2d 1015; and the defendant argues that we should follow that decision. While we have great respect for the decision of Judge Campbell, that decision is of course not binding upon us as a case of stare decisis; and comity is not applicable to the situation presented. Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 20 S.Ct. 708, 44 L.Ed. 856; Triplett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L.Ed. 949. The force of that opinion as a precedent is weakened by the fact that the record in that case including the testimony and the references to the prior art was before the Patent Office when the application for reissue was pending there. Having considered the whole matter, the Board of Appeals in the Patent Office found the claims in issue valid. In reference to the article claims and the method claims the Board said, “there is really only one conception involved and the difference in form of the claims in this case would be mere technicality.” The patent is for making a shoe with a composite sole consisting of a skeleton insole and a complementary out-sole made by splitting a blank in a particular form. It is argued, also, that invention is a fact and that the finding of the trial court that the patents are invalid is conclusive on this court, unless such findings are “clearly erroneous” within the meaning of Rule 52(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The trial court found the claims in issue of both patents invalid in view of the prior art. This conclusion seems to be based upon the finding that “Any slight or imagined differences are of immaterial detail not affecting the substance of the alleged invention.” The findings state no more particular basis for the conclusion. In fact the trial court made no circumstantial findings of fact. This makes it necessary for this court to examine all the evidence. A finding of fact of a District Court is not clearly erroneous unless it is (1) unsupported by substantial evidence, (2) contrary to the clear weight of the evidence, or (3) induced by an erroneous view of the law. Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199; Sears, Roebuck & Co. v. Talge, 8 Cir., 140 F.2d 395, 396. The evidence, including the patents and the exhibits, is all before the court in this case, and there is no substantial dispute in reference to the facts. In United States v. Esnault-Pelterie, 303 U.S. 26, 30, 58 S.Ct. 412, 414, 82 L.Ed. 625, the Supreme Court said: “ * * * where, with all the evidence before the court, it appears that no substantial dispute of fact is presented, and that the case may be determined by a mere comparison of structures and extrinsic evidence is not needed for purposes of explanation, or evaluation of prior art, or to resolve questions of the application of descriptions to subject-matter, the questions of invention and infringement may be determined as questions of law.” See also same case, 299 U.S. 201, 57 S.Ct. 159, 81 L.Ed. 123, and Galland-Henning Mfg. Co. v. Logemann Bros. Co., 7 Cir., 142 F.2d 700. This rule is applicable here. The trial court in this case was so obviously impressed with the undisputed character of the evidence that only ultimate facts were found. We think the inferential finding of the trial court is not supported by substantial evidence and is contrary to law. Again, the defendant argues and the court found that the Sbicca Reissue patent No. 20,274 is invalid for failure to comply with the reissue statute (35 U.S.C.A. § 64). This statute provides that “Whenever any patent is wholly or partly inoperative or invalid, by reason of a defective or insufficient specification, * * * if the error has arisen by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, the commissioner shall * * * cause a patent for the same invention, and in accordance with the corrected specification, to be reissued to the patentee * * * for the unexpired part of the term of the original patent.” The file wrapper covering the reissue proceeding in the Patent Office is voluminous. We have read the entire record and find that the facts support the grant of the reissue patent. The findings of the trial court upon this issue are contrary to the evidence. The undisputed affidavits of Sbicca show mistakes, errors and omissions in the original patent and that such errors were inadvertent and accidental. The reissue statute is to be liberally construed and where, as here, there is evidence to support the findings of the Commissioner in respect of inadvertence, accident or mistake his decision is binding on the court. Freeman v. Altvater, 8 Cir., 138 F.2d 854, 859. A review of the evidence and of the reissue proceedings before the Commissioner would unnecessarily extend this opinion. We think it can not be said that he erred in granting the patent. The defense of infringement requires a comparison of Sbicca and Maccarone patents with the accused practices of the defendant. “Not only is the burden to make good this defense [infringement] upon the party setting it up, but his burden is a heavy one, as it has been held that ‘every reasonable doubt should be resolved against him.’ ” Mumm v. Jacob E. Decker & Sons, 301 U.S. 168, 171, 57 S.Ct. 675, 676, 81 L.Ed. 983; Radio Corp. v. Radio Engineering Laboratories, 293 U.S. 1, 8, 55 S.Ct. 928, 79 L.Ed. 163; Donner v. Sheer Pharmacal Corp., 8 Cir., 64 F.2d 217, 221, and cases cited. The gist of the Sbicca patent which differentiates it from the pri- or art is the splitting of a single blank of sole leather in a particular way to produce an insole and an outsole of a described form, light and flexible, and without waste. Sbicca performed the operation with a knife held in the hand in three or four cuts, the point of beginning being immaterial, Maccarone improved the method of doing the same thing by first pressing down the ball of the blank by means of a die and a matrix and then severing the insole from the outsole by running the blank between the rollers of a conventional splitting machine. The defendant splits the sole blank with the same result on a splitting machine invented by Card, patent No. 2,088,051, issued July 27, 1937, application dated October 19, 1934. This machine differs in substance from the conventional splitting machine used by Maccarone only in that a die and a matrix for pressing down the ball portion of the blank out of the plane of the splitting knife are built into the opposing faces of the rollers. The result of the splitting operation is practically the same under the three patents. All produce the Sbicca split sole with the outsole having the full thickness of the blank at the ball and the insole being complementary thereto. It is not disputed that the Maccarone and the Card devices were decided improvements over Sbicca’s method of splitting the blank, in that they each accelerated the splitting operation and resulted in greater uniformity in the insole and the outsole. But they are improvements only upon Sbicca’s basic method. The trial court found, and the defendant argues, that the defendant’s shoe and method do, not infringe the Sbicca and Maccarone patents because they do not include the three or four step process of the Sbicca patent nor the two step process of the Maccarone patent. This is a plausible but an unreal distinction based upon the difference between splitting the sole blank wholly by use of a knife held in the hand and by performing the same thing by means of a knife fixed in a machine. In splitting a sole blank with a knife Sbicca starts at the heel and proceeds in step one to the junction of the ball and shank. In step two he may move forward around the margin of the blank severing the rand, and in step three he may sever the rand from the shank; the order of the steps is not material. But in the three steps, or three slices, he splits the insole from the outsole by splitting the blank from heel to toe. The defendant performs all three operations in one continuous movement without stopping at the points at which Sbicca terminated one stroke of the knife and began another. Defendant in reality steps from the heel to the toe just as Sbicca does, but, without halting at the end of each step. Omission of a single step would result in failure completely to sever the insole from the outsole. Defendant simply uses a better tool than Sbicca did. Neither Sbicca nor Maccarone claims a patent upon the tools with which the sole blank is split. But that fact is not material because “A process and an apparatus by which it is performed are distinct things. They may be found in one patent; they may be made the subject of different patents.” Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 301, 318, 29 S.Ct. 495, 500, 53 L.Ed. 805. Moreover, the validity of a process or method patent does not depend upon whether the operation must be performed by hand or may be more expeditiously performed by a machine. Its essence is unchanged without regard to any variation which takes place in the instruments used “as long as the acts of which it is composed are properly performed.” Expanded Metal Co. v. Bradford, 214 U.S. 366, 383, 29 S.Ct. 652, 656, 53 L.Ed. 1034. If infringement could be avoided by using a machine instead of a hand tool a method patent would be of little value. It seems clear also that the defendant’s method infringes the Maccarone patent. The two steps taken by Maccarone are described thus in claim 3: “In shoe making methods, that improvement which includes: providing a full rounded sole blank from suitable material; [1] temporarily depressing the blank over a central area of the ball thereof; [2] then, while the blank is thus depressed, continuously splitting the blank above the depressed area to remove therefrom a full insole having an opening therein defining a continuous marginal rand, said rand extending from the front of one side of the shank around the toe to the front of the opposite side of the shank * * *, and the remaining part of said blank comprising an outsole unreduced in thickness over an area complemental to the opening in the insole.” This describes exactly what the defendant does and the results are identical. The difference is not in the operation nor in the steps but only in the apparatus to accomplish the result. It has long been settled that infringement of a method can not be avoided by merely varying the details of the apparatus made use of. Smith v. Snow, 294 U.S. 1, 20, 55 S.Ct. 279, 79 L.Ed. 721; Tilghman v. Proctor, 102 U.S. 707, 730, 731, 26 L.Ed. 279; Cochrane v. Deener, 94 U.S. 780, 788, 24 L.Ed. 139; Lever Bros. Co. v. Procter & Gamble Mfg. Co., 4 Cir., 139 F.2d 633, 643; Walker on Patents, III Deller Ed., p. 1730, § 493. The defendant argues that its method of splitting the sole blank differs from Sbicca and Maccarone methods and, therefore, does not infringe, in that on the Card machine the splitting is so uniform that the sole portions may be interchanged with others of the same size and style. This is no doubt an advantage in quantity production, but it is not due to any difference in method; it depends only upon the care and accuracy used in the operation. It is an advantage which inheres in the Maccarone method as well as in the defendant’s method. The third defense to the first cause of action is based upon the alleged equitable ground that the plaintiffs come into court with unclean hands. In connection with this defense the trial court found that “Plaintiffs formed a pool of substantially all the patents relating to skeleton insole shoes, including the group of patents and applications theretofore owned or controlled by the Kelly interests, and a patent and an application owned or controlled by Compo Shoe Machinery' Corporation and entered into an agreement whereby they would license these patents to the shoe industry. The original patents of three reissued patents in the pool have been herd invalid for want of invention by the Circuit Court of Appeals for the Second Circuit. In Sbicca-Method Shoes v. M. Wolf & Sons, D.C., 11 F.Supp. 239, affirmed, 2 Cir., 82 F.2d 1015, the original- patent of Re. 20,274, being No. 1,902,725, was held invalid.” The defendant’s argument based upon this finding is (1) that the pool of substantially all the patents relating to skeleton insole shoes was in essence a combination in restraint of trade and (2) that the pooling contract amounted to the use of the patents to secure a monopoly not granted by the Patent Office and contrary to public policy. The plaintiffs say (1) that the finding that the plaintiffs formed a pool of substantially all the patents relating to skeleton insole shoes is not founded in fact nor supported by any evidence in the record, and (2) admitting that a pool of patents held by the three interested parties was formed, such pooling contract was for purely legitimate purposes and for the protection and benefit of the licensees and the public. An understanding of these contentions calls for a brief historical summary of the licenses and agreements involved. On M'ay 1, 1933, Sbicca-Method Shoes, Inc., granted a license to the defendant to use Sbicca patent No. 1,838,708, patented December 29, 1931, and any pending application for refinements or improvements thereof, until December 29, 1948, for a royalty of 2% cents for each pair of shoes manufactured under the license. At that time Sbicca had pending in the Patent Office an application which eventuated in patent No. 1,902,725, March 21, 1933. These two patents were the originals of reissue patent No. 20,274. The Compo Shoe Machinery Corporation (hereinafter called Compo) was in 1933 and thereafter engaged in manufacturing shoemaking machinery, and it was the assignee of the Ruggiero patent, supra. Compo was producing and selling or leasing to shoe manufacturers a leather splitting machine made under the Card patent, supra. After 1933, Compo, SbiccaMethod Shoes, Inc., assignee of the Sbicca patents, Maccarone, and other of the plaintiffs as competitors were involved in litigation. For the purpose of settling all disputes among them three contracts were entered into on August 3, 1937. Two of the contracts providing for certain assignments on the conditions named therein were placed in escrow for a limited time for the performance of the conditions. The contract controlling the terms of settlement and the method of doing business thereafter became effective. It provided that all the parties should make SbiccaDel Mac, Inc., a new corporation, exclusive licensee with the exclusive right to grant licenses to shoe manufacturers and, also, to sue for unpaid royalties under licenses previously granted and to sue for infringement of any of the patents. A schedule of the patents, including patents for shoemaking methods and patents for machinery,, was attached to the contract. There were 17 of such patents in the list including the patents in issue. The pertinent features of the contract are (1) that the parties and Sbicca-Del Mac, Inc., severally released Compo from all liability for patent infringement arising prior to August 3, 1937;. (2) that Sbicca-Del Mac, Inc., should grant licenses on a prescribed form throughout the life of each patent to all responsible shoe manufacturers in the United States and Canada requesting the same, including the users of Compo machinery, on the basis of a royalty of one cent for each pair of shoes made by the licensee after September 1, 1937; (3) Compo agreed not to

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 35. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 35? Answer with a number.

UNITED STATES of America, Appellant, v. John MARSHALL, Appellee. No. 92-3398. United States Court of Appeals, Eighth Circuit. Submitted April 15, 1993. Decided July 19, 1993. Michael P. Norris, Asst. U.S. Atty., Omaha, NE, argued, for appellant. No argument was presented on behalf of the appellee. Before McMILLIAN and BEAM, Circuit Judges, and SACHS, Senior District Judge. The Honorable Howard F. Sachs, Senior United States District Judge for the Western District of Missouri, sitting by designation. SACHS, Senior District Judge. The Government appeals from the district court’s sua sponte departure downward in the sentencing of this drug case involving a large number of marijuana plants. Under a plea agreement, defendant pled guilty to the manufacture and possession with intent to manufacture in excess of 100 marijuana plants. In return for the guilty plea the United States agreed to make a non-binding recommendation at sentencing that the court impose its sentence at the low end of the applicable Sentencing Guideline range. Under the presentence report the imprisonment range was 97 to 121 months, calculated on a conversion ratio of one plant to one kilogram. On its own motion the court departed downward and imposed a 66 month sentence. The district court at sentencing observed that “the determination that he should be charged with 416 kilograms of marijuana simply just doesn’t make sense to me.” In following the Guidelines to determine the Total Offense Level, and thereafter departing downward, the judge added that he viewed the classification as “arbitrary and capricious” when the conversion ratio is one kilogram to a plant, for 50 or more plants, but only 100 grams per plant for 49 or fewer plants. We are compelled to reverse for re-sentencing, although we acknowledge skepticism about the rationale used by the Sentencing Commission. Disagreement with the Guidelines does not justify a departure. United States v. Muzika, 986 F.2d 1050, 1054 (7th Cir.1993); United States v. Jones, 905 F.2d 867, 870 (5th Cir.1990); United States v. Lopez, 875 F.2d 1124, 1126 (5th Cir.1989). An impression that an arbitrary and capricious factor has become embedded in the Guidelines may well, however, justify further consideration, on remand, of the constitutional validity of the Guideline provision, irrespective of the widespread (if occasionally grudging) judicial acceptance of the marijuana plant conversion ratio. If, on remand and further study, defendant wishes to challenge the marijuana plant conversion ratio as arbitrary and capricious, and violative of substantive due process, an orderly presentation should be made, after adequate notice (unless the matter can be submitted on motions and briefs). Without legal challenge from or adopted by defendant, however, the district court is obligated to follow the Guidelines. Because our suggestion that further challenge may be fruitful could be baffling, in light of the widespread validation of the conversion ratio, some further indication of what troubles us may be appropriate, as well as some indication of why we believe the issue may remain open in this circuit. To begin with the final point, it will be acknowledged that shortly before the sentencing below there was a ruling in this circuit that it was not irrational to equate one marijuana plant with one kilogram of marketable marijuana. United States v. Smith, 961 F.2d 1389, 1390 (8th Cir.1992). The rationale given was that Congress intended “heightened culpability of growers” and “may have equated one plant with one kilogram based on culpability not weight.” A member of this panel joined that ruling on the issue, which has been declared “foreclosed” in this circuit. United States v. Johnston, 973 F.2d 611, 613 (8th Cir.1992). It will be observed, however, that the law in this circuit simply addresses the rationality of heightened culpability, not the surprising degree of disparity. Turning to the source of the marijuana plant conversion ratio, it appears the Sentencing Commission adopted a ratio derived from Congressional enactment of a conversion system usable in establishing minimum sentence qualifications. Derivation from 21 U.S.C. § 841(b)(1)(A), (B) and (D) is noted in the Sentencing Commission’s “Background” statement on page 89 of the 1991 Guidelines Manual (applicable in this case). Senator Biden explained that the Congressional action was designed to curtail “unnecessary debate” between prosecutors and defendants, and stated, without explanation, that “[T]he bill uses 1,000 plants as the equivalent of 1,000 kilograms.” 134 Cong.Rec. S17368 (daily ed. Nov. 10, 1988). There is no suggestion evident to us that it was intended to punish growers more severely than possessors of the finished product. As recently as May of 1991, a district judge was given to understand that “one marijuana plant can reasonably be expected to produce a kilogram of a mixture or substance containing marijuana.” United States v. Lewis, 762 F.Supp. 1314, 1316 (E.D.Tenn.), aff'd. without opinion, 961 F.2d 350 (6th Cir.1991). On the other hand, we find a Drug Enforcement Administration estimate of an average plant yield of 400 grams, and a “possible” yield of 1000 grams. 54 Fed.Reg. 9121, 9136 (1989) (Sentencing Commission Notice). On remand it may be developed that Congress did not have the DEA information when it amended the statute in question. But if Congress did in fact have the 400 gram average yield estimate before it, it may be presumed that Congress did intend to punish growers more severely, as the courts have surmised, but only on a ratio of about 2)6 to one, not far from the “treble damage” type of punishment that is frequently used. Our limited examination of the issues reveals nothing to suggest that there was a Congressional intent to adopt a harsh ten-to-one punishment ratio, applicable to marijuana plant growers, as the Sentencing Commission seems to have assumed. If it develops that the only available legislative history is the one-sentence statement of a conclusion by Senator Biden, one might suppose that the Senator meant, and his colleagues understood, that there was, for practical purposes, a rough equivalence between a marijuana plant and a kilogram of finished marijuana. Somewhat less likely would be an understanding by the Senator that the ratio is unfavorable to growers, but within sufficiently conventional bounds so that he and his colleagues would not think the matter controversial enough to mention. Most unlikely, however, is that a ten-to-one ratio, as used by the Sentencing Commission, was being knowledgeably but silently adopted by Congress as an appropriate standard for purposes of punishment. In offering the above observations we of course do not intend to prejudge any issue, legal or factual, that may be developed before the district court on remand. The judgment is reversed for reconsideration of the sentencing decision. . As will be further indicated, we are inclined to believe that there may be an acceptable rationale for "going light” on minor offenders, with 49 or fewer plants. See, e.g., United States v. Webb, 945 F.2d 967 (7th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1228, 117 L.Ed.2d 463 (1992). We do not question and are in no position to question rulings in this circuit and elsewhere that would justify a more severe penalty for growers than for possessors of the finished product. Where we do suggest there may be room for further development of the issues would relate to (1) what rationale, if any, there is for penalizing growers on a ten-to-one ratio, if that is occurring, and (2) whether there is reason to believe that Congress and the Sentencing Commission actually intended such disparity in punishment, as between growers and possessors. It seems quite possible, from the limited information we have, that "arbitrary and capricious” punishment is occurring, probably unintended by the original enacting parties. We believe there is some novelty in these points, which are not discussed in what may be the most thorough appellate survey of the conversion ratio controversy. United States v. Lee, 957 F.2d 778, 783-85 (10th Cir.1992). . We acknowledge, however, that this circuit's ruling sustaining the even more extraordinary disparity in punishment between possession of cocaine powder and cocaine base, on a cruel and unusual punishment challenge, may tend to discourage further challenge of the marijuana plant conversion ratio. See United States v. Buckner, 894 F.2d 975, 980-81 (8th Cir.1990). With so much at stake, however, in this and other cases, we are reluctant to say that full exploration of the issues is unwarranted, either in this case or in connection with the crack cocaine punishments, which continue to perplex many sentencing judges. We do not invite mere repetition of prior rejected arguments, without new facts or legal analysis. . The current published view of the Sentencing Commission is that "the average yield from a mature marihuana plant equals 100 grams of marihuana.” 1991 Guidelines Manual, 89. . Several years of inaction arguably suggests Congressional and Sentencing Commission satisfaction with the current situation, but we do not discount the force of inertia in governmental affairs.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).

This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?

CHISHOLM et al. v. HOUSE et al. No. 3996. United States Court of Appeals Tenth Circuit. July 26, 1950. Creekmore Wallace, Oklahoma City, Old., and H. B. Parris, Eufaula, Okl. (Roy White, Eufaula, Okl., was with them on the brief) for appellants. Thomas M. Finney, Tulsa, Old., (Villard Martin, Garrett Logan, Robert J. Stanton and Donald P. Moyers, all of Tulsa, Okl. were with him on the brief) for appellees. Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges. MURRAH, Circuit Judge. This appeal is a sequel to Chisholm v. House, 10 Cir., 160 F.2d 632, and is related to Bradburn v. McIntosh, 10 Cir., 159 F.2d 925. It involves the correctness of the trial court’s judgment in the proceedings in pursuance of our mandate in the Chisholm appeal. The factual background and much of the pertinent facts are to be found in the former appeals. In resume, however, the suit was commenced in Í940, in the District Court of Muskogee County, Oklahoma, by the heirs at law of Cussehta Yarhola, a full-blood Creek Indian, alleging a conspiracy on the part of the named defendants to cheat and defraud Cussehta of his legal share of the proceeds of the productive allotments of his deceased wife, Linda, and deceased daughter, Maley Fiers. The purpose of the suit was to void a certain trust instrument executed in 1924 by Cussehta, on the grounds of incompetency; cancel releases and acquittals of the trustees; establish liability for maladministration, and secure an accounting for funds, securities and profits held by them during the administration of the estate under the purported trust agreement. The United States intervened on behalf of the Indian heirs in support of their allegations, and removed the case to the Federal Court under Section 3 of the Act of April 12, 1926, 44 Stat. 239, 240. After removal, all of the plaintiffs adopted the Government’s complaint in intervention, and the issues were joined thereon. At the conclusion of the evidence for plaintiffs, the trial court dismissed the action and entered judgment for the defendants. We reversed holding the evidence sufficient to establish that defendants “House, Hill Moore and Grayson entered into a scheme to obtain control and management of Cussehta’s estate, with the design and purpose of deriving improper personal advantage and gain therefrom;” that they and persons acting in their behalf, induced Cussehta to execute the original trust agreement and the instruments supplemental thereto, and place such estate under the control and management of Hill Moore, Grayson and House; that later, D. W. Johnston entered into such scheme; that House, Hill Moore, Grayson and D. W. Johnston fraudulently induced Cussehta to agree to pay, and did pay, unconscionable and exorbitant fees to the trustees, and fraudulently induced Cussehta to execute acceptances of reports by the trustees which purported to discharge them and their sureties on their bonds from liabilities for the acts of the trustees; that the trustees made loans to Lake Moore, father of Hill Moore, which were not repaid, and failed to collect loans made by the trustees to D. W, Johnston; that the trustees made reports to •Cussehta which were false and incomplete; that D. W. Johnston and Grayson made a report to Nancy and Lessey which was false and incomplete, and in so doing, the trustees violated their fiduciary obligations to Cus■sehta, Nancy and Lessey. We accordingly concluded that the Unit•ed States was entitled to an accounting from the trustees with respect to the interest in the allotments of Maley and Linda, which passed to Cussehta and later to Nancy and Lessey; that the other plaintiffs were entitled to an accounting with respect to the trust estate, and on an accounting, the court should scrutinize the administration of the trust estate by the trustees, should require the repayment by the trustees of the exorbitant and unconscionable fees charged by them, and determine their liabilities for the breaches of their duties and the maladministration of the trust estate. We further held the defendant Johnston liable to the plaintiffs, other than the United States, upon the loans made to him by the trustees which he failed to collect after he became trustee, and which he ■omitted from his final report to Nancy and Lessey. We voided House’s contract with Cussehta for ten per cent of the value of his estate in the sum of $30,600.00 to have him restored to competency; held such fee •exorbitant, unconscionable, and fraudulently obtained, and that the plaintiffs were •entitled to recover the amount paid. We •sustained the trial court’s dismissal as to defendants McKinney, Randles, Chowning and the Okemah National Bank, holding the evidence insufficient to show that they had knowledge of the conspiracy or participated therein. We also sustained the trial court’s dismissal as to the Shell Petroleum Company, the purchaser of the oil runs, on the grounds that the judgment of the County Court of Okfuskee 'County restoring Cussehta to competency not being void, the payment for the oil runs to the trustees under the trust agreement constituted a valid discharge of its liability. We were unable to determine whether, from the evidence adduced, defendants Martin, Lake Moore and McKinney were liable on the bound of trustees Hill Moore and Grayson. We accordingly vacated the judgment of dismissal as to them. We reversed as to the other defendants, and remanded the case with directions to proceed in conformity with our opinion. In its order on the mandate, the trial court ordered the defendants Johnston and Grayson to file their accounts as trustees within sixty days, and that the defendant Martin, within the same time, cause to be filed for Hill Moore, deceased, and Gray-son, or in his own behalf for them, an accounting for the period during which he was surety on their bond. The accounting was ordered without prejudice of the right of the defendants or any of them to raise appropriate defenses not inconsistent with the opinion and mandate of this court. Before the case was tried, the defendant Johnston paid plaintiffs the sum of $15,-000.00 in settlement of all claims against him, and the case was dismissed as to him, without prejudice however to the plaintiff's right of action against the remaining defendants. Grayson is an old insolvent Indian. He made only nominal defense in the former trial and did not personally respond or appear in these proceedings. Hill Moore died before this suit was commenced, and his. estate was never made a party. His father, Lake Moore, died after the commencement of this suit, and it was never revived against his representatives. McKinney is judgment proof and unconcerned. The Government did not participate further after remand, and is no longer actively interested. We exonerated Martin of any participation in the fraudulent scheme in the former appeal. The trial court has again found him innocent of any active participation or guilty knowledge of any fraudulent scheme, and we agree. The primary issue on this appeal is Martin’s liability as a.surety for Hill Moore and Washington Grayson from April 15, 1925 until December 19, 1929, when Hill Moore resigned and D. W. Johnston succeeded him as co-trustee. By the terms of the surety bond, Martin and the other sureties guaranteed the faithful performance of the trust, and by separate writing, Martin assumed joint control of the estate, with power to disapprove any transaction of the trustees. The basis of Martin’s liability then is as surety for the trustees with power of joint control. The assets of the trust estate in the custody of trustees Moore and Grayson, when Martin became surety with joint control on April 15, 1925, consisted of $2,899.63 cash, Cussehta’s interest in the allotments of his wife Linda, and his daughter Maley, and eighty-three notes and mortgages, bearing eight per cent interest, with a face value of $281,500.00 The notes and mortgages represented loans on real estate in the Town of Okemah and the County of Okfuskee, Oklahoma, made by Cussehta’s guardian before the creation of the trust estate in 1924, and by his trustees before Martin became surety. During the period of Martin’s suretyship, the trustees continued to collect the interest on the outstanding loans and reinvest the trust funds in real estate mortgages in Okemah and Okfuskee County. In pursuance of the order of the court, Martin filed an accounting for the period of his suretyship. Exceptions were taken, an amendment was filed, and after further exceptions, another amendment was filed. Thereafter, upon a hearing on the plaintiff’s exceptions, Martin testified from memory and records available to him concerning each and every transaction of the trustees while he was surety on their bond, and exercising joint control. From this evidence, the trial court scrutinized the nature and circumstances of each and every challenged transaction; if a loan, the value of the security at the time it was made and all other circumstances bearing upon the prudent and faithful administration of the trust estate. The court found no fraud or conspiracy on the part of the trustees Hill Moore or Grayson, or any of the defendants, in the administration of the estate during Martin’s suretyship. That is to say, that during this time, the trustees accounted for all of the assets coming into their hands or acquired by them, and delivered the same to their successor trustees; and that there was no evidence of misappropriations, “secret commissions” or “kickbacks.” Appellants invoke our general finding of a fraudulent scheme or conspiracy in the former appeal, and assert that no countervaling evidence was introduced in the subsequent hearings. They contend, therefore, that the defendants House, Moore, Grayson and Johnston stand guilty of a scheme to cheat and defraud Cussehta, and that it remains only for the court to enter judgment on the mandate against the trustees and their surety for the amount of the trustee and attorney fees paid during the trusteeship, as well as the exorbitant fees paid to House prior thereto. We haven’t any doubt that a scheme to cheat and defraud the Yarhola family was devised by House and his associates before the creation of the trust estate, and that it continued in one form or another throughout the existence of the trust, and even after its dissolution. But the existence of the fraudulent scheme does not necessarily mean that every act or transaction of any of the defendants was in furtherance of that plan or scheme, or was within itself actionably fraudulent. Fraud in the air, so to speak, is not actionable. It is the operative effect of the fraud that gives rise to the cause of action and conditions the extent of recovery. Under the mandate of the court, the duty rested upon the trustees to account, and the burden was upon them or their sureties to establish the correctness thereof ; to disclose fully and fairly the nature of each and every challenged transaction, and to satisfy the court that the administration of the trust was in accordance with the provisions of the trust instrument and the honor and integrity of a fiduciary. Neel v. Barnard, Cal.App., 143 P.2d 513; Neel v. Barnard, 24 Cal.2d 406, 150 P.2d 177; Davidson v. Young, 290 Mich. 266, 287 N.W. 459; Purdy v. Johnson, 174 Cal. 521, 163 P. 893; Garrett v. First Nat’l Bank & Trust Co., 5 Cir., 153 F.2d 289. In judging the conduct of the trustees, we must keep in mind that Cussehta could neither read nor speak the English language, and that he imposed trust and confidence in the trustees and those who influenced him to execute the trust, and designate Hill Moore and Grayson as trustees to administer his estate for him. We must also not forget that in the administration of the estate, and a rendition of their accounts, the trustees owed this old simple minded unsuspecting Indian a standard of conduct "stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive * * *” was the standard for their behavior. Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546, 62 A.L.R. 1; see also Wootten v. Wootten, 10 Cir., 151 F.2d 147; Id., 10 Cir., 159 F.2d 567. The trustees made loans to Lake Moore, father of Hill Moore and co-surety, and to their attorneys and other parties prominently identified with Cussehta’s affairs, all with Martin’s approval. After carefully scrutinizing these particular loans, the court held that they were neither fraudulently nor imprudently made. Two loans to Lake Moore were paid in full from the proceeds of the so-called Owens note and mortgage, which the trustees bought from him, and which the trial court found from the evidence was well secured and delivered to the successor trustees, who arbitrarily compromised it at a loss to the estate. In that connection, the court specifically found that O. 0. Owens, the endorser of his brother’s note, was at all times financially able to pay the note when due. The court further found that the other loans to Lake Moore, or to the attorneys for the trustees, were prudently made; that either the mortgages or deeds to the mortgaged properties were delivered to the successor trustees, and by them delivered to the heirs of Cussehta upon the termination of the trust. With commendable care, the trial court took up and separately considered each loan to determine whether or not it was prudently made, and if not, whether the estate had suffered a loss as a result of such imprudency. It found and concluded that most of the challenged loans on the real estate were prudently made, and absolved the trustees and surety from liability thereon. Its analysis and conclusions on these transactions are not clearly erroneous, and they must stand. The court found that the fees paid to the trustees Moore and Grayson during Martin’s suretyship, although in accordance with the express provisions of the trust, were unreasonable and disproportionate. Since trustee Grayson offered no evidence of the value of his services, he was surcharged for the full amount received under the trust instrument during the period in question and while he acted as co-trustee with D. W. Johnston. But since the fees were paid in accordance with the express provisions of the trust, Martin was rightly held not liable as surety for the performance of its provisions. One of the challenged items, shown on the semiannual reports of the trustees, was a special allowance to Cussehta in-the sum of $5,000.00. On the accounting, Martin’s itemized statement and explanation showed that $3,000.00 of this sum was paid to Sid White, attorney for the trustee, for services rendered in resisting a proceedings in the County Court of Okfuskee County to have Cussehta adjudged incompetent. The other $2,000.00 represented expenses incident to the litigation. The court correctly reasoned that since these funds were expended at Cussehta’s request, and were expressly authorized and ratified by him, they were not improper, and neither the trustees nor their surety should be surcharged therefor. Some of the loans were found to have been imprudently made. One of them, in the sum of $15,000.00, was made to D. W. Johnston (later trustee). Martin explained that Johnston was a banker at Weleetka who had borrowed money from his bank in Okemah on his open note, and that this particular loan was secured by bank stock having a reasonable value of $7,500.00, and stock in a lumber company, the value of which Martin was unable to testify. Johnston paid the interest on the note during Martin’s liability, and Moore and Grayson delivered the note and stock to their successor Johnston and Grayson in December of 1929. Cussehta agreed with Johnston to cancel the note as a condition to Johnston’s becoming Moore’s successor trustee, and the loan was thus cancelled without any attempt being made on the part of the successor trustees to realize on the note and mortgage. The court concluded that the loan to Johnston was imprudent because not adequately secured, but that the proximate cause of the loss was the failure of the successor trustees, Johnston and Grayson, to collect the note from Johnston, instead of cancelling it. The court surcharged Grayson for the amount- of the note with interest at 8 per cent, ‘but exonerated Martin on the grounds that the initial imprudence was not the proximate cause of the loss to the estate. ' As to other loans found to have been imprudently made, the court was of the opinion that the loss to the estate, if any, was either not the proximate result of the imprudence, or it was unable to determine whether any loss had been eventually sustained after tracing the notes and mortgages, or the deeds to the mortgaged properties, to the successor trustees, and ultimately to Cussehta’s heirs upon termination of the trust. We think we must accept the court’s conclusions with respect to these items as not clearly erroneous. The court found that the Pemberton loan was imprudently made, resulting m an eventual loss to the estate in the amount of $2,476.92. It also found that the so-called Lud King loan was an imprudent transaction, resulting in a loss to the estate in the sum of $476.00. During the period of Martin’s suretyship, the trust instrument provided for the payment of reasonable attorney fees for the trustees, not to exceed $3,000.00 per year. The attorneys were, however, paid the full $3,000.00 per year for all this period. The trial court found that any fees paid to the attorneys in excess of $100.00 per month were unreasonably excessive. The court surcharged the trustee Gray-son with the amount of the losses in the Pemberton and King loans and for the excessive attorney fees, but it held the claim against the surety for these items barred by limitations and laches. We accept the trial court’s analysis and conclusions on the accounting; that is, whether in each case the transaction was fraudulent, prudent or imprudent, and if imprudent, the consequent loss to the estate. Although the court did not specifically hold limitations or laches inapplicable to bar the claim against Grayson, a holding to that effect is, we think, implicit in its judgment of liability. But in any event, we do not think limitations or laches admissible to bar plaintiffs’ claim against the trustees. “The beneficiary cannot hold the trustee liable for a breach of trust if he fails to sue the trustee for the breach of trust for so long a time and under such circumstances that it would be inequitable to permit him to hold the trustee liable.” Restatement Trusts, Sec. 219. And where, as here, the action is commenced after the lapse of the applicable statute of limitations, the burden is upon the plaintiffs to allege and prove that the fraud was not discovered until within the statutory period before the commencement of the action. Pepper v. Truitt, 10 Cir., 158 F.2d 246; Gulf Coast Western Oil Co. v. Trapp, 10 Cir., 174 F.2d 339. Concealed fraud was the gravamen of the plaintiffs’ suit. It was in issue, tried and decided in the case. “The question of whether a claim is barred by laches must be determined by the facts and circumstances in each case, and according to right and justice. Laches in legal significance is not merely delay, but delay that works a disadvantage to another.” Stallings v. White, 194 Okl. 649, 153 P.2d 813, 817. And, “Laches will not be imputed to one who has been justifiably ignorant of the facts -creating his right or cause of action, and who, therefore, has failed to assert it.” Alexander v. Phillips Petr. Co., 10 Cir., 130 F.2d 593, 606. See also Phelan v. Roberts, 182 Okl. 202, 77 P.2d 9; Lawson v. Haynes, 10 Cir., 170 F.2d 741. “One cannot acquiesce in the performance of an act of which he is ignorant.” Pomeroy’s Equity Juris., 4th Ed., Vol. 4, Sec. 1447. Equity does not bar a claim of this kind unless it is inequitable not to do so. Oldland v. Gray, 10 Cir., 179 F.2d 408. Thus, “The beneficiary will not ordinarily be barred by laches from holding the trustee liable for a breach of trust of which the beneficiary did not know, and had no reason to know.” Restatement Trusts, Sec. 219, Comment c. Appellees insist that the action is governed by the Oklahoma two or five year statutes of limitation as one arising out of a surety contract, citing Foster v. Walker, Okl., 217 P.2d 533, to the effect that statutes of limitation apply equally to actions at law and suits in equity. We do not understand that by this pronouncement the Oklahoma court intended to repudiate the rule so well rooted in its jurisprudence to the effect that actions cognizable in equity are governed by equitable considerations. Wilhelm v. Pfinning, 191 Okl. 321, 129 P.2d 580; Harrison v. Eaves, 191 Okl. 453, 130 P.2d 841; Dunavant v. Evans, 191 Okl. 208, 127 P.2d 190; Hester v. Watts, Okl., 218 P.2d 641. But even so, neither the statute of limitations nor laches operate to bar a claim based upon undiscovered fraud or fraud of which the plaintiff was justifiably ignorant. Bailey v. Glover, 21 Wall. 342, 88 U.S. 342, 22 L.Ed. 636; McMullen v. Wilfield Building and Loan Ass’n, 64 Kan. 298, 67 P. 892. In determining whether Cussehta or his heirs were justifiably ignorant of the default of the trustees, it is relevant to consider his powers of understanding and comprehension in respect to the administration of the trust affairs, as well as the degree of trust and confidence imposed in the trustees and those who influenced their administration'of the trust. True, as the trial court observed, Cussehta was. legally competent, and for that matter, competent in fact, when he executed the trust agreement and approved the semiannual accounts of the trustees and executed releases and acquittals on which the parties rely. But, it is also true, as we observed in the former appeal, that “a competent person may be defrauded.” A release or contract is not effective to discharge the trustee’s liability ■for a breach of trust if inter alia “the beneficiary did not know of his rights and of the material facts which the trustee knew or should have known and which the trustee did not reasonably believe that the beneficiary knew.” Restatement Trusts, Sec. 217. In 1917, when Cussehta was fifty-five years of age, he was declared incompetent as an illiterate Indian who did not realize the value of his estate, and as a person who was easily overreached by those whom he trusted. In 1923, he paid $10,000 to avoid being declared competent. In 1924, he paid $30,000.00 to be adjudged competent Some of the same persons who testified to his incompetency in 1917, testified that he was competent in 1924. As an Indian who could neither read nor speak the English lan-. guage, he knew and understood only what was explained to him through an interpreter, and even then it is manifest on this, record that he had little or no knowledge or understanding of his affairs, or the manner in which they were being administered. We have held the acts and contracts of Indians of weak understanding void where facts justify the conclusion that the party has not exercised deliberate judgment, but has 'been imposed upon or unduly influenced, although the Indian may have been legally and factually competent. Whitchurch v. Crawford, 10 Cir., 92 F.2d 249; Lawson v. Haynes, 10 Cir., 170 F.2d 741. We have said that although this trust agreement was not void as against innocent third parties, it was fraudulently induced and voidable as to those parties who had knowledge of or participated in the fraud, including the trustees Hill Moore and Washington Grayson. It is clear beyond dispute that Cussehta had implicit confidence in his trustees, and believed without question every representation made to him. He continued under their influence and domination until his death in 1936. Hill Moore resigned in 1929, and Martin was discharged on the bond, but successor trustees continued to control and manage the property under the trust agreement until after Cussehta’s death in 1936. In 1937, the parties sought to terminate the trust and exonerate themselves by judicial decree of the District Court of Okfuskee County, but we held this judgment void and ineffectual for extrinsic fraud. Chisholm v. House, supra, 160 F.2d at page 643. Before the trust was terminated in 1937, the estate was restored to the control of House as attorney-in-fact for plaintiffs Lessey and Nancy as the heirs at law of Cussehta. Thus, the trust was conceived, born, lived and died in fraud. From the whole record, we are convinced that Cussehta never understood the nature of his acts or contracts or their legal import. He was justifiably ignorant of the default of the trustees, and limitations or laches did not therefore run against him during his lifetime. It is not clear when House relinquished management and control of the estate and the affairs of Lessey and Nancy, but it was after 1937, and this suit was commenced in 1940. The record also shows conclusively that Lessey and Nancy were illiterate and incapable of understanding the nature and consequences of their acts. They had been alternately declared incompetent and competent, as suited the purposes of those who were managing their affairs, for their selfish benefit. They were always under the domination of the same parties who administered Cussehta’s trust and affairs, and the administration of their estates followed the same pattern. We are certain that they were also justifiably ignorant of the default of Cussehta’s trustees, and that their claims as his heirs are not barred by limitations or laches. The question remains whether Martin as surety for the defaulting trustees can invoke limitations or laches when they are unavailable to his principal. The liability of the trustees arises out of the trust agreement, and is based upon the faithful performance of the trust. The liability of Martin as surety arises by contract, and is governed by its terms and conditions. Its terms are to be interpreted by the same rules observed in other contracts. Title 15 O.S.A. 374. Dolese Bros. Co. v. Chaney & Rickard, 44 Okl. 745, 145 P. 1119. But, having guaranteed the faithful performance of the trust, Martin’s liability as surety is measured precisely by the liability of the trustee— whatever discharges the trustee discharges Martin. Anderson v. Shaffer, 98 Cal.App. 457, 277 P. 185; Eising v. Andrews, 66 Conn. 58, 33 A. 585, 50 Am.St.Rep. 75. And, conversely, whatever binds the trustees binds Martin, for as surety he can make no defense which the trustees waived, or by their conduct precluded themselves from making. Commercial Casualty Ins. Co. v. Breckenridge, 128 Okl. 215, 262 P. 208; M. S. Cohn Gravel Co. v. Southern Surety Co., 129 Okl. 171, 264 P. 206; 50 Amer.Juris. Suretyship, Sec. 30, p. 921. Any act of the principal which estops him from setting up a defense personal to himself, operates equally against his surety. Boone County v. Jones, 54 Iowa 699, 2 N.W. 987, 995, 37 Am.Rep. 229 ; 50 Amer.Juris.Suretyship, Sec. 140. Thus, where the trustees’ concealment of their default, or the justifiable ignorance of Cussehta and his heirs, prevents the running of the statute of limitations or laches as against them, they do not run against Martin as surety, even though he was innocent of any fraud or concealment. The rationale is that “so long as the original duty of the principal continues, the liability of the surety persists,” especially where, as here, the “relations of the principal and surety are such that the surety is in a better position than the creditor to know the facts regarding the principal’s performance of his duty.” Restatement Security, Sec. 121, Comment a; see also 50 Amer. Juris.Suretyship, Sec. 184, p. 1023. We conclude that limitations or laches not being available to the trustees, they are not available to Martin. But Martin took a separate and independent release from Cussehta on December 23, 1929, four days after Hill Moore resigned as trustee and Martin was discharged as a surety on the bond. The release was prepared by an attorney wholly unconnected with the administration of the trust. It recited the execution of the original and supplemental trust instruments, and the surety bond for its faithful performance; the rendition of a complete written inventory and accounting disclosing the condition of the estate, and the manner of its administration. It also significantly recited examination and verification by Cussehta. The instrument, by its terms, fully, finally and completely discharged and acquitted the trustees and their sureties from “any and all responsibility or liability of any kind whatever because of the administration of the trust estate” to that date by reason of the execution of the bond, or of the delivery of the assets under the agreement. The report and inventory were attached. Cussehta signed by his thumb print before witnesses who swore that they had translated and interpreted the release to Cussehta in the Creek language, and that he fully understood the same and the effect thereof. The trial court observed, and it was conceded at the trial, that the release was without consideration. And see 50 Amer.Juris.Suretyship, Sec. 101. Since, however, the trial court disposed of the case on laches, it had no occasion to consider Martin’s equitable plea of estoppel. Martin contends that since the execution of that release, he has relied upon it and has changed his position to his detriment. He points out that since its execution, one of the trustees has died, and the other has become insolvent after having received large sums of money as trustee of the estate after Martin’s discharge'on the bond; that the records have been lost, his memory dimmed with age, and that Cussehta or his heirs were therefore estopped from denying the validity of the release. Although concededly Martin did ■ not fraudulently induce Cussehta to execute the release, it is clear that he was as ignorant of its nature and legal consequences as any other instrument he executed while under the influence of his defrauders. As a banker having joint control of the estate, Martin had superior knowledge of the nature of the transactions held to be action-ably imprudent, and for which he as surety would have been liable, in the absence of the release. Estoppel, like laches, has its roots in equity, and is governed by equitable considerations. Dunavant v. Evans, 191 Okl. 208, 127 P.2d 190. One of the essential elements of estoppel is that the facts relied upon as a basis for estoppel must be known to the party estopped, or knowledge of them must necessarily be imputed to him. Another essential element is that the truth of these facts must be unknown to the one claiming the benefit of the estoppel. See Pomeroy’s Equity Juris., Vol. 2, Sec. 805; 19 Amer.Juris.Estoppel, Sec. 34. It seems fair to say on this record that neither Cussehta nor his heirs had any knowledge of the basic facts, and that Martin did. We conclude that the basic elements of estoppel are lacking, and that Martin is therefore liable along with his trustees for the excessive attorney fees, and the loss sustained on the Pemberton and King loans, all as heretofore determined by the trial court. In the former appeal, we held the $30,-600.00 fees paid to House in 1924 for securing Cussehta’s restoration to competency exorbitant, unconscionable and fraudulently obtained, in violation of the confidence imposed in him by Cussehta, and that 'Cussehta was entitled to recover the same. On remand, the trial court construed our mandate on the opinion as leaving a discretion in the trial court to award House reasonable compensation on quantum meruit. It accordingly fixed a reasonable fee of $2,600.00, and entered judgment against House for the sum of $28,000.00, with interest from the date of the judgment. It is plain from the record, we think, that the servicés rendered by House, and for which compensation was paid, were in furtherance of his scheme to cheat and defraud Cussehta, and were therefore in furtherance of his. own self interest. We can find no legal or equitable justification for compensating him for such services. In its judgment against House and the trustees for their default, the court allowed interest at the rate of six per cent per annum from the date of the judgment. Appellants complain of the failure of the court to allow interest from the date of the default. We have recently said, following Oklahoma law, that as a general rule, interest on an unliquidated amount or claim is not recoverable until the amount due is fixed by judgment. Robberson Steel Co. v. Harrell, 10 Cir., 177 F.2d 12, 17. But this rule has application to actions in law. “Where a trustee commits a 'breach of trust and becomes liable for a sum of money, he is ordinarily liable for interest thereon.” Scott on Trusts, Vol. 2, Sec. 207; see also Amer.Juris Interest, Sec. 27, p. 21. But, in the last analysis, whether interest will be allowed and the rate thereof, is “wholly in the discretion of the court.” 4 Bogert on Trusts and Trustees (Part 1), p. 418; see also Greenberg v. Paramount Pictures, 2 Cir., 85 F.2d 42, 106 A.L.R. 1116; 47 C.J.S.Interest, § 3, p. 13. In view of the lapse of time from the default until the assertion of the remedy, we think the allowance of the legal rate of interest from the date of the court’s judgment was equitable and just. The cause is reversed and remanded with directions to enter judgment in favor of the plaintiffs, and against Martin for the excessive attorney fees, and the loss shown to have been sustained on the Pemberton and King loans, with interest at the rate of six per cent from the date of the judgment against the trustees; and against House in the sum of $30

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "other". Your task is to determine which of the following specific subcategories best describes the litigant.

This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "other". Which of the following specific subcategories best describes the litigant?

VALINDA F. OLADEINDE, PATRICIA L. FIELDS, Plaintiffs-Counterclaim Defendants-Appellees, v. CITY OF BIRMINGHAM, a municipal corporation, Richard Arrington, individually and in his capacity as Mayor of the City of Birmingham, Arthur Deutsch, individually and in his capacity as Chief of Police of the City of Birmingham, Julius Walker, individually and in his capacity as Provisional Captain of Administrative Vice-Narcotics Division, R.L. Webb, individually and in his capacity as Provisional Captain of Internal Affairs Division, Defendants-Counterclaim Plaintiffs-Appellants, David Barber, Roger Brown, United States of America, State of Alabama, Movants. No. 91-7518. United States Court of Appeals, Eleventh Circuit. June 24, 1992. Kenneth L. Thomas, Thomas, Means & Gillis, Birmingham, Ala., for Walker. Joe R. Whatley, Jr., Samuel H. Heldman, Cooper, Mitch, Crawford, Kuykendall & Whatley; and Donald V. Watkins, Birmingham, Ala., for all other defendants. William M. Dawson, Jr., and Gayle H. Gear, Dawson, Ramsey & Wiley, Birmingham, Ala., for appellees. Before EDMONDSON and COX, Circuit Judges, and MERHIGE , Senior District Judge. Honorable Robert R. Merhige, Jr., Senior U.S. District Judge for the Eastern District of Virginia, sitting by designation. EDMONDSON, Circuit Judge: Defendants, sued under 42 U.S.C. § 1983, appeal the district court’s order denying their motion to dismiss based, among other things, on qualified immunity. We reverse in part and affirm in part. BACKGROUND Plaintiffs, Yalinda F. Oladeinde and Patricia L. Fields, are Birmingham Police Department officers who filed a section 1983 action against the City of Birmingham, Birmingham Mayor Richard Arrington, Birmingham Police Chief Arthur Deutsch, Provisional Captain Julius Walker of the Vice-Narcotics Division of the Birmingham Police Department and Provisional Captain R.L. Webb of the Department’s Internal Affairs Division. (Excluding the City, defendants were sued in their official and individual capacity.) Plaintiffs alleged that defendants violated plaintiffs’ rights to free speech, due process, equal protection and freedom of association by retaliating against plaintiffs’ “whistleblowing” about wrongdoing in the Police Department. Defendants moved unsuccessfully to dismiss the original complaint and then moved for dismissal again after some discovery and pretrial proceedings. The district court denied this second motion, but certified the denial order for interlocutory appeal. This court denied permission to appeal; we were unable to determine what question of law might control plaintiffs’ claims because plaintiffs’ complaint was a “shotgun” pleading containing rambling facts and multiple claims for relief all under one count and because we were unable to determine from the district court’s order whether the district court ruled on a question of law. See Oladeinde v. City of Birmingham, No. 91-2061 (11th Cir. filed May 8, 1991). The case went back to the district court, which allowed plaintiffs to amend their complaint. Defendants again moved for dismissal after plaintiffs amended their complaint; the motion to dismiss was based on these grounds: (1) complaint’s failure to conform to Fed.R.Civ.P. 8; (2) complaint’s failure to state a claim for which relief might be granted; (3) the substance of the alleged wrongful activity was privileged from discovery; (4) qualified immunity; and (5) for the state-law claims, defendants’ argument that the district court should exercise no pendent jurisdiction. The district court denied defendants’ motion with the following brief statement: Defendants evidently got carried away by the Eleventh Circuit’s comments by way of dicta and citation to Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir.1991) [(condemning “shotgun” pleadings), cert. denied, — U.S. —, 112 S.Ct. 167, 116 L.Ed.2d 131 (1991)]. This court is satisfied that plaintiffs’ complaint falls comfortably in between what would be required by strict common law pleading and “shotgun” or nebulous and vague pleading so as to find acceptance under the notice pleading requirements of the federal rules. In addition, defendants’ motion to dismiss appears to be fired out of the same or a similar shotgun from which they accuse plaintiffs of firing. In any event none of the grounds or rounds fired are sufficient to justify a grant of the motion to dismiss. Oladeinde v. City of Birmingham, No. 91-AR-0196-S (N.D.Ala. filed June 2, 1991). Apart from stating that plaintiffs’ complaint met federal civil procedure pleading requirements, the district court never explained why it rejected defendants’ other grounds for dismissal. This appeal by the individual-capacity defendants followed. DISCUSSION Defendants argue that the district court erred by concluding that plaintiffs’ complaint conformed to procedural rules, by concluding that plaintiffs’ complaint stated a claim for which relief might be granted, and by rejecting defendants’ qualified-immunity defense. Many factors complicate our review of defendants’ three claims, but no factor plays as dominant a complicating role as the long and wordy nature of plaintiffs’ amended complaint. In all kinds of cases, pleadings should be “simple, concise, and direct.” Fed.R.Civ.P. 8(e)(1). We are perplexed and frustrated by the fact that, despite clear guidance from this court, “the complaint presented to us ... [continues to be] a typical ‘shotgun’ pleading.” Oladeinde v. City of Birmingham, No. 91-2061, slip op. at 2 (11th Cir. filed May 8, 1991). But in the light of the fact that this case is presented to us for the third time (although the case has yet to advance much beyond the initial-pleadings stage) and in the interest of judicial economy and efficiency, we will review defendants’ claims instead of remanding this case for further repleading. We admit to serious doubt that the complaint complies with Rule 8, but we will not reverse the district court on this point. We reject defendants’ first point on appeal. On a related question about pleadings (whether the complaint states a claim), we want to use this opportunity to repeat that, “in an effort to eliminate nonmeritorious claims on the pleadings and to protect public officials from protracted litigation involving specious claims, we, and other courts, have tightened the application of Rule 8 to § 1983 cases.” Arnold, v. Board of Educ. of Escambia County, 880 F.2d 305, 309 (11th Cir.1989) (citation omitted). In pleading a section 1983 action, some factual detail is necessary, especially if we are to be able to see that the allegedly violated right was clearly established when the allegedly wrongful acts occurred. We also stress that this heightened Rule 8 requirement—as the law of the circuit—must be applied by the district courts; and we had anticipated that it would be rigorously applied by the district court in this case, particularly in the light of our earlier decision denying defendants’ appeal. Rule 12(b)(6) and Qualified Immunity At this early stage in the proceedings, the Rule 12(b)(6) defense and the qualified-immunity defense become intertwined. Under Rule 12(b)(6), defendants can defeat plaintiffs’ cause of action if the complaint fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Under the qualified-immunity defense, defendants are immune from liability and even from trial if plaintiffs’ complaint fails to state a violation of “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). And as the Supreme Court has stated, “[a] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.” Siegert v. Gilley, — U.S. —, —, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). When reviewing motions to dismiss, we follow the same standards as the trial courts. All well-pleaded facts in plaintiffs’ complaint and all reasonable inferences drawn from those facts are taken as true. See, e.g., Stephens v. Department of Health and Human Servs., 901 F.2d 1571, 1573 (11th Cir.1990). Guided by this standard and by the heightened specificity requirement of Rule 8 in section 1983 cases, we now address plaintiffs’ claims. We will first discuss plaintiffs’ separate claims and then discuss how plaintiffs’ surviving claims affect defendants in their individual capacity. Separate Claims We can immediately dispose of two claims contained in plaintiffs’ complaint: equal protection and freedom of association. Our review of the complaint and relevant case law shows that no set of facts alleged support either of these two claims. This conclusion is made even easier by plaintiffs’ counsel’s admission during oral argument that she was “persuaded” by defendants’ arguments and by applicable case law that the alleged equal-protection and freedom-of-association claims were legally unsupportable and that, if given the chance, she would “not include” these claims in another amended complaint. Plaintiffs, then, have concededly failed to state equal-protection and freedom-of-association claims for which relief might be granted. Plaintiffs have also failed to state a due-process claim for which relief might be granted. Plaintiffs’ complaint alleges that plaintiff Oladeinde’s reputation was soiled, that plaintiffs Oladeinde and Fields were transferred for no good reason, and that plaintiff Oladeinde was denied a promotion. None of these allegations implicate the due-process protection of the Fourteenth Amendment. We first examine whether plaintiffs alleged a violation of their procedural due-process rights. When reviewing a due-process claim, the threshold question is whether plaintiffs were deprived of a protected property or liberty interest. See, e.g., Faucher v. Rodziewicz, 891 F.2d 864, 869 (11th Cir.1990). Our inquiry will start with the only allegation affecting both plaintiffs: the transfers. Because we continue to be unwilling to hold that a transfer, which involves no loss of pay and no loss of rank, deprives a plaintiff of a protected liberty or property interest, we conclude that plaintiffs have alleged no procedural due-process violation on this point. “The internal transfer of an employee, unless it constitutes such a change of status as to be regarded essentially as a loss of employment, does not provide the additional loss of a tangible interest” that deserves Fourteenth Amendment protection. See Faucher, 891 F.2d at 870 (citation omitted). We also conclude that the alleged defamatory remarks made about plaintiff Oladeinde fall outside the protection of constitutional due process. Plaintiff Oladeinde tries to rely on Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), to argue that allegations of criminal acts may invoke due-process protection. This reliance is misplaced, however, because plaintiff in Owen had been discharged immediately following, and presumably because of, the allegedly false statements. Id. at 633 n. 13, 100 S.Ct. at 1406-07 n. 13. Here, no loss of income or rank occurred, and absent a discharge or more, injury to reputation itself is not a protected liberty interest. See, e.g., Siegert v. Gilley, — U.S. at —, 111 S.Ct. at 1794. Plaintiff Oladeinde’s promotion is also not a protected property or liberty interest. In Wu v. Thomas, 847 F.2d 1480, 1485 (11th Cir.1988), this court stated that “a prospective promotion is not a property or liberty interest protected by the fourteenth amendment.” Here, no protected interest arose from the mere recommendation of a promotion. Aside from failing to state a claim for a violation of procedural due-process rights, plaintiffs have also failed to state a claim for a violation of substantive due-process rights. Substantive due process is a difficult concept to define. But “substantive due process is violated only when the government engages in actions which ‘offend those canons of decency and fairness which express the notions of justice....’ ” Faucher, 891 F.2d at 871 (citations omitted). Unless the alleged conduct by the state actor shocks the conscience, substantive due process is not implicated. Id. Here, no shocking conduct was alleged, no substantive due-process rights were violated, and no due-process claim was stated for which relief might be granted. Plaintiffs, however, have successfully stated a free-speech claim for which relief might be granted. Bearing in mind that all facts alleged in the complaint and all reasonable inferences drawn from those facts must be takfen as true on a motion to dismiss, see, e.g., Stephens, 901 F.2d at 1573, plaintiffs have alleged the following: before, during and after their time in the Birmingham Police Department Narcotics Unit, plaintiffs sought to expose allegedly corrupt connections between police, city officials and drug dealers; and, as a result of these efforts, plaintiffs were exposed to retaliatory harassment, threats and transfers to keep them quiet about affairs that might be a matter of public concern. In essence, plaintiffs allege that they are “whistleblowers” and that defendants violated plaintiffs’ free-speech rights by retaliating against them for their efforts. Taking these allegations as true, plaintiffs have stated a free-speech claim for which relief might be granted. Cf. Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 n. 2 (11th Cir.1989) (First Amendment protects public employees’ right to speak about issues of public concern). Although plaintiffs have successfully stated a free-speech claim, they have stated this claim only against three of the individual-capacity defendants: Deutsch, Walker and Webb. Nowhere do plaintiffs allege particular wrongful acts by Mayor Arrington and nowhere do plaintiffs allege a sufficient causal connection between the alleged free-speech violation and the Mayor’s conduct. Absent these allegations, plaintiffs’ complaint fails to state a section 1983 claim against the Mayor. See, e.g., Hansen v. Black, 885 F.2d 642, 645-46 (11th Cir.1989). Plaintiffs came closest to alleging the Mayor’s involvement when plaintiffs made the following statements in their complaint: “As a result of plaintiffs’ [whistleblowing], defendants Webb, Walker, Deutsch and Arrington took certain actions in an effort to punish, harass, and intimidate such ‘whistleblowers....’” Plaintiffs’ Amended Complaint at 7, para. 20; and “Defendants illegally conspired to violate plaintiffs’ rights....” Id. at 18, para. 43. In the light of the heightened specificity requirements for Rule 8 in section 1983 cases, we look for definiteness in the averment of wrongful acts. These vague allegations, which are supported by no specific factual allegations against the Mayor, constitute no basis for a section 1983 cause of action. The district court, therefore, should have dismissed the claims against the Mayor. Defendants in their Individual Capacity We now address the question whether the remaining individual-capacity defendants are entitled to qualified immunity against plaintiffs’ free-speech claim. We conclude that, based on the record before us, Deutsch, Walker and Webb are unentitled to qualified immunity at this stage in the proceedings. Defendants correctly argue that, in free-speech cases, “[b]ecause no bright-line standard puts the reasonable public employer on notice of a constitutional violation, the employer is entitled to immunity except in the extraordinary case where [the balancing test from Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (free-speech interest of employee must be weighed against employer’s interest in performing public services efficiently)], would lead to the inevitable conclusion that the [retaliatory action] was unlawful.” Dartland, 866 F.2d at 1323. Dartland is the law. But considering the complaint only, this appears to be a case in which such an inevitable conclusion would be reached. Therefore, at this stage in the proceedings, the qualified-immunity defense of Deutsch, Walker and Webb fails because the limited record before us does not support defendants’ contention that, in the light of prevailing legal standards, their interest in efficiently operating the police department arguably outweighed plaintiffs’ free-speech rights on a matter of public concern. We stress, however, that defendants retain the right to assert the qualified-immunity defense at the next stage of the proceedings (and, for that matter, throughout the proceedings) as more facts are developed. CONCLUSION Because plaintiffs’ complaint fails to state a claim for which relief might be granted on the assertions that defendants violated plaintiffs’ rights to due process, freedom of association and equal protection and because plaintiffs’ complaint fails to state a claim against Mayor Arrington, we REVERSE the district court’s denial of defendants’ motion to dismiss these claims. But we AFFIRM the district court’s decision in all other respects. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. . Plaintiffs also raised state-based tort claims. . We deem abandoned those motion-to-dismiss arguments that defendants advanced in the district court but failed to raise on appeal. See, e.g., Rogero v. Noone, 704 F.2d 518, 520 n. 1 (11th Cir.1983). . Rule 8 requires, among other things, that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although "[e]ach averment of a pleading shall be simple, concise, and direct[,] ... [n]o technical forms of pleading ... are required.” Id. 8(e)(1). . See Oladeinde v. City of Birmingham, Nos. 91-2061 & 91-2063 (11th Cir. filed May 8, 1991) (denying permission to appeal and denying mandamus petition); Oladeinde v. City of Birmingham, No. 91-7530 (11th Cir. filed July 29, 1991) (denying mandamus petition and granting stay pending appeal). . In asserting their Rule 12(b)(6) motion to dismiss for failure to state a claim, we note that defendants have attacked the validity of each constitutional claim allegedly asserted in plaintiffs’ complaint. See, e.g., Defendants’ Motion to Dismiss at 15-23.

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 "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.

This question concerns the second listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?

BROTHERHOOD OF RAILROAD TRAINMEN et al. v. NATIONAL MEDIATION BOARD et al. No. 6665. United States Court of Appeals for the District of Columbia. Argued Nov. 13, 1936. Decided Dec. 21, 1936. Albert F. Beasley and A. Lane Cricher, both of Washington, D. C., for appellants. Leslie C. Garnett, U. S. Atty., of Washington, D. C., and. Leo F. Tierney, Sp. Asst, to Atty. Gen., for appellees. Before MARTIN, C. J., and ROBB, VAN ORSDEL, GRONER, and STEPHENS, JJ. GRONER, J. By Act of June 21, 1934, Congress amended the Railway Labor Act for the avowed purpose of correcting defects which had become evident as the result of eight years’ experience. The Act of 1926 (44 Stat. 577) had created certain definite legal obligations enforceable by judicial proceedings for the purpose, among other things, of* safeguarding the rights of employees to bargain collectively with the carrier through representatives of their own choosing without interference by the carrier. Virginian Railway Co. v. System Federation, etc., (C.C.A.) 84 F.(2d) 641, 645. The amendment provided for a Board called the National Mediation Board, to which might be referred any dispute arising among the carrier’s employees as to who was the representative of such employees in making contracts and working agreements with the carrier in accordance with the requirements of the act. The Board is authorized in such a case to investigate the dispute and to certify the name of the organization authorized to represent the employees involved, and to this end to cause a secret ballot of the employees in such manner as should insure a choice without interference or coercion. And in the election the Boafd is authorized to establish rules to govern the election and to “designate” who shall participate. Section-2, paragraph fourth, of the act provides that the majority of any craft or class shall have the right to determine who shall be the representative of the craft or class for the purposes of the act. In the spring of 1935 a dispute arose among the road conductor employees of the Norfolk & Western Railway Company as to who should be the representative of that craft or class. At that time the conductors were represented by the Order of Railway Conductors, and the brakemen employees by appellant, the Brotherhood of Railroad Trainmen. As the result of the dispute, the Brotherhood invoked the jurisdiction of the Board for the certification of the proper representative of the craft. The Board, having assumed jurisdiction, promulgated a ruling limiting the conductor employees eligible to vote to those “regularly assigned as Road Conductors or on Road Conductors’ Extra Boards * * * as of August 22, 1935.” Out of a total of 605 employees on the conductors’ roster, only 294 were listed by the Board as qualified to vote, since only that number were regularly assigned as conductors or on conductors’ extra boards on that date. The remainder, as the record discloses, worked a portion of their time as part-time, extra, or emergency conductors and the balance of the time as brakemen. In the election held by the Board a large majority of the 294 regular conductors voted for representation by the Order of Railway Conductors, and a certificate to that effect from the Board to the carrier followed. The question on this appeal is whether the decision of the Board, excluding part-time conductors from participation in the election, was a mistake of law so clearly erroneous as to make the decision arbitrary. There are other points made, one of which we shall notice. In the railroad business the employees have for many years been divided into crafts, and in many instances these crafts form a continuous line of employments through which an employee may progress from the lower ranking crafts to the higher. The craft of brakemen comes immediately beneath the craft of conductors, and in the case of the Norfolk & Western, as doubtless also in the case of the other railroads, the custom has been at different periods to hold examinations among the senior ranking brakemen, and such brakemen as qualify are entitled to be and are placed on the company’s roster of conductor employees, are given certificates as conductors, and are eligible for service as conductors when called. They acquire seniority as conductors from the date of their certification as such, and they also continue to acquire seniority as brakemen; but unless and until jobs are open they continue to work as brakemen. Seniority is the test for availability to a particular job, and so the highest ranking men on the conductors’ seniority list are regularly assigned as conductors. The next highest ranking conductors are first called to fill vacancies, and when extra boards are established, the names of these conductors are placed on what are called “extra boards” and are drawn therefrom. When more men than are assigned regularly as conductors and on conductors’ extra boards are needed for emergency, part-time, or irregular work„as conductors, they are drawn in the order of seniority from those persons on the conductors’ list who are then working as brakemen. The demand for such emergency conductors fluctuates seasonally and otherwise. The bill alleges in the case of four of the emergency conductor employees who joined the Brotherhood in bringing this suit that in the eight months preceding the election one of them was assigned to work 203 working days, of which he worked 179 < days as conductor and 24 as brakeman; that another was assigned to work 246 days, of which he worked as conductor 217 days and 29 as brakeman; another was assigned 266 days, of which 243 were worked as conductor and 23 as brakeman; still another, that he was assigned 336 days, of which 156 were worked as conductor and 180 as brakeman. Each of these employees alleged he was not permitted to vote because he was not “regularly assigned as a road conductor” or on the “extra board” on August 22, 1935, and each alleged that he was in fact then a member of the craft or class of conductor employees and vitally interested in any dispute affecting that craft. The bill further alleged that all the 308 excluded conductor employees had been assigned and served the railway in the capacity of conductor “a substantial portion of their time from January 1, 1935, up to and including the date on which said election was held”; and that many of them had served a greater portion of their time in such capacity as conductors than they had in the capacity of brakemen. As to all it is charged in the bill that they are in the employ of the carrier and hold certificates as road conductors and are carried on the company’s roster as conductor employees ; that they are governed and controlled by the carrier as to their services under the terms of the working agreement between the company and its conductor employees; that they have earned and are continuing to earn and will in the future earn seniority rights as conductors; that they serve and are required to serve as brakemen when there are no available assignments as conductors as provided in the working agreement between the company and the conductor employees, and are entitled in the order of seniority to the first available assignment as conductors; and on this basis it is claimed that they have a present, vested, and vital interest in any dispute involving the craft or class of conductor employees of the carrier. The Board, in reaching a decision of eligibility to vote, placed its determination upon what is said to be its settled practice of limiting those eligible to vote for representation of a class or craft to “those who have a present interest in the wages, rules and working conditions of the class whose representation is to be determined.” And this brings us to a consideration of the act and the existing working agreement which is made an exhibit with the bill. The general purpose of the Labor Act was to promote peaceful and conciliatory consideration of labor disputes and especially to secure the right of collective bargaining, through a representative chosen by a majority of the employees in a particular craft or class. It is not going too far to say that the basic and underlying purpose ©f the act was to insure rep-reservation in accordance with established custom to those employees whose interests are involved. But the act leaves uncertain the precise or exact meaning of the words “class or craft,” and we think obviously for the reason that it was intended by Congress to adopt the designation of class or craft as determined by the then current working agreement between the railroad and particular groups or classes of its employees. And we find justification for this conclusion in paragraph 7 of section 2, which provides that: “No carrier, its officers or agents shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 6 of this Act.” In other words, that no carrier shall change the terms of its working agreement with any class of employees, as that class is embodied in and declared to exist by the working agreement, except in accordance with the terms of the agreement or in conformity with the act. In the light of this provision — and of the general scheme of the act as a whole — we think it is obvious that how classes are .to be formed and who shall compose them are matters left to the employees themselves; and so we think that by reference to the terms of the working agreement which the employees have made, is 'to be found at least some evidence of who are members of the craft or class covered by that agreement. The Board also recognizes that this is a criterion, for in its First Annual Report to Congress, after noting that the act does not give it authority to define the crafts or classes, it says: “So far as possible the Board has followed the past practice of the employees in grouping themselves for representation purposes and of the carriers in making agreements with such representatives.” An examination of the working agreement in the present case reveals that the term “conductor” as a class includes not only regularly assigned and extra board conductors but emergency conductors as well. For example: Article 26, 1(a): “Conductors will be considered in line of promotion in accordance with seniority, ability, and fitness.” Article 26, 1 (c): “The rights of conductors will commence on the day they pass the required examinations. * * * ” Article 26, 1(f): “Conductors may not voluntarily relinquish their rights as conductors and -assert seniority as brakemen without losing their rights as conductors thereby.” Article 26, 1(Z): “Seniority lists of conductors in road service will be posted semi-annually, in January and July of each year.” , Article 26, 3: “On divisions or seniority districts where there is maintained an extra list of conductors, no emergency conductors will be used, except in case of extreme emergency where no extra conductor can be obtained.” Article 26, 2(a) : “When increasing the extra conductor lists at Crewe, Roanoke, Bluefield, Portsmouth, and Joyce Avenue, the oldest emergency conductor, or conductors on the seniority district will be assigned * * * “At terminals where extra conductor lists are not maintained, permanently vacant or newly put on pool runs will be filled by assigning thereto the oldest emergency conductor or conductors on the seniority district. * * * ” And by a supplementary agreement, effective November 1, 1932, the purpose of which was to relieve unemployment, the monthly mileage limitation agreement was amended to provide that: “1(c). The maximum monthly mileage limitation applying to men who work part time as conductor and part time as trainman in the same calendar month shall be 3500 miles, or its equivalent. * * * ” These references to the subsisting agreement between the craft and the carrier show, we think, that the excluded emergency conductors are in fact included under that agreement and that when they work as conductors they are controlled by its terms. In that agreement they have a present interest — varying in degree according to the amount of work done under it. As to some of them, as the bill shows, their wages and terms of service for the .greater part of their time were controlled and regulated by the agreement. In this view it seems clear that, applying the Board’s own test to the facts of the case, these individual appellants show a present interest of a substantial nature. But as we shall later point out, there is nothing in-the agreement itself which shows definitely who participated in electing the representative to act for the conductors in its making, that is to say, whether all or only a part were then considered eligible to vote. The Board, as we have seen, confined the right to participation to those conductors regularly assigned or on the extra boards on August 22, 1935. But no reason is given for making a distinction between conductors on the extra boards and emergency conductors; but, as opposed to that distinction, we find in the agreement that extra boards are not maintained in all lines of service on all seniority districts, and that -when no such boards are maintained the senior emergency conductors on the district are assigned to fill vacancies. In the absence of anything to the contrary, upon which a proper distinction can be based, it is a fair conclusion that emergency conductors, when there are no extra boards, have the same “present interest” as those conductors on the extra boards when such boards are maintained. But because it is impossible to determine this question without a fuller disclosure of the facts, we express no opinion on the question and suggest it only as showing the necessity for a fuller hearing than was had. In addition to this, it is charged in the bill that the Board declined and refused to inform appellants of the facts upon which the Board based or made its designation or rule as to who were eligible to participate in the election on the ground that this information was obtained through its examiner and should not be divulged. This, in our opinion, was wrong, for, as was said by Mr. Justice Brandeis in United States v. Abilene & S. R. Co., 265 U.S. 274, 288, 44 S.Ct. 565, 68 L.Ed. 1016, “Nothing can be treated as evidence which is not introduced as such.” We perfectly recognize that the intent of Congress was to clothe the Board with large discretionary powers in the conduct of elections for the appointment of representatives between the carrier and the craft, and we have no desire to impinge upon or curtail this very proper discretion. The subject is an involved one, and this fact is recognized by the Board and pointed out in plain language in its report to Congress to which we have referred. But this fact all the more shows the necessity of full hearings whenever a dispute arises. And obviously the lack of such a hearing in the present case has left us, as it must have left the Board, without the necessary data on which to form an opinion. In this circumstance, if the matter of interest alone is to be adopted as the test, we should hesitate to hold that an emergency conductor whose service time on the railroad is spent 50 per cent, as conductor and 50 per cent, as brakeman should not be classified, for the purposes of agreement making, as a conductor. But, as we have seen, the intent of Congress, in leaving undefined by the act the personnel of the class authorized to choose a representative, was to adopt and confirm the grouping , as it then was recognized and established by mutual agreement of employee and carrier. And this introduces another element as to which the record is wholly silent. We do not know if, in the character of grouping we have mentioned, emergency conductors were voting members of the conductor group as of the time of the passage of the act or whether at that time they were regarded by the men themselves for agreement making as members only of the brakemen group, and nothing in the so-called hearing afforded by the Board throws any light upon the subject. From all of this it is obvious that the Board acted in this dispute without affording appellants any real hearing, and this, it is needless to say, was the sort of arbitrary action which no court — when its jurisdiction is invoked —can approve. In this situation, our conclusion is that the case should go back to the District Court with directions to set aside its former order and remand the case to the Board with instructions to annul its certification and to afford the contesting employees and Brotherhood a full hearing and then to reach a decision based only on evidence adduced at the hearing and supplemented by a finding of facts on which it rests its conclusion. When this has been done it may appear that the result of the election would have been the same, so that no new election will be required; but in any event the courts, if then called upon to review the matter, will have before them a record on which to determine whether the decision is arbitrary or capricious. Enough appears here to justify us in finding, for the reasons stated above, that the present decision — especially if made, as alleged, as the result of information only in the possession of the Board and withheld from appellants — is without legal effect and should be corrected in the way we have indicated. Reversed and remanded. 48 Stat. 1185, 45 U.S.C.A. § 151 et seq. First Annual Rep. p. 20.

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 "miscellaneous", specifically "other". Your task is to determine which of the following specific subcategories best describes the litigant.

This question concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "other". Which of the following specific subcategories best describes the litigant?

AETNA INSURANCE COMPANY, a corporation incorporated under the laws of the State of Connecticut v. Lester C. NEWTON et al. Appeal of C. F. SCHWARTZ, INC. No. 19370. United States Court of Appeals, Third Circuit. Argued Sept. 27, 1971. Decided March 10, 1972. John J. Schmittinger, Schmittinger & Rodriquez, Dover, Del., for appellant. Roger Sanders, Prickett, Ward, Burt & Sanders, Wilmington, Del., for appel-lee, Aetna Ins. Co. E. Dickinson Griffenberg, Jr., Potter, Anderson & Corroon (Michael D. Goldman, Wilmington, Del., on the brief), for Continental Ins. Co., appellee. Before SEITZ, Chief Judge, HASTIE, Circuit Judge and HERMAN, District Judge. OPINION OF THE COURT SEITZ, Chief Judge. The facts precipitating this appeal are extensively set forth in Aetna Ins. Co. v. Newton, 398 F.2d 729 (3d Cir. 1968). Aetna Insurance Company (Aetna), as insurer for the Lester C. Newton Trucking Co. (Newton) filed a complaint seeking a declaratory judgment that C. F. Schwartz, Inc. (Schwartz) or its insurer Continental Insurance Company (Continental) was liable for amounts paid by Aetna to the Campbell Soup Company as reimbursement for damage to Campbell’s property occurring while in transit. The shipment initiated with Schwartz and was transported through Newton’s I.C.C. territory pursuant to a Master Interchange Agreement existing between Schwartz and Newton. The loss occurred in Newton’s territory and liability therefor essentially turns on what effect is given particular provisions of that agreement. A previous appeal to this court was dismissed because the district court’s order, 274 F.Supp. 566, failed to dispose of the litigation as to all the parties. At that time the court had granted Aet-na summary judgment against Schwartz. We remanded the proceeding with directions that a decision be made concerning Continental’s responsibility to reimburse Schwartz. The district court, 315 F. Supp. 860, then granted Continental’s motion for summary judgment and this appeal followed. As noted in our earlier opinion the rights and obligations of the various parties appear to hinge to a large extent on a determination of whether the indemnity provision of the Master Interchange Agreement between Schwartz and Newton was operative on the date when the Campbell shipment was damaged. Indeed, as Schwartz itself concedes, “if Clause 4 C (2) of the . Agreement . . . was in effect on July 27, 1963, [Schwartz] is obligated to pay for the cargo loss.” Appellant’s Reply Brief at 2. Clause 4 C (2) provides, inter alia, that the initiating carrier (Schwartz) shall “[ijndemnify and save harmless the receiving carrier (Newton) against any claim by whomsoever filed . for loss or damage to any shipment. ...” Schwartz sought to introduce parol evidence suggesting that both parties to the agreement understood that effectuation of clause 4 C (2) was to be delayed pending assurance from Continental that any loss suffered by Schwartz pursuant to the agreement would be insured. The district court ruled that this evidence would be inadmissible, saying that such contradiction of the otherwise clear terms of the agreement which made clause 4 C (2) effective as of the date of signature would violate the parol evidence rule. Schwartz contends that the district court’s parol evidence ruling was erroneous. Its position is that the condition precedent exception to the parol evidence rule permits proof that effectuation of “clause 4 C (2) of the Master Interchange Agreement was subject to a condition precedent at the time of the loss in question.” Section 241 of the Restatement of Contracts phrases the condition precedent exception as follows: “Where parties to a writing which purports to be an integration of a contract between them orally agree, before or contemporaneously with the making of the writing, that it shall not become binding until a future day or the happening of a future event, the oral agreement is operative if there is nothing in the agreement inconsistent therewith. (Emphasis added) See also Equitable Trust Co. v. Gallagher, (Del.Super.) 31 Del.Ch. 88, 67 A.2d 50, 55 (1949), aff’d 32 Del.Ch. 401, 77 A.2d 548 (1950). It may be noted that the exception does not purport to authorize parol proof that implementation of only specific provisions of an otherwise integrated agreement was to be deferred. Nor have we been presented with any cases adopting Schwartz’ position under circumstances such as exist in this case. To admit evidence tending to prove that the operation of clause 4 C (2) was subject to a condition precedent while the remaining provisions became effective immediately would ignore the import of other clauses in the agreement. Regardless of Schwartz’ observation that the various provisions “could have been separately negotiated and separately reduced to writing,” the fact remains that the agreement was a self-contained document. Clause 4 D (5) provides that the Agreement as written constituted “the entire agreement between the parties.” Clause 4 D (6) provides that the Agreement was “for a period of one year from the date hereof and shall continue in effect from year to year. ...” The date of the Agreement was April 18, 1963, and the record is clear that both parties treated this as the date when the agreement took effect. To entertain Schwartz’ offer of evidence tending to establish that implementation of clause 4 C (2) alone was referred is to contradict the clear and generalized language of 4 D (6). Since the evidence of such a condition precedent is inadmissible, it follows that clause 4 C (2) did control at the time of the loss. The district court therefore correctly awarded summary judgment to Aetna against Schwartz. Having determined that the district court properly found that Schwartz and not Newton was liable to Aetna for amounts it had paid to Campbell, we must now decide whether the trial court properly determined that any amounts which Schwartz pays Aetna will not be recoverable by Schwartz from its insurer Continental. The district court noted that Schwartz’ liability “rested solely upon” the Master Interchange Agreement and that “Continental’s obligation to indemnify Schwartz was limited to liabilities of Schwartz arising because of its status as a common carrier or because of its issuance of bills of lading or shipping receipts . . .” The court concluded that “[i]t [could] not be supposed that simply because Schwartz was a common carrier it expected to obtain or Continental intended to provide indemnification against any contractual liability with respect to damaged goods which Schwartz saw fit to assume as an incident to its transportation services. . Schwartz’ claim against Continental was beyond the coverage of the policy.” In general this analysis satisfactorily disposes of Schwartz’ argument concerning Continental. However, one particular contention raised on appeal does deserve separate consideration. Citing the Carmack Amendment, 49 U. S.C. §§ 319(a), 20(11), 20(12), Schwartz points out that, being the “initial carrier” of the damaged shipment, it was primarily liable under § 20(11) “as a common carrier” and, therefore, should recover on its policy with Continental. This argument, however, neglects to consider § 20(12) which provides: “The [initiating] carrier . shall be entitled to recover from the common carrier ... on whose line the loss, damage, or injury shall have been sustained. . . . ” In effect, this section grants the initial carrier, which pursuant to § 20(11) has compensated the owner of damaged goods, a cause of action over against the connecting carrier operating in the territory where the particular loss occurred. Had Continental been required to reimburse Schwartz for damages paid to Campbell Soup Company under § 20(11), paragraph 12 of the Continental-Schwartz insurance policy, providing for subrogation, would have accorded Continental an action over against Newton consequent to § 20(12). The Master Interchange Agreement precluded this recourse, however. It restricted liability to the initial carrier exclusively. By entering into such an agreement without Continental’s consent Schwartz unilaterally deprived Continental of subrogation rights against Newton which it otherwise would have had. Consequently, Continental is not required to reimburse Schwartz for damages owing to Aetna as Newton’s insurer. See 6 J. Apple-man, Insurance Law & Practice, § 4093 (1942); 16 G. Couch, Cyclopedia of Insurance Law, § 61.192 (2d ed. 1966). The orders of the district court awarding summary judgment in favor of Aetna and Continental and against Schwartz will be affirmed.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.

This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?

UNITED STATES of America, Appellee, v. Timothy PILARINOS, Defendant-Appellant. No. 88, Docket 88-1181. United States Court of Appeals, Second Circuit. Argued Sept. 26, 1988. Decided Dec. 21, 1988. Marion Bachrach, New York City (Ronald E. DePetris, Seth F. Kaufman, Summit Rovins & Feldesman, New York City, of counsel), for defendant-appellant. Alexandra Rebay, Asst. U.S. Atty. (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Celia Goldwag Barenholtz, Asst. U.S. Atty., New York City, of counsel), for appellee. Before OAKES, MINER and ALTIMARI, Circuit Judges. MINER, Circuit Judge: Defendant-appellant Timothy Pilarinos appeals from a judgment of conviction entered after a five-day jury trial in the United States District Court for the Southern District of New York (Stanton, J.). Arrested for his participation in an undercover operation designed to identify taxpayers who bribe officials of the Internal Revenue Service (“IRS”), Pilarinos was charged with and convicted of (1) conspiring to violate the federal bribery laws, in violation of 18 U.S.C. §§ 201(b) (1982 & Supp. IV 1986) and 371 (1982) (Count One), and (2) bribing an employee of the IRS, in violation of 18 U.S.C. § 201(b)(1) (1982 & Supp. IV 1986) and 18 U.S.C. § 2 (1982) (Count Two). He was sentenced to imprisonment for eighteen months and fined $20,000 on the conspiracy count; he received a suspended sentence, with a three year period of probation, on the substantive count. As a special condition of probation, the district court ordered Pilarinos to resolve any outstanding tax liabilities. Special assessments totalling $100 also were imposed. On appeal, Pilarinos challenges the district court’s instruction on entrapment, arguing that because the court foreclosed the jury from finding that the two middlemen in the undercover operation were government agents, he was denied a derivative entrapment defense. Pilarinos also contends that the district court erred in admitting into evidence a telephone conversation he claims occurred after the termination of the charged conspiracy. Because we find that neither the government nor the middlemen induced the defendant to pay the bribe, and that a statement made during the telephone conversation by defendant’s agent was admissible, we affirm the conviction. BACKGROUND From August 1984 to November 1986, the IRS conducted an undercover operation, in which IRS Inspector Harry Norman posed as a corrupt IRS employee who took bribes from taxpayers seeking to avoid tax liabilities. At the outset of the operation, Inspector Norman was introduced to co-conspirators Eleftherios Stavrakis, a Greek Orthodox priest and businessman, and Va-silios Apostolatos, an accountant. These two co-conspirators acted as middlemen in the operation: For each person they brought to Norman to have his or her taxes “fixed,” Norman would share with Stavrak-is one-half the bribe for federal tax matters and one-third the bribe for state matters, and would negotiate separately with Apos-tolatos a suitable arrangement. On August 28, 1986, Stavrakis telephoned Norman and told him that he had a client, Pilarinos, who was willing to pay approximately four thousand dollars to stop a federal audit on a gas station owned by Pilarinos in Queens. The audit was limited to the year 1984 and involved' potential tax liability initially thought to be only three-thousand to four-thousand dollars. On September 4, 1986, Norman met with Apostolatos, who told him that Pilarinos’ father-in-law, who previously had bribed Norman on a tax matter of his own, had referred Pilarinos to Apostolatos. Later that day, Norman met with Stav-rakis and Pilarinos; this meeting was videotaped by the government. Pilarinos asserts that he is poorly educated and speaks only rudimentary English, and that his English rapidly deteriorated during the meeting. Pilarinos testified, however, that he understands English “80 percent.” In any event, much of the conversation during the meeting took place in Greek and was translated, without objection by Pilarinos, into English for the benefit of Norman. The transcripts of the meeting reveal that when Norman introduced himself to Pilarinos and mentioned that he was with the IRS, Pilarinos interrupted him, noting that his father-in-law already had familiarized him with the scheme, and that Norman did not have to explain anything further to him. Pilarinos thereafter turned the conversation to the amount of money that would be required as a bribe to stop the federal audit. Noting that he could stop it, Norman cautioned Pilarinos that to do so would be illegal and that Pilarinos would have to “take care of” him. Pilarinos responded approvingly, stating that “[njobody works for nothing.” Concerned that the IRS might expand the scope of the audit to include other years and, perhaps, other matters, Pilari-nos explained that, although his present excise tax liability was approximately $7,000, he wished to stop the audit even if it would cost him “a little more.” He therefore agreed to pay $6,000 to “get it over with.” Significantly, Pilarinos concedes on appeal that he was not induced by Norman to pay the bribe. The other matters with which Pilarinos was concerned included both personal and state sales taxes. For example, after estimating his excise tax liability, Pilarinos acknowledged his fear that the IRS would “dig up the other personal” matters, and that they surely would “find something,” perhaps even “another seven thousand dollars.” He also observed, regarding the bribe at issue, “[t]hat this one’s for the federal,” as distinguished from the state, taxes. Indeed, Pilarinos indicated to Stav-rakis that he had a separate sales tax matter that could pose problems. As a result, Stavrakis told Norman during the meeting that Pilarinos had “other things that he want[ed] to take care [of] in the future,” and that, after the federal audit was resolved, Pilarinos intended to return with more business. Pilarinos did not object to, but rather voiced approval of, the proposed future dealings with Norman. At the district court, Pilarinos testified that when he met with Norman on September 4th, he thought that Norman was an accountant, despite the latter’s assertion that he worked for the IRS; that Norman merely was to assist him in determining his tax liability, for a $6,000 fee, so that Pilari-nos could pay the government what was due; and that he never heard Norman say that any payment made to stop the audit would be illegal. The government introduced evidence, in its rebuttal case, that on November 14, 1986, Stavrakis telephoned Norman and told him that earlier that day Pilarinos had called, stating that he had a state sales tax matter that he was willing to pay $20,000 to resolve. The district court admitted into evidence Norman’s testimony concerning the November 14th telephone call, pursuant to Fed.R.Evid. 801(d)(2)(E), as a statement made in furtherance of the charged conspiracy, finding that there was “ample evidence in the transcript and tape of the September conversation to show that the parties to the conversation specifically contemplated that there might be future transactions, falling within the ambit of the same arrangement.” The court also concluded that this evidence was admissible under Fed.R.Evid. 404(b), because it bore on Pilarinos’ intent to commit the crimes charged, and under Fed.R.Evid. 403, because its probative value outweighed its prejudicial impact. Finally, the court charged the jury on entrapment, but with the following caution: Your inquiry on this issue should first be to determine if there is any evidence that a government agent — here we are speaking of Mr. Norman, because Mr. Stavrak-is and Mr. Apostolatos were not government agents — took the first step that led to a criminal act. If you find that there was no such act, there can be no entrapment and your inquiry on this defense should end there. On appeal, Pilarinos contests this portion of the jury instruction because the question of whether the two middlemen were government agents was a matter for the jury to resolve, and that, by precluding the jury from considering this issue, the court “undermined” Pilarinos’ derivative entrapment defense. Pilarinos also contends that the court erred in admitting Stavrakis’ “uncorroborated, highly prejudicial hearsay statement” (i.e., the November 14th conversation), which implicated Pilarinos in another bribery scheme for an undefined tax problem. We affirm the judgment of conviction for the reasons that follow. DISCUSSION 1. Entrapment The defense of entrapment requires, in part, that a defendant demonstrate that the government agent “induce[d] the accused to commit the offence charged in the indictment,” United States v. Mayo, 705 F.2d 62, 67 (2d Cir.1983) (quoting United States v. Sherman, 200 F.2d 880, 882-83 (2d Cir.1952)); see generally Mathews v. United States, — U.S. —, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988). In limited situations, however, where “a person is brought into a criminal scheme after being informed indirectly of conduct or statements by a government agent which could amount to inducement, then that person should be able to avail himself of the defense of entrapment just as may the person who receives the inducement directly,” United States v. Valencia, 645 F.2d 1158, 1168 (2d Cir.1980), aff'd after remand, 677 F.2d 191 (2d Cir.1982). A defendant is entitled to a derivative entrapment defense, therefore, when “the government’s inducement was directly communicated to the person seeking [the] entrapment charge” by an unwitting middleman, United States v. Toner, 728 F.2d 115, 126-27 (2d Cir.1984); see United States v. Buie, 407 F.2d 905, 908 (2d Cir.) (derivative entrapment defense available “where government agents act through private citizens”), aff'd, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969). Nevertheless, where a government agent “induces a middleman to commit a crime, and the middleman, responding to the pressure upon him, takes it upon himself to induce another person to participate in the crime,” Toner, 728 F.2d at 127 (quoting United States v. Myers, 692 F.2d 823, 840 n. 13 (2d Cir.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2437, 77 L.Ed.2d 1322 (1983)), the latter person is not entitled to a derivative entrapment charge. Pilarinos contends that, because Norman entered into a fee-splitting arrangement with Stavrakis and Apostolatos, the government knew that these middlemen were recruiting potential bribers and, consequently, communicating the government’s inducement to them. While it seems unlikely, in light of the fee-splitting arrangement, that Stavrakis or Apostolatos recruited Pilarinos “unbeknownst to” the government, see United States v. Silvestri, 719 F.2d 577, 579 (2d Cir.1983), we are not persuaded that Stavrakis and Apostolatos were government agents, or that the district court abused its discretion by not submitting the issue to the jury, see Mayo, 705 F.2d at 68 (quoting United States v. Fleishman, 684 F.2d 1329, 1342 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982)). Moreover, there is no evidence that Pilarinos was induced by the government to commit the crimes with which he is charged, or that either middleman communicated any such inducement to him. Indeed, the record clearly establishes that Pilarinos was referred by his father-in-law to Apostolatos, and that he knew of the bribery scheme before he approached Apos-tolatos. Notably, neither Stavrakis nor Apostolatos initiated contact with Pilarinos; rather, Pilarinos sought the assistance of Apostolatos to arrange a meeting with Norman, and of Stavrakis to conduct the negotiations with Norman and act as the go-between to facilitate the actual payment of the bribe. Additionally, the evidence does not support a conclusion that Stavrakis used “tactics of pressure, alarm and persistence” to coerce Pilarinos into paying the bribe so that Stavrakis could receive his share. To the contrary, Stavrakis expressly reserved for Pilarinos the ultimate decision whether, and how much, to pay Norman to stop the audit. Stavrakis suggested to Pilarinos during the course of the meeting that he pay a larger amount than originally intended; Pilarinos agreed to do so, however, because of his own fears that the government would expand the scope of its investigation. Even if Stavrakis did induce Pilari-nos to pay a larger sum, Pilarinos undoubtedly came to the meeting with the intent to pay a bribe. 2. The State Sales Tax Matter The district court admitted Norman’s testimony regarding his November 14th telephone conversation with Stavrakis, pursuant to Fed.R.Evid. 801(d)(2)(E), finding that the state sales tax matter fell “within the ambit of” the charged conspiracy, and Fed.R.Evid. 403 and 404(b). Rule 403 deals with the exclusion of prejudicial or cumulative evidence, and Rule 404(b) deals with the limited purposes for which evidence of other crimes or wrongs is received. Neither serves as a basis for the admission of the telephone conversation. Moreover, it is questionable whether the conversation was held during the course of and in furtherance of a conspiracy as required by Rule 801(d)(2)(E). We are persuaded, however, that the evidence properly was admissible as a statement by a party’s agent under Fed.R.Evid. 801(d)(2)(D). As we have noted, this Court may “uphold the admission on any theory which finds support in the record, regardless of the ground relied on by the trial court,” United States v. Lieberman, 637 F.2d 95, 103 n. 11 (2d Cir.1980); see generally Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 157-58, 82 L.Ed. 224 (1937). Rule 801(d)(2)(D) permits the introduction into evidence of a statement by a party’s agent “concerning a matter within the scope of the agency ... made during the existence of the relationship.” In the instant case, the record is replete with evidence that Stavrakis was to be Pilarinos’ agent, at the September 4th meeting and in future negotiations as well. Stavrakis originally contacted Norman on behalf of Pilarinos on August 28, 1986. At the September meeting, Norman agreed to “deal through Father [Stavrakis],” and Stavrakis added that “everything happens with me” as he negotiated for Pilarinos with Norman. The record also would support a finding that the sales tax matter was “within the scope of the agency” and that Stavrakis’ conversation with Norman occurred “during the existence of the [agency] relationship.” The telephone conversation alluded to the “future transactions” that Pilarinos specifically contemplated during the September 4th meeting. At that meeting, Pi-larinos repeatedly referred to other state and personal tax liabilities, indicating that for these Stavrakis and he would return to Norman for assistance. Furthermore, there is no indication in the record that Pilarinos terminated the relationship with Stavrakis, or that the latter’s conversation with Norman exceeded the scope of the agency. Pilarinos mistakenly suggests that Stav-rakis’ conversation with Norman was admitted to prove a separate, uncharged conspiracy. The conversation, however, was not submitted to the jury as evidence of either the charged or a subsequent conspiracy, but rather as evidence to rebut Pilari-nos’ contention that he did not intend to bribe Norman to halt the federal audit. See Fed.R.Evid. 404(b). The district court went to great lengths, when the evidence was admitted and during the final charge, in instructing the jury on this issue: “[L]et me remind you that the defendant is not on trial for anything he may have said in November, and you may not consider this evidence as a substitute for proof that the defendant committed the crimes charged in September and October.” Instead, the jury was instructed to consider the conversation “only for its possible bearing on [Pilarinos’] intent.” Even if the district court erred in admitting the statement, the error was harmless in light of the “overwhelming evidence of guilt,” United States v. Lyles, 593 F.2d 182, 196 (2d Cir.) (quoting United States v. Corey, 566 F.2d 429, 432 (2d Cir.1977)), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979); accord United States v. Castro, 813 F.2d 571, 577 (2d Cir.), cert. denied, — U.S. -, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987). CONCLUSION The judgment of the district court is affirmed.

What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.

What is the number of judges who voted in favor of the disposition favored by the majority?

Iberia HAMPTON, Administratrix, etc. Verlina Brewer, etc., and Deborah Johnson et al., Plaintiffs-Appellants, v. The CITY OF CHICAGO, COOK COUNTY, ILLINOIS and Edward V. Hanrahan et al., Defendants-Appellees. Fannie Mae CLARK, Administratrix of the Estate of Mark Clark, Deceased, Plaintiff-Appellant, v. The CITY OF CHICAGO, and Edward V. Hanrahan et al., Defendants-Appellees. No. 72-1277, 72-1300. United States Court of Appeals, Seventh Circuit. Argued April 6, 1973. Decided Aug. 24, 1973. Michael Deutsch, Jeffrey H. Haas, Chicago, 111., Arthur Kinoy, William J. Bender, Newark, N. J., David Scribner, New York City, Jonathan M. Hyman, Chicago, 111., for plaintiffs-appellants. Bernard Carey, State’s Atty., Michael J. Goldstein, Charles A. Powell, Asst. State’s Attys., Richard L. Curry, Corp. Counsel, Gayle F. Haglund, Asst. Corp. Counsel, Chicago, 111., for defendants-ap-pellees. ' Before FAIRCHILD, STEVENS and SPRECHER, Circuit Judges. STEVENS, Circuit Judge. Plaintiffs allege that 14 Chicago police officers raided an apartment at 2337 West Monroe Street at 4:15 A.M. on December 4, 1969, for the purpose of killing Mark Clark and Fred Hampton and punishing seven other residents of the apartment because they were black and had exercised their First Amendment rights as members of the Black Panther Party. They also allege that 15 other defendants conspired to imprison and prosecute seven surviving occupants without any legal basis whatsoever. In four separate complaints, containing a total of 49 counts, plaintiffs claim actual and punitive damages under the Federal Civil Rights Act and Illinois law. Accepting the allegations as true, as the law requires, the district court denied motions to dismiss filed by the fourteen participating officers, but entered a final judgment dismissing all claims against the remaining 15 defendants. Plaintiffs appeal from that judgment. The appellees include: (1) The State’s Attorney (Hanrahan) and three Assistant State’s Attorneys (Jalovec, So-rosky and Meltreger); (2) seven police officers who participated in certain investigations after the raid; (3) the Mayor of Chicago (Daley) and the Superintendent of Police (Conlisk); and (4) the City of Chicago and the County of Cook, municipal corporations. The district court held that the prosecutors were protected by quasi-judicial immunity, that the allegations against the ap-pellee police officers, Mayor Daley and Superintendent Conlisk were insufficient, and that the City and County were not “persons” within the meaning of the federal civil rights statutes and are immune from liability on a respondeat superior theory. In three of the cases jurisdiction stems from the federal questions which are raised; in the fourth, plaintiff Brewer is a citizen of Michigan and therefore diversity jurisdiction is also asserted. For the purposes of this appeal we must assume that all of plaintiffs’ allegations are true. The test of sufficiency is whether “. . .it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80. Since different issues are raised with respect to different appellees, we consider the relevant allegations separately. In view of the large number of claims asserted, and the fact that the district court order requires all pleadings to be amended, we limit our review, with respect to each appellee, to the question whether any sufficient claim for relief has been alleged. Since reversal as to any appellee on any theory renders the district court’s other rulings respecting that appellee subject to revision at any time prior to the conclusion of the entire trial, see Rule 54(b) Fed.R.Civ.P., it would be inappropriate to discuss the sufficiency of claims which may be amended and which need not be passed upon in order to determine this appeal. 1. Hanrahan and Jalovec. The Hampton complaint alleges that “under color of state search warrant” 14 police officers illegally entered the residence of Fred Hampton and, without provocation, fired over 90 bullets from machine guns, pistols, shotguns and carbines into the general living quarters, critically wounding Fred Hampton, who was otherwise physically abused and ultimately died. In addition, the officers allegedly stole or damaged Hampton’s personal property and destroyed evidence of their illegal conduct. These alleged acts were “perpetrated upon Fred Hampton, Chairman of the Illinois Black Panther Party, because of his beliefs, thoughts, words and associations” (|f 21) in order “to create fear and terror in the Black Community” (ff 23). Hampton’s administratrix alleges that Hanrahan and Jalovec, with the 14 officers, planned the raid and agreed to use excessive and deadly force against Hampton and others in his residence. Their alleged purpose was to deprive him of his constitutional rights because of his race and his political beliefs. The Clark complaint tersely alleges that the officers shot and killed Mark Clark without any authority of law and thereby denied him due process of law by imposing summary punishment of death upon him. It alleges that defendant Hanrahan, or his Assistant State’s Attorney, did “with specific intent, plan and execute the acts as alleged herein” (|f 16); further, that these acts were the result of a tacit understanding “to treat the deceased as they did because he was Black.” The Johnson and Brewer complaints describe the raid in greater detail. They allege that four of the plaintiffs were wounded by gun fire and that all of them were physically and verbally abused and illegally arrested. Again the complaints allege that Hanrahan and Ja-lovec, as well as the 14 officers, “wilfully, maliciously, and with specific intent planned and executed the acts” recited in the complaints. These complaints also include a number of counts alleging state law claims of false imprisonment and malicious prosecution; these charges also involve defendants Hanra-han and Jalovec but will be discussed in Part 2 of this opinion. As the district court correctly held, the allegations are plainly sufficient to state claims against the participating officers under the Federal Civil Rights Act, 42 U.S.C. §§ 1983 and 1985(3). It is equally clear that the allegations respecting the planning and execution of the raid by Hanrahan and Jalovec are sufficient unless their prosecutorial offices gave them immunity. The district court erroneously relied on the Illinois Tort Immunity Act. Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968). The immunity claim raises a question of federal law. The claim of immunity must not be confused with the defense of good faith. That defense is available to a person who, either because of his position or because of his conduct, is not immune from suit. See Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L. Ed.2d 288. In those situations in which immunity is properly claimed, the action is defeated at the outset. An essential purpose of the doctrine is to give the officer freedom to exercise his discretion and to perform his official duties without fear that his conduct will be called into question at an evidentiary hearing or subject him to personal liability. The source of the immunity is found in common law doctrine recognized in federal judicial decisions. The Supreme Court has squarely held that the broad language of the Civil Rights Act of 1871 did not abolish this protection for legislators “acting in a field where legislators traditionally have power to act,” Tenney v. Brandhove, 341 U. S. 367, 379, 71 S.Ct. 783, 789, 95 L.Ed. 1019, or for judges for acts “within their judicial jurisdiction even when the judge is accused of acting maliciously and corruptly. . . . ” Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1217, 1218, 18 L.Ed.2d 288. With respect to legislators and judges, it is clear that the doctrine may not be circumvented by allegations of improper motive; rather, the availability of immunity depends on the character of the conduct under attack. The scope of immunity enjoyed by a state prosecutor has not yet been defined by the Supreme Court. We are nevertheless confident that at least some of his traditional functions must be immune from suit under § 1983. See Littleton v. Berbling, 468 F.2d 389, and cases cited at page 409 (7th Cir. 1972). In view of the overriding importance of federal law, the area of his protection cannot be either limited or expanded by a state’s statutory definition of his authority or responsibility; we therefore do not pause to review the respective parties’ analyses of the relevant Illinois statute. Nor do we attach any weight in analyzing the immunity question to the numerous ways in which the pleadings characterize the motivation of the prosecutor as wrongful — ranging from “sadistic” or “racial” to the more familiar “malicious” or “discriminatory.” The immunity doctrine would be of little value if such characterization of his motive could force the prosecutor to stand trial. Prosecutorial conduct which traditionally has been treated as immune is often described as “quasi-judicial” as opposed to investigatory activities normally performed by laymen, such as police officers.- Judge Ely’s exposition of the distinction in Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965) properly focuses on the character of the defendant’s conduct, rather than his alleged motivation: “We believe, however, that when a prosecuting attorney acts in some ea-pacity other than his quasi-judicial capacity, then the reason for his immunity — integral relationship between his acts and the judicial process— ceases to exist. If he acts in the role of a policeman, then why should he not be liable, as is the policeman, if, in so acting, he has deprived the plaintiff of rights, privileges, or immunities secured by the Federal Constitution and laws? See Monroe v. Pape, supra, 365 U.S. 167, at 187, 81 S.Ct. 473, 5 L.Ed.2d 492; see also Schneider v. Shepherd, 192 Mich. 82, 158 N.W. 182, L.R.A.1916F, 399 (1916), cited in Yaselli [Yaselli v. Goff] 12 F.2d 396 at 405, 2 Cir. To us, it seems neither appropriate nor justifiable that, for the same act, immunity should protect the one, and not the other.” Id. at 536-537. The conduct of Hanrahan and Jalovec in planning the raid may be described in various ways. At one extreme the complaints may be read to charge that they deliberately planned to have the police officers kill Hampton and Clark. Even without the allegation of improper political or racial motivation, it is plain that no immunity would apply under that reading. Regardless of his motives, the prosecutor certainly may not order subordinates to kill or to punish a free citizen without trial. Notwithstanding the tone of these complaints, however, appellants have not urged this extreme reading on the court; we therefore do not so interpret the allegations. At the other extreme, defendants Hanrahan and Jalovec argue that they are charged with nothing more than the drafting of a search warrant which the raiding officers executed, an act which should be accepted as a traditional duty of the Attorney for the County. But we are persuaded that the “planning” allegations cannot fairly be read so narrowly. At the very least they charge that Hanrahan and Jalovec planned a raid in order to obtain evidence of criminal activity. Defendants argue that evidence gathering is so closely related to the presentation of evidence at trial that it should also be clothed with immunity. We find this argument unpersuasive. Even though defensible if conducted in good faith with probable cause, the State’s Attorney’s alleged participation in the planning and execution of a raid of this character has no greater claim to complete immunity than activities of police officers allegedly acting under his direction. The district court erred in holding that the immunity doctrine requires dismissal, without trial, of plaintiffs’ charges against defendants Hanrahan and Jalovec. 2. Mulchrone, Ervanian, Meade, Ku-kowinski, Purtell, Koludrovic, Sadunas, Sorosky and Meltreger. The Johnson and Brewer complaints also allege that nine appellees, including seven police officers and two additional Assistant State’s Attorneys, joined with Hanrahan and Jalovec and the 14 participating officers in an extensive conspiracy to cause the false arrest and imprisonment of the surviving plaintiffs, the institution of an unfounded prosecution, and the concealment of the truth from the public. Several of the plaintiffs were arrested on December 4, 1969, charged with attempted murder and aggravated battery, and imprisoned until December 21, 1969; their prosecutions were continued until May 8, 1970. They allege that there was no legal basis for the arrests, the charges, or the imprisonment. Quite plainly, if the allegations are true, § 1983 authorizes relief against each person who, acting under color of state law, is responsible for these wrongs. Moreover, the conspiracy which they allege is also actionable under § 1985(3). We are satisfied that the post-raid charges against Hanrahan, Jalovec and the 14 police officers are sufficient under both § 1983 and § 1985(3). The sufficiency of the charges against the other defendants is less clear. The complaints charge that these defendants took certain action designed to conceal the fact that there was no basis for arresting, holding or prosecuting the plaintiffs, and that the continuing concealment aggravated plaintiffs’ injuries. Thus, Mulchrone and Ervanian, Supervising Officers of the Internal Inspections Division of the Chicago Police Department, allegedly limited the scope of their investigations in order to prevent information contradiciting the participating officers’ version of the raid from coming to light. Defendant Meade prepared a set of questions and answers for the officers that would avoid a fair test of their veracity. Defendants Sorosky and Meltreger helped to edit these questions and answers. Defendants Sadunas and Koludrovic gave false testimony at the coroner’s inquest. Sadunas allegedly gave testimony before the grand jury which he knew to be false. Defendants Purtell and Sadunas allegedly filed an incomplete and erroneous firearms report — again to corroborate the official, but false, version of the raid. The complaints allege that as a direct result of the conspiracy, the unfounded prosecution was continued until May 8, 1970, and plaintiffs incurred expenses in preparing their defense. The conspiracy charge is somewhat tenuous since it merely alleges that “some or all” of the defendants participated, and the causal connection between the conduct of several appellees and the alleged injury to plaintiffs is doubtful at best. Nevertheless, serious allegations of conspiracy have been made, and matters such as the extent of injury and causal connection raise questions for the trier of fact. Since we cannot say with certainty that there is no possibility that any set of facts which might be proved in support of the allegations would entitle one or more of the plaintiffs to some relief, it was error for the district court to enter judgment finally disposing of the claims against these defendants. If the alleged conspiracy did exist, as we must assume at this stage of the case, and if it did prolong a completely unfounded prosecution, plaintiffs are entitled to relief against each conspirator. The vague allegation that “some or all” of the defendants were participants does not justify requiring them all to stand trial. But if some are in fact liable, it would be unjust to permit a final judgment to exonerate all before trial, or even discovery, has commenced. We therefore conclude that even if the charges against certain of the defendants may have been properly dismissed because the allegations were deficient, it was error to enter final judgment in favor of Mulchrone, Ervanian, Meade, Kukowinski, Purtell, Koludrovic, Sadunas, Sorosky and Meltreger at this stage of the case. 3. Daley and Conlisk. In the Johnson and Brewer complaints, plaintiffs claim that Mayor Daley and Superintendent Conlisk are liable pursuant to 42 U.S.C. § 1986 for the consequences of the alleged conspiracy. The charge, in essence, is that they had the power and authority to prevent a violation of § 1985(3) by the other defendants and failed to do so. Liability under § 1986, however, is dependent on proof of actual knowledge by a defendant of the wrongful conduct of his subordinates. In their brief, plaintiffs summarize the critical charges against Daley and Conlisk by stating that the complaints allege “that due to their positions of authority and responsibility, [they] knew of the conspiracy against the plaintiffs.” Brief for Appellants at 43. We agree with the district court that those allegations are insufficient. 4. City of Chicago and County of Cook. The several claims against the City and the County under the Civil Rights Act were properly dismissed because these defendants are not “persons” within the meaning of the statute. See Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). That decision makes it clear, however, that the district court had jurisdiction over Brewer’s state law claims against the County and presumably the City as well, on the basis of diversity of citizenship. 411 U.S. at 714-722, 93 S.Ct. 1785. Those claims, asserted in Counts 13, 14 and 15 of the Brewer complaint, allege common law torts of assault and battery, false imprisonment, and malicious prosecution. The district court held that these claims against the County are barred by the Illinois Local Governmental and Governmental Employees Tort Immunity Act, Ill.Rev.Stat. Ch. 85, § 1-101 et seq. The district court relied primarily on Mills v. County of Winnebago, 104 Ill.App.2d 366, 244 N.E.2d 65 (2d Dist.1969). Subsequent to the decision of the district court, that case was overruled sub silentio by Arnolt v. Highland Park, 52 Ill.2d 27, 282 N.E.2d 144 (1972). See Krieger v. Carpentersville, 8 Ill.App.3d 243, 289 N.E.2d 481, 484 (2d Dist.1972). As we read those eases, it now seems quite clear that the Illinois statute does not immunize municipal corporations from liability if their agents are guilty of wilful and wanton misconduct. The allegations in the Brewer complaint against the City of Chicago and Cook County are therefore sufficient. The district court dismissed parallel state law claims in the Johnson complaint on the same grounds. However, there was no diversity of citizenship in that case, and this court ruled in Wojtas v. Village of Niles, 334 F.2d 797 (7th Cir. 1964), that the doctrine of pendent jurisdiction does not permit joinder of claims against a new party. Therefore, the dismissal of the state law claims in the Johnson complaint should be for want of jurisdiction, and the lower court’s order is appropriately modified. Insofar as the district court’s order of February 3, 1972, dismissed the charges against the City of Chicago and the County of Cook, it is reversed with respect to the Brewer complaint and affirmed as modified with respect to the Johnson complaint; insofar as it dismissed the charges against Mayor Daley and Superintendent Conlisk, it is affirmed ; insofar as it dismissed the charges against defendants Hanrahan, Jalovec, Mulchrone, Ervanian, Meade, Kukowinski, Purtell, Koludrovic, Sa-dunas, Sorosky and Meltreger, it is reversed. The case is remanded to the district court for further proceedings consistent with this opinion. Reversed and remanded. . With respect to the motions to strike and dismiss of defendants James Davis, Daniel Groth, Edward Garmody, John Ciszewski, Ray Broderick, George Jones, John Marusich, Lynwood Harris, Fred Howard, William Corbett, William Kelly, Philip Joseph, Joseph Gorman and Robert Hughes, the district court stated: “These police officers of the City of Chicago were detailed and/or on detached service with the Office of the Cook County State’s Attorney as State’s Attorney’s police or detail. This group of policemen is charged in all four of the consolidated complaints with actual on-tliescene participation in the raid on the Monroe Street apartment occupied by Fred A. Hampton, Mark Clark, Verlina Brewer, Deborah Johnson, Ronald Satchel, Harold Bell, Blair Anderson, Brenda Harris and Louis Truelock. Plaintiffs charge illegal and forced entry of the apartment and the unjustifiable use of excessive and deadly force by these officers acting under color of law. In the various complaints these policemen are charged with killing Fred Hampton in the presence of his fiance, Deborah Johnson, with killing Mark Clark, with wounding plaintiffs Satchel, Anderson and Harris, and with physically and verbally abusing and illegally arresting plaintiffs Brewer, Johnson, Satchel, Bell, Anderson, Harris and Truelock. They are also charged with conspiracy and conspiracy in connection with alleged and malicious prosecutions [sic]. These allegations and others are set forth in detail in the various complaints. As to certain of the allegations made in the complaints against these defendants, the court is of the opinion that there are questions of fact and of law that cannot be resolved except upon trial.” 339 F.Supp. 695, 700-701 (N.D.Ill.1972). . The district court consolidated the four cases. His order of dismissal directed the plaintiffs to file amended complaints against the 14 participating officers and expressly determined that there was no just reason for delay in entering final judgment in favor of the 15 appellees; the order is therefore appealable. The appeals have been consolidated in this court. . John Mulchrone, Harry Ervanian, John Meade, Robert Kukowinski, David Purtell, Charles Koludrovic and John Sadunas. . Despite the City’s suggestion to the contrary, we must ignore what it describes as “several contradictory facts made a matter of public record” in the state criminal prosecution of defendant Hanrahan; cited at page four of the City’s brief as People v. Hanrahan, Circ. Ct. of Cook County No. 71 Cr. 1791. A finding in favor of defendants in that case is clearly no bar to this action since none of these plaintiffs is a party to that judgment. . Satchel, Anderson, Harris and Brewer. . Ill.Rev.Stat.1969, Ch. 85, § 1 — 101 et seq. . “Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20 L.Fd. 646 (1872). This immunity applies even when the judge is accused, of acting maliciously and corruptly, and it ‘is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.’ (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 349, note, at 350.) It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. I-Iis errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.” Id. at 553-554, 87 S.Ct. at 1217-1218. . See Ill.Rev.Stat. Ch. 14, § 5. . The purpose of their review was allegedly to make certain that the officers would not give testimony inconsistent with previous official statements about the incident. The alleged conduct of Assistant State’s Attorneys Sorosky and Meltreger clearly exceeded the scope of their quasi-judicial immunity. For, in substance, plaintiffs allege the deliberate preparation of perjured testimony. . Section 1986 provides : “Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.” . It also cited Fustin v. Board of Education of Community Unit District No. 2, 101 Ill. App.2d 113, 242 N.E.2d 308 (5th Dist.1968), and Woodman v. Litchfield Community School District, No. 12, 102 Ill.App.2d 330, 242 N.E.2d 780 (5th Dist.1968).

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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.

What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.

626 F.2d 173 Isidore SHULMAN, M.D., Appellant, v. Dona L. MISKELL, Philip F. Hudock, Esquire. No. 79-1293. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 11, 1979. Decided May 7, 1980. Michael S. Frisch, Washington, D. C., with whom Samuel Barker, Bethesda, Md., was on brief, for appellant. Russell H. Carpenter, Jr., Washington, D. C., for appellee, Hudock. James P. Schaller, Washington, D. C., for appellee, Miskell. Before TAMM and WALD, Circuit Judges and HAROLD H. GREENE, United States District Court Judge for the District of Columbia. Sitting by designation pursuant to 28 U.S.C. § 292(a).__ Opinion for the Court filed by District Judge HAROLD H. GREENE. HAROLD H. GREENE, District Judge: The question presented by this case is whether the District of Columbia statute of limitations for a malicious prosecution action runs from the date on which the underlying, allegedly malicious, suit was brought or from the date when that suit was terminated in favor of the defendant in that action. On October 27, 1977, appellee Dona L. Miskell, with appellee Philip F. Hudock acting as her counsel, filed an action in the District Court charging appellant Isidore Shulman, M.D. with medical malpractice. Jurisdiction was based on diversity. 28 U.S.C. § 1332. The complaint sought both compensatory and punitive damages. On June 30, 1978, the court entered a partial summary judgment dismissing the punitive damages claim. The compensatory damages claims were tried before a jury which on February 15, 1979, likewise found in favor of Dr. Shulman. On November 21, 1978, appellant brought an action for malicious prosecution in the Superior Court of the District of Columbia, contending that the claim for punitive damages had been brought maliciously and without probable cause. The action was removed to the District Court under 28 U.S.C. §§ 1441, 1446, but the court dismissed it on the ground that the one-year statute of limitations for malicious prosecution actions had run. Appellant urges that the District Court erred in computing the limitations period from October 27, 1977, when the malpractice action was brought, rather' than from June 30,1978, when the punitive damage claim was resolved by its dismissal by the trial judge. At common law and in jurisdictions everywhere in the United States termination of the underlying criminal or civil proceeding in favor of the defendant is an essential element of a malicious prosecution action. See 52 Am.Jur.2d Malicious Prosecution § 29 at n. 6, and cases cited therein; Crescent Live Stock Co. v. Butchers’ Union, 120 U.S. 141, 7 S.Ct. 472, 30 L.Ed. 614 (1887); Kedra v. City of Philadelphia, 454 F.Supp. 652, 674 (E.D.Pa.1978); and see also cases cited at p. 175 infra. This requirement has usually been explained on the theory that, if the malicious prosecution plaintiff were permitted to sue before he had prevailed in the original action, inconsistent judgment might be entered on the same question between the same parties— an obviously undesirable result. Gordon v. West, supra; McMahon v. May Dept. Stores, 374 S.W.2d 82 (Mo.1964). The District of Columbia, through decisions both of this court and of the District of Columbia Court of Appeals and its predecessors, has consistently followed the common law rule. See Dellums v. Powell, 182 U.S.App.D.C. 244, 566 F.2d 167 (1977); Morfessi v. Baum, 108 U.S.App.D.C. 303, 281 F.2d 938 (1960); Moore v. Read, 94 U.S.App.D.C. 153, 212 F.2d 810 (1954); Melvin v. Pence, 76 U.S.App.D.C. 154, 130 F.2d 423 (1942); Chapman v. Anderson, 55 App.D.C. 165, 3 F.2d 336 (1925); S. Freedman & Sons v. Hartford Fire Ins. Co., 396 A.2d 195 (D.C.App. 1978); Weisman v. Middleton, 390 A.2d 996 (D.C.App. 1978); Ammerman v. Newman, 384 A.2d 637 (D.C.App. 1978); Bumphus v. Smith, 189 A.2d 130 (D.C.App. 1963); Nolan v. Allstate Home Eq. Co., 149 A.2d 426 (Mun.App.D.C. 1959); Horne v. Ostmann, 35 A.2d 174 (Mun.App.D.C. 1944). Under that rule and under the cases, a cause of action for malicious prosecution did not lie until Dr. Shulman prevailed on the punitive damage claim on June 30,1978, and, had he filed that action prior to that date, it would have been subject to dismissal for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6); Leggett v. Montgomery Ward & Co., 178 F.2d 436, 439 (10th Cir. 1949). Thus, he could avoid a dismissal only by bringing his suit after June 30, 1978. Yet, if the District Court is correct, by that date eight months of the twelve-month limitations period had already run. Indeed, on the District Court’s theory, if the punitive aspect of the malpractice action had, for one reason or another,been disposed of together with the remainder of the suit, that is, on February 15, 1979, the malicious prosecution action would have been barred by limitations before it ever arose. That cannot be, and it is not, the law. D.C.Code § 12-301 provides that, with an exception not here relevant, the limitation period begins to run “from the time the right to maintain the action accrues.” The District of Columbia Court of Appeals has interpreted that provision in the context of a malicious prosecution action to mean that the period begins to run “from the time that all the elements of the cause of action exist.” S. Freedman & Sons v. Hartford Fire Ins. Co., 396 A.2d at 198 (emphasis in original); see also Carter v. S. N. McBride Co., Inc., 105 Wash.D.L.Rep. 1365 (D.C.Sup. Ct., Aug. 1, 1977), cited in S. Freedman & Sons. Courts in other jurisdictions, with almost complete unanimity, have even more explicitly held that the malicious prosecution period of limitations is properly computed from the date of the disposition of the underlying civil or criminal action. See, Jastrzebski v. City of New York, 423 F.Supp. 669 (S.D.N.Y.1976) (New York); Earl v. Winne, 14 N.J. 119, 101 A.2d 535 (1953), followed in Butler v. Sinn, 423 F.2d 1116 (3d Cir. 1970) (New Jersey); Securities Investment Co. v. Bennett, 117 Ga.App. 415, 160 S.E.2d 602 (1968) (Georgia); Rutherford v. Johnson, 250 Cal. App.2d, 316, 58 Cal.Rptr. 546 (1967) (California); Euge v. Lemay Bank and Trust Co., 386 S.W.2d 398 (Mo.1965) (Missouri); Giordano v. Tullier, 139 So.2d 15 (La.App.1962) (Louisiana); Sicola v. First National Bank of Altoona, 404 Pa. 18, 170 A.2d 584 (1961) (Pennsylvania); Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223 (1955) (North Carolina); Shuey v. Michigan, 106 F.Supp. 32 (E.D.Mich.1952) (Michigan); Wolfe v. Murphy, 113 F.2d 775 (8th Cir. 1940), cert. denied, 311 U.S. 700, 61 S.Ct. 138, 85 L.Ed. 454 (1940) (Iowa); Allen v. Burdette, 89 W.Va. 615, 109 S.E. 739 (1921) (West Virginia); Levering v. Nat’l Bank of Morrow County, 87 Ohio St. 117, 100 N.E. 322 (1912) (Ohio); Luby v. Bennett, 111 Wis. 613, 87 N.W. 804 (1901) (Wisconsin); but see Violett v. Sympson, 120 Eng.Rep. 128, 8 El. and Bl. 344 (1857) (England); Evans v. Sturgill, 430 F.Supp. 1209 (W.D.Va.1977) (Virginia). The textwriters exhibit a similar understanding. Limitations-Malicious Prosecution, 87 A.L.R.2d 1047; Restatement of Torts (Second) § 899; Malicious Prosecution, 52 Am.Jur.2d § 115. With precedent and policy thus compelling one result, we would ordinarily end our analysis at this point. However, appellees have cited a fairly recent opinion of this court which appears to hold to the contrary. In Brewster v. Woodward & Lothrup, Inc., 174 U.S.App.D.C. 164, 530 F.2d 1016 (1976), we stated that a complaint which alleged false arrest, defamation, and malicious prosecution was barred by the statute of limitations because “actions for personal injuries accrue from the date of the wrong”; i. e., from the date on which the allegedly malicious action was begun. We have concluded that, notwithstanding F.R.App.P. 35(a) and D.C. Cir.R. 14(a)(3), Brewster is not controlling for several reasons. In the first place, the language in Brewster relating to the limitations problem may appropriately be considered as mere dictum since the plaintiff there could not have prevailed in any event because his claim was defective on its merits. Moreover, while malicious prosecution is referred to in the Brewster opinion, the gravamen of the complaint, and the focus of this court’s decision, were claims of false arrest and defamation. With respect to both of these tort claims, the limitations period was quite properly considered to run from the date of the original arrest. Finally, it is significant that we are here construing not federal law but District of Columbia law with respect to which we are of course obligated to follow the local decisions in any event. Our review of the District of Columbia cases, including those decided subsequent to Brewster, convinces us that in the District the statute of limitations for malicious prosecution actions begins to run from the time the underlying criminal or civil actions is disposed of in favor of the malicious prosecution plaintiff. Upon that basis, the statute of limitations had not yet run when appellant brought the instant action. The judgment of the District Court is reversed and the case is remanded with instructions to reinstate the complaint. Reversed. . The complaint alleged that Dr. Shulman had failed to follow the instructions of the patient’s allergist and that as a result appellee Miskell suffered a severe reaction to an improperly administered injection. . Appellant’s malicious prosecution complaint was based solely upon the prosecution by appellees of the punitive damage claim. That claim was fully disposed of on June 30, 1978, and we therefore need not consider the statute of limitations question by reference to the date of the jury verdict. Compare Anderson v. Coleman, 56 Cal. 124 (1880); Gordon v. West, 129 Ga. 532, 59 S.E. 232 (1907) with Psaty v. Fifth Avenue & Ninety-Third Street Corp., 132 Misc. 278, 229 N.Y.S. 384 (1928) and Rich v. Siegel, 7 Cal.App.3d 465, 86 Cal.Rptr. 665 (1970). In any event, use of that date as the statute of limitations “trigger” would affect the result only insofar as the malicious prosecution action might be rejected as having been brought too early rather than too late. . Upon removal, the case was assigned to Judge Hart, before whom the underlying malpractice case was still pending. . Dismissals with prejudice were entered with respect to the claim against appellee Hudock on January 18, 1979, and with respect to the claim against appellee Miskell on February 1, 1979. . D.C.Code § 12-301 provides that “. actions for the following purposes may not be brought after the expiration of the period specified below . .. (4) for . . . malicious prosecution ... 1 year.” Since the alleged tort occurred in the District of Columbia, we must, of course, apply District of Columbia law. Erie RR v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160 (3rd Cir. 1976). . Malicious prosecution existed as early as during the reign of Edward I, in the form of the writ of conspiracy aimed at combinations to abuse legal procedure. See, generally, Win-field, History of Conspiracy and Abuse of Legal Procedure (1921). . It is generally held that an essential difference between malicious prosecution and the tort of malicious use of process is that under the latter rubric it is not necessary to show that the underlying proceeding has been terminated. W. Prosser, Law of Torts § 121 (4th ed. 1971). . Cf. Capital Elec. Co. v. Cristaldi, 157 F.Supp. 646 (D.Md.1958); French v. U. S. Fidelity and Guar. Co., 88 F.Supp. 714 (D.N.J.1950); Wright and Miller, Federal Practice and Procedure, Civil § 1246 (1969 ed.). . Appellees suggest that this concern may be accommodated by a rule which would require the malicious prosecution action to be filed within one year of the commencement of the underlying criminal or civil matter while deferring its trial until after the underlying matter had been decided. But this would mean — as appellees recognize (brief, p. -) — that the action would have to be filed not only before all of its elements could be proved but before they could even be alleged, thus giving rise to the problem discussed in the text to note 8, supra. Moreover, such a rule would tend to promote baseless lawsuits, for litigants would be encouraged to file malicious prosecution actions solely to avoid possible future limitations problems. See Sicola v. First Nat. Bank, 404 Pa. 18, 170 A.2d 584 (1961). . On similar reasoning, the courts have held premature malicious prosecution counterclaims to various kinds of civil actions. See Kalso Systemet, Inc. v. Jacobs, 474 F.Supp. 666 (S.D.N.Y.1979); Kaye v. Pantone, Inc., 395 A.2d 369 (Del.Ch.1978); Greer v. State Farm Fire and Gas Co., 139 Ga.App. 74, 227 S.E.2d 881 (1976); Niedringhaus v. Zucker, 208 S.W.2d 211 (Mo. 1948); cf., Note, Counter Claim for Malicious Prosecution in the Action Alleged to be Malicious, 58 Yale L.J. 490 (1949). . Inasmuch as that case was brought to the attention of the District Court, it may be assumed that it relied upon it for its decision. . These Rules prescribe that a decision of a division of the court may not be overruled by another division, but only by the court sitting en banc. . See, City of LaFayette v. Louisiana Power and Light Co., 532 F.2d 431, 435 (5th Cir. 1976); Davis v. Estelle, 529 F.2d 437, 441-43 (5th Cir. 1976); North Carolina Utilities Commission v. Federal Communications Commission, 552 F.2d 1036, 1045 (4th Cir. 1977). . The plaintiff had been convicted in the criminal prosecution which formed the substantive basis for his civil cause of action. . See, Shehyn v. District of Columbia, 392 A.2d 1008, 1013 (D.C.App. 1978); Bair v. Bryant, 96 A.2d 508, 510 (D.C.Mun.App. 1953); Ogden v. Association of United States Army, 177 F.Supp. 498 (D.D.C. 1959); Libel-Publication-Limitation Period, 42 A.L.R.3d 807, 815, 828. . See note 5 supra; see also, Nature Conservancy v. Machipongo Club, Inc., 579 F.2d 873 (4th Cir. 1978), cert. denied, 439 U.S. 1047, 99 S.Ct. 724, 58 L.Ed.2d 706 (1978). . See S. Freedman & Sons v. Hartford Fire Ins. Co., supra, and Carter v. S.N. McBride Co., Inc., supra.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.

This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?

NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES AND TECHNICIANS, AFL-CIO, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Wrather Corporation, WPIX, Inc., Intervenors. No. 18849. United States Court of Appeals District of Columbia Circuit. Argued Jan. 6, 1965. Decided May 13, 1965. Mr. Warren Woods, Washington, D. C., with whom Mr. Jon F. Hollengreen, Washington, D. C., was on the brief, for appellant. Mr. John H. Conlin, Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, General Counsel, Daniel R. Ohlbaum, Deputy General Counsel, and Howard Jay Braun, Counsel, Federal Communications Commission, were on the brief, for appellee. Mr. Thomas H. Wall, Washington, D. C., with whom Messrs. John B. Jacob and Alfred C. Cordon, Jr., Washington, D. C. , were on the brief, for intervenor, Wrather Corporation. Mr. Percy H. Russell, Jr., Washington, D. C., with whom Messrs. Aloysius B. McCabe and Erwin G. Krasnow, Washington, D. C., were on the brief, for intervenor, WPIX, Inc. Before Danaher, Burger and McGowan, Circuit Judges. BURGER, Circuit Judge: This is an appeal from an order of the Federal Communications Commission granting an application for assignment of the license of New York City metropolitan area radio station WBFM, owned by Wrather Corporation, to WPIX, Inc., the licensee of television station WPIX in New York, and denying appellant National Association of Broadcast Employees and Technicians’ (NABET’s) petition to deny the application or in the alternative to designate it for hearing. The transfer agreement provided that WPIX was not required to take on any of the employees of WBFM. NABET was the certified collective bargaining agent representing half a dozen of WBFM’s technical employees. In response to a NABET request to know whether WPIX would continue to recognize NABET as bargaining agent by accepting the existing collective agreement between it and Wrather, WPIX said that the sale was one for physical properties only and included no transfer of personnel and, further, that WPIX probably would not need more technical personnel in the immediate future but might be willing to consider the NABET members should a subsequent need arise. WPIX has collective bargaining agreements with six different unions, one of which agreements purports to cover all “radio broadcast” employees. The refusal of WPIX to “do business” with NABET rests primarily on the possibility of jurisdictional strife between IBEW, the union party to its existing bargaining agreement, and NABET. Appellant contends that the Commission was required to hold an evidentiary hearing to develop the public-interest ramifications of the proposed transfer growing out of NABET’s interests as bargaining agent. Its argument here, as at the Commission, is two-fold: (1) that the Commission must consider the economic injury to the six employees in determining what the public interest requires; (2) that WPIX’s refusal to recognize NABET’s bargaining rights contravenes national labor policy and therefore is prima facie against the public interest. NABET’s first contention is, on this record, founded upon a bare allegation that the transfer of the license will have an adverse economic impact on six employees of the assignor. We do not believe that this allegation, without more, compelled the Commission to inquire further into the matter by hearing. But we do not hold that the Commission lacks power to take labor relations matters into account as one of the factors in the totality of considerations in passing upon a license assignment application. If further allegations connect the impact on the employees with at least potentially substantial adverse effects upon the service being supplied the public by the licensed activity, we assume the Commission may protect that broader interest, of which it is the duly constituted guardian, by conditioning its consent in such manner as is likely to protect the public interest. But the Commission’s concern is focused always upon the service and, in the absence of explicit provision by Congress for the prescription by the Commission of economic benefits for those with no continuing role to play in the furnishing of the service, an allegation limited to this kind of injury does not require inquiry and consideration by the Commission. Nor does the allegation that WPIX’s refusal to become a party to the collective agreement between Wrather and NABET contravenes national labor policy require a hearing. As the Commission’s opinion notes, “WPIX Inc.’s pleading contains uncontroverted representations concerning the existence of its present collective bargaining agreements and its intentions not to deny union representation to any future employees of WBFM.” NABET’s principal reliance in urging a contrary finding is placed upon John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). That case involved the narrow question whether a surviving nonunionized corporation is bound to arbitrate employee grievances under the procedure set up by a collective agreement between the merged corporation and a union. Here, in contrast, there is no claim made concerning the existence of a compulsory arbitration procedure in the agreement between Wrather and NABET or what bearing such a procedure might have in the present context. The transfer approved by the Commission was a transfer of physical assets and operating authority; it did not include personnel; in Wiley the controversy was triggered by the wholesale movement of personnel pursuant to the plan of the merger. Here the “new employer” already has an agreement with a rival union which embraces the jobs in dispute; in Wiley the Court expressly-noted that it was not dealing with such a situation. See 376 U.S. at 551-552, n. 5, 84 S.Ct. 909. It is thus apparent that the Wiley case does not afford a basis for NABET’s claim that a hearing was required to consider the alleged disregard of national labor policy. Affirmed. . NABET understandably has not relied on threats of jurisdictional strife in order to compel a hearing. The Commission .was not unaware of the possibility of such strife here but we do not think that possibility or its impact on the public interest — the listening public — requires that the Commission grant a hearing. In argument the court was advised that the New York metropolitan area has 42 FM and 36 AM stations and that there is nothing especially distinctive about the programming WPIX proposes for WBFM. Even if we were to assume that WBFM might temporarily go “off the air” because of labor strife, the other facilities available to serve the public indicate the silence of WBFM would not be critical. Hence the Commission was not required to hold a hearing to consider whether such strife would come about. We might have another ease if, for example, we were confronted with a possibility that labor strife flowing from legitimate bargaining interests would extinguish the only source of weather reports to some remote area not served by other outlets.

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 organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.

This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?

WINTER REALTY & CONSTRUCTION CO. v. COMMISSIONER OF INTERNAL REVENUE. COMMISSIONER OF INTERNAL REVENUE v. WINTER REALTY & CONSTRUCTION CO. No. 43. Circuit Court of Appeals, Second Circuit. May 7, 1945. William Dwight Whitney and Cravath, Swaine & Moore, all of New York City (Roswell Magill, George G. Tyler, and William R. White, all of New York City, of counsel), for Winter Realty & Construction Co. Hilbert P. Zarky, of Washington, D.C., Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Robert N. Anderson, Sp. Assts. to Atty. Gen., for the Commissioner. Before L. HAND, SWAN, and CHASE, Circuit Judges. L. HAND, Circuit Judge. Both parties appeal from an order of the Tax Court which assessed a deficiency against the taxpayer in its income tax for the years 1932, 1935 and 1936; and an additional deficiency in excess profits tax for the years 1935 and 1936. The question involves the proper construction of § 112(f) of the Revenue Acts of 1932, 1934 and 1936, 26 U.S.C.A.Int.Rev.Code, § 112(f). The first question is as to how much of an award granted to the taxpayer upon condemnation of certain real property was “expended in the acquisition of other property similar * * * to the property” condemned, “or in the establishment of a replacement fund.” The second question is whether, when an award is paid in installments, spread over more than one year, a taxpayer is entitled to exemption as to all of any installment “expended” in any given year in acquiring “similar property,” regardless of what he may have so expended in the past. The taxpayer owned real property in Flushing, New York, which the City condemned on November 4, 1931, and the “basis” of which was $136,564.83. The net amount of the award, paid in installments and after considerable litigation, was as follows: in 1932 — $160,292.81; in 1935 — $125,735.57; and in 1936 — $101,-116.25. The first of these sums the taxpayer deposited in its bank account when paid; an account on which it drew for its general needs, and in which it deposited its current receipts. Out of the first payment it invested $15,000 in 1932 in the purchase of a mortgage on real estate, and $45,713.94 in buying “similar property.” The Commissioner taxed as “gain” in 1932, the difference — $23,527.98—between the amount so received in that year, and the “basis.” In 1935 the taxpayer invested the whole of the installment of that year in mortgages on real property; all of which the Commissioner taxed as “gain,” because the “basis” had been fully restored by the first installment. In 1936 the taxpayer invested out of the award of that year, $50,000 in mortgages, and the balance —$51,116.25—in “similar property.” The Commissioner assessed the whole payment of 1936 as “gain” because the total of all the sums invested .in “similar property”— $45,713.94 plus $51,116.25 — had not equalled the “basis” — $136,564.84. In closing its books for the year 1932, the taxpayer set up on the liability side of its ledger an account, entitled “Replacement Fund,” to which it credited the full amount of the award received in that year. In 1935 it added to this item upon its ledger the award received in that year; and so it did in 1936. In 1932 its vice president and manager, after reading the regulation regarding the establishment of replacement funds, quoted in the margin, went to the office of the collector, procured the prescribed form in triplicate, filled it out and mailed it to the official in the Brooklyn office to whom he had been told to send it. Later, the taxpayer made several inquiries at the same office about this application, but could learn nothing; apparently, although received, it had been lost, and it never has been found. In making its return for the year 1932 on March 15, 1933, the taxpayer enclosed a letter calling attention to the fact that “there has been set up a figure headed ‘replacement fund.’ This figure represents sixty per cent of the City’s appraisal * * * it is the intention * * * upon receipt of the balance of the award * * * to replace same in property in similar or related in service, or use of the property so converted.” The Commissioner never took any action upon this letter. On February 3, 1937, the taxpayer filed a second application, upon the form prescribed for the purpose, for “permission” to “establish a replacement fund”, but the Commissioner never acted upon this application either. The Tax Court held that the attempt to set up a “replacement fund” failed; that the mortgages were not “similar property or property related in service or use”; but it allowed the sum of $51,-116.25 invested in real estate in 1936 as an exemption because it had been' invested in that year in “similar property or property related in service or use.” This last ruling is the basis of the Commissioner’s appeal; the taxpayer appeals from the rulings against it. Everyone agrees as to the purpose of § 112(f) ; indeed, it would be impossible to mistake it. An owner, whose property is taken involuntarily, but who has become entitled to compensation, should not. be treated as having “realized” a taxable “gain,” provided he at once puts the proceeds to a similar use. Such an owner will often find himself in a difficult predicament in cases where the property is of a kind not easily replaced, and where he cannot therefore immediately purchase a substitute. This the statute recognizes by-providing that in such a case he may “establish” a “replacement fund,” an option which is however subj ect to regulation by the Commissioner who in fact regulated it by Article 580 of Regulations 77, already quoted. By this he requires an owner who wishes to “establish” such a “fund” to get “permission” which he is to obtain by filing an application in which he declares that he will replace the property as soon as possible — the prescribed form requires a date to be fixed — and, when that has been approved, by posting a bond to secure the tax “which would be payable if no replacement fund were established.” The form of the “fund” is not prescribed, and, arguendo, we may assume that entries upon the owner’s books, such as the taxpayer here carried, if supported by bank deposits, or mortgages, would be permissible. For example, the regulation reads: “he may obtain permission to establish a replacement fund in his accounts in which * * * the compensation * * * shall be held.” The taxpayer challenges the validity of this regulation, but it appears to us to be within the power conferred by the statute. The purpose of the privilege was to avoid forcing an owner to a hasty, perhaps an impossible, investment, but it did not give him an indefinite time. Even though his failure to find “similar property” were not due to any fault of his, there must come an end and at the end he would be taxed as though the property had been voluntarily “converted.” We cannot see how the regulation could have realized this with greater freedom to the owner and yet with that minimum of security to the Treasury, which was certainly demanded; it allows the owner to keep his “fund” in whatever form he finds most convenient and profitable, and only demands of him adequate assurance of his good faith and eventual performance. We do not mean that another regulation might not have been equally lawful: the Commissioner might have secured the tax by a rigid control over the form of the “fund,” or by requiring that he should consent to any withdrawals. But it was his function, not ours, to decide what was on the whole the most desirable method; and the form which he did choose has survived many recensions of the statute. We have no doubt that it is valid. Since the taxpayer at bar did not get permission, it became entitled to the exemption only so far as it in fact “expended” the money in buying “similar property”; for the Commissioner’s inaction, however negligent, was certainly not a performance of the condition, and the-Commissioner could not be estopped. A taxpayer who has to deal with a sluggish and inert official is always in a trying position and has just ground for complaint;. but that does not discharge him of whatever duties are lawfully imposed upon him as a condition of his privileges; and, indeed, in the case at bar the taxpayer itself was not a model of diligence and care. That the mortgages of themselves would! not serve without the Commissioner’s permission is plain; Congress meant to suspend the tax only when an owner, forced! out of one investment, found an equivalent investment, and money lent on mortgage is not the equivalent of real property, either as to its management, as to the security which it affords, or as to the return obtained from it. We affirm the order upon the taxpayer’s appeal. Upon the Commissioner’s appeal the question is whether the sum invested in 1936 in “similar property,” shall be exempted from the taxable “gain” in that year; and that in turn depends upon the meaning of the concluding words of § 112(f), 26 U.S.C.A.Int.Rev.Acts, page 858: “If any part of the money is not so expended, the gain, if any, shall be recognized, but in an amount not in excess of the money which is not so expended.” The taxpayer argues, and the Tax Court agreed, that since the sum mentioned was “expended” in buying “similar property,” the “gain” which could be “recognized” must not be “in excess of” what was left of the installment of 1936 — $50,000. The Commissioner replies that the exemption begins only after all those parts of the award which have been “expended” in the purchase of “similar property” have been marshaled against the “basis”; and it seems to us that this is an inescapable conclusion. Obviously, an owner who receives a single award, of which he “expends” a part in the purchase of “similar property,” may not exempt any part of the “gain” by allocating against the “basis” that part which he does not so “expend,” and against “gain” that which he does. To do so would defeat the whole purpose of the exemption, which, as we have said, was to exempt an owner from taxes upon increases in the value of his property which he is forced to “realize” as “gains.” It is a corollary that he must do what he can to restore his position to what it was originally; and, so far as he does not, he will be regarded as content with the “realization” of the increase. If an award be made in several installments paid in the same year, the result is the same. An owner who does not “expend” the first installment in the purchase of “similar property,” but does so “expend” a later one, may not marshal the first against his “basis” and assert that he had “expended” all the “gain” in the purchase of “similar property.” The distinction taken by the Tax Court was that the installments spread over different taxable years must be separately computed, because the tax for each year stands alone. Hence, all money “expended” upon “similar property” in any year, if it be a “gain,” is entitled to the exemption; and it makes no difference that in earlier years the owner has not “expended” upon “similar property” an amount equal to the “basis.” We agree of course, that the tax for every year must be separately assessed; but that does not mean that in computing the tax. we may not look to what has happened in earlier years. For example, if the price of property is paid in successive yearly installments, the earlier installments are first taken to amortize the “basis,” and it is only after that has been done, that any “gain” arises. § 111(d) and § 44(b) of 26 U.S.C.A.Int.Rev.Code. If the Tax Court is right, by a simple expedient an owner can exempt his “gains” up to the amount of the “basis,” and yet avail himself of that amount of the award for any purpose he may wish. All he need do is to use as he wishes the first installment up to the amount of the “basis,” and invest the later installments in “similar property.” It seems to us to need no argument to prove that that extends the privilege beyond its purpose. The practical difficulties in application which the taxpayer suggests, do not exist. We take as the example the situation which it puts in its reply brief: the condemnation of property whose “basis” was $35,000, for an award of $150,000, paid $50,000 in each of three years. How it asks shall the “gain” be taxed? Let us assume that no part of the first installment is invested in “similar property,” but that the whole of the second installment is so invested. The owner will be taxed in the first year upon his “gain”' — $15,000—and in the second year upon $35,000. All the installment for that year is “gain”, and must be taxed unless exempted; and it will not all be exempted, because out of the first installment an amount equal to the “basis” was not invested in “similar property.” To allow the owner to invoke the exemption before that has been done, has, as we have shown, the effect of freeing the “gain” up to the amount of the “basis” from the condition which is the presupposition of the privilege. In the case just put, the extent to which the third installment shall be taxed will depend upon how far it is invested in “similar property”; the whole “basis” having been amortized for the purposes of exemption, no deduction will he necessary. We need hardly labor the improbability that Congress should have meant to make the exemption depend upon whether an award, payable in installments, happens to be spread over more than a single year. It is quite true that in Wilmore S. S. Co. v. Commissioner of Internal Revenue, 78 F.2d 667, a majority of this court decided the opposite. The owner’s steamer had been torpedoed in 1917; it recovered $1,750,000 of insurance money, which was about $400,000 above the “basis”; and upon the “gain” so “realized” it then paid the tax. The value of the steamer had been $2,400,000, and in 1928 the Mixed Claims Commission awarded an added $650,000, upon $312,157.20 of which the Commissioner taxed it as a “recognizable gain.” The owner asserted that it had in 1928 “expended” this part of the award upon other vessels which were “similar property,” and that § 112(f) protected it; but the Commissioner and a majority of the Board of Tax Appeals held that the “gain” was not exempt. In this court, however, although the Board had passed upon the point now at issue the brief of the Commissioner did not press it. It is true that we spoke of the Commissioner’s ruling as “erroneous” in disallowing the exemption because the owner had “established” no “replacement fund,” but we were making use of that ruling only as evidence that he had thought that the award of 1928 had been in fact “expended” upon the new vessels; one of the issues before us and that upon which we split. Although we cannot deny that the decision did embrace a ruling contrary to that which we are now making, we do not regard it as having the same force as though it had deliberately overruled an objection pressed upon us at the time. Order affirmed upon the taxpayer’s appeal. Order reversed upon the Commissioner’s appeal. “Art. 580. Replacement fund. In any ease where the taxpayer elects to replace or restore the converted property but it is not practicable to do so immediately, he may obtain permission to establish a replacement fund in his accounts in which part or all of the compensation so received shall be held, without deduction for the payment of any mortgage. In such a case the taxpayer should make application to the Commissioner on Form 1114 for permission to establish such a replacement fund, and in his application should recite all the facts relating to the transaction and declare that he will proceed as expeditiously as possible to replace or restore such property. The taxpayer will be required to furnish a bond with such surety as the Commissioner may require in an amount not in excess of double the estimated additional income taxes wbicb would be payable if no replacement fund were established. (See section 1126 of the Revenue Act of 1926.) The estimated additional taxes, for the amount of which the claimant is required to furnish security, should be computed at the rates at which the claimant would have been obliged to pay, taking into consideration the remainder of his net income and resolving against him all matters in dispute affecting the amount of the tax. Only surety companies holding certificates of authority from the Secretary of the Treasury as acceptable sureties on Federal bonds will be approved as sureties. The application should be executed in triplicate, so that the Commissioner, the applicant, and the surety or depositary may each have a copy.” The only three points it contained were headed as follows: “I. The money received under the award was not received directly from the casualty in 1917 as a matter of right but came to the taxpayer as damages, which were collected by its Government and remitted to it.”, “II. The casualty was complete and final in 1917 and there was no conversion of the ship into this fund in the tax year 1928.”, “HI. The money received from the award was not used in the manner specified by the statute and hence cannot be tax free thereunder.”

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.

Iberia HAMPTON, Administratrix, etc. Verlina Brewer, etc., and Deborah Johnson et al., Plaintiffs-Appellants, v. The CITY OF CHICAGO, COOK COUNTY, ILLINOIS and Edward V. Hanrahan et al., Defendants-Appellees. Fannie Mae CLARK, Administratrix of the Estate of Mark Clark, Deceased, Plaintiff-Appellant, v. The CITY OF CHICAGO, and Edward V. Hanrahan et al., Defendants-Appellees. No. 72-1277, 72-1300. United States Court of Appeals, Seventh Circuit. Argued April 6, 1973. Decided Aug. 24, 1973. Michael Deutsch, Jeffrey H. Haas, Chicago, 111., Arthur Kinoy, William J. Bender, Newark, N. J., David Scribner, New York City, Jonathan M. Hyman, Chicago, 111., for plaintiffs-appellants. Bernard Carey, State’s Atty., Michael J. Goldstein, Charles A. Powell, Asst. State’s Attys., Richard L. Curry, Corp. Counsel, Gayle F. Haglund, Asst. Corp. Counsel, Chicago, 111., for defendants-ap-pellees. ' Before FAIRCHILD, STEVENS and SPRECHER, Circuit Judges. STEVENS, Circuit Judge. Plaintiffs allege that 14 Chicago police officers raided an apartment at 2337 West Monroe Street at 4:15 A.M. on December 4, 1969, for the purpose of killing Mark Clark and Fred Hampton and punishing seven other residents of the apartment because they were black and had exercised their First Amendment rights as members of the Black Panther Party. They also allege that 15 other defendants conspired to imprison and prosecute seven surviving occupants without any legal basis whatsoever. In four separate complaints, containing a total of 49 counts, plaintiffs claim actual and punitive damages under the Federal Civil Rights Act and Illinois law. Accepting the allegations as true, as the law requires, the district court denied motions to dismiss filed by the fourteen participating officers, but entered a final judgment dismissing all claims against the remaining 15 defendants. Plaintiffs appeal from that judgment. The appellees include: (1) The State’s Attorney (Hanrahan) and three Assistant State’s Attorneys (Jalovec, So-rosky and Meltreger); (2) seven police officers who participated in certain investigations after the raid; (3) the Mayor of Chicago (Daley) and the Superintendent of Police (Conlisk); and (4) the City of Chicago and the County of Cook, municipal corporations. The district court held that the prosecutors were protected by quasi-judicial immunity, that the allegations against the ap-pellee police officers, Mayor Daley and Superintendent Conlisk were insufficient, and that the City and County were not “persons” within the meaning of the federal civil rights statutes and are immune from liability on a respondeat superior theory. In three of the cases jurisdiction stems from the federal questions which are raised; in the fourth, plaintiff Brewer is a citizen of Michigan and therefore diversity jurisdiction is also asserted. For the purposes of this appeal we must assume that all of plaintiffs’ allegations are true. The test of sufficiency is whether “. . .it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80. Since different issues are raised with respect to different appellees, we consider the relevant allegations separately. In view of the large number of claims asserted, and the fact that the district court order requires all pleadings to be amended, we limit our review, with respect to each appellee, to the question whether any sufficient claim for relief has been alleged. Since reversal as to any appellee on any theory renders the district court’s other rulings respecting that appellee subject to revision at any time prior to the conclusion of the entire trial, see Rule 54(b) Fed.R.Civ.P., it would be inappropriate to discuss the sufficiency of claims which may be amended and which need not be passed upon in order to determine this appeal. 1. Hanrahan and Jalovec. The Hampton complaint alleges that “under color of state search warrant” 14 police officers illegally entered the residence of Fred Hampton and, without provocation, fired over 90 bullets from machine guns, pistols, shotguns and carbines into the general living quarters, critically wounding Fred Hampton, who was otherwise physically abused and ultimately died. In addition, the officers allegedly stole or damaged Hampton’s personal property and destroyed evidence of their illegal conduct. These alleged acts were “perpetrated upon Fred Hampton, Chairman of the Illinois Black Panther Party, because of his beliefs, thoughts, words and associations” (|f 21) in order “to create fear and terror in the Black Community” (ff 23). Hampton’s administratrix alleges that Hanrahan and Jalovec, with the 14 officers, planned the raid and agreed to use excessive and deadly force against Hampton and others in his residence. Their alleged purpose was to deprive him of his constitutional rights because of his race and his political beliefs. The Clark complaint tersely alleges that the officers shot and killed Mark Clark without any authority of law and thereby denied him due process of law by imposing summary punishment of death upon him. It alleges that defendant Hanrahan, or his Assistant State’s Attorney, did “with specific intent, plan and execute the acts as alleged herein” (|f 16); further, that these acts were the result of a tacit understanding “to treat the deceased as they did because he was Black.” The Johnson and Brewer complaints describe the raid in greater detail. They allege that four of the plaintiffs were wounded by gun fire and that all of them were physically and verbally abused and illegally arrested. Again the complaints allege that Hanrahan and Ja-lovec, as well as the 14 officers, “wilfully, maliciously, and with specific intent planned and executed the acts” recited in the complaints. These complaints also include a number of counts alleging state law claims of false imprisonment and malicious prosecution; these charges also involve defendants Hanra-han and Jalovec but will be discussed in Part 2 of this opinion. As the district court correctly held, the allegations are plainly sufficient to state claims against the participating officers under the Federal Civil Rights Act, 42 U.S.C. §§ 1983 and 1985(3). It is equally clear that the allegations respecting the planning and execution of the raid by Hanrahan and Jalovec are sufficient unless their prosecutorial offices gave them immunity. The district court erroneously relied on the Illinois Tort Immunity Act. Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968). The immunity claim raises a question of federal law. The claim of immunity must not be confused with the defense of good faith. That defense is available to a person who, either because of his position or because of his conduct, is not immune from suit. See Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L. Ed.2d 288. In those situations in which immunity is properly claimed, the action is defeated at the outset. An essential purpose of the doctrine is to give the officer freedom to exercise his discretion and to perform his official duties without fear that his conduct will be called into question at an evidentiary hearing or subject him to personal liability. The source of the immunity is found in common law doctrine recognized in federal judicial decisions. The Supreme Court has squarely held that the broad language of the Civil Rights Act of 1871 did not abolish this protection for legislators “acting in a field where legislators traditionally have power to act,” Tenney v. Brandhove, 341 U. S. 367, 379, 71 S.Ct. 783, 789, 95 L.Ed. 1019, or for judges for acts “within their judicial jurisdiction even when the judge is accused of acting maliciously and corruptly. . . . ” Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1217, 1218, 18 L.Ed.2d 288. With respect to legislators and judges, it is clear that the doctrine may not be circumvented by allegations of improper motive; rather, the availability of immunity depends on the character of the conduct under attack. The scope of immunity enjoyed by a state prosecutor has not yet been defined by the Supreme Court. We are nevertheless confident that at least some of his traditional functions must be immune from suit under § 1983. See Littleton v. Berbling, 468 F.2d 389, and cases cited at page 409 (7th Cir. 1972). In view of the overriding importance of federal law, the area of his protection cannot be either limited or expanded by a state’s statutory definition of his authority or responsibility; we therefore do not pause to review the respective parties’ analyses of the relevant Illinois statute. Nor do we attach any weight in analyzing the immunity question to the numerous ways in which the pleadings characterize the motivation of the prosecutor as wrongful — ranging from “sadistic” or “racial” to the more familiar “malicious” or “discriminatory.” The immunity doctrine would be of little value if such characterization of his motive could force the prosecutor to stand trial. Prosecutorial conduct which traditionally has been treated as immune is often described as “quasi-judicial” as opposed to investigatory activities normally performed by laymen, such as police officers.- Judge Ely’s exposition of the distinction in Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965) properly focuses on the character of the defendant’s conduct, rather than his alleged motivation: “We believe, however, that when a prosecuting attorney acts in some ea-pacity other than his quasi-judicial capacity, then the reason for his immunity — integral relationship between his acts and the judicial process— ceases to exist. If he acts in the role of a policeman, then why should he not be liable, as is the policeman, if, in so acting, he has deprived the plaintiff of rights, privileges, or immunities secured by the Federal Constitution and laws? See Monroe v. Pape, supra, 365 U.S. 167, at 187, 81 S.Ct. 473, 5 L.Ed.2d 492; see also Schneider v. Shepherd, 192 Mich. 82, 158 N.W. 182, L.R.A.1916F, 399 (1916), cited in Yaselli [Yaselli v. Goff] 12 F.2d 396 at 405, 2 Cir. To us, it seems neither appropriate nor justifiable that, for the same act, immunity should protect the one, and not the other.” Id. at 536-537. The conduct of Hanrahan and Jalovec in planning the raid may be described in various ways. At one extreme the complaints may be read to charge that they deliberately planned to have the police officers kill Hampton and Clark. Even without the allegation of improper political or racial motivation, it is plain that no immunity would apply under that reading. Regardless of his motives, the prosecutor certainly may not order subordinates to kill or to punish a free citizen without trial. Notwithstanding the tone of these complaints, however, appellants have not urged this extreme reading on the court; we therefore do not so interpret the allegations. At the other extreme, defendants Hanrahan and Jalovec argue that they are charged with nothing more than the drafting of a search warrant which the raiding officers executed, an act which should be accepted as a traditional duty of the Attorney for the County. But we are persuaded that the “planning” allegations cannot fairly be read so narrowly. At the very least they charge that Hanrahan and Jalovec planned a raid in order to obtain evidence of criminal activity. Defendants argue that evidence gathering is so closely related to the presentation of evidence at trial that it should also be clothed with immunity. We find this argument unpersuasive. Even though defensible if conducted in good faith with probable cause, the State’s Attorney’s alleged participation in the planning and execution of a raid of this character has no greater claim to complete immunity than activities of police officers allegedly acting under his direction. The district court erred in holding that the immunity doctrine requires dismissal, without trial, of plaintiffs’ charges against defendants Hanrahan and Jalovec. 2. Mulchrone, Ervanian, Meade, Ku-kowinski, Purtell, Koludrovic, Sadunas, Sorosky and Meltreger. The Johnson and Brewer complaints also allege that nine appellees, including seven police officers and two additional Assistant State’s Attorneys, joined with Hanrahan and Jalovec and the 14 participating officers in an extensive conspiracy to cause the false arrest and imprisonment of the surviving plaintiffs, the institution of an unfounded prosecution, and the concealment of the truth from the public. Several of the plaintiffs were arrested on December 4, 1969, charged with attempted murder and aggravated battery, and imprisoned until December 21, 1969; their prosecutions were continued until May 8, 1970. They allege that there was no legal basis for the arrests, the charges, or the imprisonment. Quite plainly, if the allegations are true, § 1983 authorizes relief against each person who, acting under color of state law, is responsible for these wrongs. Moreover, the conspiracy which they allege is also actionable under § 1985(3). We are satisfied that the post-raid charges against Hanrahan, Jalovec and the 14 police officers are sufficient under both § 1983 and § 1985(3). The sufficiency of the charges against the other defendants is less clear. The complaints charge that these defendants took certain action designed to conceal the fact that there was no basis for arresting, holding or prosecuting the plaintiffs, and that the continuing concealment aggravated plaintiffs’ injuries. Thus, Mulchrone and Ervanian, Supervising Officers of the Internal Inspections Division of the Chicago Police Department, allegedly limited the scope of their investigations in order to prevent information contradiciting the participating officers’ version of the raid from coming to light. Defendant Meade prepared a set of questions and answers for the officers that would avoid a fair test of their veracity. Defendants Sorosky and Meltreger helped to edit these questions and answers. Defendants Sadunas and Koludrovic gave false testimony at the coroner’s inquest. Sadunas allegedly gave testimony before the grand jury which he knew to be false. Defendants Purtell and Sadunas allegedly filed an incomplete and erroneous firearms report — again to corroborate the official, but false, version of the raid. The complaints allege that as a direct result of the conspiracy, the unfounded prosecution was continued until May 8, 1970, and plaintiffs incurred expenses in preparing their defense. The conspiracy charge is somewhat tenuous since it merely alleges that “some or all” of the defendants participated, and the causal connection between the conduct of several appellees and the alleged injury to plaintiffs is doubtful at best. Nevertheless, serious allegations of conspiracy have been made, and matters such as the extent of injury and causal connection raise questions for the trier of fact. Since we cannot say with certainty that there is no possibility that any set of facts which might be proved in support of the allegations would entitle one or more of the plaintiffs to some relief, it was error for the district court to enter judgment finally disposing of the claims against these defendants. If the alleged conspiracy did exist, as we must assume at this stage of the case, and if it did prolong a completely unfounded prosecution, plaintiffs are entitled to relief against each conspirator. The vague allegation that “some or all” of the defendants were participants does not justify requiring them all to stand trial. But if some are in fact liable, it would be unjust to permit a final judgment to exonerate all before trial, or even discovery, has commenced. We therefore conclude that even if the charges against certain of the defendants may have been properly dismissed because the allegations were deficient, it was error to enter final judgment in favor of Mulchrone, Ervanian, Meade, Kukowinski, Purtell, Koludrovic, Sadunas, Sorosky and Meltreger at this stage of the case. 3. Daley and Conlisk. In the Johnson and Brewer complaints, plaintiffs claim that Mayor Daley and Superintendent Conlisk are liable pursuant to 42 U.S.C. § 1986 for the consequences of the alleged conspiracy. The charge, in essence, is that they had the power and authority to prevent a violation of § 1985(3) by the other defendants and failed to do so. Liability under § 1986, however, is dependent on proof of actual knowledge by a defendant of the wrongful conduct of his subordinates. In their brief, plaintiffs summarize the critical charges against Daley and Conlisk by stating that the complaints allege “that due to their positions of authority and responsibility, [they] knew of the conspiracy against the plaintiffs.” Brief for Appellants at 43. We agree with the district court that those allegations are insufficient. 4. City of Chicago and County of Cook. The several claims against the City and the County under the Civil Rights Act were properly dismissed because these defendants are not “persons” within the meaning of the statute. See Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). That decision makes it clear, however, that the district court had jurisdiction over Brewer’s state law claims against the County and presumably the City as well, on the basis of diversity of citizenship. 411 U.S. at 714-722, 93 S.Ct. 1785. Those claims, asserted in Counts 13, 14 and 15 of the Brewer complaint, allege common law torts of assault and battery, false imprisonment, and malicious prosecution. The district court held that these claims against the County are barred by the Illinois Local Governmental and Governmental Employees Tort Immunity Act, Ill.Rev.Stat. Ch. 85, § 1-101 et seq. The district court relied primarily on Mills v. County of Winnebago, 104 Ill.App.2d 366, 244 N.E.2d 65 (2d Dist.1969). Subsequent to the decision of the district court, that case was overruled sub silentio by Arnolt v. Highland Park, 52 Ill.2d 27, 282 N.E.2d 144 (1972). See Krieger v. Carpentersville, 8 Ill.App.3d 243, 289 N.E.2d 481, 484 (2d Dist.1972). As we read those eases, it now seems quite clear that the Illinois statute does not immunize municipal corporations from liability if their agents are guilty of wilful and wanton misconduct. The allegations in the Brewer complaint against the City of Chicago and Cook County are therefore sufficient. The district court dismissed parallel state law claims in the Johnson complaint on the same grounds. However, there was no diversity of citizenship in that case, and this court ruled in Wojtas v. Village of Niles, 334 F.2d 797 (7th Cir. 1964), that the doctrine of pendent jurisdiction does not permit joinder of claims against a new party. Therefore, the dismissal of the state law claims in the Johnson complaint should be for want of jurisdiction, and the lower court’s order is appropriately modified. Insofar as the district court’s order of February 3, 1972, dismissed the charges against the City of Chicago and the County of Cook, it is reversed with respect to the Brewer complaint and affirmed as modified with respect to the Johnson complaint; insofar as it dismissed the charges against Mayor Daley and Superintendent Conlisk, it is affirmed ; insofar as it dismissed the charges against defendants Hanrahan, Jalovec, Mulchrone, Ervanian, Meade, Kukowinski, Purtell, Koludrovic, Sa-dunas, Sorosky and Meltreger, it is reversed. The case is remanded to the district court for further proceedings consistent with this opinion. Reversed and remanded. . With respect to the motions to strike and dismiss of defendants James Davis, Daniel Groth, Edward Garmody, John Ciszewski, Ray Broderick, George Jones, John Marusich, Lynwood Harris, Fred Howard, William Corbett, William Kelly, Philip Joseph, Joseph Gorman and Robert Hughes, the district court stated: “These police officers of the City of Chicago were detailed and/or on detached service with the Office of the Cook County State’s Attorney as State’s Attorney’s police or detail. This group of policemen is charged in all four of the consolidated complaints with actual on-tliescene participation in the raid on the Monroe Street apartment occupied by Fred A. Hampton, Mark Clark, Verlina Brewer, Deborah Johnson, Ronald Satchel, Harold Bell, Blair Anderson, Brenda Harris and Louis Truelock. Plaintiffs charge illegal and forced entry of the apartment and the unjustifiable use of excessive and deadly force by these officers acting under color of law. In the various complaints these policemen are charged with killing Fred Hampton in the presence of his fiance, Deborah Johnson, with killing Mark Clark, with wounding plaintiffs Satchel, Anderson and Harris, and with physically and verbally abusing and illegally arresting plaintiffs Brewer, Johnson, Satchel, Bell, Anderson, Harris and Truelock. They are also charged with conspiracy and conspiracy in connection with alleged and malicious prosecutions [sic]. These allegations and others are set forth in detail in the various complaints. As to certain of the allegations made in the complaints against these defendants, the court is of the opinion that there are questions of fact and of law that cannot be resolved except upon trial.” 339 F.Supp. 695, 700-701 (N.D.Ill.1972). . The district court consolidated the four cases. His order of dismissal directed the plaintiffs to file amended complaints against the 14 participating officers and expressly determined that there was no just reason for delay in entering final judgment in favor of the 15 appellees; the order is therefore appealable. The appeals have been consolidated in this court. . John Mulchrone, Harry Ervanian, John Meade, Robert Kukowinski, David Purtell, Charles Koludrovic and John Sadunas. . Despite the City’s suggestion to the contrary, we must ignore what it describes as “several contradictory facts made a matter of public record” in the state criminal prosecution of defendant Hanrahan; cited at page four of the City’s brief as People v. Hanrahan, Circ. Ct. of Cook County No. 71 Cr. 1791. A finding in favor of defendants in that case is clearly no bar to this action since none of these plaintiffs is a party to that judgment. . Satchel, Anderson, Harris and Brewer. . Ill.Rev.Stat.1969, Ch. 85, § 1 — 101 et seq. . “Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20 L.Fd. 646 (1872). This immunity applies even when the judge is accused, of acting maliciously and corruptly, and it ‘is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.’ (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 349, note, at 350.) It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. I-Iis errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.” Id. at 553-554, 87 S.Ct. at 1217-1218. . See Ill.Rev.Stat. Ch. 14, § 5. . The purpose of their review was allegedly to make certain that the officers would not give testimony inconsistent with previous official statements about the incident. The alleged conduct of Assistant State’s Attorneys Sorosky and Meltreger clearly exceeded the scope of their quasi-judicial immunity. For, in substance, plaintiffs allege the deliberate preparation of perjured testimony. . Section 1986 provides : “Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.” . It also cited Fustin v. Board of Education of Community Unit District No. 2, 101 Ill. App.2d 113, 242 N.E.2d 308 (5th Dist.1968), and Woodman v. Litchfield Community School District, No. 12, 102 Ill.App.2d 330, 242 N.E.2d 780 (5th Dist.1968).

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 - civil rights claims by prisoners and those accused of crimes".

What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"?

WHITE v. STONE et al. No. 3019. Circuit Court of Appeals, First Circuit. May 25, 1935. Joseph M. Jones, Sp. Asst, to the Atty. Gen. (Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to the Atty. Gen., on the brief), for appellant. Thomas Allen, of Boston, Mass. (Burdett, Wardwell & Ranney, of Boston, Mass., on the brief), for appellees. Before BINGHAM, WILSON, and MORTON, Circuit Judges. Writ of certiorari denied 56 S. Ct. 112, 80 L. Ed. —. BINGHAM, Circuit Judge. This is an action at law brought by Robert G. Stone and Carrie M. Stone, trustees under the will of Galen L. Stone, in which they seek to recover, in the first count, the sum of $24,870.66 and interest from the date or dates of payment as money had and received for the plaintiffs’ benefit. In the second count they alleged that they paid to the defendant under protest the sum of $24,995.50, stating the dates of the payments; that as trustees in their return of income received by them during the calendar year 1928 they disclosed income received and amounts paid to Carrie M. Stone, sole beneficiary under the will of Galen L. Stone, and, at the same time, filed a return showing taxable profits received by them as trustees during the calendar year 1928, which sum was not payable to said beneficiary, and the return disclosing the same did not include the amounts of income received and paid to Carrie M. Stone; that the Department of Internal Revenue, after examination of the returns, included the income paid to the beneficiary as income taxable to the plaintiffs as trustees, resulting in a tax thereon of $24,995.50; that this action of the Department was illegal and erroneously denied to the plaintiffs the right to deduct the income paid the beneficiary under the provisions of the Revenue Act of 1928 (26 USCA § 2001 et seq.). In answer to the plaintiffs’ declaration, the defendant pleaded the general issue, and as an equitable set-off or defense further answered that, under the will of Galen L. Stone, the plaintiff, Carrie M. Stone, was named as sole trustee and was the sole beneficiary for her life. That the plaintiff, Robert G. Stone, was appointed trustee to act with Carrie M. Stone. That on March 19, 1929, Carrie M. Stone filed her individual income tax return for the year 1928 reporting a net income in the amount of $224,706.53 and disclosing a tax due in the amount of $37,441.35, which was duly paid. That in said return Carrie M. Stone did not include‘for taxation any portion of the income of $153,545.37 received by her from the plaintiffs as trustees under the will of Galen L. Stone, and that her return contains the following statement : “Income from Trust — Galen L. Stone u/w of is not included in accordance with Bolster Decision (D8286).” That the taxes which Carrie M. Stone should have paid to the defendant on account of said income of $153,545.37 are largely in excess of the amount claimed in the plaintiff’s declaration. That the assessment and/or collection of the taxes against Carrie M. Stone are now barred by the statute of limitations. That the plaintiffs, as trustees, and Carrie M. Stone are the same parties in interest. That any recovery by the plaintiffs in this action will inure to the benefit of Carrie M. Stone and that the income in question will not be taxed. It appeared that Galen L. Stone by his will, after making certain specific bequests, bequeathed the residue of his property to his wife, Carrie M. Stone, as trustee, to pay over the net income to herself at such times and in such amounts as she may deem best for and during her natural life, that Robert G. Stone was afterwards appointed a cotrustee, and that the facts alleged in the plaintiffs’ declaration as to the making of returns and the assessment and payment by plaintiffs of $24,995.50 on the income paid by them to the beneficiary in the year 1928 are correct. It also appeared that a claim for refund was duly made, that the claim was denied and this suit seasonably brought, and that the facts alleged by the defendant in his answer as an equitable set-off or defense are true. The controversy arises out of the denial by the Commissioner of a deduction of the income paid to Carrie M. Stone in 1928, which the plaintiffs claim should have been deducted under section 162 (b) of the Revenue Act of 1928, 26 USCA § 2162 (b), which provided: “(b) There shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year which is to be distributed currently by the fiduciary to the beneficiaries, and the amount of the income collected by a guardian of an infant which is to he held or distributed as the court may direct, but the amount so allowed as a deduction shall be included in computing the net income of the beneficiaries whether distributed to them or not.” It seems that at the time of the assessment and collection of these taxes in 1929 the Courts of Appeals for this Circuit [United States v. Bolster, 26 F.(2d) 760, 59 A. L. R. 491], for the Second Circuit [Warner v. Walsh, 15 F.(2d) 367], and for the Eighth Circuit [Allen v. Brandeis, 29 F.(2d) 363] had held that, when a widow relinquishes her siatutory rights in her husband’s estate (as Mrs. Stone did in this case) by electing to take in lieu thereof the provisions made for her in his will, she acts as purchaser for a valuable consideration, and the income thereafter paid to her under the trust constitutes a return of capital until the payments equal the value of her statutory rights, and consequently are not taxable to her as a beneficiary. See, also, Atkins v. Commissioner, 63 F.(2d) 88 (C. C. A. 1st. Cir., decided January 31, 1933). It was because of these decisions and of the fact that Mrs. Stone, at the time of the assessment, had not received the value of her statutory rights, that the Commissioner included the income for 1928 paid to Mrs. Stone in the assessment against the trustees and omitted to assess the same against Mrs. Stone. In fact, it was not until December, 1933, that the Commissioner learned that the decision of this court in United States v. Bolster and the like decisions in the Second and Eighth Circuits were not the law, when the Supreme Court in Helvering v. Butterworth, 290 U. S. 365, 54 S. Ct. 221, 78 L. Ed. 365, decided that the income distributed to the beneficiary under the circumstances of this case should have been taxed to the beneficiary and not to the trustees. The only question before the District Court was and this court is whether the defendant in his answer stated a good equitable set-off in defense of the suit, Mrs. Stone not having been assessed for or paid any tax upon the income received by her, and the time within which a tax could be assessed and collected against her having expired. Section 275 of the Revenue Act of 1928 (45 Stat. 856, 26 USCA § 2275). In the District Court (8 F. Supp. 354, 355) it was held that: “The lact that the government did not seasonably pursue its remedy against Mrs. Stone within the time when it could have done so, and the fact that Mrs. Stone has paid no tax on the income in question, do not constitute a defense to this action by trustees, whose trust, for income tax purposes, is an entity separate and distinct from the beneficiary of the trust. The same conclusion is reached if the trust is not regarded as an entity. The trustees jointly own a legal chose in action, and a barred claim at law against one of them cannot be used as a defense to any action by them both.” Section 274b of the Judicial Code (38 Stat. 956, title 28 USCA § 398) provides: “Sec. 274b. In all actions at law equitable defenses may be interposed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense of seeking the relief prayed for in such answer or plea. Equitable relief respecting the subject matter of the suit may thus be obtained by answer or plea. * * * ” The District Court was of the opinion that, because the plaintiffs, as trustees, jointly owned a claim or right of action against the government and the government owned a legal claim against one of them, the assessment and .collection of which was barred, the special matter pleaded did not state an equitable defense. This is not necessarily so. Roelker v. Bromley-Shepard Co., Inc. (C. C. A.) 73 F.(2d) 618, 619. That case was a bill in equity brought by Bromley-Shepard Company, Inc., and Sarah Bromley Shepard to compel the defendant Roelker, as receiver of an insolvent national bank, to allow, as a set-off against their joint note held by the bank, a claim of one of the joint makers, and it was held that the set-off should be allowed and the receiver enjoined from bringing suit against the joint obligors on the note as he threatened to do. In that case it appeared that Bromley-Shepard Company, Inc., and Sarah Bromley Shepard, at the time the assets of the bank were taken over by the receiver, were indebted to the bank on their joint note for $5,000; that Sarah Bromley Shepard, individually, had a deposit in the bank in the sum of $6,275.13 and the corporation a deposit in the sum of $5,611.10; and $5,000 of the deposit of the corporation was allowed to be offset against the note. It was there said: “Conceding that at law, and generally in equity, a claim of one of two joint obligors cannot be set off against the joint debt, it is well established that, where justice requires, and there is no adequate remedy at law, a court of equity under such circumstances will order a set-off, and a bill in equity to compel such set-off is a proper form of remedy.” In Scott v. Armstrong, 146 U. S. 499, 507, 13 S. Ct. 148, 150, 36 L. Ed. 1059, the court said: “Courts of equity frequently deviate from the strict rule of mutuality [of obligations] when the justice of the particular case requires it, and the ordinary rule is that, where the mutual obligations have grown out of the same transaction, insolvency on the one hand justifies the set-off of the debt due upon the other.” In this case Mrs. Stone is not insolvent, but the government has lost its remedy against her for the collection of the tax imposed on the income paid to her in 1928, due to no fault on its part or its officers; they having acted in conformity to law as then understood and applied in this circuit and elsewhere. It cannot be said that the government was negligent in assessing the tax against the trustees rather than against Mrs. Stone; this court having held that that was the only thing they could do. Mrs. Stone is alive and the sole beneficiary under the trust. If the trustees are allowed to recover, it will redound to her benefit, and it is agreed that, had the income in question been taxed to her instead of to the trustees, she would have been required to pay a greater sum than will be offset by the allowance of this plea. Clearly no injustice will be done her by so doing. Furthermore, Mrs. Stone, the sole beneficiary, is the real plaintiff in interest, and equity and justice require that her tax liability should be offset against the claim of the trustees. In Thornton v. Maynard, 33 Law Times Reports (N. S.) 433, 435, it was said: “Where the plaintiff is suing merely as trustee, and the defendant has a claim against the cestui que trust which, but for the intervention of the trust could have been set off at law, such claim can be set off in equity.” In 2 Parsons on Contracts (9th Ed. 1904) p. 905, it is stated: “When an action is brought by * * * a trustee, in that capacity, money due * * * from the cestui que trust may be set off; for it will be considered that the party in interest and not merely the party of record, is the one * * * against whom the set-off should be made.” In Massachusetts, where this suit was brought, the view entertained by the English court and Parsons on Contracts is embodied in a statute (G. L. Mass. 1921, c. 232, § 5) as follows: “Section 5. In an action brought by one person in trust or for the use or benefit of another, the defendant may set off a claim against the beneficiary.” See, also, Jump v. Leon, 192 Mass. 511, 78 N. E. 532, 116 Am. St. Rep. 265; Western Securities Co. v. Spiro, 62 Utah, 623, 221 P. 856, and Driggs v. Rockwell, 11 Wend. (N. Y.) 504. In this situation the case falls within the principle of Lewis v. Reynolds, 284 U. S. 281, 52 S. Ct. 145, 76 L. Ed. 293. See, also, Bull v. United States (U. S.) 55 S. Ct. 695, 295 U. S. 247, 79 L. Ed. -, decided April 29, 1935. The judgment of the District Court is vacated and judgment will he entered for the defendant; costs to the defendant in both courts.

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 "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.

This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?

Ismael COLON NUNEZ, Plaintiff, Appellant, v. HORN-LINIE, Defendant, Third-Party Plaintiff, Appellee, v. FRED IMBERT, INC., et al., Third-Party Defendants, Appellees. No. 7275. United States Court of Appeals, First Circuit. Heard Feb. 2, 1970. Decided March 27, 1970. Harvey B. Nachman, San Juan, P. R., with whom Nachman, Feldstein, Lafitte & Smith, San Juan, P. R., was on brief, for appellant. A. Santiago Villalonga, San Juan, P. R., with whom Hartzell, Fernandez, Novas & Ydrach, San Juan, P. R., was on brief, for appellee. Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. This appeal raises a difficult issue concerning the construction of Puerto Rico’s Workmen’s Accident Compensation Act, 11 L.P.R.A. § 1 et seq. More specifically, we must decide whether a shipowner who hires an independent stevedoring contractor is a “third party” within the meaning of 11 L.P.R.A. § 32, and hence liable to suit by an injured longshoreman, or an “employer” who “insures his workmen” within the meaning of 11 L.P.R.A. § 21, and therefore immune from civil liability. The case arises from injuries sustained by plaintiff Ismael Colon Nunez, a Puerto Rican longshoreman, while working aboard a vessel owned by defendant Horn-Linie, a West German corporation. Plaintiff filed suit in federal district court, alleging that his injuries had been caused by defendant’s negligence and the unseaworthiness of its vessel. Defendant moved for summary judgment on the grounds that it was plaintiff’s “statutory employer” and hence entitled to immunity from suit under the Compensation Act, 11 L.P.R.A. § 21. For purposes of defendant’s motion, the parties stipulated that plaintiff had been employed by an independent stevedoring contractor, who had insured plaintiff as required by the Compensation Act; that plaintiff had already received the benefits to which he was entitled under the Compensation Act; and that defendant carried no workmen’s compensation insurance. The district court, relying on this court's decision in Musick v. Puerto Rico Telephone Co., 357 F.2d 603 (1st Cir. 1966), and its own extensive opinion in Lopez Correa v. Marine Navigation Co., 289 F.Supp. 993 (D.P.R. 1968), granted defendant’s motion. The decision of the district court highlights a latent conflict among the decisions of this circuit interpreting Puerto Rico’s Compensation Act. In a case similar to this, Guerrido v. Alcoa Steamship Co., 234 F.2d 349 (1st Cir. 1956), we permitted a longshoreman’s action for unseaworthiness on the grounds that the shipowner was a “third party” within the meaning of 11 L.P.R. A. § 32, a provision which preserves the rights of employees against strangers who contribute to their injuries. We reaffirmed this holding in Waterman Steamship Corp. v. Rodriguez, 290 F.2d 175 (1st Cir. 1961). Subsequently, in Musick v. Puerto Rico Telephone Co., supra, a diversity case involving no issue of maritime law, we decided that principal contractors who were potentially liable to the employees of their subcontractors under the Compensation Act, 11 L.P.R.A. § 20, were also entitled to immunity from suit under the statute’s exclusive remedy provision, 11 L.P.R.A. § 21. As plaintiff points out, applying Musick in a maritime context would effectively overrule Guerrido. Plaintiff seeks to avoid this result by emphasizing that the rights he asserts are based on federal rather than Puerto Rican law, but his attempt founders on the special status of Puerto Rico’s coastal waters. Normally, federal law governs maritime torts, Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 409, 3 L.Ed.2d 550 (1959), but Congress has granted Puerto Rico the power to pass inconsistent legislation governing the rights of local workers in local waters. Guerrido v. Alcoa Steamship Co., supra. Thus, if Puerto Rico’s Compensation Act conflicts with the federal remedies which plaintiff asserts, Puerto Rican law prevails. Fonseca v. Prann, 282 F.2d 153 (1st Cir. 1960); Alcoa Steamship Co. v. Perez Rodriguez, 376 F.2d 35 (1st Cir. 1967). To avoid this logic, plaintiff challenges the Musick doctrine itself. He places special emphasis on the decision of the Supreme Court of Puerto Rico in Gonzalez v. Cerveceria Corona, Inc. (No. R-68-272, Jan. 29, 1969), a decision which, though cryptic, seems inconsistent with Musick. Plaintiffs in Gonzalez sought recovery from a building owner for the wrongful death of a painter. The deceased had been employed by an independent contractor who had procured the necessary compensation insurance. Relying on our decision in Mu-sick, the lower court granted the building owner’s motion for summary judgment on the grounds that it was the deceased’s “statutory employer” and hence entitled to immunity from suit. Plaintiffs sought review by Puerto Rico’s Supreme Court, arguing that the Musick doctrine did not reflect the law of Puerto Rico. A division of the court reversed without opinion, remanding for findings on who was in fact the deceased’s employer and for trial on the issue of the building owner’s negligence. Although the lack of an opinion obscures the rationale of this decision, the court’s failure to apply Musick in a case where Musick seemed clearly applicable provides us with a strong incentive to reexamine our interpretation of Puerto Rican law. When we decided Musick we recognized that the precise question was one of first impression. No decision of the Supreme Court of Puerto Rico then provided guidance. Nor were we aware of the possible relevance of Guerrido, perhaps because Musick contained no smell of the sea. We therefore addressed ourselves directly to the language of 11 L. P.R.A. § 21, which grants exemption from civil liability “when an employer insures his workmen or employees”. We decided that the principal contractor was an “employer” within the meaning of this section because the statute sometimes imposed on him an employer’s liability for compensation. He “insured” his subcontractor’s employees, we thought, because he bore the additional expense of hiring insured subcontractors. However, after a careful reconsideration prompted by a recognition, of the relevance of Guerrido and by the subsequent decision of the Supreme Court in Gonzalez v. Cervecería Corona, we have decided that our earlier views were not required by the statute. We first inquire whether the principal contractor is an “employer” within the meaning of the statute. No provision of the Compensation Act defines employer. Nevertheless, inspection of the statute as a whole indicates that the term is usually used in the ordinary sense to denote one who engages the services of workers and supervises their labors. For example, the statute obliges “every employer” to keep a register of his employees, their positions and wages, 11 L.P.R.A. § 29, to make detailed annual statements concerning wages and types of employment to the Manager of the State Insurance Fund, 11 L.P.R.A. § 28, and to report all accidents involving his employees, 11 L.P.R.A. § 14. These duties fall most naturally on the subcontractor who engages a worker for hire rather than on the principal contractor whose dealings with his subcontractor’s employees are likely to be few and fleeting. An exception to this general usage is 11 L.P.R.A. § 20, which provides that: “Every insured employer shall, on reporting his annual payrolls, include in said payrolls the wages paid to all the workmen and employees working for or employed by him, whether by job or under some person with whom the employer contracted for the job, or under a contractor or independent subcontractor employed or contracted by said employer; and all accounts or taxes collected by the State shall be based on the employer’s current payroll in which shall be included the above-mentioned laborers; Provided, that this provision shall not be applicable to employers for whom work is done by an independent contractor who is insured as an employer under the provisions of this chapter.” (Italics added.) This provision by its terms seems to treat a principal contractor as the “employer” of all workers engaged in his business, regardless of contractual relations of hire. However, as the Supreme Court of Puerto Rico has pointed out, the liability of the principal contractor is conditional and attaches only when the subcontractor fails to meet his obligations. Montaner, Mgr. v. Industrial Comm., 59 P.R.R. 284, 289 (1941). As long as the subcontractor remains insured, the principal contractor escapes all the manifold duties which the Act imposes on employers. The choice of terminology in section 20 does not, in our opinion, necessarily reflect an intent to make the principal contractor the employer for all purposes, but only a desire to avoid the technical distinctions between employees and independent contractors to which employers sometimes resort in an effort to avoid the burden of social legislation. See Montaner, Mgr. v. Industrial Comm., 59 P.R.R. at 290; cf. N. L. R. B. v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944); Brodie, The Adequacy of Workmen’s Compensation as Social Insurance, 1963 Wisc.L.Rev. 57, 63-65. This rationale does not, we think, compel extending an employer’s immunity to a principal contractor who bears none of an employer’s statutory burdens. A second exception to the statute’s general usage of “employer” may be found in 11 L.P.R.A. § 16, a provision dealing with the penalties to be assessed against uninsured employers. Section 16 provides that injured employees prejudiced by their employer’s failure to insure may bring suit for damages, and goes on to provide: “In such proceedings, the fact that the workman or employee was guilty of contributory negligence; or that he assumed the risk of the injury; or that the injury was caused by the negligence of a contractor or independent subcontractor, unless such contractor or independent subcontractor is insured in accordance with the provisions of this chapter, shall not constitute a defense for the employer.” (Italics added) The exception for injuries caused by insured subcontractors, while admittedly ambiguous, seems tacitly to assume that a principal contractor may in some cases be the “employer”. In context, however, the effect of this exception is not to exempt totally the principal contractor from civil liability, but only to restore an affirmative defense or defenses which the Act otherwise denies him. This interpretation of the proviso supports plaintiff’s argument that the principal should be subject to normal civil liability when his subcontractor is insured. We therefore conclude that, under Puerto Rican law, the principal contractor is not the “employer” of workers hired by an insured independent contractor. Nor do we now think that the principal contractor “insures” the employees of independent contractors as we held in Musick. The Compensation Act uses the term “insures” in a specific sense, meaning to make detailed annual statements, 11 L.P.R.A. § 28, and to pay the premiums which the Manager of the State Fund assesses on the basis of such statements, 11 L.P.R.A. § 26. It is true, as we pointed out in Musick, that the principal contractor does “insure” his subcontractor’s workers in the sense that he must ultimately bear the burden of his subcontractor’s insurance premiums in the form of higher costs. In this respect, however, the burden on the principal contractor is no different than that on any other Puerto Rican businessman or consumer. Puerto Rico’s compensation scheme, unlike many others, applies to every worker engaged in the business of his employer. 11 L.P.R. A. § 2; DeCastro v. Industrial Comm., 72 P.R.R. 622 (1951). The expense of insurance under such a pervasive scheme is simply a cost of doing business to be borne by all who participate in Puerto Rico’s economy. Thus we conclude that the principal contractor who does not himself assume the reporting obligations and pay the premiums does not insure his subcontractor’s employees within the meaning of the Compensation Act. This conclusion is, we think, in accord with the policies expressed by Puerto Rico’s compensation scheme. Section 32 of the statute, 11 L.P.R.A. § 32, carefully preserves the rights of workmen injured “under circumstances making third parties liable” and permits the Manager of the State Insurance Fund to subrogate himself to the injured workmen’s rights. The third persons who pose the greatest threat to a worker’s safety are those like the principal contractor who are employed on the same project. We would deprive section 32 of much of its efficacy if we excluded all statutory employers from its scope, especially since Puerto Rico gives broad application to the statutory employer concept. Moreover, provisions like section 32 are designed to insure that the burden of loss falls ultimately on the actual wrongdoer rather than the injured worker or his insurer. 2 Larson, Workmen’s Compensation Law § 71.10 (1969). In the light of this policy, it would be anomalous if a foreign shipowner could escape the consequences of his wrongdoing and throw the burden of an injured worker’s loss back onto the economy of Puerto Rico merely because he employed an insured stevedoring contractor. This anomaly has sometimes been justified on the grounds that immunity from suit is necessary to induce the principal contractor to hire insured subcontractors. In this view, immunity is required to guarantee that the principal contractor who insists on insurance will be in a better position than his counterpart who deals with uninsured— and therefore cheaper — subcontractors. Bindbeutel v. L. D. Willcutt & Sons Co., 244 Mass. 195, 138 N.E. 239 (1923); 2 Larson, supra at § 72.31, p. 194, both cited in Musick v. Puerto Rico Telephone Co., supra, 357 F.2d at 605. This argument may have merit in the approximately 25 states where compensation insurance is optional, or in those jurisdictions where substantial numbers of employers are exempt from coverage. 3 Larson, supra at Appendix A, Tables 3, 7. But Puerto Rico’s Act, as we have seen, covers virtually all of the island’s employers, and its provisions are mandatory. 11 L.P.R.A. § 29. Puerto Rico has reinforced these mandatory provisions with stiff penalties for those who fail to comply. Failure to insure subjects an employer to fine and imprisonment, 11 L.P.R.A. § 18, to substantial civil penalties for injuries sustained by his employees, 11 L.P.R.A. § 16, and, in some cases, to injunctions against further work until the requisite insurance has been obtained, 11 L.P.R.A. § 2. Furthermore, the sins of the subcontractors may be visited on their principal contractors. If both the subcontractor and the principal contractor fail to insure the subcontractor’s employees, then the principal contractor may be treated as an uninsured employer even though he has paid the premiums for his own immediate employees. Puerto Rico American Sugar Refinery, Inc. v. Industrial Comm., 63 P.R.R. 611 (1944); see 11 L.P.R.A. § 26. Thus the principal contractor who attempts to cut costs by hiring an uninsured subcontractor must run a gamut of penalties which will ultimately make disobeying the law more costly than obedience. These provisions indicate to us that the legislature intended to insure compliance with the stick of punishment rather than the carrot of immunity from liability. Cf. Probst v. Southern Stevedoring Co., 379 F.2d 763, 766 (5th Cir. 1967). We therefore overrule Musick v. Puerto Rico Telephone Co., supra, and hold that, under Puerto Rican law, a longshoreman employed by an independent, insured stevedoring contractor may sue a shipowner for injuries caused by the shipowner’s negligence or the unseaworthiness of his vessel. Reversed and remanded for proceedings not inconsistent with this opinion. . Since the Compensation Act covers accidental death as well as injury, 11 L.P. R.A. § 3 subd. 5, workmen’s compensation is the exclusive remedy of the beneficiaries of a deceased worker against his employer. Thus a broad reading of Musick would in effect overrule our decision in Compañía Transatlantica Espanlo, S.A. v. Melendez Torres, 358 F.2d 209 (1st Cir. 1966), where we applied the doctrine of The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1958), to permit an action under Puerto Rican law for the wrongful death of a longshoreman caused by the unseaworthiness of a vessel. . 11 L.P.R.A. § 21. Exclusiveness of Remedy : “When an employer insures his workmen or employees in accordance with this chapter, the right herein established to obtain compensation shall be the only remedy against the employer, even in those cases where maximum compensations and benefits have been granted in accordance thereof * * *." . 11 L.P.R.A. § 32. Third party; subrogation : “In cases where the injury, the occupational disease, or the death, entitling the workman or employee, or his beneficiaries, to compensation in accordance with this chapter, has been caused under circumstances making third parties liable for such injury, disease or death, the injured workman or employee or his beneficiaries may claim and recover damages from the third party liable for said injury, disease, or death, within one year following the date when becomes final the decision of the case by the Manager of the State Insurance Fund, who may subrogate himself in the rights of the workman or employee or his beneficiaries to institute the same action * * *." . Under many state statutes, an employer becomes a “statutory employer” only when he hires outside help to perform work which would otherwise be accomplished by his own employees. If the work in question is normally performed by independent contractors, then the employer has no obligation to insure and no namunity from suit, even though the work is intimately related to his own business. Cannon v. Crowley, 318 Mass. 373, 61 N.E.2d 662 (1945); 1A Larson, supra at § 49.12. This interpretation, however, is usually based on restrictive language which Puerto Rico’s Act does not contain. Thus a Puerto Rican businessman who enters a contract for services arguably assumes all the obligations of a statutory employer, whether or not the services are normally performed by his own employees. See Montaner, Mgr. v. Industrial Comm., 57 P.R.R. 263 (1940). . Of course, the shipowner bears part of the loss because the bill from his stevedoring contractor includes the cost of compensation insurance. Workmen’s compensation, however, covers only a relatively small percentage of an injured worker’s total loss. See McCoid, The Third Person in the Compensation Picture: A Study of the Liabilities and Rights of Non-Employers, 37 Tex.L.Rev. 389, 401, 402 (1959).

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". 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".

This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?

Stewart L. UDALL, Secretary of the Interior, Appellant, v. Norman M. LITTELL, Appellee. No. 18338. United States Court of Appeals District of Columbia Circuit. Argued May 5, 1964. Decided Aug. 13, 1964. Petition for Rehearing Denied Oct. 16, 1964. Wright, Circuit Judge, dissented. Mr. Roger P. Marquis, Atty. Dept. of Justice, with whom Asst. Atty. Gen. Ramsey Clark, Messrs. Herbert Pittle and Thomas L. McKevitt, Attys., Dept. of Justice, were on the brief, for appellant. Mr. Frederick Bernays Wiener, Washington, D. C., with whom Messrs. John F. Doyle and William R. Rafferty, Washington, D. C., were on the brief, for appellee. Before Danaher, Burger and Wright, Circuit Judges. DANAHER, Circuit Judge: The appellee has been general counsel and claims attorney of the Navajo Tribe since August, 1947. His original contract had run for ten years. Effective as of August 8, 1957, a second contract to expire August 7, 1967, was entered into between the appellee and the Navajo Tribe and was approved by the Secretary of the Interior. In November, 1963 the Secretary purported to suspend personal performance by the appellee under the 1957 contract and gave notice that the “contract will be terminated as of December 1, 1963” unless the appellee “can adduce convincing evidence” that the Secretary’s conclusions as to suspension and termination “are unwarranted.” At the same time, the Secretary purported to withdraw and rescind his approval of the contract and of at least eleven various amendments, previously agreed to by the Navajo Tribal Council and then approved by the Secretary. The appellee thereupon instituted suit to enjoin the Secretary from taking the proposed action. The District Court entered its order restraining the Secretary and his subordinates from terminating the appellee’s contract with the Navajo Tribe, from suspending its operations or from withholding payments due thereunder. The Secretary has brought this appeal. The Secretary argues that “The issue here is the power of the Secretary to act under any circumstances.” He contends that he has general and “complete power to supervise and regulate all Indian-White relationships except as expressly limited by Congress.” Pointing to the fact that he had already approved the 1957 contract and eleven subsequent amendments, he argues that no “reason appears why that supervision can be exercised only by disapproval of suggested amendments and not by withdrawal of approval earlier given when circumstances require it.” In opposition to the appellee’s motion for a preliminary injunction the Secretary filed the affidavit of one Raymond Nakai from which it appears that Tribal political activities were in some measure involved. Nakai as chairman of the Navajo Tribal Council averred as of November 26, 1963 that in a recent election the activity of the Tribal attorneys had been a major issue because “Norman M. Littell exercised an ever-increasing influence over the affairs of the Navajo Tribe and deeply involved himself in most of the basic decisions made by the Tribe.” He appended to his affidavit a telegram sent to him by Littell who stated that “The general counsel and legal staff are not your personal attorneys to do your bidding, right or wrong. We serve the Tribe in discharge of duties described in the attorney contract and in the Tribal Code.” From countercharges and recriminations appearing in the exhibits it seems clear enough that Littell suspected Nakai of having instituted a cabal which the general counsel deemed detrimental to the best interests of the Tribe. Other material of record suggests that certain individuals, including Nakai and perhaps attorneys of his choosing, had their own reasons for seeking to oust the appellee. The Secretary on brief states that “The matter came to a head on November 1, 1963” when the Secretary informed the appellee of the suspension of his personal performance under the attorney contract and of the intended termination of the contract. The appellee has challenged the Secretary’s assertion of power. He points to the status of the Tribe as a self-governing «entity, as recognized by the Secretary ‘.himself who tells us on brief: “The Tribe governs itself without regard to the laws of the states where the reservation is situated. Williams v. Lee, 358 U.S. 217 (1959). This is accomplished under a Tribal Code which has been approved by the Secretary of the Interior. Cf. Oliver v. Udall, 113 U.S.App.D.C. 212, 306 F.2d 819 (1962), cert. den., 372 U.S. 908.” Appellee’s complaint in the District 'Court had alleged that the Tribal Council “is the governing body of the Navajo Tribe and consists of 74 delegates.” Appellee’s affidavit in support of his motion for preliminary injunction set forth a ■detailed account of various relationships, whether by contract and amendments thereto, resolutions of the Navajo Tribal Council pertaining to the same or correspondence and memoranda pertinent to the merits of the controversy. Among the exhibits is the text of the 1957 agreement, identified as “Attorney Contract.” It is clear from the document that the attorneys were to “perform the duties required of them under this contract upon the request and at the direction of the Chairman of the Navajo Tribal Council, subject to such instructions as he may receive from time to time from the Advisory Committee or the Tribal Council.” The general counsel was bound to “report to the Tribal Council at any regular or special meeting on any matters pertaining to the legal affairs of the Tribe when in his opinion or that of the Chairman, the Advisory Committee, or the Tribal Council, the best interests of the Tribe so require.” The contract recited that it was executed pursuant “to the authority of the Navajo Tribal Council and the Commissioner of Indian Affairs,” to be deemed in full force and effect upon approval by the Commissioner, as of August 8,1957. The contract provided for “General Counsel Services” for the “said Tribe of Indians,” but it also provided for “Claims Services” in “investigating, formulating and prosecuting claims of the said Indians against the United States * * *” specifically designating the appellee as “Claims Attorney for the Tribe.” Certain separate and distinct claims against the United States were listed as then pending before the Indian Claims Commission. Approved in behalf of the Secretary pursuant to “Secretarial Order No. 2508, as amended (17 Fed.Reg. 1570, pursuant to Section 2103 of the Revised Statutes of the United States (25 USC 81),” the contract pertinently contained a termination clause which reads as follows: “12. Termination: (a) The Tribal Council may terminate this contract for good cause shown in respect to any one or all of second parties’ services as General Counsel after giving sixty days’ notice to any of second parties in respect to which termination is sought, the said termination to become effective upon approval of the Commissioner of Indian Affairs, Provided, However, that in the event of disagreement between the parties as to the sufficiency of the cause, the question shall be submitted to the Secretary of the Interior. In such event, the parties of the second part or any one of them so terminated, shall receive compensation on the basis of the annual retainer provided for in Paragraph 4, above, prorated to the date of termination, together with such sums as may be properly due for expenses incurred prior to the date of termination; Provided, Further that if the services of Norman M. Littell or C. J. Alexander as General Counsel are so terminated by request of first party, the said Littell and Alexander and their assigns, if any, shall have the option to terminate the contract in its entirety, subject, however, to the provisions of Paragraph (b) hereof.” (Emphasis added.) The District Court specifically found: “5. The Navajo Tribal Council has neither terminated nor suspended its contract with the plaintiff, nor has it authorized or directed or requested the defendant or any other individual or group to do so. “6. The power to select attorneys to represent the Navajo Tribe is vested in the Navajo Tribal Council by 2 N.T.C. § 1173(c), and neither Chairman of that Council nor its Advisory Committee have any such power. 2 N.T.C. §§ 284, 341-344.” Finding 7 discloses that in June 1963, Raymond Nakai, then Chairman of the Council, requested the Secretary to terminate the appellee’s employment as general counsel and claims attorney. In Finding 8 the judge noted that Nakai desired to substitute other attorneys for the appellee. There is no provision in the contract and none in the several amendments which in terms may be read as authorizing later termination by the Secretary once his approval shall have been gi*anted pursuant to 25 U.S.C. § 81. The Secretary thus must argue in effect, that as of November 1, 1963 he, regardless of the fact that the Tribal Council had not acted, was free to initiate against the appellee whatever “charges” he might decide to assert. Then on the basis of such charges, he next had authority to suspend the appellee’s “personal performance under the Attorney Contract” and to announce its termination as of December 1, 1963, unless “in the interim, you can adduce convincing [to the Secretary’s satisfaction] evidence that the [Secretary’s] conclusions justifying [according to him] suspension and termination are unwarranted.” (Emphasis added.) The Secretary can point to no statute applicable here which confers upon him any such authority. In October, 1963 the Department’s solicitor by memorandum to the Secretary had advised him that the “Navajo Tribal Code, title 2, section 1173 (c) provides: “ ‘No person shall be engaged to render services which are subject to the requirements of section 2103 of the Revised Statutes of the United States (25 U.S.C. 81) without the prior individual approval of the Navajo Tribal Council.’ ” The solicitor then commented: “Thus it is clear that authority to act effectively for the Navajo Tribe with respect to the employment of an attorney under 25 U.S.C. 81 is lodged in the Navajo Tribal Council. The Advisory Committee of the tribal council has no authority to speak effectively for the tribe in such matters.” (Emphasis added.) The solicitor further discussed a resolution of the Advisory Committee which had charged the appellee “with diverting the services of attorneys employed for general counsel services to assist in the handling of claims work without authority to do so.” While the general counsel services were rendered upon an annual salary basis, compensation for claims work depended upon a contingent percentage plan related in part to “the value of the property recovered, saved, or obtained.” The solicitor’s memorandum discussed, inter alia, a case entitled Healing v. Jones. Whether that action should have been classified as a “claims” case or considered part of the general counsel’s normal service seems to have been in question. The solicitor’s memorandum of advice discussed other details not immediately pertinent. Clearly pointed out, however, was a remedy available “to the Tribe” under the termination clause, supra. If that clause be invoked by the Tribe “you would be fully justified in approving the action of the Tribal Council,” the solicitor stated. He added that indeed, the Secretary “if unauthorized payments are discovered” would be fully justified in initiating the cancellation procedure by recommending Tribal Council action, if you desire to do so.” In Oliver v. Udall the Secretary successfully contended before us that a challenged resolution of the Tribal Council reflected the “inherent sovereign power of the Tribe.” His later approval of the resolution did not result in an exercise of federal power. To demonstrate the Tribe’s power to enter into a contract, he argued on brief that “the Tribe can lease its own property subject to the approval of the Secretary. That does not mean the power to lease Tribal property is in the Secretary. The power of disposition, or the adoption of Tribal law and order resolutions is in the Tribe.” We are persuaded that the solicitor herein correctly recognized that the Tribe was the appellee’s client, just as he properly advised the Secretary that “The governing body of the Tribe is the Tribal Council.” The Tribe through that Council had validly engaged the appellee as its attorney under a contract which only the Tribal Council might terminate agreeably to the provisions of that instrument, swpra, page 5. We have been shown no basis upon which the Secretary rather than the Tribal Council might declare the contract at an end. We have discovered no source of power — and none has been cited to us — which vests in the Secretary a predicate for rescission by him of his previous approval granted pursuant to 25 U.S.C. § 81 (1958). We voice no opinion on the merits. We say only that the issuance of the preliminary injunction in this unique situation was a matter addressed to the sound discretion of the trial court. We find no abuse on this record. We may note that the District Court clearly contemplated that the Secretary simply lacked authority to terminate the Attorney Contract in the manner attempted and to rescind his earlier approval of the contract and the amendments thereto. The injunction is surely temporary in terms, and in effect is operative only “until the further order of [the District Court] and pending final hearing of this cause.” We need not spell out additional details covered by the District Court’s order, designed in part, at least, to preserve the District Court’s jurisdiction. Since a full trial is available, we refrain from comment on the possible applicability of 25 U.S.C. § 82 (1958). Affirmed. . See 25 U.S.C. § 81 (1958). . See 25 U.S.C. § 82 (1958). „ Judge McGarraghy concluded, in part: “The action taken by the defendant Secretary on November 1, 1963, and the further action imminently threatened to be taken by him on December 1, 1963, violates the rights of the plaintiff under his approved contract with the Navajo Tribe, and are in excess of any power or authority vested in the defendant Secretary by law.” . The appellee points to record material tending to show that when the appellee was first employed in 1947, the Navajos were one of the most poverty-stricken tribes in the country. Today they are probably the wealthiest. The Secretary on brief, with record references, informs the court that the Tribe has extensive resources “including $80,000,000 on deposit in the United States Treasury, and has a monthly income from mineral leases of some $800,000 to $1,000,000.” . Undoubtedly relevant ultimately to a decision on the merits as to what services came -within which of tlie two categories, we need not at this point do more than note that the parties understood a definite distinction to exist between general counsel services and claims services. . Elected for the performance of executive duties for a 4-year term (2 N.T.C. § 281). . Appointed by the Chairman, the nine members of the Advisory Committee hold monthly meetings and are subject to removal by the Chairman for certain derelictions without Council approval but otherwise removal is subject to approval by the Council. . See note 4 supra. . In addition to our paraphrase of the substance of the Secretary’s letter of November 1, 1963 addressed to the appellee, the Secretary informed the appellee that his prior approval of the contract and all amendments thereto “is hereby rescinded and withdrawn.” . In this case, the District Judge’s Finding 9 reads as follows: “9. In October 1963, after the defendant Secretary had been advised by the Solicitor of the Interior that only the Navajo Tribal Council could terminate plaintiff’s contract * * * the defendant Secretary suggested ‘a constructive solution’ of the controversy to the plaintiff, by which he meant that the plaintiff should resign as General Counsel of the Navajo Tribe * * *. At the same time, the defendant Secretary urged that the plaintiff should continue as the Navajo Tribe’s Claims Attorney * * . Congress in the Act of July 22, 1958, a special jurisdictional statute, had authorized this action, 72 Stat. 403, while Jones was chairman of the Tribal Council. In 1958, Senators Hayden and Goldwater had co-sponsored S. 692 to declare certain lands to be held by the United States in trust for the Hopi Indians and such other Indians as “heretofore have been settled thereon by the Secretary of the Interior.” (See Exec. Order, December 6, 1882). The Navajo and the Hopi Tribes were authorized to commence or defend an action against each other for the purpose of determining their respective rights and interests in those lands. See H.R.Rep. No. 1942, 85th Cong., 2d Sess.; 104 Cong.Rec. 13196, July 9, 1958. Healing v. Jones, infra note 12, followed. . The Department of Justice challenged the jurisdiction of the court to hear the case and otherwise sought to protect the Government against the “claims” of the contending parties. Jones for the Navajo Tribe successfully opposed the position of the Government. Healing v. Jones, 174 F.Supp. 211 (D.Ariz.1959). After extensive pretrial proceedings, the case was disposed of by a special three-judge court. The exhaustive opinion of Circuit Judge Hamley occupies some sixty-seven pages of the printed reports as he traced the history of the problems presented and explored the contentions of the respective tribes with regard to the “1882 Reservation.” The interest of Congressman, later Secretary, Udall was noted by Judge Hamley, 210 F.Supp. at 189. It is reasonable to deduce that preparation and presentation of the case by respective counsel must have entailed great skill and professional attainments of a high order. Substantial advantages were gained by the Navajo Tribe. Healing v. Jones, 210 F.Supp. 125 (D.Ariz. 1962). The Supreme Court affirmed, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963). The appellee was of counsel at all times, according to the official reports. . By amendment No. 11 to the Navajo Tribal Attorney Contract, the cases of Healing v. Jones and Navajo Tribe v. State of Utah had been added to the “Claims” specified in § 4(b) of the 1957 contract. The amendment was approved for Secretary Udall as of July 26, 1962 by Assistant Secretary Carver. . Emphasis added in this paragraph by the court. . 113 U.S.App.D.C. 212, 306 F.2d 819 (1962), cert. denied, 372 U.S. 908, 83 S. Ct. 720, 9 L.Ed.2d 717 (1963). . Alabama v. United States, 279 U.S. 229, 231, 49 S.Ct. 266, 73 L.Ed. 675 (1929). . We take judicial notice that on June 29, 1964, the District Court entered its order extending until September 1, 1964 the time within which the Secretary may file liis answer or otherwise plead with respect to the pending complaint.

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.

What is the number of judges who dissented from the majority?

Ernest Lee WADE, Appellant, v. A. L. LOCKHART, Director, Arkansas Department of Correction, Appellee. No. 82-1369. United States Court of Appeals, Eighth Circuit. Submitted March 23, 1982. Decided March 31, 1982. Ernest Lee Wade, pro se. Steve Clark, Atty. Gen., and Dennis Mol-ock, Little Rock, Ark., for appellee. Before HEANEY, HENLEY and McMIL-LIAN, Circuit Judges. HENLEY, Circuit Judge. This state habeas action first came before us on an application for certificate of probable cause under 28 U.S.C. § 2253 which was granted by order of a single judge of this court. Upon examination of the file and records forwarded from the district court, it appearing that the exhaustion question presented does not require further consideration and no events of decisional significance having been shown to have transpired since final decision by the district court, we proceed to summary disposition. In September, 1978 appellant Wade, a prisoner of the State of Arkansas, was convicted of escape and by an Arkansas state court of competent jurisdiction was fined and sentenced to serve a term of ten years in prison. State appeal in forma pauperis was denied. In February, 1979 Wade filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Arkansas raising essentially the same questions he sought to raise by his latest petition. Those are: (1) denial of his right to appeal; (2) ineffective assistance of counsel; (3) sufficiency of the evidence; and (4) conviction contrary to state law. In May, 1979 that petition was denied for failure to exhaust state remedies and petitioner’s application for certificate of probable cause was denied by this court July 5, 1979 for failure to exhaust state remedies. See Misc. Case No. 79-8125. Thereafter, and on July 20, 1979, Wade filed in the Circuit Court of Lincoln County, Arkansas his petition seeking post-conviction relief, again raising the issues herein-above mentioned. The case here presented on appeal was initiated in the district court July 21, 1981. As of February 5, 1982 the district court found that there had been no ruling on Wade’s state petition. Wade argued in the district court, and argues here, that his effort to exhaust state remedies is futile and that the federal courts should assume jurisdiction. Notwithstanding the passage of more than two years time in which the state petition was pending without judicial action, the district court again dismissed Wade’s habeas petition for failure to exhaust state remedies. In doing so, that court recognized the delay but rested upon the representation that ruling in the state court awaited filing of a brief by counsel for Wade and that such brief would be filed within thirty days and counsel would expeditiously pursue the case through the remainder of the state process if necessary. The district court then-observed that once the state courts had rendered a final decision Wade could refile his habeas petition if necessary, and on February 5, 1982 proceeded to dismiss the petition. While we understand the petitioner’s frustration with the slowness of the state court proceedings, we agree with the district court that this case is one in which the exhaustion requirement may not be completely excused. However, it has been much more than two years since the Lincoln County post-conviction proceeding was commenced. The reason for delay relied upon in February, 1982 is essentially the same as that given in August, 1981 when the court was assured that Wade’s appointed counsel had requested thirty days within which to bring the state proceeding to a point of finality. In light of the slow and tortuous pace this litigation has taken, we are unwilling once again to see the petition dismissed. Cf. Seemiller v. Wyrick, 663 F.2d 805 (8th Cir. 1981). In the circumstances, rather than affirm the order of dismissal for failure to exhaust, we deem it appropriate to vacate the judgment of the district court and remand for further consideration. If within sixty days from and after this court’s mandate the state court has rendered a decision in favor of appellant, this case may be dismissed. But if after sixty days the state court has rendered no decision, the district court should proceed to consideration of the case on its merits. Should the state court render a decision unfavorable to appellant, then the district court should consider anew the question whether state appeal should be excused. The judgment of the district court is vacated and the case is remanded for further proceedings consistent with this opinion. Let mandate issue forthwith.

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).

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?

E. I. DU PONT DE NEMOURS & CO. v. MARTIN. No. 10782. United States Court of Appeals Sixth Circuit. May 16, 1949. Charles L. Cornelius, Sr., Nashville, Tenn,, for appellant. Ward Hudgins, Nashville, Tenn., for appellee. Before HICKS, Chief Judge, and SI-MONS and MILLER, Circuit Judges. MILLER, Circuit Judge. Appellee, Ernest E. Martin, brought this action in the District Court under the provisions of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A. Appendix, § 301 et seq., to be restored by appellant, his former employer, to the position of A-cIass mechanic following his discharge from military service. Appellant had reemployed him as a B-class mechanic. Judgment was entered in his favor for $412 with interest, being the difference in pay between the two classifications from the date of reemployment to the filing of the action, from which appellant has appealed. The District Judge made the following findings, which are largely undisputed and are fully supported by the evidence. About August 2, 1940, appellee, while employed as a B-class mechanic at appellant’s plant, located at Old Hickory, Tennessee, was called into the employment office and advised that there was a reduction in force soon to come, and, that in all probability, he would in due course be laid off from work. He was further advised by the employment representative that there was a job waiting for him at the Chickasaw Ordnance Works, Mil-lington, Tenn., a plant being constructed by the duPont Corporation. Appellee decided to accept this employment rather than remain at Old Hickory. He worked at the plant at Millington, Tenn., until about March 28, 1941. From there he went to another plant being constructed by the du-Pont Corporation at Charlestown, Indiana, where he worked from 14 to 16 months. As soon as his work w-as finished at Charles-town, Indiana, he was employed at the Louisville Neoprene Plant, another plant being constructed and operated by duPont at Louisville, Ky., at which plant he was continuously employed until March 28, 1944. He left the Neoprene Plant and was inducted into the armed forces of the United States pursuant to orders of his draft board on March 31, 1944. The arrangements necessary for the employment of ap-pellee at Millington, Tenn., at Charlestown, Indiana, and at Louisville, Ky., were made by the Personnel Division of the duPont Corporation. He was employed as an A-class mechanic on his transfer to Milling-ton, Tenn. and held this rating until he left his employment at Louisville, Ky., to be inducted into the armed forces. On November 28, 1945, he was discharged from military service. On December 3, 1945, he applied for reinstatement in the Old Hickory Plant in Nashville, since the Louisville construction job had been completed. On December 21, 1945, he was reemployed at the Old Hickory plant as a B-class mechanic. Appellant refused to reemploy him as an A-class mechanic. The evidence also showed these additional facts. Appellee was first employed at Old Hickory on January 18, 1933. He was a maintenance man at Old Hickory. The employment at the other places was in construction work. At the time of each move from one plant to another, appellee filed out a new application for employment, took a new physical examination, and joined a labor union if the project was being constructed under a union contract. The application stated that he was presently unemployed. Appellee testified that this was because of war-time regulations which froze workers on particular jobs, and that it was customary to take a physical examination any time an employee left the Company payroll, even if he was off the payroll only two days. The plants at Millington, Tenn., Charlestown, Indiana, and Louisville, Ky., were war plants. Appellee went from Millington, Tenn., to Charlestown, Indiana, and from Charlestown, Indiana, to the plant at Louisville, Ky., because there was no longer any work for him at each of those places. The appellant did not pay his expenses in moving from one plant to another, nor was he guaranteed employment nor required to report by any certain date. Although there were many applicants waiting for employment at the gates of .the respective plants, appellee was called out at the gate after arrival and given priority in employment over others waiting there to be employed. Appellant contends that it had no obligation under the Selective Training and Service Act to reemploy appellee at its Old Hickory plant, because, at the time when he was inducted into the armed services, he left a temporary position. However, in accordance with its policy of giving preference to every ex-service man who had previously been employed, it employed appellee in a job equivalent to the one he held at the time he left the Old Hickory plant. The reemployment of an ex-service man and his restoration to his former position, or to a position of like seniority, is required when the employee “has left or leaves a position, other than a temporary position, in the employ of any employer.” Title 50, U.S.C.A.Appendix, § 308(b). The District Judge held that appellee’s position with the appellant when he left to enter the armed services was not a temporary position within the meaning of the Act, and that he was entitled to a position of like seniority and pay upon a proper application for reemployment following his discharge from the armed services. We agree with that ruling. As a practical matter, appellee worked continuously for appellant for more than eleven years. Fie was not discharged for inefficiency or for disciplinary purposes. The formal procedure of making successive applications for employment at different plants gives way to the fact that he continued in. each instance to work for the same employer, who arranged for his immediate employment at another of its several plants when the needs of its business so required, and that the work performed was regular and continuous until the particular project was completed, rather than casual or intermittent. That it was actually a transfer from one plant to another, rather than a new employment is shown by the priority in employment which he received upon reporting at the new plant for work, and by the fact that he retained all insurance and vacation benefits just as if he had worked continuously at Old Hickory. The case comes within the scope of our ruling on the same issue in Bryan v. Griffin, 6 Cir., 166 F.2d 748. Appellant also claims on this appeal that under its bargaining contract with the Union, seniority in employment was not affected or increased by work in war plants; that upon appellee’s reemployment he was only entitled to the seniority which he attained by work at the Old Hickory plant, which was that of a B-class mechanic; and that the bargaining contract with the Union would not permit his reemployment as an A-class mechanic, which grade was acquired by his work in war plants. This contention seems to be supported by the rulings in Fishgold v. Sullivan Dry Dock & Repair Corp., 328 U.S. 275, 288, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110, Boston & M. R. R. Co. v. Davis, 1 Cir., 167 F.2d 722, Harrison v. Seaboard Airline R. R., D.C., 77 F.Supp. 511, and Flynn v. Bendix Aviation Corp., D.C., 77 F.Supp. 452. However, this defense' was not presented by any pleading or motion on the part of appellant'in the .trial court. Rule 12(h), Rules of Civil Procedure, 28 U.S.C.A., provides “A party waives all defenses and objections which he does not present either by motion as hereinbefore provided, or, if he has made no motion, in his answer or reply * * Rule 15(b) provides — “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” The question is accordingly presented whether this defense was so raised during the trial as to come within the provisions of Rule 15(b). At the start of the trial counsel for appellee responded to the Court’s inquiry concerning the nature of the -case that the question before the Court was whether or not appellee occupied a position other than a temporary one at the time he was inducted into the armed forces. Appellant did not claim at that time that there was any other issue involved. Appellee rested his case after presenting evidence on this single issue. The first of three witnesses for appellant after testifying on this issue, stated that under the Union contract in force at Old Hickory appellee’s seniority did not take into consideration the time he spent in war plants after leaving Old Hickory. But the collective bargaining contract was not then or later introduced or read into evidence. During the cross-examination of this witness, the Judge asked a question about the Union to which appellee’s counsel answered that there was no Union question involved in the case. The Judge replied that it seemed to him that the main question in the case was whether the appellant, under its contract with the Union, could give appellee an A classification over the objections of the Union. Counsel stated there had been no objection by the Union and offered to bring in a Union representative to so testify. This line of inquiry was then dropped by the Court, and counsel was directed to proceed. Counsel for appellant made no contention at that time that the issue should be tried out. The second witness also referred to the contract with the Union and stated that if the Company violated it “that will throw us in the soup. That is the whole question here.” After appellant had closed its case, the Court asked if there was any rebuttal testimony. Counsel for appellee stated that “I take it the Union has entered no protest to the reclassification of this man, but if there has been any protest or if that is going to be insisted on, we would like to have the right to call in a Union man or two.” The Court answered — “There is nothing about it before the Court at this, time', other than the Company’s alleged desire to comply with their Union contract. ” Appellant made no comment or objection to these statements, did not then claim that the issue was in the case, and the case was accordingly closed without the introduction of any rebuttal evidence. The District Judge in his Findings of Fact stated “The only question before the Court is whether or not petitioner Martin occupied a position other than a temporary one with respondent at the time he was inducted into the Armed Forces in March of 1944.” He made no finding as to the provisions of the contract with the Union, nor any specific ruling on the effect, if any, of such a contract. We are accordingly of the opinion that the issue is not before us on this appeal. Judgment affirmed.

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 "labor relations".

What is the specific issue in the case within the general category of "labor relations"?

UNION BAG & PAPER CORPORATION v. MITCHELL et al. No. 12844. United States Court of Appeals Fifth Circuit. Nov. 26, 1949. John J. Bouhan, Savannah, Ga., Alexander A. Lawrence, Savannah, Ga., George W. Williams, Savannah, Ga., for appellant. L. A. Hargreaves, Pearson, Ga., O. W. Franklin, Sr., Valdosta, Ga., H. C. Eberhardt, Valdosta, Ga., for appellee. Before HUTCHESON, HOLMES and SIBLEY, Circuit Judges. SIBLEY, Circuit Judge. A. S. Mitchell and his wife sued Union Bag and Paper Corporation in the federal district court expressly “in trover” to recover damages in the sum of $100,000 for the conversion of timber itemized as: (1) 129,791 board feet from 1,332 long leaf and slash pine trees with two or more turpentine faces suitable for sawmill purposes ; (2) 614,714 board feet from 12,020 short leaf and black pine trees; suitable for sawmill purposes; (3) 200,400 board feet from 6,680 short leaf and black pine trees too small for sawmill purposes but suitable for other lumbering purposes; aggregating 945,905 feet; alleging that it had been cut and manufactured by defendant into paper products of the value of $100,000. The answer admitted cutting the 1,332 trees in the first item 'but averred they contained only 78,000 board feet, admitted cutting 15 short leaf and black pines, all of which were plaintiffs, but by mistake, and offered payment therefor ; denied cutting any other trees belonging to plaintiffs, and if it cut any it was done in the good faith belief that they belonged to defendant; admitted the trees were converted into pulpwood, and if there should be any recovery it should be only of the stumpage value of the timber. Jury trial was demanded and had, and a verdict rendered for the plaintiffs in round figures for $30,000. The complaint exhibits four instruments, admitted by the answer, which constitute the plaintiffs’ and defendant’s title to the timber, which prior thereto was in V. W. Cook. By the first, dated July 31, 1941, Cook in consideration of $30,000 sold and conveyed to Mitchell -and his wife, their heirs and assigns, “All the following timber on all of the lands hereinafter described: All long leaf and slash pine which during the limits for cutting hereinafter described has two or more turpentine faces; and also all of the short leaf pine timber (and the cypress) and all the hardwood timber suitable for lumbering, excepting however such cypress eight inches or smaller in diameter at four and one-half feet above the ground as the grantor may require for use in building fences.” About 9,000 acres in Atkinson County, Georgia, are described. Seven years from Jan. 1, 1942, are named as the time for cutting, but an additional period of eight years may be taken, grantee having the right to work any timber for turpentine till required for cutting. “Grantees are to have full and complete rights of ingress and egress with mills, men and teams. * * * It is understood that the grantees shall have the right to cut and remove such timber not covered by the foregoing conveying clause as may be required for use in logging or lumbering on the property. * * * It is understood and agreed that the grantees are to have the right to cut pulpwood or other low grade, low price material from any trees which they may cut under the conveying clause set forth, but that they are not to have the right to cut trees merely for such purposes.” In the event of dispute the matter is to be referred to arbitration as described. The other admitted exhibits to the complaint are conveyances of a third interest in the land by Cook to his wife in 1942, and by him and by his wife to Union Bag and Paper Corporation, each conveyance reciting that it is “subject to a saw-timber lease on certain timber upon the larger portion of said lands made July 31, 1941, to A. S. and Minnie Mitchell”, with a reference to its record. The plaintiffs therefore from June, 1945, to June, 1946, when the defendant was cutting timber, owned that conveyed to them by Cook, while defendant owned the land and all the trees not so conveyed. A main dispute in the case is the construction of Cook’s timber grant to the Mitchells. There is no dispute about the 1332 long leaf and slash pines whose stumps showed that the trees when cut by defendant had two or more turpentine faces. All trees thus exhausted of their turpentine during the time limited for cutting were plainly granted to the Mitchells. It is testified by both Cook and Mitchell that Cook was engaged in and interested in turpentining, and that only long leaf and slash pines would produce turpentine; but that Mitchell was a sawmill man and dealt in lumber, and erected a $150,000 sawmill plant in Atkinson County a few months after buying this timber. Both the turpentined trees and the short leaf and black pines, if large enough, would make sawed lumber, and the Mitchells wanted them. But as will be seen from the items sued for as above set out, the Mitchells claim not only the turpentined two-faced long leaf and slash pines and the short leaf and black pines of “sizes suitable for sawmill purposes”, but also short leaf and black pines “of sizes too small for sawmill purposes but suitable for other lumbering purposes”. As the judge put it in his charge to the jury: “One of the issues for your determination is the meaning and scope of the phrase 'suitable for lumbering’. The plaintiffs contend that the phrase includes timber and trees of the kinds set forth in the conveyance, not only suitable for sawmill purposes, that is to say as lumber in the manufactured sense, but in addition thereto includes any of such trees or timber which were suitable for such purposes as fence posts and mine-pit props. Well, gentlemen of the jury, it would be up to you to determine which is correct”. No objection was made to this charge, but it was manifest error to commit the construction of this unambiguous written instrument to the jury. “The construction of a contract is a question of law for the court. Where any matter of fact is involved (as the proper reading of an obscurely written word), the jury should find the fact.” Georgia Code, § 20-701. It was error to submit the construction to the jury. Goldsmith v. White, 68 Ga. 334; Nelson v. Spence, 129 Ga. 35, 36, 58 S.E. 697; Heatley v. Long, 135 Ga. 153, 68 S.E. 783; Ludden & Bates Southern Music House v. Dairy & Farm Supply Co., 17 Ga.App. 581, 87 S.E. 823; Empire Mills Co. v. Burrell Co., 18 Ga.App. 253, 89 S.E. 530. The error would be harmless if it appeared that the jury construed it correctly; but we cannot tell in this case how they construed it, or how many small trees not suitable to saw they included in their general verdict of $30,000, for the evidence related to all sizes. In such a case the verdict must be set aside. Blanchard v. Tucker, Willingham & Co., 34 Ga.App. 405, 129 S.E. 908. For guidance in another trial we express our views of the true construction, under Georgia law. The Georgia cases touching contracts for growing trees are very numerous, but consistent, and we will refer only to a few. It is well settled that a description of trees as to size or usefulness, without more, means as of the date of the contract, and does not include such as by growth may later come within the description. McRae v. Stillwell Millen & Co., 111 Ga. 65, 36 S.E. 604, 55 L.R.A. 513; Allison v. Wall, 121 Ga. 822, 49 S.E. 831; Roberts v. Gress, 134 Ga. 271, 67 S.E. 802; Vandiver v. Byrd-Matthews Lumber Co., 146 Ga. 113, 90 S.E. 960; Neal Lumber & Mfg. Co. v. O’Neal, 175 Ga. 883, 888, 166 S.E. 647, 649. The word “timber”, though aided often by other expressions, and by such circumstances as that the purchaser is a sawmiller, or that sawmills are mentioned, means as a rule such trees as are suitable to be sawed into lumber. In Neal Lumber & Mfg. Co. v. O’Neal, supra, the words were, “All the .trees and timber of every kind and description growing or being” upon the described land, but it was held that only saw timber was meant, and not trees that grew to such dimensions during the period of removal. So in Parham v. Robins, 197 Ga. 386, 29 S.E.2d 608, 612, “merchantable timber” meant only trees fit to be used in building, manufacturing, or similar construction, and did not include small trees suitable only for pulpwood. This conveyance contained a reference to sawmills on the premises “for the purpose of manufacturing the timber into lumber.” In Vandiver v. Byrd-Matthews Lumber Co., 146 Ga. 113, 90 S.E. 960, the words of conveyance were, “All the timber of whatever kind or description now growing”, and were held to embrace only such trees as were fit to be used in building, manufacturing or similar construction. Reference was made to the old case of Dickinson v. Jones, 36 Ga. 97, 104, where it was said: “Timber is used technically to denote green wood of the age of twenty years or more, such as oak, ash, elm, beech, maple, and with us would include hickory, cypress, pine, gum and other forest trees.” Also cited was Broad River Lumber Co. v. Middleby, 4 Cir., 194 F. 817, 819, where the words were “merchantable standing timber”, and the court declared, “As a general rule the word timber, unless modified or controlled by other expressions in the contract, means * * * such trees as are fit to be used in buildings or similar construction”. The plaintiffs below relied on the words in the conveying clause “suitable for lumbering” as enlarging the meaning of “timber”. No Georgia cases are found construing these words. Webster’s New International Dictionary defines “lumbering” as “The business of cutting or felling timber or logs from the forest for lumber”. And “lumber” is defined as “Timber, especially that sawed or split into boards, planks, staves, etc.”, and further explains “rough lumber” as undressed, and “surfaced lumber” as dressed by a planer. This record and all the Georgia decisions are filled with references to “lumber” as the manufactured product of sawing timber. The plaintiff Mitchell testified that he was in 1941, and is and has long been in the lumber business, meaning sawmilling. This contract gives him the right to put mills on this land. He testifies that he had sawed about 1,000,000 board feet of lumber from this land by 1945, when the cutting by defendant began. He exhibits defendant’s title deeds, in each of which his own contract is referred to as a “saw-timber lease”. We have no doubt but that is what it is. “Suitable for lumbering” here means suitable to be sawed into lumber. Reliance is also put by plaintiffs on the language, quoted above, which gives them the right to cut “pulpwood or other low grade material from any trees cut under the conveying clause”. This does not enlarge the conveying clause, but refers to using the tops and branches of trees cut for lumbering, to make from them pulpwood or cordwood or the like. The clause expressly says, “but they are not to cut trees merely for such purposes”. The Georgia court in Pennington v. Avera, 124 Ga. 147, 52 S.E. 324, had held that when timber is sold for sawmill purposes the purchaser had no right to use the tops and branches for cordwood. The clause in this contract was apparently inserted in view of that decision. Our conclusion is that the plain intention of this contract is that Cook, in the turpentine business, dealing with Mitchell, in the lumber business, should retain title to all long leaf and slash pine trees of every size till he had turpentined them, but when by two or more turpentine faces he had exhausted them for turpentine purposes, Mitchell should have such trees to saw till the period of removal ended. The short leaf and black or “loblolly” pines were not desirable for turpentine, and Mitchell was to have all of these which at the time of the conveyance were suitable to be sawed into lumber. Cook, and afterwards his grantee, retained the land itself and all the slash and long leaf pines not turpentined, and all the short leaf and black pines too small for sawing at that date. There was no trespass or conversion in cutting any retained tree. Cutting for round fence posts and mine props would not be “lumbering” within the meaning of this contract, and was never attempted by plaintiffs under it. It is common knowledge that small short leaf and black pine trees decay too quickly for such uses. One witness testifies in this record that he could tell the stumps of such by kicking them over within three years after the trees were cut. As to the trees wrongly cut the evidence, save as to the two-turpentine-face long leaf pines, is in hopeless conflict. Witnesses for plaintiff testify to counting and measuring stumps several years after the cutting which they considered short leaf and black pine, eight inches and upwards in diameter. In addition they estimated without accurate count, a large number of smaller stumps. It appears that before cutting, long leaf and slash pines are easily distinguishable from others by the color of the bark, the foliage, and length of the straw. When the count was made about 3,000 acres had been burned over and the straw destroyed and the stumps scorched. Witnesses for the defendant say that the kind of tree cannot be told under such circumstances, and that in fact the great majority of the stumps were of long leaf and slash pines and not turpentined, there being very few saw size short leaf and black pines cut. Aycock, who counted the stumps for plaintiffs, moreover, testifies: “I measured from eight inches up. “Q. Did you make a record of all timber that was cut there? A. Yes, sir. “Q. No matter who cut it, whether it was cut by Union Bag or by somebody else ? A. Yes, sir.” Since Mitchell testifies that he had cut about 1,000,000 board feet from this land before 1945, and Aycock testifies he had never been on the Cook land till May, 1946, we wonder how, except as to two-turpentine-face trees not in dispute, he could tell who had cut all the large trees whose stumps he was counting. Also, he counted all stumps 8 inches and upwards, but the evidence is undisputed that the rate of growth in this climate of a young slash pine, short leaf, or black pine is one-hall inch in diameter per year, so that a tree cut in 1946 had grown two and a half inches since 1941, and a stump of eight inches cut in 1946 would represent a tree of about five and a half inches at the date of the contract and not conveyed by it, for no one testifies that a tree of less than eight inches diameter is suitable to saw. There is a serious lack of certainty in the evidence of plaintiffs. This conflict of course presented a jury issue. We notice it merely to emphasize the difficulty in which the jury were placed by the failure to receive a clear and complete construction of the contract. Another issue is as to the wilfulness of any wrongful cutting. In Georgia in a trover case the plaintiff may elect to recover the converted property, or to have damages. The trees of course after felling became personal property. Here the wood of the trees has been changed, by some process not described in the record, into paper and the paper into bags and boxes, after having been untraceably mingled with other wood to which the defendant had good title. Recovery is sought of s proportion of the value of the mill’s products averaged from June 1, 1945, when cutting began, to August 27, 1947, the date of suit. The figures on value of products were furnished by defendant on interrogatories for discovery, as was the value of wood pulp alone. The much vexed question of punishment for wilful conversion of timber is settled by a statute in Georgia, Code, § 105-2013: “Where plaintiff recovers for timber cut and carried away, the measure of damage is: 1. Where the defendant is a wilful trespasser, the full value of the property at the time and place of demand or suit brought, without deduction for his labor or expense. 2. Where the defendant is an unintentional or innocent trespasser, or innocent vendee from such trespasser, the value at the time of conversion, less the value he or his vendor added to the property. 3. Where the defendant is a purchaser without notice from a wilful trespasser, the value at the time of such purchase.” This language is taken from Parker v. Waycross & Florida R. R. Co., 81 Ga. 387, at page 396, 8 S.E. 871, the Georgia court taking it from E. E. Bolles Wooden-Ware Co. v. United States, 106 U.S. 432, 1 S.Ct. 398, 27 L.Ed. 230. It has been twice enacted into the Georgia Code. In Tennessee, Ala. & Ga. Ry. Co. v. Zugar, 193 Ga. 386, 18 S.E.2d 758, 759, the court after quoting the statute says: “In [each] case a ‘wilful trespasser’ * * * [is] one who knows that he is wrong, while an ‘innocent trespasser’ is one who believes that he is right”; and it is recognized that a jury question is generally presented. The defendant here claims that the 1332 long leaf two-turpentine-face trees were cut by mistake by German war prisoners hired from the United States, and that the other trees were cut under a bona fide claim of right. A jury question was presented; but appellant urges that the “property”, that is the trees, cannot as a matter of law be traced into the products of the mill. We do not find that the statute has ever been applied beyond the first manufacture of trees into cross-ties or lumber. We are not informed how the wood of the cut trees is converted into pulp and the pulp into paper. The confusion cff logs which the defendant did not own with those it did own, being the defendant’s wrongful act, ought not to prejudice the plaintiff, and where as here the proportion is ascertainable, a like proportion of the pulp seems proper. We at this time prefer to make no positive ruling about the tracing of the pulp into the ultimate product to obtain an average for a period of over ten years. We do not know what the round figure found by the jury represents, whether damages for wilful trespass or innocent trespass or both; whether small trees not conveyed to the plaintiffs, but included in the estimates, form a part or not. The verdict happens to equal the original cost to the plaintiffs of all the timber, though Mitchell says he had before 1945 cut 1,000,000 feet, which is more than is claimed in this complaint. It does not appear how much he has cut since or is entitled still to cut. He says the market value had gone up greatly, however, since 1941. Having so much doubt about the basis of the verdict and its correctness, we conclude that the error of the court in not construing the contract for the jury is such that we ought to notice it, and reverse the case for a new trial on the first count of the complaint. Reversed and remanded. . There were additional counts for fire damage $12,500 to other trees, but these counts are not involved in this appeal.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).

This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?

Dave RUBIN and Jennie Feldman Rubin, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 16577. United States Court of Appeals Fifth Circuit. Feb. 6, 1958. Wentworth T. Durant, Robert J. Hobby, Dallas, Tex., for petitioners. Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, I. Henry Kutz, Davis W. Morton, Jr., Abbott M. Sellers, Attys., Dept, of Justice, Nelson P. Rose, Chief Counsel, Internal Revenue Service, Claude R. Marshall, Special Atty., Washington, D. C., for respondent. Before TUTTLE, JONES and BROWN, Circuit Judges. JOHN R. BROWN, Circuit Judge. The Tax Court held that with respect to a now admitted deficiency of $14,418.-51 for 1946 income taxes, the Taxpayer failed to establish the claimed loss-carry-back deduction, 26 U.S.C.A. §§ 23(s), 122, for 1947. This review presents substantive questions concerning the nature and tax incidence of the underlying transaction, but in the view we take of the case, we need not pass on them at this time. Since our disposition is a procedural one remanding the case for further hearing, only a sketchy outline of the facts is warranted. The Rubin Ownership Dave Rubin and wife, Jennie Rubin, were owners of extensive productive oil and gas leases and working interests at the time of the wife’s death on January 11, 1942. Upon her death, Dave was the owner of an undivided y2 interest and the remaining y¡ was owned in three equal shares of % by each of the surviving adult children and % by three minor children of one daughter who had predeceased Mrs. Rubin. Dave, through one form or another, without success, undertook to operate these properties as an informal partnership of himself, the three children, and the three grandchildren. By 1947, operating debts totaled nearly $750,000. The economic exploitation of the properties required adequate financing and management. To achieve this, apparently it was deemed advisable to concentrate ownership of working interest in Dave and eliminate such ownership by the children. By March 16, 1947, through mutual exchange of deeds, Dave had acquired, for a small cash consideration and the reservation of specified overriding royalties, all of the interest (%ths) of the adult children. The remaining y8 held by the minor grandchildren was obtained by a state court friendly partition suit filed March 16, 1947, with the final decree entered July 29, 1947, confirming a like disposition. The Hall-Stewart Transaction On April 5, 1947, a formal contract carrying out the earlier letter of intent of March 17, 1947, was made between Hall and Stewart and Dave, then the owner of % of the working interest with the expectation of soon acquiring the minors’ y8 interest. After reserving certain gas operations, Rubin conveyed and assigned a % interest (% to each) to Hall and Stewart. In consideration of the transfer, Hall and Stewart agreed to refinance Dave or purchase his outstanding debts up to $750,000, to carry out a specified drilling program for 100 wells, and to manage and operate the properties in a prudent and businesslike way. Elaborate, precise provisions were made concerning the application by Hall-Stewart of proceeds from oil and gas to effectuate the declared general purpose that Dave’s reserved % interest would share equally in expenses and operating profits. Hall-Stewart then “took up” or “paid off” Dave’s debts in a total referred to roughly as “about $750,000” but probably more nearly in the amount $485,265.50 shown on Dave’s books as the amount received for the sale of the % interest to Hall-Stewart. In Taxpayer’s 1947 return, this amount was likewise treated as income, although it there had no definitive tax consequence since the adjusted basis of the property sold was fixed at $493,474.26 resulting in an unrecovered loss of $8,208.76. This added to other operational losses brought the total loss in the 1947 return to $109,821.89. It was this 1947 loss, as adjusted, which Taxpayer in the Petition for Re-determination of the 1946 deficiency, contended had completely extinguished liability for any further payments. The First Hearing The first hearing was held October 23, 1953, before Judge Tietjens who, three years later, September 20, 1956, delivered the opinion for the Tax Court, 26 T.C. 1076. On this issue of the 1947 loss carry-back, Taxpayer quickly presented a simple case. Through the certified public accountant who had long prepared Taxpayer’s returns and who was generally familiar with the Taxpayer’s basic books and records then available in the courtroom for inspection or for use as a foundation for cross examination, the 1947 return was established as correctly reflecting income and expenses and the net income or loss for that year. The return, was offered as an exhibit, as were other adjustments, and using these exhibits, the accountant positively fixed the loss at the sum indicated, $99,401.98. Taxpayer then offered the “no-change” letter of April 4, 1952 sent to him by the Dallas Agent in Charge stating that upon examination of the returns for 1947, 1948' and 1949, “the conclusion has been reached that it (they) should be accepted as. filed.” The Commissioner’s counsel stood mute. He declined cross examination of the accountant and rested his case without offering any evidence. Time for briefs on the merits was fixed. The case' was closed. But not for long. For three days later (October 26, 1953), the Commissioner-sought leave to reopen the case to receive evidence showing that the “no-change” letter was wrong and had been sent in error. This, it was stated, was because Revenue Agent Noah’s examination: showed a net income for 1947 of $98,-090.31, but that no deficiency was set up-for 1947 because extensive admitted: losses in 1949 operated as a loss carry-back to wipe out any 1947 deficiency. After further colloquy, both Taxpayer and Commissioner agreed to expunge the letter provided the record was considered closed and the case submitted. Briefs on the merits were thereafter submitted on schedule. The upshot of this was that on the <vmount of the 1947 loss, the Taxpayer’s case was unchallenged. Nothing stood against it except the remarks of counsel, note 7, supra, that Agent Noah would testify that the 1947 return was wrong and showed a substantial income, not loss. But Agent Noah had never yet testified. The Order for Further Hearing On May 27, 1954, Judge Tietjens “on the Court’s own motion” ordered the case set for further hearing, requiring the parties to submit either an agreed computation, the amount of losses upon which agreement could be reached, or further evidence on the net operating loss sustained and the “regular trade or business carried on by” the Taxpayer. Following this the ease was continued from its June 14, 1954, setting by joint agreement, although the brief hearing revealed that little else was agreed on, and already the Taxpayer was beginning to sound what was to become the recurring theme that Judge Tietjens neither did, nor could, call for further hearing as the Taxpayer had made out a prima facie case. In the meantime, two years rolled by in which extended, but unfruitful, negotiations were carried on by counsel. When, with the next docket notice fixing the hearing date for March 1956, it beg'an to appear quite definitely that Taxpayer was misreading the order for further hearing, note 9, supra, Taxpayer, on January 19, 1956, filed a motion to strike the setting “ * * * and to decide the case in accordance with the evidence and the briefs of both parties previously heard and received.” It was promptly overruled by a formal order of Judge Tietjens which made clear that the additional matter called for in the May 1950 order, note 9, supra, should be supplied by proof or stipulation or both. The “Further Hearing” Before Judge Black of March 1956 On the docket called March 12, 1956, with Judge Black presiding, the Taxpayer again labored at length his contention that there was nothing to hear. But, adding to the general confusion and ambiguously in contrast to his earlier and subsequent position, he acknowledged that he would likely have to proceed with further evidence, the nature of which must have been known since he estimated that his proof would take about two hours. Came then four days later the hearing and, at the outset, another rehash pro and con, 14 pages of printed record, of taxpayer’s insistence that he had made his proof and was entitled to judgment, favorably he hoped, but in any case, a decision. The Commissioner, construing the order, note 9, supra, as a suggestion by Judge Tietjens to Taxpayer that the “closed” record was inadequate and an invitation for him to supply deficiencies either by stipulation which had failed or by evidence, did outline in considerable detail the proof he said he was about to offer through Revenue Agent Noah. Briefly it was: on the Agent’s examination of the 1947 return, it was found incorrect.but no deficiency notice was made in view of the 1949 loss carry-back; instead of the loss, as shown on the return, there was net income in excess of $92,-000; this difference came from the fact that, whereas Taxpayer treated the “proceeds” ($485,265.50) as a recovery of the adjusted basis ($498,474.26) for the whole ownership of the mineral properties, the Hall-Stewart contract conveyed only a % interest, so that the corrected adjusted basis of $212,744.56 should be used. Judge Black so interpreted the situation. And then, apparently abandoning his proposed plan of action indicated four days earlier, note 14, supra, Taxpayer in a display of great confidence inspired perhaps through a sort of self-mesmerism from his own argument, announced the bold course that “If this Court has scheduled it for rehearing, we decline to put on any more of our case in chief.” This was coupled with the position that if the Commissioner made “a case,” Taxpayer would “have the right to rebut it.” But contrary to the Tax Court’s later finding and the contention pressed so hard here by the Commissioner, there was certainly no voluntary “waiver” of Taxpayer’s right to put on relevant evidence. The Commissioner’s remarks attempted to create one, but the implication was instantaneously rejected by Taxpayer and in no sense was it then given an imprimatur by the judge. Agent Noah’s direct testimony and exhibit schedules offered with it bore out counsel’s proffer. It showed, too, that Noah’s data and conclusions had come not alone from his examination and consideration of Taxpayer’s 1947 return, but also of outside sources including Taxpayer’s books and records and the partnership information return for 1947 down to the date of dissolution of the family estate partnership. By this direct examination, the Commissioner had at long last made proof that the 1947 return was incorrect, and that Taxpayer had in fact a net income in excess of $92,000. It was the latter fact which was material and the issue in dispute. As his opening volley on cross examination, Taxpayer put the question whether the Agent had really sought to reconstruct the true picture of net income or loss or had merely been looking for items to disallow from the 1947 return. Because of an objection by the Commissioner, this and similar questions were not allowed. But it became evident that the agent either had not sought to reconstruct the income picture or, on his interpretation of legal principles, he had rejected ascertainment of several items. Specifically, he acknowledged that he had not computed any income to Taxpayer from the Hall-Stewart operations except to verify that no oil run proceeds had been applied in reduction of the charge against Taxpayer’s % interest for the debts “paid” by Hall-Stewart. He had not determined the operating expenses disbursed by Hall-Stewart in management of the properties, had not ascertained the gross or net proceeds received by Hall-Stewart from oil produced by the properties in 1947, and had made no deduction for intangible drilling costs which might be attributable to Taxpayer as an owner of % of the working interest. The Commissioner, on this and the testimony of Hall (of Hall and Stewart) subsequently received by agreement, then rested. Taxpayer then offered proof, both from the attorney who prepared the Hall-Stewart papers and Taxpayer personally concerning the mechanics of the payment of the creditors. On seeking further to develop proof through Taxpayer as a witness concerning intangible drilling costs under the Hall-Stewart operation, the case again lapsed into the state which had so often plagued it with long extended argumentative objections and responses which leaves us, as it must have Judge Black, in a condition of obfuscation. The precise objection to this testimony from Dave Rubin was either sustained or lost in the fog, and after endless words, Taxpayer made a formal proffer. As a part of this and to add to the general bewilderment Taxpayer then swung one hundred eighty degrees to contend that the 1947 return whose infallible accuracy had been extolled by him on all occasions as he pressed the claim of a “prima facie” case was after all wrong in not showing deductions for these intangible costs and in treating the debt “payment” as income. Eighteen pages later, after first stating that he would receive it, Judge Black, apparently quite concerned because Taxpayer had not taken these attributable intangible drilling costs on his 1947 return, finally ruled that all Taxpayer could do was rebut, not the Commissioner’s defense, but Noah’s specific testimony, and rejected these proffers as not being in rebuttal. The Tax Court’s Decision On September 20,1956, Judge Tietjensannounced the opinion for the Tax Court and from it was learned that Taxpayer and Commissioner were each right and' each wrong, as was Judge Black, in the effort to divine the purpose of the order for further hearing, notes 9, 11, supra. The Taxpayer was right that he had proved prima facie a loss; the Commissioner was right that Taxpayer had failed to prove, as Section 122(d) (5) required, that the 1947 loss was incurred in the “operation of a trade or business regularly carried on by the taxpayer -* * * » After briefly summarizing the complicated activities of these hearings, Agent Noah’s testimony and Taxpayer’s criticism of it, the Court disposed of two issues on the merits. As to the third contention, that % of the intangible drilling costs should have been allowed, the Court summarized the developments, recognized that the Taxpayer was seriously asserting that the proffered Masco testimony “ * * * would show that Rubin [Taxpayer] received no income in 1947 -as a result of the Rubin-Hall-Stewart agreement,” confirmed the ruling made by Judge Black during the second hearing, and then made plain that it was not reaching the merits because the Taxpayer had not proved what he sought to prove: “Petitioners have not shown the intangible drilling costs incurred by Hall and Stewart in 1947 and chargeable to Rubin. Therefore, even though these might be deductible items, we cannot allow them. * * * * * “We need not consider how petitioners’ 1947 income was affected as a result of the operation of the properties involved in the Rubin-Hall-Stewart agreement of April 5, 1947, since no evidence was presented on this issue.” After the original opinion was delivered, the Tax Court overruled Taxpayer’s formal request for further hearing to produce this testimony which the Court found lacking. Our Disposition of the Case We decline, as urged by Taxpayer, to rule on the merits of any of these substantive questions. On a record that patently does not contain probably relevant facts, we would compound confusion either to rule now or express anticipatory opinions as the case wends its way back here. We emphasize this so that these inveterate contenders who have already exhausted three years in divining Judge Tietjens’ 1954 order may not take aid or comfort in anything said or unsaid by us in attempting to recreate in a few pages the verbal turmoil, the recitation of which consumes the first thirty-eight pages of Taxpayer’s brief and the first forty-seven in the Commissioner’s. This, too, would apply as to the procedural-substantive question of burden of proof where the finding (1946 deficiency amount), armed with the Commissioner’s presumption of correctness, is not really attacked and the Commissioner has made none on the loss to be carried back (1947). Engaging arguments are made pro and con, but in a record confessedly lacking in available facts which a party sought to introduce, we ought not to express an opinion as to where it rests or whether it has been met until that record is corrected and made complete. But we think that as wide as must be the considered judgment and discretion of the Tax Court in its control of the actual progress of a trial, the exclusion of the proffered evidence and the denial of the motion to reopen the case for additional testimony was, under these circumstances, a procedural error fraught with decisive substantive consequences of such a nature that justice requires that it be corrected. Stock Yards National Bank v. Commissioner, 8 Cir., 153 F.2d 708; Ohio Valley Rock Asphalt Co. v. Helvering, 68 App.D.C. 176, 95 F.2d 87; Polizzi v. Commissioner, 6 Cir., 247 F.2d 875; Commissioner of Internal Revenue v. Wells, 6 Cir., 132 F.2d 405. And here we are careful not to lapse into the Taxpayer’s analysis which seeks to determine all in terms of whether, as a matter of law, the Taxpayer had or had not made out a prima facie case on the first hearing. We think, as did the Tax Court, that he did in part and failed in part. We do not consider though that the Tax Court, any more than a traditional tribunal, must perforce have used the drastic device of a dismissal on the merits. When it thought the facts were inadequately presented but probably available, it had the right to reopen the case on its own motion, and this it did, as it plainly said. But while the holding of a prima facie ease was not decisive, it is not altogether without some significance. Except for the almost formal matter of the Section 122(d) (5) regular trade or business issue which was quickly cured by Taxpayer’s personal testimony on the second hearing, the Court now makes plain that until the Commissioner came along and offered controverting evidence, the Taxpayer had made out a case showing the 1947 loss. Unless Taxpayer’s evidence had that effect, it would be ascribing to the Tax Court a careless, incorrect use of the phrase “prima facie case,” a term of art well known to the law, lawyers, and judges. In the posture of the case at the commencement of the hearing before Judge Black, there had yet been nothing but counsel’s statements showing why the 1947 return was in error. Was the Taxpayer required to anticipate that such proof finally would be made ? The Commissioner on the first hearing two years before had said he would prove it, note 7, supra, but had not done so and had even closed the case without it. Perhaps prudence now suggests that Taxpayer ought to have seized the invitation so often and earnestly extended by Judge Black to offer whatever evidence he had or could think of either to refute or offset the consequences of whatever the Commissioner might soon offer. We can, also readily sympathize with Judge Black whose efforts to seek light and find a solution seemed always to be obscured by oral inundation, much of which was inconsistent with that spoken before or after. But we could certainly not hold that in the confusion, created in part by natural uncertainty in the mind of the presiding judge unfamiliar with the whole case, the action of the Taxpayer in adopting a wait-and-see attitude was so unreasonable as to bring down on him the loss of valuable, potential rights. Especially is this so when the only real reason which the Commissioner could advance in asserting his objections was that if the Taxpayer was “ * * * going to try this case the way he now indicates, we could go on here for two or three days * * *.” Moreover, the interpretation placed on “rebuttal” was in these circumstances hypercritical and unrealistic. It meant something more than the opportunity to refute merely piece by piece that which the Commissioner’s witnesses would state. It bears repeating here that when the Commissioner commenced his case two years later, the Taxpayer had made out a showing of a loss in sufficient amount to extinguish the 1946 deficiency. When the Commissioner finished, he had, if the testimony were ultimately credited, overcome the Taxpayer’s case by proving-that no loss had been sustained. The thing to refute or rebut then was not the series of evidential facts which went to make up the conclusion of no loss. It was, rather, the basic thing — proof of no loss where previously this had been unchallenged. Likewise, if approached from a technical evidentiary point of view, this conclusion has additional support. The essence of the testimony from Taxpayer’s accountant witness was that the 1947 return correctly reflected the Taxpayer’s net income and loss. On the other hand, the thrust of the Commissioner’s testimony was that the return could not be used either itself or as a convenient summary. Since Agent Noah in arriving at his conclusions admittedly used other materials and sources, it was relevant and probative for the Taxpayer to establish, if he could, that by resort to other outside and extraneous materials the true income or true loss was something else. Once the Commissioner’s witnesses departed from data reflected solely in the 1947 return itself, the bars were down to receive, as rebuttal to this approach, relevant competent evidence which had a bearing on the reconstruction of the true picture. Whether the Hall-Stewart transaction permits deduction of these attributed intangible drilling costs and related items, or whether the facts will show them in significant amounts are matters which are or may be decisive and which are committed to the Tax Court for determination in the first instance. With the facts waiting anxiously on the threshold, the Court should have left the door open, or having mistakenly closed it, the Court ought to have reopened it when the Taxpayer knocked again. The final judgment and order of the Tax Court insofar as it relates to the 1947 loss carry-back is therefor® vacated and the cause remanded for further hearings and a new decision. At this preoccupation with questions of burden of proof and whether matters are, or are not, in rebuttal or constitute new proof has so dominated the whole case and has undoubtedly influenced both Commissioner and Taxpayer in the strategic or tactical use of given testimony, we think that a full development of a record requires that each party be free to offer in addition to that contained in the present record whatever relevant and competent evidence there may be on all of the issues in this case related to the 1947 loss-carry-back. Reversed and remanded. . “13. * * * (a) As consideration for the foregoing grant * * * and conveyance, * * * [Hall-Stewart], grantees, agree and promise Dave Rubin, grantor, that they will refinance grantor to the amount of $750,000.00, or to the amount of his indebtedness as of April 1, 1947, whichever amount is the smaller, by taking up, either directly or through Dave Rubin, such indebtedness as is owing by Dave Rubin or stands as charges or incumbrances against the property described * • *, and that grantees will hold the amount of such indebtedness, after taking it up, as a charge or incum-brance against the oil and one-half of the gas to be produced * * *, until the full amount of such indebtedness so to be taken up shall be repaid to the grantees in the following manner: * . Proceeds from all oil runs plus Hall-Stewart’s y<¡ interest in gas proceeds were to be used: first for the payment of landowner’s and overriding royalties; next, to reimburse Hall-Stewart for (a) operating costs and for (b) the full amount they might expend “in taking up grantor’s [Dave’s] * * * indebtedness” and (e) thereafter until they were reimbursed for drilling and equipping the first 50 wells at a stated price of $26,500 per well. After payment of these items, the remaining proceeds were to be used by allocating 25% to the Operating Fund and 75% to the Drilling Fund, to be expended on further development in the discretion of Hall-Stewart. After such prior amounts had been paid, Dave was to receive % of the amounts coming into the Drilling Fund for his own account and of Hall-Stewart’s % of the Drilling Fund until out of the latter he had been paid $2,550,000 expressly described as the “consideration to grantor [Dave] for making this grant, sale, assignment, and conveyance.” . This was stated in one of the inducement clauses: “ * * * to the end that all * * * provisions of the oil and gas leases under which the said Dave Rubin holds title * * * shall be complied with, and that ultimately the * * * property shall be fully developed for oil and gas, and to the end also that the one-half of the property retained by Dave Rubin * * * shall be charged with one-half of the total costs and expenses incident to the management and operation and development of such entire property and be entitled to an equal one-half of the profits of the entire property, and that the one-half of the property conveyed * * * [Hall-Stewart] shall be charged with the operation and management of said entire property and with an equal one-half of the total costs and expenses incident to the management, operation, and development of said property, and be entitled to an equal one-half of the profits of such entire property.” . The Tax Court held that this was a release of Dave’s personal liability and hence income in the year (1947) in which the debts were discharged. Taxpayer contends that the debts were not extinguished but were merely transferred from the individual outside creditors to Hall-Stewart by assignment, and since Dave’s % interest remained subject to the charge, see 1, supra, there could in no event be income until oil-gas runs were so used. It is uncontradicted that no oil payments were thus applied by Hall-Stewart in 1947. We do not pass on this basic issue. . In the petition for Review of the Notice-of Deficiency for 1946, this asserted 1947 loss carry-back was adjusted to $99,401.-98. . Except that the Commissioner objected: to the accountant’s stating this opinion, which objection the Tax Court promptly-overruled with no subsequent action preserving any error, the Commissioner offered no objection to the accountant’s, testimony that these books were kept in the regular course of business nor to the use or formal introduction of the returns as a convenient tabulation by the witness of the Taxpayer’s income record. Indeed, at the Commissioner’s request, the-returns were marked as a joint exhibit. . In view of what happened two years later, the following colloquy is significant: “The Court: Well, if I permit the proceeding to be reopened, what evidence do you intend to offer? [Commissioner’s Counsel]: “Well, I have the Itevenue Agent, and I intend to allow him to testify as to the result of his examination as to the year 1947 * * $ »» . Taxpayer’s counsel: “ * * * provided this case remains closed, you can expunge that letter from the record.” Commissioner’s counsel: “If [Taxpayer] will agree to withdraw that from the record, we will let the case go as submitted.” . “Further Ordered: That the parties submit at that time, either “(1) An agreed computation showing the amount of any net operating loss carry-back from 1947; or “(2) The amount of any such loss that can be agreed upon together with a specification of items that can not be agreed upon; or “(3) Further evidence regarding any regular trade or business carried on by the petitioner in 1947 and any net operating loss sustained in that year.” . Taxpayer’s counsel: “ * * * I don’t interpret Judge Tietjens’ order as setting this case on this docket for further testimony. I understand it was set back on in order to stipulate certain facts, but I don’t think the Order, as stated, would indicate further evidence should be taken.” . The order stated, in part: “ * * * In order to facilitate a decision in the case the Court entered an order on May 27, 1954, reealendaring the case for the taking of additional testimony or the filing of stipulations with reference to specific points enumerated in the order.” . Not the least of the difficulties in the case is the fact that the March 1956 Dállas docket was heard by Judge Black whose knowledge of this case, apart from counsel’s prolix oral presentation, was confined to the record file of the petition, answer, order for further hearing, motion to strike and order denying it, since he had not seen or read the transcript covering the first hearing. . Taxpayer’s interminable elaboration of the dominant theme must have created the impression, inherently repugnant to the Tax Court’s concept of its function, that the whole business was a sort of cat and mouse game in which parties through the use of procedural rules and burden of proof could force the judge to undesired action. See, e. g.: Taxpayer’s counsel: “ * * * If Judge Tietjens was not satisfied with petitioners’ evidence, all he had to do was to hold against us, but he hasn’t done that, Tour Honor, and we think that he is going beyond his duty as a Tax Court Judge in putting this back on the calendar for further trial. After all, what does he want in the evidence; whose evidence does he want?” . Taxpayer’s counsel: “* * * if our motion should again be overruled and we would be put to trial, we see no alternative but to perhaps present additional evidence * * “ * * * Of course, if this Court indicates that the respondent [Commissioner] shall now have an opportunity to put on evidence, then we believe perhaps a fuller record would have to be made by us and we will have to offer additional evidence.” . This is another substantive issue which we bypass at this time. . Judge Black: “* * * it would be my interpretation that Judge Tietjens has set it down so as to give the taxpayer the privilege of proving that a net loss carry-over if he’s got one, because if it wasn’t set down for that purpose, it would be difficult for me to know what purpose it is set down for. He apparently didn’t want to say, ‘Well, you are not entitled to any net loss carry-over because you haven’t proved any.’ * * * so that if the taxpayer can prove he has any carry-over, Judge Tietjens will receive the evidence.” This was restated several times. . Taxpayer’s counsel: “Well, if the Court please, meaning no disrespect to Judge Tietjens, I still reserve the right to put on my own case without instructions from Judge Tietjens as to how to do it. “My position is simply this * * * we have never asked for any additional time in Court * * *. [I]f the respondent cares to go ahead and offer some evidence on his own behalf, of course, he is entirely welcome to do so. * * * [W] e are not going to offer anything until they make a case.” Judge Black: “Yes, well, that, of course, is your privilege that you do not have to offer evidence unless you see fit to do so. “Now you now announce you do not wish to go forward with any evidence in response to setting of the case down for rehearing. * * * * * Taxpayer’s Counsel: “X don’t mean that, Your Honor, I mean this, if respondent goes forward, we contend we have the right to rebut it, but if he does not go forward, we don’t intend to put on any additional evidence.” . The opinion, 26 T.C. 1076 at page 1086, stated: “We denied petitioners the right to introduce this evidence [intangible drilling costs, see infra], holding that it would not be in rebuttal of the Commissioner’s evidence but would be new matter relating to the 1947 net operating loss and that petitioners had waived their right to introduce such evidence.” . Commissioner’s Counsel: “ * * * it would appear to the respondent * * * that the petitioner has waived his right for the record to put on any witnesses for the examination to adduce any part of this record. Then the respondent takes the position and thinks that the Court should agree with him on the point that, having taken that position, he is limited to cross examination of the respondent’s witnesses.” Taxpayer’s counsel: “I don’t think that’s right, Your Honor. We are entitled to rebut.” Judge Black: “We will get to that feature when we come to it.” . Taxpayer’s counsel: ' * * we propose on rebuttal in answer to the respondent’s attempt to prove that we bad income in the year 1947, taxable net income instead of a net operating loss * * to prove that the respondent’s computations of income were in error for any one of a number of reasons, and in rebuttal we also propose to offer proof in the form of facts and figures indicating the exact amount of income, we believe, or loss we believe chargeable. . Judge Black: “I think I will hear you, although I think you should have done that to start with, if that’s what you are going to try to do. You should have done that to start with, but the Court is anxious to get the facts. “Now, I guess we will have to hold the hearing tomorrow because the Court can’t go on all day.” . Taxpayer’s counsel learned during the direct examination of Agent Noah that Hall-Stewart’s accountant (Masco), initially under a subpoena duces tecum requested by the Commissioner, would not be used as his witness. Masco, then subpoenaed instanter by Taxpayer, was available outside the courtroom with Hall-Stewart’s books and records and through him, Taxpayer proposed to prove: “One is the gross income from these properties in 1947, second the abandon loss taken by Hall and Stewart in the year 1947 and third, the operating expense in 1947 and fourth, the amount of development cost that should have been written off in that year.” . 26 T.C. 1084: “At the first hearing of this case, the Commissioner did not contradict the testimony or evidence, but argued that petitioners had not sustained the burden or proof which was cast upon them. Under these circumstances, we were of the opinion that petitioners had made a prima facie case that they suffered a net operating loss for the year 1947; however, they failed to show that such net operating loss resulted from the operation of a trade or business regularly carried on, which is a basic requirement.” . “When this case was first heard petitioners did not attempt to prove the amount of intangible drilling costs which were charged to Rubin and which it is now argued are deductible items. * * * At the outset of the rehearing, petitioners, when given the privilege of doing so, declined to introduce any more evidence in regard to their 1SM7 net operating loss * * . This is set out in footnote 18, supra. . For example, see note 23, supra, concerning the discovery that Masco would not be called as a witness for the Commissioner. Was Taxpayer to be penalized if, through this undisclosed development, Ms strategy or tactical planning to develop intangible drilling costs facts by cross examination of tMs witness was rendered impossible?

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.

WILLIAMS et al. v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. February 3, 1925.) No. 4221. 1. Conspiracy @=43(6) — Indictment and information @=>i25(5i/2) — Indictment for conspiracy to violate National Prohibition Act held sufficient. Indictment charging conspiracy to violate National Prohibition Act, tit. 2, § 3 (Comp. St. Ann. Supp. 1923, § 10138(4aa), through unlawful agreements to possess, sell, transport, store, and deal in intoxicating liquor, and specifying certain overt acts, held sufficient, without charging transportation to be without permit, in view of title 2, § 32 (Comp. St. Ann. Supp. 1923, § 101383/hs), nor is it invalid as charging various separate and distinct offenses in one count. * 2. Indictment and information @=>110(10)— Indictment following statute in alleging overt act sufficient. Indictment charging conspiracy is sufficient, if it follows language of statute and contains sufficient statement of overt act to effect object of conspiracy. 3. Indictment and information @=121 (2) — Bill of particulars allowable. Where indictment is sufficient, but defendants claim they need further facts to prepare defense, their remedy is to call l'or bill of particulars. 4. Conspiracy @=>28 — Essentials of conviction for conspiracy to commit crime stated. It is not necessary to conviction that object of conspiracy be accomplished, that overt act be in itself criminal, nor that more than one of conspirators take part in it, and only one of overt acts charged need be committed. 5. Criminal law @=262 — Want of arraignment and plea held not to invalidate conviction. Where failure to arraign defendants and require them to plead was not raised until after conviction by defendants, who were present in court and represented by counsel, conviction was not invalidated thereby. 6. Conspiracy @=47 — Circumstantial evidence sufficient. Direct testimony of conspiracy is unnecessary, but it may be established by circumstantial evidence, showing concerted action in committing unlawful act, or by proof of facts creating inference that unlawful act was in furtherance of conspiracy. 7. Conspiracy @=>47 — Evidence held to sustain conviction for conspiracy to violate National Prohibition Act. Evidence held to sustain conviction for conspiracy to violate National Prohibition Act. tit. 2, § 3 (Comp. St. Ann. Supp. 1923, § 10188%aa), by unlawfully agreeing to possess, sell, transport, store, and deal in intoxicating liquor. 8. Crimina! law @=>304(20) — Court takes judicial notice whisky is intoxicating liquor. Court lakes judicial notice that whisky is both distilled and intoxicating liquor. 9. Criminal law <§=M 159(2) — Circuit Court of Appeals cannot weigh testimony. Where indictment is supported by substantial evidence, Circuit Court of Appeals cannot weigh testimony, or pass on credibility of witnesses. 19. Jury <§=>119(3) — Juror’s disqualification, because not householder, held waived by failure to challenge. Juror’s disqualification, because he is not householder, as required by Shan. Code Tenn. § 5813, and Judicial Code, § 275 (Comp. St. § 1252), is merely ground of challenge propter defectum, which is waived by failure to challenge voluntarily, through negligence, or through want of knowledge of disqualification. 11. Criminal law <§=>957(3) — Verdict not impeached by evidence concerning arguments of jurors. » Verdict may not be impeached by evidence relating to arguments advanced by individual jurors during course of jury’s deliberations. 12. Criminal law <§=>1156(2) — Court’s ruling on motion for new trial not reviewable, except for abuse of discretion. Motion for new trial on ground of preponderance of evidence and of newly discovered testimony is addressed to trial court’s discretion, which cannot be reviewed, in absence of abuse thereof. In Error to the District Court of the United States for the Middle District of Tennessee; John J. Gore, Judge. Joe Williams arid others were convicted of conspiracy to violate National Prohibition Act, and they bring error. Affirmed. Wynne F. Clouse, of Cookeville, Tenn., for plaintiffs in error. A. V. McLane, U. S. Atty., of Nashville, Tenn. Before DONAHUE, MACK, and KNAP-PEN, Circuit Judges. KNAPPEN, Circuit Judge. Plaintiffs in error were convicted on an indictment charging them and four others (Duggan, Leech, Duffy, and Hussell) with conspiracy “to commit an offense against the United States, namely, to violate section 3, title 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%aa), dated October 28, 1919, by entering into unlawful agreements, contracts, or understandings, by and between said parties above named, to possess, sell, transport, store, and deal- in intoxicating liquor containing more .than one-half of 1 per cent, of alcohol by volume, in violation of the said National Prohibition Act above referred to.” The overt acts alleged were (a) using certain premises in Nashville, called the New Commercial Hotel, for “storing, bartering, and selling intoxicating liquors” therein; (b) the leasing by defendant Joe Williams of these premises, the receipt of rents therefrom, and the depositing of the same in a bank in the name of the New Commercial Hotel; (c) the passing upon and introduction by Duggan to defendant Joe Williams and others as being those to whom liquor could safely be sold; (d) and the acting by Leech and Duffy and defendants Ely and John Williams as agents and clerks in the premises named, and their aiding and abetting in the sale of such intoxicating liquor. A motion to quash the indictment, as not charging “any particular offense cognizable under the laws of the United States” was overruled, except as to Hussell and Duffy, who were discharged on motion of the District Attorney. Motion for new trial was denied, except as to Duggan and Leech, as to whom the court recommended a nolle pros. There was also denial of motion in arrest of judgment as to plain- ’ tiffs in error. 1. The motion to quash the indictment was properly overruled. The gist of the offense charged is conspiracy. The indictment is not so vague and indefinite .in its statement of facts as not to enable defendants intelligently to prepare their defense, or to have protection against further prosecutions. It is the general rule that an indictment charging conspiracy is sufficient, if ' it follows the language of the statute and contains a sufficient statement of an overt act to effect the object of the conspiracy. Rudner v. United States (C. C. A. 6) 281 F. 516, 518; Remus v. United States (C. C. A. 6) 291 F. 501, 504; De Witt v. United States (C. C. A. 6) 291 F. 995, 998. Had defendants required further detailed information to prepare for trial, the established federal rule enabled them to obtain the same by calling for bill of particulars. Rosen v. United States, 161 U. S. 29, 34, 16 S. Ct. 434, 480, 40 L. Ed. 606; Dierkes v. United States (C. C. A. 6) 274 F. 75, 79. The indictment was not defective in failing to charge that the transportation was. to .be without a permit. National Prohibition Act, tit. 2, § 32 (Comp. St. Ann. Supp. 1923, § 10138%s); De Witt v. United States, supra, at pages 998, 999; Rudner v. United States, supra, at page 518. It was not necessary to conviction that the object of the conspiracy be accomplished (United States v. Rabinowich, 238. U. S. 78, 85, 86, 35 S. Ct. 682, 59 L. Ed. 1211), nor that the overt act be in itself a criminal act; “still less need it constitute the very crime that is the object of the conspiracy” (United States v. Rabinowich, supra, at page 86 [35 S. Ct. 684]; Goldman v. United States, 245 U. S. 474, 477, 38 S. Ct. 166, 62 L. Ed. 410; Pierce v. United States, 252 U. S. 239, 244, 40 S. Ct. 205, 64 L. Ed. 542). Only one of the overt acts charged need be committed. Wilkes v. United States (C. C. A. 6) 291 F. 988, 995. Nor need more than one of the alleged conspirators take part in it. United States v. Rabinowich, supra, at page 86 (35 S. Ct. 682). The indictment is not made invalid as charging various separate and distinct offenses under a single count. The single offense charged is a conspiracy to violate the National Prohibition Act in the manner stated. Rudner v. United States, supra, at page 519. Both the motion to quash and the motion in arrest of judgment were properly denied. 2. The alleged failure to arraign defendants and require them to plead to the. indictment is asserted under motion for new trial. The point was not raised until after conviction, and it does not seem to be claimed that the alleged failure, if it existed, was overlooked by defendants, who were personally present in eourt and were represented by counsel, who cross-examined witnesses and actively participated in the trial. If, as against the recital in the order of the eourt of the plea of not guilty, and in absence of express admission of such failure to arraign on the part of the trial court or government counsel, the fact of such lack of arraignment can be established by affidavit, we think the conviction not invalidated thereby. Garland v. Washington, 232 U. S. 642, 646, 34 S. Ct. 456, 58 L. Ed. 772. 3. The Sufficiency of the Proofs.— Direct testimony of the formation of a conspiracy is unnecessary. It may be established by circumstantial evidence showing concert of action in the commission of an unlawful act, or by proof of other facts from which the natural inference arises that the unlawful act was in furtherance of a common design of the alleged conspirators to commit the same. Davidson v. United States (C. C. A. 6) 274 F. 285, 287. There was competent evidence tending to show that defendant Joe Williams, despite a claimed sale to Hussell, was the owner and active manager of the New Commercial Hotel at the time laid in the indictment, and in personal oversight of the liquor selling; that he kept a bank account in the name of that hotel, in which deposits were made during the months of June to September, 1923, both inclusive; that on one of the raids made by the officers that defendant was found on the premises, and on one such occasion was seen running toward the back door; that Ply and Leech were acting as clerks in the hotel; that certain of the defendants passed on the eligibility of would-be purchasers, only those known and satisfactory being admitted; that as a result of a raid there were found liquors and abundant evidence of liquor selling, including whisky, which we take judicial cognizance is both a distilled and intoxicating liquor. Albert v. United States (C. C. A. 6) 281 F. 511, 513. There was also proof of sales of liquor, and abundant testimony tending to show that a clandestine retail liquor business or “speak-easy” was being. maintained, including the employment of secret and circuitous methods. It appeared that on one occasion the officers had to force the door ,in order to make an entrance. True,, not all the government’s witnesses were apparently of high eharaeier, and some items of government testimony may have boon unreliable; but it is a commonplace that, where there is substantial evidence to support the indictment, we cannot weigh the testimony or pass upon the credibility of witnesses. Burton v. United States, 202 U. S. 344, 373, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; Kelly v. United States (C. C. A. 6) 258 F. 392, 406, 169 C. C. A. 408. Wo find no prejudicial variance between the indictment and the proofs. There was thus no error in refusing to direct verdict for defendants. 4. The alleged incompeteney of Juror Gray was first presented on motion for new trial. By Judicial Code, § 275 (Comp. St. § 1252), qualification of jurors was determinable by the laws of Tennessee, which required that a juror bo “a freeholder or householder.” Shannon’s Ann. Code, § 5813. It appears that the juror in question was summoned from bystanders as a talesman, as provided by law; that he qualified and was accepted. The District Judge states that the juror was asked upon his voir dire if he was a householder or a freeholder in the Middle district of Tennessee, to which he replied that he was. The affidavit of the juror states that he owned no lands in Tennessee; that his wife was dead and all his children nonresidents of Tennessee; that the juror lived at a certain street number in the home of another person, from whom he rented, and to whom he made weekly payments for Ms room. Wo are cited to no authority that, according to the juror’s statement, he was not a householder. But, assuming that he was not such, we think the verdict was not thereby vitiated. It "is, we think, the general rule that such disqualification is only ground of challenge propter defectum, which is waived by failure to exercise the challenge either voluntarily or through negligence, or through want of knowledge of the disqualification. Kohl v. Lehlback, 160 U. S. 293, 302, 16 S. Ct. 304, 40 L. Ed. 432; Brewer v. Jacobs (C. C.) 22 F. 217, 231 et seq., cited in Kohl v. Lehlback, supra, page 301 (16 S. Ct. 304); Hamilton v. State, 101 Tenn. 417, 418 et seq., 47 S. W. 695; Givens v. State, 103 Tenn. 648, 666, 55 S. W. 1107. 5. Deliberations of the Jury. — On motion for new trial affidavits of two jurors were produced, to the general effect .that some of the jurors were induced to vote' for conviction through the argument of other jurors that the fact that defendants had not taken the stand, and denied their guilt, was a circumstance against them; and that this, together with the fact that no proof had been offered except by the government, made it the jury’s imperative duty to convict. It is fundamental that a verdict may not be impeached by the testimony of its members regarding arguments advanced by individual jurors in the course of the jury’s deliberations. There is not here presented a ease of attempts from without to influence the jury. The influence was altogether from within. See Hyde v. United States, 225 U. S. 347, 381, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Hughes v. State, 126 Tenn. 50, 91 et seq., 148 S. W. 543, Ann. Cas. 1913D, 1262. 6. Preponderance of Evidence and Newly Discovered Testimony. — These grounds of motion for new trial were addressed to the sound discretion of the trial court, which cannot be reviewed, in the absence of abuse thereof. Robinson v. Van Hooser (C. C. A. 6) 196 F. 620, 627, 116 C. C. A. 294.. In his opinion denying the motion for new trial, in referring to the alleged lack of sufficient evidence to support the verdict, the judge said: “It is hardly conceivable that an honest jury could have rendered .a different verdict from the proof in the record.” We find nothing to indicate any abuse of' discretion in overruling „the motion. The remaining criticisms presented are not such as to call for comment. We have considered them all, and find no prejudicial error in the record, and nothing to indicate that plaintiffs in error have not had a fair trial. The judgment of the District Court is accordingly affirmed.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).

This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?

626 F.2d 173 Isidore SHULMAN, M.D., Appellant, v. Dona L. MISKELL, Philip F. Hudock, Esquire. No. 79-1293. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 11, 1979. Decided May 7, 1980. Michael S. Frisch, Washington, D. C., with whom Samuel Barker, Bethesda, Md., was on brief, for appellant. Russell H. Carpenter, Jr., Washington, D. C., for appellee, Hudock. James P. Schaller, Washington, D. C., for appellee, Miskell. Before TAMM and WALD, Circuit Judges and HAROLD H. GREENE, United States District Court Judge for the District of Columbia. Sitting by designation pursuant to 28 U.S.C. § 292(a).__ Opinion for the Court filed by District Judge HAROLD H. GREENE. HAROLD H. GREENE, District Judge: The question presented by this case is whether the District of Columbia statute of limitations for a malicious prosecution action runs from the date on which the underlying, allegedly malicious, suit was brought or from the date when that suit was terminated in favor of the defendant in that action. On October 27, 1977, appellee Dona L. Miskell, with appellee Philip F. Hudock acting as her counsel, filed an action in the District Court charging appellant Isidore Shulman, M.D. with medical malpractice. Jurisdiction was based on diversity. 28 U.S.C. § 1332. The complaint sought both compensatory and punitive damages. On June 30, 1978, the court entered a partial summary judgment dismissing the punitive damages claim. The compensatory damages claims were tried before a jury which on February 15, 1979, likewise found in favor of Dr. Shulman. On November 21, 1978, appellant brought an action for malicious prosecution in the Superior Court of the District of Columbia, contending that the claim for punitive damages had been brought maliciously and without probable cause. The action was removed to the District Court under 28 U.S.C. §§ 1441, 1446, but the court dismissed it on the ground that the one-year statute of limitations for malicious prosecution actions had run. Appellant urges that the District Court erred in computing the limitations period from October 27, 1977, when the malpractice action was brought, rather' than from June 30,1978, when the punitive damage claim was resolved by its dismissal by the trial judge. At common law and in jurisdictions everywhere in the United States termination of the underlying criminal or civil proceeding in favor of the defendant is an essential element of a malicious prosecution action. See 52 Am.Jur.2d Malicious Prosecution § 29 at n. 6, and cases cited therein; Crescent Live Stock Co. v. Butchers’ Union, 120 U.S. 141, 7 S.Ct. 472, 30 L.Ed. 614 (1887); Kedra v. City of Philadelphia, 454 F.Supp. 652, 674 (E.D.Pa.1978); and see also cases cited at p. 175 infra. This requirement has usually been explained on the theory that, if the malicious prosecution plaintiff were permitted to sue before he had prevailed in the original action, inconsistent judgment might be entered on the same question between the same parties— an obviously undesirable result. Gordon v. West, supra; McMahon v. May Dept. Stores, 374 S.W.2d 82 (Mo.1964). The District of Columbia, through decisions both of this court and of the District of Columbia Court of Appeals and its predecessors, has consistently followed the common law rule. See Dellums v. Powell, 182 U.S.App.D.C. 244, 566 F.2d 167 (1977); Morfessi v. Baum, 108 U.S.App.D.C. 303, 281 F.2d 938 (1960); Moore v. Read, 94 U.S.App.D.C. 153, 212 F.2d 810 (1954); Melvin v. Pence, 76 U.S.App.D.C. 154, 130 F.2d 423 (1942); Chapman v. Anderson, 55 App.D.C. 165, 3 F.2d 336 (1925); S. Freedman & Sons v. Hartford Fire Ins. Co., 396 A.2d 195 (D.C.App. 1978); Weisman v. Middleton, 390 A.2d 996 (D.C.App. 1978); Ammerman v. Newman, 384 A.2d 637 (D.C.App. 1978); Bumphus v. Smith, 189 A.2d 130 (D.C.App. 1963); Nolan v. Allstate Home Eq. Co., 149 A.2d 426 (Mun.App.D.C. 1959); Horne v. Ostmann, 35 A.2d 174 (Mun.App.D.C. 1944). Under that rule and under the cases, a cause of action for malicious prosecution did not lie until Dr. Shulman prevailed on the punitive damage claim on June 30,1978, and, had he filed that action prior to that date, it would have been subject to dismissal for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6); Leggett v. Montgomery Ward & Co., 178 F.2d 436, 439 (10th Cir. 1949). Thus, he could avoid a dismissal only by bringing his suit after June 30, 1978. Yet, if the District Court is correct, by that date eight months of the twelve-month limitations period had already run. Indeed, on the District Court’s theory, if the punitive aspect of the malpractice action had, for one reason or another,been disposed of together with the remainder of the suit, that is, on February 15, 1979, the malicious prosecution action would have been barred by limitations before it ever arose. That cannot be, and it is not, the law. D.C.Code § 12-301 provides that, with an exception not here relevant, the limitation period begins to run “from the time the right to maintain the action accrues.” The District of Columbia Court of Appeals has interpreted that provision in the context of a malicious prosecution action to mean that the period begins to run “from the time that all the elements of the cause of action exist.” S. Freedman & Sons v. Hartford Fire Ins. Co., 396 A.2d at 198 (emphasis in original); see also Carter v. S. N. McBride Co., Inc., 105 Wash.D.L.Rep. 1365 (D.C.Sup. Ct., Aug. 1, 1977), cited in S. Freedman & Sons. Courts in other jurisdictions, with almost complete unanimity, have even more explicitly held that the malicious prosecution period of limitations is properly computed from the date of the disposition of the underlying civil or criminal action. See, Jastrzebski v. City of New York, 423 F.Supp. 669 (S.D.N.Y.1976) (New York); Earl v. Winne, 14 N.J. 119, 101 A.2d 535 (1953), followed in Butler v. Sinn, 423 F.2d 1116 (3d Cir. 1970) (New Jersey); Securities Investment Co. v. Bennett, 117 Ga.App. 415, 160 S.E.2d 602 (1968) (Georgia); Rutherford v. Johnson, 250 Cal. App.2d, 316, 58 Cal.Rptr. 546 (1967) (California); Euge v. Lemay Bank and Trust Co., 386 S.W.2d 398 (Mo.1965) (Missouri); Giordano v. Tullier, 139 So.2d 15 (La.App.1962) (Louisiana); Sicola v. First National Bank of Altoona, 404 Pa. 18, 170 A.2d 584 (1961) (Pennsylvania); Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223 (1955) (North Carolina); Shuey v. Michigan, 106 F.Supp. 32 (E.D.Mich.1952) (Michigan); Wolfe v. Murphy, 113 F.2d 775 (8th Cir. 1940), cert. denied, 311 U.S. 700, 61 S.Ct. 138, 85 L.Ed. 454 (1940) (Iowa); Allen v. Burdette, 89 W.Va. 615, 109 S.E. 739 (1921) (West Virginia); Levering v. Nat’l Bank of Morrow County, 87 Ohio St. 117, 100 N.E. 322 (1912) (Ohio); Luby v. Bennett, 111 Wis. 613, 87 N.W. 804 (1901) (Wisconsin); but see Violett v. Sympson, 120 Eng.Rep. 128, 8 El. and Bl. 344 (1857) (England); Evans v. Sturgill, 430 F.Supp. 1209 (W.D.Va.1977) (Virginia). The textwriters exhibit a similar understanding. Limitations-Malicious Prosecution, 87 A.L.R.2d 1047; Restatement of Torts (Second) § 899; Malicious Prosecution, 52 Am.Jur.2d § 115. With precedent and policy thus compelling one result, we would ordinarily end our analysis at this point. However, appellees have cited a fairly recent opinion of this court which appears to hold to the contrary. In Brewster v. Woodward & Lothrup, Inc., 174 U.S.App.D.C. 164, 530 F.2d 1016 (1976), we stated that a complaint which alleged false arrest, defamation, and malicious prosecution was barred by the statute of limitations because “actions for personal injuries accrue from the date of the wrong”; i. e., from the date on which the allegedly malicious action was begun. We have concluded that, notwithstanding F.R.App.P. 35(a) and D.C. Cir.R. 14(a)(3), Brewster is not controlling for several reasons. In the first place, the language in Brewster relating to the limitations problem may appropriately be considered as mere dictum since the plaintiff there could not have prevailed in any event because his claim was defective on its merits. Moreover, while malicious prosecution is referred to in the Brewster opinion, the gravamen of the complaint, and the focus of this court’s decision, were claims of false arrest and defamation. With respect to both of these tort claims, the limitations period was quite properly considered to run from the date of the original arrest. Finally, it is significant that we are here construing not federal law but District of Columbia law with respect to which we are of course obligated to follow the local decisions in any event. Our review of the District of Columbia cases, including those decided subsequent to Brewster, convinces us that in the District the statute of limitations for malicious prosecution actions begins to run from the time the underlying criminal or civil actions is disposed of in favor of the malicious prosecution plaintiff. Upon that basis, the statute of limitations had not yet run when appellant brought the instant action. The judgment of the District Court is reversed and the case is remanded with instructions to reinstate the complaint. Reversed. . The complaint alleged that Dr. Shulman had failed to follow the instructions of the patient’s allergist and that as a result appellee Miskell suffered a severe reaction to an improperly administered injection. . Appellant’s malicious prosecution complaint was based solely upon the prosecution by appellees of the punitive damage claim. That claim was fully disposed of on June 30, 1978, and we therefore need not consider the statute of limitations question by reference to the date of the jury verdict. Compare Anderson v. Coleman, 56 Cal. 124 (1880); Gordon v. West, 129 Ga. 532, 59 S.E. 232 (1907) with Psaty v. Fifth Avenue & Ninety-Third Street Corp., 132 Misc. 278, 229 N.Y.S. 384 (1928) and Rich v. Siegel, 7 Cal.App.3d 465, 86 Cal.Rptr. 665 (1970). In any event, use of that date as the statute of limitations “trigger” would affect the result only insofar as the malicious prosecution action might be rejected as having been brought too early rather than too late. . Upon removal, the case was assigned to Judge Hart, before whom the underlying malpractice case was still pending. . Dismissals with prejudice were entered with respect to the claim against appellee Hudock on January 18, 1979, and with respect to the claim against appellee Miskell on February 1, 1979. . D.C.Code § 12-301 provides that “. actions for the following purposes may not be brought after the expiration of the period specified below . .. (4) for . . . malicious prosecution ... 1 year.” Since the alleged tort occurred in the District of Columbia, we must, of course, apply District of Columbia law. Erie RR v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160 (3rd Cir. 1976). . Malicious prosecution existed as early as during the reign of Edward I, in the form of the writ of conspiracy aimed at combinations to abuse legal procedure. See, generally, Win-field, History of Conspiracy and Abuse of Legal Procedure (1921). . It is generally held that an essential difference between malicious prosecution and the tort of malicious use of process is that under the latter rubric it is not necessary to show that the underlying proceeding has been terminated. W. Prosser, Law of Torts § 121 (4th ed. 1971). . Cf. Capital Elec. Co. v. Cristaldi, 157 F.Supp. 646 (D.Md.1958); French v. U. S. Fidelity and Guar. Co., 88 F.Supp. 714 (D.N.J.1950); Wright and Miller, Federal Practice and Procedure, Civil § 1246 (1969 ed.). . Appellees suggest that this concern may be accommodated by a rule which would require the malicious prosecution action to be filed within one year of the commencement of the underlying criminal or civil matter while deferring its trial until after the underlying matter had been decided. But this would mean — as appellees recognize (brief, p. -) — that the action would have to be filed not only before all of its elements could be proved but before they could even be alleged, thus giving rise to the problem discussed in the text to note 8, supra. Moreover, such a rule would tend to promote baseless lawsuits, for litigants would be encouraged to file malicious prosecution actions solely to avoid possible future limitations problems. See Sicola v. First Nat. Bank, 404 Pa. 18, 170 A.2d 584 (1961). . On similar reasoning, the courts have held premature malicious prosecution counterclaims to various kinds of civil actions. See Kalso Systemet, Inc. v. Jacobs, 474 F.Supp. 666 (S.D.N.Y.1979); Kaye v. Pantone, Inc., 395 A.2d 369 (Del.Ch.1978); Greer v. State Farm Fire and Gas Co., 139 Ga.App. 74, 227 S.E.2d 881 (1976); Niedringhaus v. Zucker, 208 S.W.2d 211 (Mo. 1948); cf., Note, Counter Claim for Malicious Prosecution in the Action Alleged to be Malicious, 58 Yale L.J. 490 (1949). . Inasmuch as that case was brought to the attention of the District Court, it may be assumed that it relied upon it for its decision. . These Rules prescribe that a decision of a division of the court may not be overruled by another division, but only by the court sitting en banc. . See, City of LaFayette v. Louisiana Power and Light Co., 532 F.2d 431, 435 (5th Cir. 1976); Davis v. Estelle, 529 F.2d 437, 441-43 (5th Cir. 1976); North Carolina Utilities Commission v. Federal Communications Commission, 552 F.2d 1036, 1045 (4th Cir. 1977). . The plaintiff had been convicted in the criminal prosecution which formed the substantive basis for his civil cause of action. . See, Shehyn v. District of Columbia, 392 A.2d 1008, 1013 (D.C.App. 1978); Bair v. Bryant, 96 A.2d 508, 510 (D.C.Mun.App. 1953); Ogden v. Association of United States Army, 177 F.Supp. 498 (D.D.C. 1959); Libel-Publication-Limitation Period, 42 A.L.R.3d 807, 815, 828. . See note 5 supra; see also, Nature Conservancy v. Machipongo Club, Inc., 579 F.2d 873 (4th Cir. 1978), cert. denied, 439 U.S. 1047, 99 S.Ct. 724, 58 L.Ed.2d 706 (1978). . See S. Freedman & Sons v. Hartford Fire Ins. Co., supra, and Carter v. S.N. McBride Co., Inc., supra.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". 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".

This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?

MOORE v. ILLINOIS No. 69-5001. Argued January 18, 1972 Decided June 29, 1972 BlackmuN, J., delivered the opinion of the Court, in which Burger, C. J., and BrenNAN, White, and RehNQüist, JJ., joined. Marshall, J., filed an opinion concurring in part and dissenting in part, in which Douglas, Stewart, and Powell, JJ., joined, post, p. 800. James J. Doherty argued the cause for petitioner. With him on the briefs was Gerald W. Getty. Thomas J. Immel, Assistant Attornéy General of Illinois, argued the cause for respondent. With him on the brief were William J. Scott, Attorney General, Joel M. Flaum, First Assistant Attorney General, and James B. Zagel and Jayne A. Carr, Assistant Attorneys General. Briefs of amici curiae urging reversal were filed by Elmer Gertz and Willard J. Lassers for the American Civil Liberties Union, Illinois Division, et al., and by Jack Greenberg, James M. Nabrit III, Jack Himmelstein, and Anthony G. Amsterdam for the NAACP Legal Defense and Educational Fund, Inc., et al. Mr. Justice Blackmun delivered the opinion of the Court. This state murder case, with the death penalty imposed by a jury, comes here from the Supreme Court of Illinois. The grant of certiorari, 403 U. S. 953 (1971), was limited to three of four questions presented by the petition. These concern the nondisclosure to the defense of allegedly exculpatory evidence possessed by the prosecution or the police; the admission into evidence of a shotgun that was not the murder weapon; and the rejection of eight veniremen who* had voiced general objections to capital punishment. The first and third issues respectively focus on the application of Brady v. Maryland, 373 U. S. 83 (1963), and Witherspoon v. Illinois, 391 U. S. 610 (1968). I Petitioner Lyman A. Moore was convicted in 1964 of the first-degree murder of Bernard Zitek. Moore’s appeal to the Supreme Court of Illinois was held in abeyance while he petitioned the trial court for post-conviction relief. After a hearing in January 1967, that petition was denied. Moore’s appeal from the denial was consolidated with his appeal from the conviction and sentence. With one justice dissenting and another not participating, the Illinois court affirmed the judgments. 42 Ill. 2d 73, 246 N. E. 2d 299 (1969). II The homicide was committed on April 25, 1962. The facts are important: A. The victim, Zitek, operated a bar-restaurant in the village of Lansing, southeast of Chicago. Patricia Hill was a waitress there. Donald O’Brien, Charles A. Mayer, and Henley Powell were customers. Another bar called the Ponderosa Tap was located in Dolton, also southeast of Chicago. It was owned by Robert Fair. William Joyce was the bartender. One of Fair’s customers was Virgle Sanders. A third bar known as Wanda and Del’s was in Chicago. Delbert Jones was the operator. William Leon Thompson was a patron. The Westmoreland Country Club was in Wilmette, about 50 miles north of Lansing. The manager there was Herbert Anderson. B. On the evening of April 25 Zitek was tending bar at his place in Lansing. Shortly before 10 p. m. two men, one with-a moustache, entered and ordered beer. Zitek admonished the pair several times for using profane language. They continued in their profanity and, shortly, Zitek ejected them. About an hour later a man carrying a shotgun entered. He laid the weapon on the bar and shot and killed Zitek. The gunman ran out, pursued by patrons, and escaped in an automobile. C. At the trial waitress Hill positively identified Moore as one of the two men ejected from the bar and as the one who returned and killed Zitek. She testified that she had a clear and close view from her working area at the bar and that she observed Zitek’s ejection of the two men and the shotgun killing an hour later. D. A second in-court identification of Moore as the man who killed Zitek was made by the customer Powell. Powell, who at the time was playing pinochle with others, testified that he observed Moore enter the bar with a shotgun and shoot Zitek; that after the shooting he pursued Moore; and that .outside the bar Moore stopped momentarily, turned', and shouted, “Don’t come any further or I’ll shoot you, too.” E. Sanders testified that on April 27, two days after the murder, he was in the Ponderosa Tap and that a customer there, whom Sanders identified as “Slick,” remarked to Sanders that it was “open season on bartenders” and that he had shot one in Lansing. At the trial Sanders identified Moore as the man who was in the Ponderosa Tap on April 27. Moore was with another man who had a moustache. The two asked for a ride to Harvey, Illinois. The owner, Fair, agreed to give them the ride. F. Fair testified that Moore was one of the two men who requested and were given the ride; that during the journey one of them was referred to as “Barbee”; and that one said “something like, ‘Well, if we hadn’t had that trouble with the bartender in Lansing, we’d have been all right.’ ” G. The Ponderosa bartender, Joyce, testified that Sanders and Fair were in that tavern on April 27; that Moore was there at the same time; and that he arranged with Fair for Fair to give Moore and his companion a ride. It is thus apparent that there were positive in-court identifications of Moore as the slayer by the waitress Hill and by the customer Powell, and that there were in-court identifications of Moore as having been present at the bar in Dolton two days later by Sanders, by Fair, and by Joyce. H. Six months after the slaying, in the early morning hours of October 31, 1962, a Chicago police officer was shot at from a 1957 Ford automobile. Two men fled the scene. The police “staked out” the car, and several hours later Moore and a moustached man, later identified as Jerry Barbee, were arrested when they approached and entered the vehicle. The automobile proved to be owned by Barbee. A fully loaded sawed-off 16-gauge shotgun was in the car. The shotgun was introduced in evidence at Moore’s trial. The State conceded that the gun so introduced was not the murder weapon, and that the State’s ballistics technician, if called, would testify that the waddings taken from Zitek’s body came, in his opinion, from a 12-gauge shotgun shell. I. The defense called manager Anderson of the West-moreland Country Club as a witness. He testified that Moore had been hired as a waiter there on April 24 (the day before the murder); that the club records indicated there was a special party at the club on the evening of April 25; and that Moore was paid for working until sometime between 10 p. m. and midnight. The club’s bartender testified to the same effect. Each of these witnesses nevertheless admitted that he could not remember seeing Moore at the club that night, but said that he would have known if he had been absent for any substantial period of time. The club records also indicated that Moore worked at the club the afternoon of April 27, when, according to the testimony of Sanders, Fair, and Joyce, Moore was at the Ponderosa Tap in Dolton. J. O’Brien, a customer at Zitek’s, testified for the defense that he observed Zitek eject two men the evening of the 25th, and that Moore was not one of them. Although he was in the restaurant at the time of the homicide, he did not see the person who shot Zitek. A police officer testified that in his opinion O’Brien was drunk at the time. Ill Prior to the trial, the defense moved for disclosure of all written statements taken by the police from any witness. The State agreed to furnish existing statements of prosecution witnesses. At the post-conviction hearing, Moore argued, and the claim is presented here, that he was denied a fair trial because six items of evidence, unknown to him at the time of the trial, were not produced and, in fact, were suppressed by the State: A. On April 30, 1962, Sanders gave a statement to the police that he had met the man “Slick” for the first time “about six months ago” in Wanda and Del’s tavern. Testimony at the post-conviction hearing by Lieutenant Turbin of the Lansing Police Department revealed that at the time of trial the police possessed an FBI report that Moore was in Leavenworth Penitentiary from 1957 to March 4, 1962. That report thus proved that Sanders could not have met Moore at Wanda and Del’s in November 1961. The defense was not given a copy of the statement made by Sanders. The prosecuting attorney asserted at the post-conviction hearing that he did not recall having seen the statement before or during the trial. B. On the day Sanders gave his statement, that is, on April 30, the police raided Wanda and Del’s looking for “Slick.” “Slick” was not there, but Jones, the tavern’s operator, said that he could identify “Slick.” After Moore was arrested, Jones was not asked by the police whether Moore was “Slick.” The defense was not advised of the raid until after the trial. At the post-conviction hearing Jones testified that Moore was not “Slick.” His testimony, however, was stricken on the ground that it pertained to innocence or guilt and was not admissible upon collateral review. C. After the raid on Wanda and Del’s, the police secured from their files a picture of James E, “Slick” Watts and assigned Lieutenant Turbin the task of finding Watts. His search was unsuccessful. Moore asserts that the attempt to find Watts was not made known to the defense until cross-examination of the Lansing police chief at the post-conviction hearing. D. After Moore was arrested on October 31, he was photographed by the police. The photograph was shown to William Leon Thompson, the patron of Wanda and Del’s. Thompson testified at the post-conviction hearing that he told Lieutenant Turbin that the picture “didn’t, to the best of my knowledge, resemble the man that I knew” as “Slick.” He identified a picture of Watts as “the Slick I know.” Defense counsel testified that through the course of the trial neither the police nor the prosecutor advised them about Thompson and his disclaimer. E. At the start of the trial Sanders observed Moore for the first time since the alleged bragging incident at the Ponderosa Tap. Sanders remarked to the prosecuting attorney and to police officers who accompanied him into the courtroom that the person he knew as “Slick” was about 30-40 pounds heavier than Moore and did not wear glasses. One of the officers responded, “Well, you know how the jailhouse beans are.” Moore contends that he and defense counsel were not advised of this remark of Sanders until after the trial had concluded. F. Mayer, one of the card players at Zitek’s at the time of the murder, gave the police a written statement. On the back of the statement Officer Koppitz drew a sketch of the seating arrangement at the card table. The diagram shows that the corners of the table pointed north, south, east, and west. Cardplayer Powell was placed on the southwest side. The bar was about 10 feet north of the table. The door was to the southwest. Moore argues that the diagram is exculpatory and contradicts Powell’s testimony that he observed the shooting. Defense counsel testified that they were not shown the diagram during the trial. Moore argues, as to the first five items, that the State did not comply with the general request by the defense for all written statements given by prosecution witnesses; that the State failed to produce the pretrial statement of Sanders and the other evidence contradicting Sanders’ identification of Moore as “Slick”; and that the evidence not produced was material and would have been helpful to his defense. The Illinois court held that the State had not suppressed material evidence favorable to Moore, that the record shows that the prosecution presented its entire file to defense counsel, and that no- further request for disclosure was made. 42 Ill. 2d, at 80-81, 246 N. E. 2d, at 304. Moore submits here the alternative claim that a specific request is not an “indispensable prerequisite” for the disclosure of exonerating evidence by the State and that the defense could not be expected to make a request for specific evidence that it did not know was in existence. In Brady v. Maryland, 373 U. S. 83 (1963), the petitioner and a companion were found guilty by a jury of first-degree murder and were sentenced to death. In his summation to the jury, Brady’s counsel conceded that Brady was guilty, but argued that the jury should return its verdict “without capital punishment.” Prior to the trial, counsel had requested that the prosecution allow him to examine the codefendant’s extra-judicial statements. Some of these were produced, but another, in which the codefendant admitted the actual homicide, was withheld and did not come to Brady’s notice until after his conviction. In a post-conviction proceeding, the Maryland Court of Appeals held that this denied Brady due process of law, and remanded the case for retrial on the issue of punishment. This Court affirmed. It held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U. S., at 87. The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence. These are the standards by which the prosecution's conduct in Moore’s case is to be measured. Moore's counsel asked several prosecution witnesses if they had given statements to the police. Each witness (Hill, Powell, Fair) who had given a statement admitted doing so and the statement was immediately tendered. The same inquiry was not made of witness Sanders. He was the only state witness who was not asked the question. At the post-conviction hearing the inquiry was made. Sanders admitted making a statement to the police and the statement was tendered. The record discloses, as the Illinois court states, 42 Ill. 2d, at 80, 246 N. E. 2d, at 304, that the prosecutor at the trial submitted his entire file to the defense. The prosecutor, however, has no recollection that Sanders’ statement was in the file. The statement, therefore, either was in that file and not noted by the defense or it was not in the possession of the prosecution at the trial. We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. Here, the elusive “Slick” was an early lead the police abandoned when eyewitnesses to the killing and witnesses to Moore’s presence at the Ponderosa were found. Unquestionably, as the State now concedes, Sanders was in error when he indicated to the police that he met Moore at Wanda and Del’s about six months prior to April 30, 1962. Moore’s incarceration at Leavenworth until March shows that conclusion to have been an instance of mistaken identity. But the mistake was as to the identification of Moore as “Slick,” not as to the presence of Moore at the Ponderosa Tap on April 27. “Sanders’ testimony to the effect that it was Moore he spoke with at the Ponderosa Tap in itself is not significantly, if at all, impeached. Indeed, it is buttressed by the testimony of bartender Joyce and operator Fair, both of whom elaborated the incident by their description of the man, and by Moore’s request for a ride to Harvey, Illinois, Fair’s providing that ride, and Fair’s hearing, on that trip, the reference to one of the men as ‘Barbee,’ ” and a second reference to trouble with a bartender in Lansing. The other four of the first five items — that Jones told police he could identify “Slick” and subsequently testified that Moore was not “Slick”; that the police had a picture of Watts and assigned the lieutenant, unsuccessfully, to find Watts; that Thompson had been shown a picture of Moore and told the police that Moore was not “Slick”; and that on the day of the trial Sanders remarked that the man he knew as “Slick” looked heavier than Moore — are in exactly the same category. They all relate to “Slick,” not Moore, and quite naturally go off on Sanders’ initial misidentification of “Slick” with Moore. None of the five items serves to impeach in any way the positive identification by Hill and by Powell of Moore as Zitek’s killer, or the testimony of Fair and Joyce-that Moore was at the Ponderosa Tap on April 27, or the testimony of Fair that the moustached Barbee was accompanying Moore at that time, and that one of the two men made the additional and undisputed admission on the ride to Harvey. We conclude, in the light of all the evidence, that Sanders’ misidentification of Moore as Slick was not material to the issue of guilt. The remaining claim of suppression relates to the diagram on the back of Mayer’s statement to the police. Moore contends that the diagram shows that Powell was seated with his back to the entrance to Zitek’s and, thus, necessarily contradicts his testimony that he was looking toward the entrance as he sat at the card table, and that the State knowingly permitted false testimony to remain uncorrected, in violation of Napue v. Illinois, 360 U. S. 264 (1959). In Napue the principal prosecution witness at Napue’s murder trial was an accomplice then serving a sentence for the crime. He testified, in response to an inquiry by the prosecutor, that he had received no promise of consideration in return for his testimony. In fact, the prosecutor had promised him consideration, but he did nothing to correct the witness’ false testimony. This Court held that the failure of the prosecutor to correct the testimony, which he knew to be false, denied Napue due process of law, and that this was so even though the false testimony went only to the credibility of the witness. See also Miller v. Pate, 386 U. S. 1 (1967), and Alcorta v. Texas, 355 U. S. 28 (1957). We are not persuaded that the diagram shows that Powell’s testimony was false. The officer who drew the diagram testified at the post-conviction hearing that it did not indicate the direction in which Powell was facing or looking at the time of the shooting. Powell testified that his position at the table gave him a view of the bartender; that at the moment he could not bid in the pinochle game and had laid his hand down and was looking toward the door when Moore walked in. There is nothing in the diagram to indicate that Powell was looking in another direction or that it was impossible for him to see the nearby door from his seat at the card table. Furthermore, after the shooting he pursued Moore but stopped when the man warned him that he, too, might be shot. In summary, the background presence of the elusive “Slick,” while somewhat confusing, is at most an insignificant factor. The attempt to identify Moore as “Slick” encountered difficulty, but nothing served to destroy the two-witness identification of Moore as Zitek’s assailant, the three-witness identification of Moore as present at the Ponderosa Tap, the two-witness identification of Moore as one of the men who requested and obtained a ride from the Ponderosa in Dolton to Harvey, Illinois, and Fair’s testimony as to the admission made on that ride. We adhere to the principles of Brady and Napue, but hold that the present record embraces no violation of those principles. IV The 16-gauge shotgun was admitted into evidence at the trial over the objection of the defense that it was not the murder weapon, that it had no connection with the crime charged, and that it was inadmissible under Illinois law. During his closing argument to the jury, the prosecuting attorney stated that the 16-gauge shotgun was not used to kill Zitek, but that Moore and his companion, Barbee, were “the kind of people that use shotguns.” The Supreme Court of Illinois held that the shotgun was properly admitted into evidence as a weapon in Moore’s possession at the time of his arrest, and was a weapon “suitable for the commission of the crime charged . . . even though there is no showing that it was the actual weapon used.” 42 Ill. 2d, at 78, 246 N. E. 2d, at 303. Moore claims that the gun’s introduction denied him due process. Of course, the issue whether the shotgun was properly admitted into evidence under Illinois law is not subject to review here. The due process claim, however, appears to be raised for the first time before us. There is no claim by Moore, and there is nothing in the record to disclose, that due process was argued in the state courts. We could conclude, therefore, that the issue is not one properly presented for review. In any event, we are unable to conclude that the shotgun’s introduction deprived Moore of the due process of law guaranteed him by the Fourteenth Amendment. The 16-gauge shotgun, found in the car, was in the constructive possession of both Moore and Barbee when they were arrested after the shooting incident on October 31. There is substantial other evidence in the record that a shotgun was used to kill Zitek, and that he suffered the wounds one would expect from a shotgun fired at close range. The testimony as to the murder itself, with all the.details as to the shotgun wounds, is such that we cannot say that the presentation of the shotgun was so irrelevant or so inflammatory that Moore was denied a fair trial. The case is not federally reversible on this ground. V Inasmuch as the Court today has ruled that the imposition of the death penalty under statutes such as those of Illinois is violative of the Eighth and Fourteenth Amendments, Furman v. Georgia, ante, p. 238, it is unnecessary for us to consider the claim of noncompliance with the Witherspoon standards. In Witherspoon, 391 U. S., at 523 in n. 21, the Court stated specifically “Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case” (emphasis in original). The sentence of death, however, may not now be imposed. The judgment, insofar as it imposes the death sentence, is reversed, Furman v. Georgia, supra, and the case is remanded for further proceedings. This early morning incident was recounted in an earlier trial of Moore and Barbee for an armed robbery at Harvey, Illinois, on July 27, 1962. People v. Moore, 35 Ill. 2d 399, 401-402, 220 N. E. 2d 443, 444-445 (1966), cert. denied, 389 U. S. 861 (1967). A revolver found at Moore’s feet at the time of his arrest and a shoulder holster then on his person were ruled inadmissible. A like alibi defense was submitted at the earlier armed robbery trial of Moore and Barbee. People v. Moore, 35 Ill. 2d, at 406, 220 N. E. 2d, at 447. Brief for Respondent 4; Tr. of Oral Arg. 28. The dissent observes, post, at 804, “When confronted with this fact [Moore’s imprisonment at Leavenworth], Sanders indicated that it was impossible that petitioner [Moore] was the man with whom he had spoken in the Ponderosa Tavern.” This is a misreading of Sanders’ testimony. The question and Sanders’ answer were: “Q. And did you tell me and also later on, did you tell the policeman from the State’s Attorney’s Office that if you had known that this fellow, Lyman Moore, was in the Federal Penitentiary until March 4, 1962, you would definitely not have identified him as being Slick that you knew? “A. If he’s in jail, it would have been impossible to be the same man.” Abstract of Record 296. Contrary to the assertion by the dissent that the Mayer statement, with its accompanying diagram, was never made available to the defense, post, at 803 and 809, the trial transcript indicates that during the cross-examination of Officer Koppitz a request was made by the defense for all written statements taken by the officer from persons in Zitek’s restaurant at the time of the shooting. The court granted the request and the record recites that statements of Mayer and others were furnished to defense counsel. See n. 2. Curiously, the State argues in this Court that it is possible that the 16-gauge shotgun was the murder weapon. Brief for Respondent 20-21. Later in his closing argument the prosecuting attorney referred to the 16-gauge shotgun and stated again that a 12-gauge shotgun killed Zitek. He argued that a shotgun is not “the most humane type weapon” and that the death penalty is appropriate in a case in which a shotgun is used to murder a person.

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.

What is the issue of the decision?

PAUL O’LEARY LUMBER CORPORATION, Plaintiff-Appellant-Cross Appellee, v. MILL EQUIPMENT, INC., DefendantAppellee, Wilco Machine Works, Inc., Defendant-Appellee-Cross Appellant. No. 30762. United States Court of Appeals, Fifth Circuit. Sept. 17, 1971. E. L. Snow, T. Kenneth Watts, Meridian, Miss., for appellant. R. B. Deen, Jr., Ralph E. Young, Jr., Meridian, Miss., for Wilco Machine Works, Inc. William B. Compton, Meridian, Miss., for Mill Equip., Inc. Before TUTTLE, THORNBERRY and INGRAHAM, Circuit Judges. PER CURIAM: This case reaches us as an appeal by Paul O’Leary Lumber Corporation and cross-appeal by Wilco Machine Works, Inc. At the heart of the controversy is the Selective Beaver No. 2, a machine that is designed to produce rough lumber and wood chips in one operation at a profitable rate. The machine was manufactured by Mill Equipment, Inc. and sold by Wilco to O’Leary. It performed miserably. The Beaver’s failure was attributable primarily to its cutting knives, which were not strong enough for the hard Southern yellow pine used in O’Leary’s operation. The Beaver had previously been operated in the Pacific Northwest where the timber is softer than yellow pine. Largely as a result of the inadequacy of the Beaver, O’Leary failed and went out of business. O’Leary sued Wilco and Mill for $307,969.23. This alleged damage figure is comprised of $101,445.26 in losses on account of delay in delivery of the machine and shutdown time due to its malfunction and $206,-523.97 in lost profits. The district court awarded O’Leary $20,816.71 and granted, with one exception, Wilco’s cross-claim against Mill for Wilco’s damage payment to O’Leary. The court found the difference in the sale price of the Beaver (approximately $48,-000) and its value as delivered to be $30,000. It added to this figure $1,475.-23 for repairs to the Beaver, $5,000 for delay in shipping, and $10,000 for losses during O’Leary’s shutdown time. The court set off against this recovery O’Leary’s note to Wilco for the sale price of the Beaver and related machines minus the value of the Beaver and other equipment repossessed by Wilco. O’Leary complains of the inadequacy of the district court’s damage award. Wilco argues that it is not liable in any amount to O’Leary, because the contract of sale effectively disclaims any implied warranty by Wilco that the Beaver was fit, suitable, or effective to do the job it was purchased to do. We affirm. Appellant failed in this Court and below to clearly specify his damages. O’Leary had been losing money for several consecutive years and purchased the Beaver in hopes of reversing this trend. Nevertheless, the Beaver was a new machine, never before tried in the Southeast. There is little or no evidence that even if the Beaver had operated as represented O’Leary would have made a profit. Moreover, as a rule new enterprises with no track record are not permitted to recover for lost profits. Certainly, the trial court’s rejection of O’Leary’s claim to lost profits was not clearly erroneous. Fed.R.Civ.P. 52(a). O’Leary also sought damages for losses caused to its business by the failure of the Beaver. Its presentation on this point was far from lucid, providing the Court little guidance in determining losses attributable to the Beaver. We think the measure of damages employed by the district court was correct. Wilco cross-appeals, asserting disclaimer of any implied warranty of suitability on the Beaver. The “guarantee” provision in the sales agreement reads: There are no warranties by the Seller except those expressly stipulated. In no event shall the seller be liable for consequential damages. This agreement was drawn prior to Mississippi’s adoption of the Uniform Commercial Code. Under Mississippi common law, disclaimers of implied warranty were valid and sellers who were not manufacturers were held not to impliedly warrant the fitness and suitability of the products they sold. Wilco relies on these two rules in arguing no liability to O’Leary and cites numerous cases to support its position. We find the cited cases distinguishable from the instant case. First, under pre-Uniform Commercial Code Mississippi law, if an implied warranty of suitability was to be disclaimed, it had to be disclaimed specifically. F. O. Grey v. Hayes-Sammons Chemical Co., 5th Cir. 1962, 310 F.2d 291. The Wilco disclaimer is skeletal and says nothing about implied warranty. In contrast, the warranties in the cases relied on by Wilco, see e. g., Stribling Bros. Machinery Co. v. Girod Co., 239 Miss. 488, 124 So.2d 289, 292 (1960), are detailed and specifically disclaim implied warranties. Secondly, we agree with the district court that the manufacturer-seller issue is controlled by Dry Clime Lamp Corp. v. G. L. Edwards, 5th Cir. 1968, 389 F.2d 590, 594 (Mississippi law applied). Although Wilco did not manufacture the Beaver, it drew plans and blueprints for the installation of the equipment, installed it, and supervised its operation and repair. Its involvement was not quite as extensive as that of the seller in Dry Clime, but certainly much greater than that of the grain salesman in Rizzo v. Jordan Wholesale Co., 214 So. 2d 604 (Miss.1968), a case heavily relied on by Wilco, who was in the truest sense a salesman and nothing more. Affirmed.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". 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".

This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?

Gloria J. ALEXANDER, Appellant, v. UNITED STATES of America, Appellee. Margaret M. WATKINS, Appellant, v. UNITED STATES of America, Appellee. Nos. 18124, 18125. United States Court of Appeals District of Columbia Circuit. Argued March 11, 1964. Decided April 16, 1964. Petition for Rehearing en Banc Denied June 19, 1964. Certiorari Denied Dec. 7, 1964. See 85 S.Ct. 336. Mr. M. Michael Cramer (appointed by the District Court), Washington, D. C., with whom Mr. Thomas Sisk (appointed by this court), Washington, D. C., was on the brief for appellant in No. 18124, argued for both appellants. Miss Ruth E. Hankins (appointed by the District Court), Washington, D. C., was on the brief for appellant in No. 18125. Mr. Anthony A. Lapham, Asst. U. S. Atty., with whom Mr. David C. Acheson, U. S. Atty., and Messrs. Frank Q. Nebe-ker and Daniel Reznéck, Asst. U. S. Attys., were on the brief, for appellee. Before Prettyman, Senior Circuit Judge, and Washington and McGowan, Circuit Judges. PER CURIAM: Appellants (two women) met the complainant (a man) in a bar and had drinks with him. When he left they followed him, seized him, and took a roll of bills from his pocket. A police officer happened to witness the later stages of the affair and arrested them on the spot. They were indicted for robbery and convicted of assault with intent to commit robbery. In defense appellants say they had given the complainant a dollar with which to buy whiskey and were seeking to recover their money. They submitted that version to the jury, but as the verdict indicates, that body declined to accept it. Appellants also present a point under the so-called Jeneks statute. Inquiry was made into the matter at the trial. It was established that the officer had made an original pencil' draft of a report, that the draft had been given to a stenographer at police headquarters who made a typewritten version of it, and that the officer signed it. The typed report was produced at the trial and used to impeach the officer’s testimony as to the events he witnessed. As to the pencil draft the officer said: “ * * * it went in the trash after it was — * * * It. probably went in the trash after the clerk typed it.” All who heard this testimony appear to have taken it at face value as establishing that the notes had been destroyed in the usual course of business. The defense in particular seized upon the fact of the destruction of the notes, and urged upon the court that that fact alone necessitated the striking of the officer’s testimony. It did not suggest to the court, by motion or otherwise, that a hearing be held to inquire into either the fact or the circumstances of the destruction. Appellants now say the trial judge should, upon his own initiative, have held a hearing to determine whether the original pencil draft of the policeman’s report had been destroyed. As the Supreme Court pointed out in Campbell v. United States, the inquiry conducted by the judge upon such a matter is not an adversary proceeding controlled by rules as to burden of proof or persuasion, but is simply a proceeding necessary to aid the judge to discharge the responsibility laid upon him to enforce the statute. The trial judge in the case at bar, having the officer before him and hearing his testimony, was satisfied there was no cause for a hearing. The record indicates that the defense was similarly satisfied. The only objective of a hearing would have been to determine whether the throwing of the pencil notes into the trash had been in bad faith or not in normal course. No suggestion to that effect was made at the time. We cannot say the trial judge committed reversible error in failing to initiate an inquiry which no one who heard the officer’s testimony thought necessary. As to the argument that the destruction of the pencil notes after they had been typed and the typed copy signed made the officer’s testimony inadmissible, Killian is to the contrary. Affirmed. . 71 Stat. 595 (1957), 18 U.S.C. § 3500. . In his interrogation of the officer, defense counsel himself referred to the handwritten statement as “The one in the trash.” . 365 U.S. 85, 95, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961). . Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961).

What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.

What is the number of judges who voted in favor of the disposition favored by the majority?

In re MAGNET OIL CO. ERICKSON v. BRIX ESTATE CO. et al. No. 9650. Circuit Court of Appeals, Ninth Circuit. April 19, 1941. Joseph J. Rifkind, of Los. Angeles, Cal., for appellant. J. E. Simpson, of Los Angeles, Cal., Earl J. Fenston, of Fresno, Cal., and William M. Maxfield, of San Francisco, Cal., for appellees. Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges. MATHEWS, Circuit Judge. V. W. Erickson, trustee in bankruptcy of Magnet Oil Company, a corporation (hereafter called Magnet), appeals from an order affirming an order of a referee in bankruptcy allowing the claim of Brix Estate Company, a corporation (hereafter called Brix), Lisenby Estate Company, a corporation (hereafter called Lisenby), H. U. Maxfield and H. H. Welsh against the bankrupt estate for $35,000, with interest. On May 5, 1938, for a consideration of $10 and “other valuable considerations,” appellees (Brix, Lisenby, Maxfield and Welsh) leased to Magnet, for the term of 20 years, certain real property in Fresno County, California. The “other valuable considerations” included five promissory notes executed and delivered by Magnet to appellees on May 6, 1938 — one for $4,000, one for $5,000 and three for $10,000 each, all bearing 5% interest from date. The note for $4,000 was paid on May 25, 1938. The others fell due 30, 60, 120 and 180 days after their date, but remained and still remain wholly unpaid. On March 9, 1939, Magnet was adjudged a bankrupt, and the case was referred to a referee in bankruptcy. Thereafter appellant was appointed trustee. The record does not disclose the first date set for the first meeting of creditors, but, indulging the presumption that the court followed the statute, we presume that the first date set for such meeting was not earlier than March 19, 1939, nor later than April 8, 1939. On June 29, 1939 — well within the time prescribed by statute — appellees’ claim for $35,000 was proved and filed. Appellees’ claim was founded on the four last above mentioned promissory notes, copies of which were set out in the proof of claim. The proof stated that Magnet was “justly and truly indebted to [Brix] and the other payees appearing on the * * * notes in the sum of thirty-five thousand * * * dollars.” The other payees appearing on the notes were Lisenby, Max-field and Welsh. The proof was signed and sworn to by Brix’s secretary, Earl J. Fenston. Though not signed or sworn to by Lisenby, Maxfield or Welsh, it evidenced a claim which was theirs as well as Brix’s. On September 26, 1939, appellant filed objections to appellees’ claim, referring to it as Brix’s claim. On November 21, 1939, appellant filed amended objections to ap-pellees’ claim, again referring to it as Brix’s claim. On February 14, 1940, ap-pellees applied for and, over appellant’s objection, obtained leave to file, and did file, an amended proof of their claim. The amended proof was signed and sworn to by Brix’s secretary, Lisenby’s secretary, Maxfield and Welsh. It was stipulated that the amended objections filed by appellant on November 21, 1939, should “be deemed and considered as objections to the amended claim insofar as applicable.” The referee heard the objections, overruled them and allowed appellees’ claim. The District Judge affirmed the referee’s order. This appeal followed. Appellant contends that the referee erred in overruling (1) his objection to the filing of appellees’ amended proof of claim and (2) his objections to the claim itself. The grounds of appellant’s objection to the filing of appellees’ amended proof of claim were “That the payees under the promissory notes are tenants in common and that it was necessary for all of such payees to join in the execution and filing of the original claim, that the execution of the original claim by [Brix] alone was a nullity and of no force or effect, that said original claim could not, therefore, be the basis for the amended claim proposed to be filed, and that the proposed amended claim was in fact a new and original claim being offered for filing subsequent to the six (6) months statutory period within which claims could be filed.” There was no merit in the objection. What appellees proposed to file, and did file, on February 14, 1940, was not, as contended by appellant, “a new and original claim.” It was merely an amended proof of the claim filed on June 29, 1939. Defects, if any, in the original proof were defects of form only. To cure such defects, amendments are permissible even after the time for filing claims has expired. Hutchinson v. Otis, 190 U.S. 552, 555, 23 S.Ct. 778, 47 L.Ed. 1179; Brown v. O’Connell, 9 Cir., 200 F. 229, 231-234; In re Patterson-MacDonald Shipbuilding Co., 9 Cir., 293 F. 190, 192; Barks v. Kleyne, 8 Cir., 15 F.2d 153, 156; In re Whicker, 5 Cir., 47 F.2d 106, 108; In re Rothert, 7 Cir., 61 F.2d 1, 2; In re International Match Corp., 2 Cir., 69 F.2d 73, 74; Cook v. Union Trust Co., 4 Cir., 71 F.2d 645, 647; In re Prindible, 3 Cir., 115 F.2d 21, 23. To the claim itself appellant made numerous objections, of which, however, only two are urged here: (1) That the obligation evidenced by the notes on which the claim was founded was a conditional one, in that the notes were to be paid out of the proceeds of a sale of Magnet’s stock, and that, as the stock was never sold, the notes never became due or payable; (2) that there was an accord and satisfaction of the obligation by reason of Magnet’s executing and delivering to appellees a quitclaim deed to the property which they had leased to Magnet. The referee found it was not true that the notes were to be paid out of a sale of Magnet’s stock. The District Judge approved the finding and adopted, it as his own. The finding is amply supported by evidence. We accept it, therefore, and reject appellant’s contention that the obligation evidenced by the notes was a conditional one. On September 9, 1938, Magnet executed a quitclaim deed in favor of appellees and proposed that, in consideration thereof, appellees release Magnet from the obligation evidenced by the notes. The proposal was not accepted, but was rejected. Hence, there was no accord and satisfaction. California Civil Code, §§ 1521-1523; Silvers v. Grossman, 183 Cal. 696, 699, 192 P. 534. Nor is it material, if true, that the proposal remained unanswered for more than two months; for appellees were under no duty to answer in two months or at all. Appellant’s final specification is that “the court erred in not ordering that [appellees’] claim should in any event be deferred as to payment * * * and subordinated to the payment of creditors furnishing money, labor and material.” The referee was not asked to make any such order. The petition for review prayed “that an order be entered disallowing said claim, or in the alternative, subordinating the same to the payment of claims for money, labor and material;” but the petition did not state, nor does the record here disclose, any fact or facts warranting such an order. Order affirmed. Section 55, sub. a, of the Bankruptcy Act, 11 U.S.C.A. § 91, sub. a, provides : “The court shall cause the first meeting of the creditors of a bankrupt to be held not less than ten nor more than thirty days after the adjudication * * ífc » Section 57, sub. n, of the Bankruptcy Act, 11 U.S.C.A. § 93, sub. n, provides: “Claims which are not filed within six months after the first date set for the first meeting of creditors shall not be allowed * *

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11? Answer with a number.

TEXTRON, INC., Plaintiff, Appellee, v. UNITED STATES of America, Defendant, Appellant. No. 76-1446. United States Court of Appeals, First Circuit. Heard Jan. 4, 1977. Decided June 23, 1977. Gary R. Allen, Atty., Tax. Div., Dept. of Justice, Washington, D. C., argued, with whom Scott P. Crampton, Asst. Atty. Gen., Myron C. Baum, Acting Asst. Atty. Gen., Lincoln C. Almond, Providence, R. I., U.S. Atty., Gilbert E. Andrews and Richard Farber, Atty., Tax Div., Dept. of Justice, Washington, D. C., were on brief, for defendant, appellant. Peter J. Rothenberg, New York City, argued, with whom Edwards & Angelí, Providence, R. I., Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Richard M. Borod, Providence, R. I., Morris B. Abram, Adian W. DeWind, Kevin J. O’Brien, and Steven E. Landers, New York City, were on brief, for plaintiff, appellee. Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and BOWNES, District Judge. Of the District of New Hampshire, sitting by designation. COFFIN, Chief Judge. In the 1950’s Textron, Inc. had a wholly owned subsidiary, Hawaiian Textron, Inc. (Hawaiian). Hawaiian ran passenger ships between Hawaii and the West Coast and lost enormous sums of money in the process. In 1959, creditors foreclosed on its assets. Textron’s six million dollar investment in Hawaiian’s stock and debt became worthless, with one possible exception: Hawaiian’s huge losses could be used to reduce its taxable corporate income in future years. Because Hawaiian had no income prospects, a second, profitable corporation would have to be merged into Hawaiian’s empty shell to take advantage of its potential deductions. In 1959, the district court found, Textron had no specific plan to make use of this aspect of Hawaiian. In 1960, however, Hawaiian’s name was changed to Bell Aerospace Corp., and, using Textron’s funds, the renamed corporation acquired a successful business from Bell Aircraft. Bell Aerospace made money, and it carried forward the old Hawaiian losses, amounting to some $6,745,000. At first the Internal Revenue Service (Service) disallowed any carry-over between two such different businesses. But in 1963 the Service reversed itself, ruling that a failing corporation may go into a new line of business and still carry forward losses from its earlier activity, so long as the owners of the corporation remain substantially the same. Rev. Ruling 63-40, 1963-1 C.B. 41. After the Service’s change of position, Bell Aerospace used Hawaiian’s losses to reduce its taxes for 1960, 1961, and 1962. Just prior to the rehabilitation of Hawaiian, Textron had tried another way to make the best of its bad investment in Hawaiian. It took a six million dollar deduction in 1959, claiming that Hawaiian’s stock and debt became worthless to it in that year. The Service disallowed the deductions and assessed a deficiency. Textron paid and sued for a refund. In the district court and on appeal, the government has advanced only one argument — that Hawaiian’s stock was not worthless in 1959 because the shell had potential value as a source of carryover losses. The district court rejected this argument, as do we. Ordinarily, bad debts and worthless stocks may be deducted only in the year in which they become wholly worthless. See 26 U.S.C. §§ 165(g)(3), 165(a), & 166(a)(1). See also 26 C.F.R. 1.165-4(a) (1976). By any ordinary definition, Hawaiian’s stock was quite worthless, as the district court found, in 1959. The shell together with the losses could not be marketed to others, 26 U.S.C. §§ 269 & 382, see infra.; and while it was within Textron’s power to rehabilitate the subsidiary, and, if profits were generated, deduct the tax losses on future tax returns, this contingency first required the infusion of brand new assets into what was a shell without assets — an initiative which created a wholly new ball game and certainly could not retroactively create value in 1959. The government would have us cure what it perceives as an abuse of the tax laws by adopting its special definition of worthlessness. But Congress has already considered the abuse of high loss corporate shells. The remedy it chose does not call into question the deduction Textron seeks. At one time, there was a large traffic in tax shells like Hawaiian, but Congress has now decreed that the buyer of such shells cannot take advantage of their tax attributes. 26 U.S.C. §§ 269 & 382. Thus, a failed company may have tax value today, but only if it has a large and healthy owner who is eager to acquire a second, more profitable business. The Service has apparently made the argument it urges on us only once before. See Becker v. United States, 308 F.Supp. 555 (D.Neb.1970). There the taxpayers’ closely held corporation failed in 1956, and the taxpayers took a worthless stock deduction. In 1957, the corporation acquired a new and profitable business, which used the old business’s losses to offset its income. The Service argued that this showed the stock had not been worthless in 1956. The court rejected that claim: “If this Court adopts the government’s theory in this case every taxpayer, at least every taxpayer who has the control of a closely held corporation, knowledge of the tax advantages and a desire to utilize these advantages, will be unable to take a deduction for worthless securities. As stated before, under this theory the tax advantages to his holdings would prevent his declaring those holdings as worthless. This Court does not believe, where the only evidence of some potential value remaining in a stock is carryfor-ward losses and the knowledge and desire to utilize them, that the taxpayer should be prevented from declaring the stock worthless. If taxpayer allowed 1956 to pass because of a desire to utilize the previous losses the only evidence during 1957 or any subsequent year of worthlessness would be futile attempts to make use of previous losses by forming a new corporation. As previously stated taxpayer must not only prove a stock is worthless but that it became worthless in the year in which the loss is taken. There would be no objective evidence of worthlessness for subsequent years as is present in 1956.” Id. at 557. We are inclined to agree with the Becker court, for if we were to adopt the Service’s position we would introduce great uncertainty into this corner of tax law. A taxpayer who owned the bulk of a failed corporation’s stock would be hard-pressed to determine when his stock became worthless. If he guessed wrong, he might well forfeit his deduction. See, e. g., Keeney v. Commissioner of Internal Revenue, 116 F.2d 401 (2d Cir. 1940). The year in which the stock lost all value would depend on such vague and subjective factors as the taxpayer’s ability and desire to acquire another business. If the taxpayer lacked either desire or ability, the stock would be worthless when the corporation went under. Otherwise, it would continue to have worth for an uncertain period. Some taxpayers might keep a loss shell, hoping to find a use for it, only to suffer unrelated losses that reduced their ability to obtain a second corporation. Under the Service’s approach, they would have to decide whether their setback was so severe that the loss shell had suddenly become truly worthless. Other taxpayers, hoping to take advantage of their loss shell, might acquire a second corporation that unexpectedly loses money. The shell’s carryover losses will be worthless to the taxpayers, but under the Service’s theory, they and the courts will have to decide just when the shell lost all value. The Service might very well become the ultimate victim of the doctrine it now advocates. If a corporation has a bad year, primarily because one of its subsidiaries goes under, it will probably prefer to take its worthless stock deduction later. Under the Service’s approach, the corporation may do so, simply by going through the motions of seeking a second business for its shell. When the time for a deduction is more propitious, the “search” may be abandoned and the shell dissolved. The Service will have trouble proving that the corporation’s heart was not in the hunt. A rule with so much uncertainty and room for abuse should not be judicially created to close a loophole that is apparently used so seldom. Admittedly, Textron has turned its Hawaiian sow’s ear into a silk purse — and filled it at Treasury expense. But this is a matter that should be cured by statute or regulation, not by a far reaching retroactive court decision. The dissent, agreeing that the Service’s approach must fail, introduces a theory that the Service has advanced diffidently at best. The dissent would brand as a “double deduction” Textron’s worthless stock and debt claim and Bell Aerospace’s carryover loss deductions. We have grave doubts about the dissent’s casual eliding of the distinction between parent and subsidiary. They are separate taxpayers. In the absence of a consolidated return, cf. Ilfeld Co. v. Hernandez, 292 U.S. 62, 54 S.Ct. 596, 78 L.Ed. 1127 (1934), treating the two corporations as one may not be justified. But cf. Marwais Steel Co. v. Commissioner of Internal Revenue, 354 F.2d 997 (9th Cir. 1965). It is no answer to invoke the maxim that substance must prevail over form. Textron’s subsidiary was never a sham corporation lacking any substantial business purpose. In the first place, we are not inclined to adopt a policy of ignoring the distinction between parent and subsidiary in all tax cases. In the second place, corporate taxation is an area of careful planning, planning that will be seriously disrupted if courts simply ignore separate entities whenever it seems “fairer” to do so. We decline to inject so massive and unsettling a dose of “equity” into the tax laws without a clear invitation from the Service and a careful exploration of the issue by both sides. Moreover, attaching the label “double deduction” is not the end of analysis. We cannot decide this case by simply saying “No”. We have a duty to explain ourselves and to set out a rule of law to govern future cases. One rule at which the dissent hints would treat Bell Aerospace’s loss deductions like the recovery of a bad debt. This is not the case to apply such a rule. Textron’s worthless stock and debt deduction, which is at issue here, was taken in 1959, before Bell Aerospace began to take advantage of Hawaiian’s losses. Tex-tron’s deduction must have been proper at that time, for no “double” deduction had yet been sought. .Later recovery of a properly deducted bad debt does not void the first deduction. See 5 J. Mertens, Law of Federal Income Taxation § 30.37 (1975). Rather, the recovery becomes income in the year of recovery. See, e. g., West Seattle Nat’l Bank v. Commissioner of Internal Revenue, 288 F.2d 47, 49 (9th Cir. 1961). Applying the dissent’s “tax benefit” theory thus would lead us to question Bell Aerospace’s deductions in 1960 and later years, but not the original deductions taken by Textron in 1959. The Bell Aerospace deductions, however, were allowed many years ago, after strict government scrutiny. If the Service wished to advance the theory developed by the dissent, it had ample opportunity to do so in the early 1960’s when it examined Bell Aerospace’s deductions. We cannot cure in this case the Service’s decision not to attack those loss deductions. At other points the dissent suggests that the first deduction should be disallowed because the second is no longer within reach. A rule invalidating worthless stock deductions because of later loss carryovers would be odd. Worthless stock deductions would linger in limbo for years before a taxpayer could know whether they were proper. The Service would be inclined to challenge every such deduction for fear that the shell’s losses would later prove valuable to the taxpayer. Even if we agreed that separate corporate identities could be easily ignored, we would be reluctant to approve such a rule. Affirmed. . We wonder, however, whether the government’s argument is different in kind from a line of reasoning that would ultimately destroy the worthless stock deduction. Stock that becomes worthless in a particular year represents a significant tax gain for its owner. The deduction that the stock permits has real economic value, a fact that could lead the government to make the same argument that it makes here: the stock has tax value, therefore it cannot be worthless. If accepted, such an argument would make it impossible ever to take a worthless stock deduction. . This is not to say, given the policy disfavoring double deductions referred to in the dissent, that the Treasury might not legitimately have gone beyond the language of the Code to construct, by regulation, a mechanism for limiting all deductions in this situation to one. Such a regulation would be less an interpretation of a particular provision than a means of avoiding what there is ample reason to assume Congress did not mean to permit. Quite likely if the Treasury had anticipated this situation, its regulation would have limited the subsidiary’s later use of the carry forward losses in light of the parent’s early election to claim a worthless stock deduction — the converse of the present approach. But whatever the actual mechanics, the regulation would have signalled the Treasury’s intentions in an area where, otherwise, there is nothing to tell the taxpayer that he is lacking an open field. Textron, to be sure, as the dissent notes, had no inherent right to a double deduction. It did, however, have a right to have the government proceed in accordance with the Code and regulations. See Lan Jen Chu v. C.I.R., 486 F.2d 696, 704 (1st Cir. 1973) (concurring opinion). Loopholes cannot be repaired after the fact simply on the principle . that to apply the law as written leads to a bad result. . The Treasury could, of course, determine worth in light of subsequent events, i. e., treating the stock here as worthless in 1959 only in light of the subsidiary’s use of the losses in later years. But a rule holding up the computation of taxes in one year for years to come would seem unworkable. On the other hand if a retrospective approach were not adopted, taxpayers and the Treasury would be burdened with the speculations we have mentioned. The Treasury could, of course, disallow a worthless stock deduction unless the parent dissolved the subsidiary, but such an approach would go beyond the present code and regulations, and might well impose unwarranted burdens in the generality of cases. . In any event, it is not clear that the government’s approach would justify disallowing Tex-tron’s worthless debt deduction as well as its worthless stock deduction. Textron’s stock carried with it the power to control Hawaiian, and thus to orchestrate acquisition of a new business. It is this power to control that the government believes valuable. No such power attends Textron’s status as a major creditor, so it is hard to see how Hawaiian’s debts had any continuing value to Textron after 1959, except to the extent that any worthless debt has value as a deduction. Cf. n. 1, supra. Because our decision rests on broader ground, we need not explore this difficult question further. . At the close of its main brief, the Service virtually concedes that the double deduction cases will not carry the weight the dissent puts on them: “Since the worthless stock and bad debt deductions here in question were the first to be claimed, and since the net operating losses were claimed by a separate corporate entity it may well be that the ‘double deduction’ rationale of Ilfeld Co. v. Marwais Steel would not provide a sufficient basis, standing alone, to disallow the worthless stock and debt deductions here in issue if the stock and debt could be deemed to have become wholly worthless by the end of the year in question.” Appellant’s brief, p. 30. All three members of this panel agree that the stock and debt at issue here should be so deemed.

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.

SOUTH CAROLINA v. REGAN, SECRETARY OF THE TREASURY No. 94, Orig. Argued October 5, 1983 Decided February 22, 1984 Brennan, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Burger, C. J., and White, Marshall, and Stevens, JJ., joined, and an opinion with respect to Part III, in which Burger, C. J., and White and Marshall, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, post, p. 382. O’Connor, J., filed an opinion concurring in the judgment, in which Powell and Rehnquist, JJ., joined, post, p. 384. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 403. Huger Sinkler argued the cause for plaintiff. With him on the briefs were Karen LeCraft Henderson, T. Travis Medlock, Attorney General of South Carolina, C. Tolbert Goolsby, Jr., Chief Deputy Attorney General, and David C. Eckstrom and Grady L. Patterson III, Assistant Attorneys General. Susan Lee Voss, Assistant Attorney General of Texas, argued the cause for the State of Texas et al. as amici curiae. With her on the brief were Jim Mattox, Attorney General of Texas, David R. Richards, Executive Assistant Attorney General, and Robert T. Lewis and Michael Cafiso, Assistant Attorneys General, and the Attorneys General for their respective States as follows: Norman C. Gorsuch of Alaska, Robert K. Corbin of Arizona, Michael J. Bowers of Georgia, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, William J. Guste, Jr., of Louisiana, Stephen H. Sachs of Maryland, William A. Attain of Mississippi, John D. Ashcroft of Missouri, Michael T. Greely of Montana, Brian McKay of Nevada, Gregory H. Smith of New Hampshire, Rufus L. Edmisten of North Carolina, Robert Wefald of North Dakota, Anthony Celebrezze of Ohio, Michael K. Turpin of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, Dennis J. Roberts II of Rhode Island, William L. Leech, Jr., of Tennessee, JohnJ. Easton, Jr., of Vermont, Gerald L. Battles of Virginia, Bronson C. La Follette of Wisconsin, and Archie G. McClintock of Wyoming. Deputy Solicitor General Claiborne argued the cause for defendant. With him on the briefs were Solicitor General Lee, Assistant Attorney General Archer, Stuart A. Smith, Michael L. Paup, and Ernest J. Brown Briefs of amici curiae were filed for the City of Baltimore et al. by Benjamin Brown, J. Lamar Shelley, John W. Witt, Roger F. Cutler, Roy D. Bates, George Agnost, Robert J. Alfton, Mark Aronchick, James K. Baker, James P. McGuire, Clifford D. Pierce, Jr., William H. Taube, WilliamI. Thornton, Jr., Henry W. Underhill, Jr., and Charles S. Rhyne; and for the National Association of Counties et al. by Lawrence R. Velvet and Dennis A. Dutterer. Justice Brennan delivered the opinion of the Court. South Carolina invokes the Court’s original jurisdiction and asks leave to file a complaint against Donald T. Regan, the Secretary of the Treasury of the United States. The State seeks an injunction and other relief, on the ground that § 103(j)(l) of the Internal Revenue Code of 1954, 26 U. S. C. §103(j)(l) (1982 ed.), as added by § 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. 97-248, 96 Stat. 596, is constitutionally invalid as violative of the Tenth Amendment and the doctrine of intergovernmental tax immunity. The Secretary objects to the motion on the ground that the Anti-Injunction Act, 26 U. S. C. § 7421(a), bars this action and, alternatively, that the Court should exercise its discretion to deny leave to file. We are not persuaded that either is a ground for denying the motion, and therefore grant the motion for leave to file the complaint. I — I Section 103(a) of the Internal Revenue Code (IRC) exempts from a taxpayer’s gross income the interest earned on the obligations of any State. In 1982, however, as part of TEFRA, Congress amended § 103 to restrict the types of bonds that qualify for the tax exemption granted by that section. Specifically, § 310(b)(1) of TEFRA added a new provision, §103(j)(l), to the Code. Section 103(j)(l) requires that certain obligations, termed “registration-required obligation^],” be issued in registered, rather than bearer, form to qualify for the § 103(a) exemption. For purposes of § 103 (j)(l), registration-required obligations are defined broadly to include most publicly issued obligations with maturities greater than one year. If an obligation that is registration-required is issued in bearer, rather than registered, form, then § 103(j)(l) provides that the interest on that obligation is taxable. Because the imposition of a tax on bearer bonds would require a State to pay its bondholders a higher rate of interest on such bonds, South Carolina argues that the practical effect of § 103(j)(l) is to require it to issue its obligations in registered form. For that reason, South Carolina argues that the section destroys its freedom to issue obligations in the form that it chooses. Viewing its borrowing power as essential to the maintenance of its separate and independent existence, South Carolina contends that the condition imposed by § 103 (j)(l) on the exercise of that power violates the Tenth Amendment. In addition, relying on Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429 (1895), South Carolina argues that Congress may not tax the interest earned on the obligations of a State. Because § 103(j)(l) imposes a tax on the interest earned on state obligations issued in bearer form, the State argues that the section is unconstitutional. Accordingly, South Carolina asks that its motion to file the complaint be granted and that this Court award declaratory, injunctive, and other appropriate relief. The Secretary does not address the merits of the State’s constitutional claims. Rather, he argues that we may not grant the motion to file because this action is barred by the Anti-Injunction Act. The Act provides, in pertinent part, 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.” Characterizing this action as a suit to “restrain] the assessment or collection of” a tax, the Secretary contends that this suit is barred by the statute. The Secretary argues that Enochs v. Williams Packing & Navigation Co., 370 U. S. 1 (1962), establishes the single judicially created exception to the Act and that this action does not fall within that exception. We need not address whether this case falls within the Williams Packing exception for we hold that the Act was not intended to bar an action where, as here, Congress has not provided the plaintiff with an alternative legal way to challenge the validity of a tax. II When enacted in 1867, the forerunner of the current Anti-Injunction Act provided that “no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court.” Act of Mar. 2,1867, § 10,14 Stat. 475. Although the Act apparently has no recorded legislative history, Bob Jones University v. Simon, 416 U. S. 725, 736 (1974), the circumstances of its enactment strongly suggest that Congress intended the Act to bar a suit only in situations in which Congress had provided the aggrieved party with an alternative legal avenue by which to contest the legality of a particular tax. The Act originated as an amendment to a statute that provided that “[n]o suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the commissioner of internal revenue . . . and a decision of said commissioner shall be had thereon, unless such suit shall be brought within six months from the time of said decision . . . .” Internal Revenue Act of July 13, 1866, § 19, 14 Stat. 152. The Anti-Injunction Act amended this statute by adding the prohibition against injunctions. Act of Mar. 2, 1867, § 10, 14 Stat. 475. The Act, therefore, prohibited injunctions in the context of a statutory scheme that provided an alternative remedy. As we explained in Snyder v. Marks, 109 U. S. 189, 193 (1883), “[t]he remedy of a suit to recover back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden.” This is cogent evidence that the 1867 amendment was merely intended to require taxpayers to litigate their claims in a designated proceeding. The Secretary argues that, regardless of whether other remedies are available, a plaintiff may only sue to restrain the collection of taxes if it satisfies the narrow exception to the Act enunciated in Williams Packing, supra. Williams Packing did not, however, ever address, let alone decide, the question whether the Act applies when Congress has provided no alternative remedy. Indeed, as we shall see, a careful reading of Williams Packing and its progeny supports our conclusion that the Act was not intended to apply in the absence of such a remedy. Williams Packing was a taxpayer’s suit to enjoin the District Director of the Internal Revenue Service from collecting allegedly past-due social security and unemployment taxes. The Court concluded that the Anti-Injunction Act would not apply if the taxpayer (1) was certain to succeed on the merits, and (2) could demonstrate that collection would cause him irreparable harm. 370 U. S., at 6-7. Finding that the first condition had not been met, the Court concluded that the Act barred the suit. Significantly, however, Congress had provided the plaintiff in Williams Packing with the alternative remedy of a suit for a refund. Id., at 7. In each of this Court’s subsequent cases that have applied the Williams Packing rule, the plaintiff had the option of paying the tax and bringing a suit for a refund. Moreover, these cases make clear that the Court in Williams Packing and its progeny did not intend to decide whether the Act would apply to an aggrieved party who could not bring a suit for a refund. For example, in Bob Jones, supra, the taxpayer sought to prevent the Service from revoking its tax-exempt status under IRC § 501(c)(3). Because the suit would have restrained the collection of income taxes from the taxpayer and its contributors, as well as the collection of federal social security and unemployment taxes from the taxpayer, the Court concluded that the suit was an action to restrain “the assessment or collection of any tax” within the meaning of the Anti-Injunction Act. 416 U. S., at 738-739. Applying the Williams Packing test, the Court found that the Act barred the suit because the taxpayer failed to demonstrate that it was certain to succeed on the merits. 416 U. S., at 749. In rejecting the taxpayer’s challenge to the Act on due process grounds, however, the Court relied on the availability of a refund suit, noting that “our conclusion might well be different” if the aggrieved party had no access to judicial review. Id., at 746. Similarly, the Court left open the question whether the Due Process Clause would be satisfied if an organization had to rely on a “friendly donor” to obtain judicial review of the Service’s revocation of its tax exemption. Id., at 747, n. 21. In addition, in Alexander v. “Americans United” Inc., 416 U. S. 752 (1974), decided the same day as Bob Jones, the Court considered a taxpayer’s action to require the Service to reinstate its tax-exempt status. The Court applied the Williams Packing test and held that the action was barred by the Act. Finally, in United States v. American Friends Service Committee, 419 U. S. 7 (1974) (per curiam), the taxpayers sought to enjoin the Government from requiring that a portion of their wages be withheld. The taxpayers argued that the withholding provisions violated their First Amendment right to bear witness to their religious beliefs. The Court again applied the Williams Packing rule and found that the suit was barred by the Anti-Injunction Act. In both of these cases, the taxpayers argued that the Williams Packing test was irrelevant and the Act inapplicable because they did not have adequate alternative remedies. In rejecting this argument, the Court expressly relied on the availability of refund suits. 416 U. S., at 761; 419 U. S., at 11. This emphasis on alternative remedies would have been irrelevant had the Court meant to decide that the Act applied in the absence of such remedies. We therefore turn to that question. The analysis in Williams Packing and its progeny of the purposes of the Act provides significant support for our holding today. Williams Packing expressly stated that the Act was intended to protect tax revenues from judicial interference “and to require that the legal right to the disputed sums be determined in a suit for refund.” 370 U. S., at 7 (emphasis added). Similarly, the Court concluded that the Act was also designed as “protection of the collector from litigation pending a suit for refund,” id., at 7-8 (emphasis added). The Court’s concerns with protecting the expeditious collection of revenue and protecting the collector from litigation were expressed in the context of a procedure that afforded the taxpayer the remedy of a refund suit. Nor is our conclusion inconsistent with the 1966 amendment to the Anti-Injunction Act. In 1966, in § 110(c) of the Federal Tax Lien Act, Pub. L. 89-719, 80 Stat. 1144, Congress amended the Anti-Injunction Act to read, in pertinent part, 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.” Ibid. The central focus of the added phrase, “by any person, whether or not such person is the person against whom such tax was assessed,” was on third parties whose property rights competed with federal tax liens. Bob Jones, 416 U. S., at 732, n. 6. Prior to the adoption of the Tax Lien Act, such parties were often unable to protect their property interests. Ibid.; H. R. Rep. No. 1884, 89th Cong., 2d Sess., 27-28 (1966). Section 110(a) of the Tax Lien Act gave such third parties a right of action against the United States. The amendment to the Anti-Injunction Act was primarily designed to insure that the right of action granted by § 110(a) of the Federal Tax Lien Act was exclusive. 416 U. S., at 732, n. 6. The language added to the Anti-Injunction Act by the 1966 amendment is, therefore, largely irrelevant to the issue before us today. In sum, the Anti-Injunction Act’s purpose and the circumstances of its enactment indicate that Congress did not intend the Act to apply to actions brought by aggrieved parties for whom it has not provided an alternative remedy. In this case, if the plaintiff South Carolina issues bearer bonds, its bondholders will, by virtue of § 103(j)(l), be liable for the tax on the interest earned on those bonds. South Carolina will incur no tax liability. Under these circumstances, the State will be unable to utilize any statutory procedure to contest the constitutionality of § 103(j)(l). Accordingly, the Act cannot bar this action. The Secretary suggests that the State may obtain judicial review of its claims by issuing bearer bonds and urging a purchaser of those bonds to bring a suit contesting the legality of § 103(j)(l). But the nature of this proposed remedy only buttresses our conclusion that the Act was not intended to apply to this kind of action. First, instances in which a third party may raise the constitutional rights of another are the exception rather than the rule. Singleton v. Wulff, 428 U. S. 106, 114 (1976). More important, to make use of this remedy the State “must first be able to find [an individual] willing to subject himself to the rigors of litigation against the Service, and then must rely on [him] to present the relevant arguments on [its] behalf.” Bob Jones, 416 U. S., at 747, n. 21. Because it is by no means certain that the State would be able to convince a taxpayer to raise its claims, reliance on the remedy suggested by the Secretary would create the risk that the Anti-Injunction Act would entirely deprive the State of any opportunity to obtain review of its claims. For these reasons, we should not lightly attribute to Congress an intent to require plaintiff to find a third party to contest its claims. Here, the indicia of congressional intent — the Act’s purposes and the circumstances of its enactment — demonstrate that Congress did not intend the Act to apply where an aggrieved party would be required to depend on the mere possibility of persuading a third party to assert his claims. Rather, the Act was intended to apply only when Congress has provided an alternative avenue for an aggrieved party to litigate its claims on its own behalf. Because Congress did not prescribe an alternative remedy for the plaintiff in this case, the Act does not bar this suit. I — I HH 1 — I The Secretary argues that if we conclude that the Anti-Injunction Act is not a bar to this suit, we should in any event exercise our discretion to deny leave to file. He notes that the Court’s jurisdiction over this suit is not exclusive and that the Court exercises its “original jurisdiction sparingly and [is] particularly reluctant to take jurisdiction of a suit where the plaintiff has another adequate forum in which to settle his claim.” United States v. Nevada, 412 U. S. 534, 538 (1973) (per curiam). The State has, however, alleged that the application of § 103(j)(1) will “materially interfere with and infringe upon the authority of South Carolina to borrow funds.” Motion for Leave to File Complaint 16; see supra, at 371-372. Additionally, 24 States have jointly submitted an amicus ' brief urging this Court to grant the motion to file. Unquestionably, the manner in which a State may exercise its borrowing power is a question that is of vital importance to all 50 States. Under these circumstances, we believe that it is appropriate for us to exercise our discretion in favor of hearing this case. At present, however, the record is not sufficiently developed to permit us to address the merits. We shall therefore appoint a Special Master to develop the record. Accordingly, plaintiff’s motion for leave to file a complaint is granted and a Special Master will be appointed. It is so ordered. Part III of the opinion is joined only by The Chief Justice, Justice White, and Justice Marshall. U. S. Const., Art. III, §2; 28 U. S. C. § 1251(b). Defendant also argues that the Court may not grant declaratory relief because the Declaratory Judgment Act, 28 U. S. C. §2201 (1982 ed.), which authorizes “any court of the United States” to issue a declaratory judgment in an appropriate case, excepts from its coverage most actions “with respect to Federal taxes.” Because of our disposition of the case, we need not decide at this time whether we may grant declaratory relief should plaintiff prevail on the merits. IRC § 103(a) provides in pertinent part: “(a) General rule “Gross income does not include interest on— “(1) the obligations of a State, a Territory, or a possession of the United States, or any political subdivision of any of the foregoing, or of the District of Columbia . . . .” Temporary Regulation §5f. 103-1 provides: “An obligation is in registered form if — “(i) The obligation is registered as to both principal and any stated interest and transfer of the obligation may be effected only by the surrender of the old instrument and either the reissuance by the issuer of the old instrument to the new holder or the issuance by the issuer of a new instrument to the new holder, or “(ii) The right to the principal of, and stated interest on, the obligation may be transferred only through a book entry system (as described in paragraph (c)(2) of this section).” 26 CFR §5f. 103-1 (1983). Section 103(j)(l) provides as follows: “(j) Obligations must be in registered form to be tax-exempt “(1) In general “Nothing in subsection (a) or in any other provision of law shall be construed to provide an exemption from Federal income tax for interest on any registration-required obligation unless the obligation is in registered form.” Section 103(j)(2) defines a registration-required obligation as any obligation other than an obligation that “(A) is not of a type offered to the public, (B) has a maturity (at issue) of not more than 1 year, or (C) is described in section 163(f)(2)(B).” Since we have decided to appoint a Special Master to develop a factual record, see infra, at 382, we express no opinion on the merits of the State’s claims. The full text of the Act reads: “Except as provided in sections 6212(a) and (c), 6213(a), 6672(b), 6694(c), 7426(a) and (b) (1), and 7429(b), 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.” IRC § 7421(a). None of the statutory exceptions is relevant in this case. Because of our disposition of the statutory issue, we need not reach the State’s contention that application of the Act to bar this suit would unconstitutionally restrict this Court’s original jurisdiction. In the revised statutes, the term “any” was added so that the statute read: “No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” Snyder v. Marks, 109 U. S. 189, 192 (1883). This language appears in the current version of the Act. A “friendly donor” suit is a suit in which a donor claims that his contributions to an organization should be tax deductible because the organization’s tax-exempt status had been revoked improperly. In “Americans United," the IRS had revoked the organization’s § 501(c)(3) status, but found that it was eligible for § 501(c)(4) status. Although the organization’s income remained tax exempt, “[t]he effect of this change in status was to render respondent liable for unemployment (FUTA) taxes under Code § 3301, 26 U. S. C. § 3301, and to destroy its eligibility for tax deductible contributions under § 170.” 416 U. S., at 755 (footnote omitted). Unlike Justice O’Connor, we do not believe that Congress’ concerns with judicial interference overrode all other concerns. This case is difficult because it implicates Congress’ concern with providing remedies as well as its concern with limiting remedies. Any dicta in Bob Jones suggesting that, prior to the enactment of the Tax Lien Act, the Anti-Injunction Act barred suits by third parties claiming that a federal tax lien impaired their property rights may be disregarded. 416 U. S., at 732, n. 6. The Anti-Injunction Act had been widely construed not to apply to such actions. See, e. g., Campbell v. Bagley, 276 F. 2d 28 (CA5 1960); Tomlinson v. Smith, 128 F. 2d 808 (CA7 1942); American Bar Association, Final Report of the Committee on Federal Liens, pp. 48, 116, reprinted in Hearings on H. R. 11256 and H. R. 11290 before the House Committee on Ways and Means, 89th Cong., 2d Sess., 125, 192 (1966). Section 110(a), codified at 26 U. S. C. § 7426, provides in pertinent part: “If a levy has been made on property or property has been sold pursuant to a levy, and any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in or lien on such property and that such property was wrongfully levied upon may bring a civil action against the United States in a district court of the United States.” In Bob Jones, we held that the 1966 amendment did not merely limit the remedies of third parties challenging federal tax liens. Rather, the amendment was also intended as a reaffirmation of the plain language of the Act. 416 U. S., at 732, n. 6. In that sense, we found the statute to be “declaratory” rather than “innovative.” Ibid. Because the Act, as originally enacted, did not cover third parties who were not given an alternative action in which to press their claims, our construction of the 1966 amendment in Bob Jones is entirely consistent with our holding today. Similarly, we stated in “Americans United" that “a suit to enjoin the assessment or collection of anyone’s taxes triggers the literal terms” of the Act. 416 U. S., at 760. Of course, this statement was meant to apply only if the aggrieved party has an alternative remedy. Justice O’Connor relies heavily on Assistant Treasury Secretary Surrey’s statement to the House Ways and Means Committee to support her view that the 1966 amendment to the Anti-Injunction Act was intended to prohibit third parties from suing to restrain the collection of taxes regardless of whether Congress has provided them with an alternative remedy. Post, at 389-390. This reliance is misplaced. Although the Assistant Secretary described the amendment as a restriction on third-party suits, when read in context, it is unclear whether he was referring to all third parties, including those without alternative remedies, as Justice O’Connor believes, or only to those third parties who were granted a right of action by § 110(a) of the Federal Tax Lien Act. See Statement by the Hon. Stanley S. Surrey, Assistant Secretary of the Treasury, reprinted in Hearings on H. R. 11256 and H. R. 11290, supra, at 58. Even if Assistant Secretary Surrey viewed the 1966 amendment as prohibiting suits by third parties who had no alternative remedies, there is nothing in the legislative history of that amendment to support the view that Congress shared that belief. Justice O’Connor relies on the statements in the House and Senate Reports that “ ‘[ujnder present law. . . the United States cannot be sued by third persons where its collection activities interfere with their property rights,’ ” post, at 389, quoting H. R. Rep. No. 1884, 89th Cong., 2d Sess., 27 (1966); S. Rep. No. 1708, 89th Cong., 2d Sess., 29 (1966). Since the Anti-Injunction Act had been widely construed not to bar such suits, see n. 14, supra, however, this statement simply could not have been intended as a description of the effect of that Act. As the Secretary notes, IRC §7478 does not provide plaintiff with an action in which it may contest the constitutionality of § 103(j)(l). That section permits the Tax Court to “make a declaration whether . . . prospective obligations are described in § 103(a).” The issue in this case involves the constitutionality of § 103(j)(l), not whether the bonds that the State desires to issue are “described in section 103.” Therefore, § 7478 does not provide the State with an alternative procedure to contest the legality of §108(3X1). Justice O’Connor relies on statements in the legislative history of IRC § 7478 indicating that Congress believed that, prior to the enactment of that section, prospective issuers of state and local bonds had no means to determine whether the interest on their bonds would be tax exempt. Post, at 391-392. In her view, these statements are strong evidence that Congress intended the Anti-Injunction Act to apply regardless of the availability of an alternative remedy. We find these statements unpersuasive. To the extent that these statements, which do not even refer to the Anti-Injunction Act, may be read as expressing the view that the Act should be construed to bar suits regardless of the availability of alternative remedies, they are the views of a subsequent Congress and, therefore, at best, “ ‘form a hazardous basis for inferring the intent of an earlier one.’ ” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 117 (1980), quoting United States v. Price, 361 U. S. 304, 313 (1960). Justice O’Connor, relying on Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 (1969), and FHA v. The Darlington, Inc., 358 U. S. 84, 90 (1958), argues that these statements should be given “ ‘great weight’ ” in construing the Anti-Injunction Act. This reliance is misplaced. In Red Lion we stated that “[subsequent legislation declaring the intent of an earlier statute is entitled to great weight.” 395 U. S., at 380 (emphasis added). The Darlington stands for the same proposition. We have previously rejected the argument that the Red Lion rule should be applicable to the Committee Reports that accompany subsequent legislation. In Consumer Product Safety Comm’n, supra, at 118, n. 13, we stated: “With respect to subsequent legislation. . . Congress has proceeded formally through the legislative process. A mere statement in a conference report of such legislation as to what the Committee believes an earlier statute meant is obviously less weighty.” Indeed, Justice O’Connor does not consistently accord “great weight” to the legislative history of § 7478. In Part I of her opinion, she states that the legislative history of § 7478 represents Congress’ “belief that the Tax Anti-Injunction Act generally bars nontaxpayers from bringing the kind of injunctive action the State of South Carolina asks leave to file today.” Post, at 392. Under this view, the statement in the Senate Report accompanying § 7478 that “present law does not allow the State . . . government to go to court,” S. Rep. No. 95-1263, p. 150 (1978), must mean that Congress believed that the Anti-Injunction Act barred original actions in this Court as well as actions in lower courts. Yet, in reaching her conclusion that the Act does not apply to bar original actions in this Court, Justice O’Connor apparently accords no weight at all to this legislative history. Post, at 399. For similar reasons, we find the remaining postenactment history upon which Justice O’Connor relies, post, at 390-391, to be unconvincing. Whatever the weight to which these statements are entitled, they are ultimately unpersuasive in light of the other evidence of congressional intent discussed above. It is not irrelevant that the IRS routinely audits the returns of taxpayers who litigate claims for refunds. U. S. Dept. of Treasury, Chief Counsel’s Directives Manual (35)(17)50 (1982). Justice O’Connor suggests that our holding today will enable taxpayers to evade the Anti-Injunction Act by forming organizations to litigate their tax claims. Post, at 386, 394. We disagree. Because taxpayers have alternative remedies, it would elevate form over substance to treat such organizations as if they did not possess alternative remedies. Accordingly, such organizations could not successfully argue that the Act does not apply because they are without alternative remedies. Justice O’Connor also appears to suggest that our holding today renders the Act a restatement of the equitable principles governing the issuance of injunctions at the time the statute was enacted. Post, at 388, n. 5. This argument is without merit since these equitable principles did not require that injunctions issue only when no alternative remedy was available. See, e. g., Dows v. Chicago, 11 Wall. 108, 109-110 (1871) (suit to restrain collection of taxes will lie if plaintiff shows that enforcement will cause irreparable harm or lead to a multiplicity of suits); Hannewinkle v. Georgetown, 15 Wall. 547, 548-549 (1873) (same).

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GILL AND DUFFUS SERVICES, INC., Appellant, v. A. M. NURAL ISLAM, et al. No. 81-2087. United States Court of Appeals, District of Columbia Circuit. Argued March 15, 1982. Decided April 13, 1982. Ernest G. Reeves, with whom W. Peyton George, Jr., Washington, D. C., was on the brief, for appellant. Wayne H. Rusch, Washington, D. C., with whom Henry A. Berliner, Jr., Washington, D. C., was on the brief, for appellees. Before MacKINNON, MIKVA and GINSBURG, Circuit Judges. Opinion filed PER CURIAM. PER CURIAM: Appellant claims a loss suffered as a result of the actions of three “associated” persons: The district court held that under the doctrine of res judicata a judgment in favor of appellant against one of those persons, even though unsatisfied, foreclosed a second action against the others. The district court misperceived preclusion doctrine. An unsatisfied judgment against one of two or more persons answerable for an injury or on an obligation generally does not bar further litigation. As a rule, “[t]he rendition of a judgment against one of two or more persons liable for a loss does not terminate a claim that the injured party may have against any other person who may be liable therefor.” Restatement (Second), Judgments § 94 (Tent. Draft Ño. 3, 1976). We therefore vacate the judgment from which this appeal has been taken. The appellant, Gill and Duffus Services, Inc., is a commodity securities broker. Appellee A. M. Nural Islam is president and owner of appellee Transcontinental IMEX. In July 1980, Islam arranged for the opening of an account with Gill and Duffus in the name of Khalid Hasan, a part-time employee of Transcontinental. The account was actively traded, principally by Islam but on occasion by Hasan. As of December 1980,' the account had an alleged deficit balance of $239,035.80. That month, Gill and Duffus sued Hasan for the deficiency in the United States District Court for the Eastern District of Virginia. In May 1981, while the action against Hasan was still pending, Gill and Duffus commenced this diversity action against Islam and Transcontinental in the United States District Court for the District of Columbia. In June 1981, the Virginia action resulted in a judgment for Gill and Duffus, entered in accordance with a jury verdict against Hasan, in the amount of $176,185.80. Shortly thereafter, Islam and Transcontinental moved to dismiss the instant action on a variety of grounds, among them, res judicata. Addressing only the res judicata plea, the district court dismissed the complaint in September 1981. In a brief memorandum, that court stated that Islam and Transcontinental were in “privity” with Hasan and therefore could not be sued by Gill and Duffus. We find this analysis misguided. As sole authority for its decision, the district court cited Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948), a leading case defining the concepts of res judicata (claim preclusion) and collateral estoppel (issue preclusion). Sunnen involved the impact of prior adjudication upon subsequent litigation between the same parties; it did not involve any attempt by a nonparty to the first adjudication to invoke that adjudication in another action as a shield against liability. In the course of elaborating preclusion principles, however, the Court used traditional res judicata terminology, “a final judgment on the merits of a cause of action [binds] the parties to the suit and their privies.” 333 U.S. at 597, 68 S.Ct. at 719. The term “privity” signifies that the relationship between two or more persons is such that a judgment involving one of them may justly be conclusive upon the others, although those others were not party to the lawsuit. See F. James & G. Hazard, Civil Procedure 576 (2d ed. 1977). It is a cornpendious term that may mislead more than it enlightens: [T]he connections indicated by “privity” . . . vary from purely procedural to essentially substantive. . . . [A] third party may invoke a prior judgment against a present adversary simply on the ground that the adversary was involved in the prior litigation and that judgment was adverse to him; no connection need be shown between the third party and the litigants in the prior action. In contrast, many preclusive effects of a judgment are wholly substantive, for example, the rule ... that a successor to property is bound by adjudications involving his predecessor in title. Restatement (Second), supra, Introduction, at 16 (Tent. Draft No. 7, 1980) (emphasis added). Islam and Transcontinental are not in “privity” with Hasan under the traditional definition of the term; they are not persons who “claim[] an interest in the subject-matter affected by the judgment through or under one of the parties, i.e., either by inheritance, succession or purchase.” See Comment, Privity and Mutuality in the Doctrine of Res Judicata, 35 Yale L.J. 607, 608 (1926) (emphasis in original). Decisions cited by Islam and Transcontinental expanding the traditional definition to encompass other relationships do not involve situations such as the one presented here. Rather, they present the question whether it is fair and reasonable to preelude a person, not a party to a prior adjudication, because someone closely connected with that person was an unsuccessful party in the prior adjudication. See, e.g., Astron Industrial Associates, Inc. v. Chrysler Motors Corp., 405 F.2d 958 (5th Cir. 1968) (subsidiary corporation’s unsuccessful action against defendant barred parent corporation from pursuing the same matter against the same defendant); Crane Boom Life Guard Co. v. Saf-T-Boom Corp., 362 F.2d 317 (8th Cir. 1966) (consent decree permanently enjoining defendants from infringing plaintiff’s patents barred those in “privity” with defendants from launching an attack upon, and from infringing, plaintiff’s patents), cert, denied, 386 U.S. 908, 87 S.Ct. 853, 17 L.Ed.2d 782 (1967). In this light, if Islam and Transcontinental were indeed in “privity” with Hasan, then the judgment Gill and Duffus obtained against Hasan would be binding upon Islam and Transcontinental. The logical terminal point of the “privity” argument, however, would not be to release Islam and Transcontinental. On the contrary, “privity” with Hasan should preclude them from resisting liability to Gill and Duffus for the amount due under the Virginia judgment. In short, the “privity” asserted by Islam and Transcontinental, if it in fact existed, should yield a result precisely opposite the one arrived at by the district court. Such a result, we believe, would not be fair or reasonable. Islam and Transcontinental should not be precluded from fully defending against the claims asserted in the instant action because a person merely “associated” with them, Hasan, was unsuccessful in the prior action; we therefore would not describe the three as “privies.” That label, we conclude, is inappropriate to the situation and affiliation before us. The “privity” label was misapplied by the district court and served to impede, not to advance, the proper analysis and adjudication of this case. Without regard to any notion of “privity,” had Gill and Duffus lost the Virginia action against Hasan, Islam and Transcontinental might properly have invoked that defeat to preclude relitigation of issues decided adversely to Gill and Duffus. For it is the general rule that a party defeated on the merits in a first action is thereby precluded from relitigating issues raised and necessarily decided in that action. The preclusion operates not only in favor of the opposing party in the first action, it encompasses as well persons who had no part in that adjudication. See Restatement (Second), supra, § 88 (Tent. Draft No. 2, 1975) (issue preclusion in subsequent litigation with others). But Gill and Duffus prevailed in Virginia. Joinder of Islam and Transcontinental in that action was permissive, not mandatory. See Fed.R.Civ.P. 20(a). Double recovery is surely foreclosed. See Restatement (Second), supra, § 94, comment a, at 74 (Tent. Draft No. 3, 1976). Only one satisfaction may be obtained for a loss that is the subject of two or more judgments. See id. § 95(2). Nor may Gill and Duffus try again on an issue, to the extent that it was determined against them in the Virginia action; for example, the amount due on the account was established .by the jury verdict to be $176,185.80, not the $239,035.80 demanded in the complaint. See id. § 94, comment a, at 74. Further, Gill and Duffus may be precluded from taking inconsistent positions in the two actions. See id. at 75. Subject to such constraints, however, the doctrine of res judicata is not a barrier to the maintenance of the Gill and Duffus suit against Islam and Transcontinental. For the foregoing reasons, the judgment dismissing the case commenced by Gill and Duffus against Islam and Transcontinental is vacated and the case is remanded with directions to reinstate the complaint. It is so ordered. . As an illustration of the general rule, the Restatement (Second) supplies this example: A is the payee of a note for $1,000 executed jointly by B and C. In an action by A against B on the note, C is not joined as a party. B defends on the ground that the obligation was paid, but the court finds that payment was made only to the extent of $300 and enters judgment for A for $700. A may maintain an action against C on the note but his recovery is limited to $700. Jd.t comment b, illustration 3. . The complaint in this action alleges that (1) Gill and Duffus is a New York corporation with its principal place of business in Ñew York, (2) Transcontinental IMEX is a District of Columbia corporation with a place of business in the District, (3) Islam is a resident of Maryland and a citizen of Bangladesh with a place of business in the District of Columbia, (4) Hasan is a citizen of Bangladesh residing in Virginia. Joint Appendix 3, 4. At argument, counsel for Gill and Duffus stated he did not join Islam and Transcontinental in the Virginia action because they were not amenable to service of process in that state. Counsel further stated that not until Hasan testified in the Virginia action was Gill and Duffus alerted to the prospect of a fraud claim against Islam and Transcontinental. . This court has described “privity” as an “elusive concept.” Jefferson School of Social Science v. Subversive Activities Control Bd., 331 F.2d 76, 83 (D.C.Cir.1963). Representative definitions in the circuit include: [T]he word [“privity”] designates a person so identified in interest with a party to former litigation that he represents precisely the same legal right in respect to the subject matter involved. Id. Privity is clearly established by the identity of cause of action and of interest in the two cases. Privity is “the mutual or successive relationship to the same rights of property.” First Nat’l Bank of Holdenvilie, Okla. v. Ickes, 154 F.2d 851, 853 n.9 (D.C.Cir.1946) (quoting 2 Bouvier’s Law Dictionary 2722 (3d rev. ed. F. Rawle 1914». The test of privity is whether [a party] participated in control of an action, individually or in cooperation with others, to establish and protect some proprietary or financial interest of his own. Uebersee Finanz-Korporation v. Brownell, 121 F.Supp. 420, 424 (D.D.C.1954). All these cases presented the question whether a determination adverse to a party in a first action bound a related person in a second action. . See also F. James & G. Hazard, supra, at 575-76: [Persons in “privity”] fall into two broad categories. First, a person who is not a party may be concluded when his interests have been represented by another who is authorized to act as a party on his behalf. Second, a person who is not a party may be concluded when his substantive legal right is so defined that it stands or falls according to a judgment involving another who was a party to prior litigation.... [“Privity”] remains useful as a general descriptive term but [it is a word that] must be used with great caution. . The district court’s approach to this case, however, would substantially erode the distinction between permissive and compulsory joinder. . See also the example set out at supra note 1. The slim record at this stage is inadequate to indicate whether the fraud count stated in the complaint might entitle Gill and Duffus to any sum over the amount of the judgment obtained against Hasan.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". 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".

This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?

AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, a corporation, Plaintiff-Appellee, v. Mitzi WYPIOR and Herbert Liebert, Defendants-Appellants. No. 15262. United States Court of Appeals Seventh Circuit. Aug. 11, 1966. Frederick J. Bertram, Ronald S. Fish-man; Chicago, 111., Fishman & Fishman, Chicago, 111., for defendant-appellant, Herbert Liebert. Joseph B. Lederleitner, Chicago, 111., Pretzel, Stouffer, Nolan & Rooney, Chicago, 111., for plaintiff-appellee. Before CASTLE and SWYGERT, Circuit Judges, and GRANT, District Judge. SWYGERT, Circuit Judge. The defendants, Mitzi Wypior and Herbert Liebert, appeal from a judgment of the district court entered upon a jury verdict for the plaintiff, American Casualty Company of Reading, Pennsylvania, in a declaratory judgment action. The plaintiff brought the action seeking a declaration that .an employee exclusion clause in a liability insurance policy issued to Wypior excluded coverage and responsibility for the defense of a state court suit with reference to a claim for injuries sustained by Liebert on the premises of the insured. The defendant Wypior purchased an “Owners’, Landlords’, & Tenants’ ” liability policy from the plaintiff in 1962, covering an apartment building which she owned at 2528 North California Avenue in Chicago. The policy insured against damages for injuries resulting from specified hazards in and around the premises which the insured might become liable to pay. The policy excluded from coverage, however, injuries to “any employee of the insured arising out of and in the course of his employment by the insured.” The complaint filed by the insurance company in the declaratory judgment action alleged that Liebert claims to have suffered injuries in a fall from a ladder on the insured premises on December 5, 1963 and has brought a suit in the Circuit Court of Cook County against Wypior to recover damages therefor. It alleged further that Liebert’s injury occurred during the course of certain repair work he was engaged to perform on the premises by Wypior. The complaint then recited the employee exclusion clause of the insurance policy and prayed for a declaration that the plaintiff was not liable to pay any judgment which might be rendered in favor of Liebert against Wypior for Liebert’s injuries and not liable to defend Wypior in the state court action. The evidence introduced at the trial showed that Liebert was once the owner of the building at 2528 North California Avenue. He later sold the building to Wypior, became a tenant of hers, and operated a grocery store on the first floor. Liebert experienced marital difficulties, however, and subsequently left for a two-year visit to Germany, returning to Chicago early in 1963, apparently in straitened financial circumstances and without a place to live. Wypior permitted him to occupy a storeroom, furnished only with a couch, in the basement of the apartment building. Liebert lived there from April 1963 to and including December 5, 1963 without paying any rent. During this period, the evidence showed, Liebert performed the following services in connection with the building. At Wypior’s request he turned on a thermostat on one occasion; he painted a hallway, also at her request; he installed two windows in the store portion of the building, without request; he assisted another man for a week or two in rebuilding the back porch; he knocked out some brickwork for air conditioners; he put in some type of cyclone fence; and, he did some work in the remodeling of the store into a beauty parlor. Liebert received no money for any of the services performed. Liebert did not testify at the trial. Portions of his deposition taken in connection with the state court suit were read to the jury and a signed statement taken by an insurance investigator was introduced. This evidence tended to show that Liebert considered the various services he rendered to Wypior as being in exchange for his occupancy of the basement, an unwritten understanding of some sort. Wypior’s testimony depicted her relationship with Liebert as being one of mutual informal accommodation between friends. On December 5, 1963, Wypior requested Liebert to clean some shelves in the store. It was while performing this service that Liebert allegedly fell from a stepladder sustaining the injuries which prompted the state court action. Liebert’s complaint in that suit alleged that Wypior retained him to do the work during which he was injured. Based upon the foregoing evidence, the jury returned a verdict for the plaintiff, in effect concluding that Liebert was an “employee” of Wypior at the time of his injury. The defendants appealed, and have presented many assertions of error for our consideration. We have concluded that one of these alleged errors, improper instructions to the jury on the question of employment, requires a reversal of the judgment of the district court and the granting of a new trial. In his charge to the jury, the district judge first instructed the jurors that the existence of the employer-employee relationship between Wypior and Liebert on December 5, 1963 was a question of fact to be determined by them from the evidence, and that if they found Liebert to be Wypior’s employee on that date their verdict should be for the plaintiff. The judge then gave the following instructions challenged by the defendants: I tell you, ladies and gentlemen of the jury, that an employee is any person who works or performs personal service for another with the latter’s knowledge and consent, with or without payment in money. One volunteering service without any agreement for or expectation of a reward may be an employee of the one accepting such services. These two sentences constituted the bulk of the court’s instructions relating to the meaning of “employee” as contained in the exclusion clause in the contract of insurance. We think that they were erroneous statements of the law to be applied in this case, that they were abstract propositions depicting rare examples of the employment relationship not contemplated by the parties to the insurance contract and amounting to an invitation to the jury to resolve the critical issue in the plaintiff’s favor. As such, the instructions were not cured by the later instruction, the only other one given dealing with employment, that: The test for determining whether or not a master-servant relationship exists is the right to control the servant which includes the power of discharge, the right to hire and discharge the servant. The word “employee” appears in the law in many different contexts and thus does not lend itself to any inflexible definition. The definitions of an “employee” for purposes of workmen’s compensation statutes and collective bargaining agreements, for example, do not determine the meaning of “employee” as used in a policy of insurance. When the word “employee” appears in a contract of insurance and is not defined in the policy, it must be construed in a manner most likely to correspond to the intention of the parties to the contract. General Acc. Fire and Life Assur. Corp. v. Brown, 35 Ill.App.2d 43, 181 N.E.2d 191, 195 (1962). The intention fairly attributable to the insurer and the insured, from an objective standpoint and in the absence of a contrary indication, should therefore reflect the ordinary meaning of the word as it is understood by persons generally and should highlight the characteristics which the law most often attributes to employment. The normal indicia of the employer-employee relationship, as pronounced by the courts of Illinois, are contract, control, and compensation. King v. Grimm, 300 F.2d 658 (7th Cir. 1962); Gundich v. Emerson-Comstock Co., 21 Ill.2d 117, 171 N.E.2d 60 (1960); Kijowski v. Times Pub. Corp., 372 Ill. 311, 23 N.E.2d 703 (1939); Marion Water Co. v. Industrial Comm’n, 368 Ill. 350, 14 N.E.2d 236 (1938). The contract or agreement of employment may be express or implied, the control possessed by the employer as to the manner of the work performed need not be actually exercised, and compensation need not be in the form of money. If a jury is to properly assess the question of employment, it should be instructed on these regular incidents of employment and all the features of the employer-employee relationship should be considered together in determining whether, under the facts, a person is an “employee” within the meaning of that term in an insurance policy. The broader the definition of employment put before the jury, the less likely is the verdict to correspond to what was intended by the parties to the insurance contract. The court in its instructions in this case gave little recognition to the general characteristics of employment. It rejected several instructions tendered by the defendants in which these elements were contained. Secondly, the instructions given were themselves inaccurate and confusing, even under the most liberal definitions of employment. The jury was told that an employee is “any person” who works for another with the latter’s consent “with or without payment in money.” This definition would include relatives or friends who perform purely gratuitous service at their own direction as an accommodation. Such service is not employment. The instruction was particularly objectionable in the circumstances of this case where the critical questions concern the nature of the understanding, if any, between Liebert and Wypior as to the services performed and the character of these services as gratuities or compensation. The jury was further instructed that one volunteering service “without any agreement for or expectation of a reward” may be an employee. It is true that the instruction was merely permissive. But it was given without any recognition that employment is essentially contractual and without any explanation of the circumstances under which a volunteer might be considered an employee. In this respect it could only have been confusing and misleading to the jury. The parties in this appeal have cited no Illinois decisions construing the word “employee” when found in an insurance policy. The Illinois cases cited by the plaintiff, in fact, are singularly unrelated to any construction of the term. The courts in several other states, however, have considered employee exclusion clauses. In the majority of the recent decisions they have held that the word “employee” used in an exclusion clause denotes regular employment, as distinguished from occasional, incidental, or casual employment. Hudson v. Allstate Ins. Co., 169 So.2d 598 (La.App.1964); Oberhansly v. Travelers Ins. Co., 5 Utah 2d 15, 295 P.2d 1093 (1956); Griffin v. Hardware Mut. Ins. Co., 93 Ga.App. 801, 92 S.E.2d 871 (1956); Bean v. Gibbens, 175 Kan. 639, 265 P.2d 1023 (1954). Contra, Spencer v. Travelers Ins. Co., 148 W.Va. 111, 133 S.E.2d 735 (1963); Pennsylvania Cas. Co. v. Elkins, 70 F.Supp. 155 (E.D. Ky. 1947). Further, all these cases indicate that the elements of contract, control, and compensation should be central to any jury instructions given on the question of employment. In Griffin v. Hardware Mut. Ins. Co., supra, for example, an insurance company sought a declaration that a man injured while assisting a service station mechanic in adjusting the timing of a customer’s car at the mechanic’s request was an “employee” within an exclusion clause in a liability policy covering the service station. The court held otherwise, stating: In the present case, since there was no contract of employment, if the relationship of master and servant existed, it would have to be inferred from the circumstances. * * * Paige merely asked Griffin to assist him in setting the timing of the automobile engine. Nothing was said of wages or compensation ; nothing was said as to the duration of the assistance; nothing was said as to what Griffin was specifically to do, and it does not appear that Paige had the right to control the time, method, and manner in which Griffin was to lend his assistance. There is nothing from which it can be inferred that Griffin was the servant of Paige. 92 S.E.2d at 873. Similarly, in Oberhansly v. Travelers Ins. Co., supra, a man was injured while returning an automobile to a consignor at his brother’s request. He was held not to be an employee under an exclusion clause, even though engaged in his brother’s business and even though his travel expenses were paid, because there was no agreement as to salary, the element of control over the service performed was not present, and because, in the court’s language, “[t]he act was considered by all parties concerned to be a voluntary accommodation.” 295 P.2d at 1095. For these reasons we hold that the district court erred in its instructions to the jury on the question of employment. The judgment of the district court is reversed. . The plaintiff is a Pennsylvania corporation and the defendants are citizens of Germany and not citizens of any state. . The complaint contained one count alleging violations of the Illinois Scaffold Act, Iix.Rev.Stat., cli. 48, §§ 60-69, and one count alleging ordinary negligence. . The Fifth Circuit adopted this reasoning in Travelers Ins. Co. v. Brown, 338 F.2d 229 (5th Cir. 1964). The court there noted that it is reasonable to assume that the word “employee” in employee exclusion clauses should follow general master-servant standards, but with a change in emphasis. It then said: Even though the insurance contract deals ultimately with liability to the public, we must treat it at all times as a contract between the parties. As a result, the intentions of the parties become paramount. Although these intentions are usually displayed or implied by the usual meaning of the words that are used, sometimes there are special, otherwise irrelevant facts that indicate the intentions of the parties. In the present context, if there were some indication of whom the contracting parties intended to be employees for the purposes of the contract this fact would be crucial. Id. at 237. . The instruction appears to have been taken from language used in Ryan v. Unsworth, 52 R.I. 86, 157 A. 869 (1931). . In State Farm Mut. Auto. Ins. Co. v. Brooks, 136 F.2d 807 (8th Cir.), cert. denied, 320 U.S. 768, 64 S.Ct. 80, 88 L.Ed. 459 (1943), the Eighth Circuit, interpreting Missouri law, held that two boys who were temporarily employed for one dollar per day to pile wood were not merely “occasional, incidental, or casual employees” and were therefore excluded from coverage under a liability policy. In the course of its opinion, the court stated: It is contended for the insurance company that the words “any employee”, appearing in the exclusion clause of its policy, should be read broadly and literally to mean any and every person rendering service of any kind to the insured in his business, while the appellees would have the meaning restricted to include only persons in continuous regular or permanent employment therein. We think the Missouri decisions have settled that the word “employee” as used in this policy clause is subject to interpretation by the courts to the extent that it is not to be deemed absolutely inclusive of any and every person who may happen, at the time of an accident, to be rendering some service to the insured in his business at his dirfeetion. Id. 136 F.2d at 816-811.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").

This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.

COLUMBUS-AMERICA DISCOVERY GROUP, Plaintiff-Appellee, and Trustees of Columbia University in the City of New York; Harry G. John; Jack F. Grimm, Plaintiffs, v. ATLANTIC MUTUAL INSURANCE COMPANY; Insurance Company of North America; Salvage Association; London Assurance; Alliance Assurance Company, Ltd.; Royal Exchange Assurance; Indemnity Marine Assurance Company, Ltd.; Marine Insurance Company, Ltd.; Superintendent of Insurance of the State of New York, Claimants-Appellants, and The Unidentified Wrecked and Abandoned Sailing Vessel, its engines, tackle, apparel, appurtenances, cargo, etc., located within a box defined by the following coordinates: Northern Boundary—31 degrees 37 minutes North Latitude; Southern Boundary—31 degrees 33 minutes North Latitude; Western Boundary—77 degrees 2 minutes West Longitude; Eastern Boundary—76 degrees 57 minutes West Longitude, (believed to be the S.S. Central America), in rem, Defendant, CIGNA Group, Commercial Union Assurance Company, Ltd.; Commercial Union Insurance Company; William H. McGee & Company, Incorporated; Royal Insurance; Royal Insurance Company, Ltd.; Royal Insurance Company of America; Chubb & Son, Incorporated; Sun Alliance Group; Underwriters at Lloyd’s; GRE of America Corporation; Guardian Royal Exchange; Indemnity Mutual Marine Assurance Company; Sun Insurance Company of New York; Sun Insurance Office, Ltd.; Great Western Insurance Company; Sun Mutual Insurance Company; Union Mutual Insurance Company; Oriental Mutual Insurance Company; Commercial Mutual Insurance Company; Mercantile Mutual Insurance Company; New York Mutual Insurance Company; Pacific Mutual Insurance Company; Indemnity Marine; London Associated Corporation; Royal Associated Corporation; Royal Marine; Indemnity Mutual; Royal Exchange & London Offices; Union Bank of London; Commonwealth Fire Insurance Company; Dennis Standefer; the R/V Liberty Star, her master, officers, crew and all persons aboard; Board of Trustees of Columbia University; Lamont-Doherty Geological Institute; S.S. George Law Partnership; Boston Salvage Consultants, Inc., Claimants. American Institute of Marine Underwriters; the Board of Underwriters of New York, Amici Curiae. Harry G. JOHN; Jack F. Grimm, Plaintiffs-Appellants, Columbus-America Discovery Group, Plaintiff-Appellee, and Trustees of Columbia University in the City of New York, Plaintiff, v. ATLANTIC MUTUAL INSURANCE COMPANY; Insurance Company of North America; Salvage Association; London Assurance; Alliance Assurance Company, Ltd.; Royal Exchange Assurance; Indemnity Marine Assurance Company, Ltd.; Marine Insurance Company, Ltd.; Superintendent of Insurance of the State of New York, CIGNA Group, Commercial Union Assurance Company, Ltd.; Commercial Union Insurance Company; William H. McGee & Company, Incorporated; Royal Insurance; Royal Insurance Company, Ltd.; Royal Insurance Company of America; Chubb & Son, Incorporated; Sun Alliance Group; Underwriters at Lloyd’s; GRE of America Corporation; Guardian Royal Exchange; Indemnity Mutual Marine Assurance Company; Sun Insurance Company of New York; Sun Insurance Office, Ltd.; Great Western Insurance Company; Sun Mutual Insurance Company; Union Mutual Insurance Company; Oriental Mutual Insurance Company; Commercial Mutual Insurance Company; Mercantile Mutual Insurance Company; New York Mutual Insurance Company; Pacific Mutual Insurance Company; Indemnity Marine; London Associated Corporation; Royal Associated Corporation; Royal Marine; Indemnity Mutual; Royal Exchange & London Offices; Union Bank of London; Commonwealth Fire Insurance Company; Dennis Standefer; the R/V Liberty Star, her master, officers, crew and all persons aboard; Board of Trustees of Columbia University; Lamont-Doherty Geological Institute; S.S. George Law Partnership; Boston Salvage Consultants, Inc., Claimants, v. The UNIDENTIFIED WRECKED AND ABANDONED SAILING VESSEL, its engines, tackle, apparel, appurtenances, cargo, etc., located within a box defined by the following coordinates: Northern Boundary—31 degrees 37 minutes North Latitude; Southern Boundary—31 degrees 33 minutes North Latitude; Western Boundary—77 degrees 2 minutes West Longitude; Eastern Boundary—76 degrees 57 minutes West Longitude, (believed to be the S.S. Central America), in rem, Defendant. American Institute of Marine Underwriters; the Board of Underwriters of New York, Amici Curiae. TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, Plaintiff-Appellant, Columbus-America Discovery Group, Plaintiff-Appellee, and Harry G. John; Jack F. Grimm, Plaintiffs, Atlantic Mutual Insurance Company; Insurance Company of North America; Salvage Association; London Assurance; Alliance Assurance Company, Ltd.; Royal Exchange Assurance; Indemnity Marine Assurance Company, Ltd.; Marine Insurance Company, Ltd.; Superintendent of Insurance of the State of New York; CIGNA Group, Commercial Union Assurance Company, Ltd.; Commercial Union Insurance Company; William H. McGee & Company, Incorporated; Royal Insurance; Royal Insurance Company, Ltd.; Royal Insurance Company of America; Chubb & Son, Incorporated; Sun Alliance Group; Underwriters at Lloyd’s; GRE of America Corporation; Guardian Royal Exchange; Indemnity Mutual Marine Assurance Company; Sun Insurance Company of New York; Sun Insurance Office, Ltd.; Great Western Insurance Company; Sun Mutual Insurance Company; Union Mutual Insurance Company; Oriental Mutual Insurance Company; Commercial Mutual Insurance Company; Mercantile Mutual Insurance Company; New York Mutual Insurance Company; Pacific Mutual Insurance Company; Indemnity Marine; London Associated Corporation; Royal Associated Corporation; Royal Marine; Indemnity Mutual; Royal Exchange & London Offices; Union Bank of London; Commonwealth Fire Insurance Company; Dennis Standefer; the R/V Liberty Star, her master, officers, crew and all persons aboard; Board of Trustees of Columbia University; Lamont-Doherty Geological Institute; S.S. George Law Partnership; Boston Salvage Consultants, Inc., Claimants, v. The UNIDENTIFIED WRECKED AND ABANDONED SAILING VESSEL, its engines, tackle, apparel, appurtenances, cargo, etc., located within a box defined by the following coordinates: Northern Boundary—31 degrees 37 minutes North Latitude; Southern Boundary—31 degrees 33 minutes North Latitude; Western Boundary—77 degrees 2 minutes West Longitude; Eastern Boundary—76 degrees 57 minutes West Longitude, (believed to be the S.S. Central America), in rem, Defendant. American Institute of Marine Underwriters; the Board of Underwriters of New York, Amici Curiae. Nos. 90-2730 to 90-2732. United States Court of Appeals, Fourth Circuit. Argued June 5, 1991. Decided Aug. 26, 1992. As Amended Nov. 12, 1992. Douglas A. Jacobsen, Bigham, Englar, Jones & Houston, John H. Reilly, Jr., Dickerson & Reilly, Edward A. Friedman, Friedman & Kaplan, New York City, Guilford D. Ware, Crenshaw, Ware & Martin, Norfolk, Va., argued (Marilyn L. Lytle, George R. Daly, Bigham, Englar, Jones & Houston, Robert D. Kaplan, Friedman & Kaplan, New York City, James L. Chapman, IV, Crenshaw, Ware & Martin, Norfolk, Va., Daniel R. Warman, John Y. Richardson, Jr., Williams, Worrell, Kelly, Greer & Frank, Norfolk, Va., on brief), for appellants. i Richard T. Robol, Hunton & Williams, Norfolk, Va., Robert W. Trafford, Porter, Wright, Morris & Arthur, Columbus, Ohio, argued (Kevin J. Cosgrove, Robert M. Tata, Stephen W. Haynie, Hunton & Williams, Norfolk, Va., Curtis A. Loveland, William J. Kelly, Jr., Daniel F. Gourash, Porter, Wright, Morris & Arthur, Columbus, Ohio, on brief), for appellee. Allan S. Reynolds, Reynolds, Smith & Winters, Norfolk, Va., for amici curiae. Before RUSSELL, WIDENER, and HALL, Circuit Judges. OPINION DONALD RUSSELL, Circuit Judge: “When Erasmus mused that ‘[a] common shipwreck is a source of consolation to all’, Adagia, IV.iii.9 (1508), he quite likely did not foresee inconcinnate free-for-alls among self-styled salvors.” Martha’s Vineyard Scuba HQ, Inc. v. The Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1061 (1st Cir.1987). Without doubt the Dutch scholar also could not imagine legal brawls involving self-styled “finders” from Ohio, British and American insurance underwriters, an heir to the Miller Brewing fortune, a Texas oil millionaire, an Ivy League university, and an Order of Catholic monks. Yet that is what this case involves, with the prize being up to one billion dollars in gold. This gold was deposited on the ocean floor, 8,000 feet below the surface and 160 miles off the South Carolina coast, when the S.S. CENTRAL AMERICA sank in a hurricane on September 12, 1857. The precise whereabouts of the wreck remained unknown until 1988, when it was located by the Columbus-America Discovery Group (“Columbus-America”). This enterprise has since been recovering the gold, and last year it moved in federal district court to have itself declared the owner of the treasure. Into court to oppose this manoeuvre came British and American insurers who had originally underwritten the gold for its ocean voyage and then had to pay off over a million dollars in claims upon the disaster. Also attempting to get into the stew were three would-be intervenors who claimed that Columbus-America had used their computerized “treasure map” to locate the gold. The district court allowed the intervention, but it did not give the intervenors any time for discovery. After a ten-day trial, the lower Court awarded Columbus-America the golden treasure in its entirety, 742 F.Supp. 1327. It found that the underwriters had previously abandoned their ownership interests in the gold by deliberately destroying certain documentation. As for the inter-venors, the Court held that there was no evidence showing that Columbus-America used their information in any way in locating the wreck. Upon appeal, we find that the evidence was not sufficient to show that the underwriters affirmatively abandoned their interests in the gold. We also hold that once intervention was allowed, the district court abused its discretion by not affording the intervenors sufficient time for discovery. We therefore reverse the decision below and remand the case for further proceedings. I. A. The year 1857 is justly famous in American history for its many notable events. Among these was the beginning of a fairly serious financial decline, the aptly named Panic of 1857. Associated with the Panic, and another reason why the year is so famous, is one of the worst disasters in American maritime history, the sinking of the S.S. CENTRAL AMERICA. The CENTRAL AMERICA was a black-hulled, coal-fired, three-decked, three-masted sidewheeler with a cruising speed of eleven knots. Built in 1852, and launched the following year, she carried passengers, mail, and cargo between Aspinwall, Colombia (on the Caribbean side of the isthmus of Panama), and New York City, with a stopover in Havana. Most, if not all, of hér passengers were headed to or from California, the route being one leg of the then quickest way between the west coast and the eastern seaboard — from California to the Pacific side of the isthmus of Panama aboard a steamship, across the isthmus on the Panama Railroad, and then from Aspin-wall to New York aboard another steamship. Owned by the U.S. Mail and Steamship Company and originally named the S.S. GEORGE LAW (until June 1857), the CENTRAL AMERICA completed forty-three voyages between Panama and New York in her four years of operation. During this period, the California gold rush was in full swing, and it has been said that the ship carried one-third of all gold shipped at that time from California to New York. In August of 1857, over four hundred passengers and approximately $1,600,000 (1857 value) in gold (exclusive of passenger gold) left San Francisco for Panama aboard the S.S. SONORA. Many of the passengers were prospectors who had become rich and were returning home, either for good or to visit. Also on board were California Judge Alonzo Castle Monson, who resigned from the bench after losing his house and all his money in a famous poker game, and Mrs. Virginia Birch, a.k.a. “the notorious Jenny French,” a former dance hall girl well known in San Francisco. As for the gold, it was being shipped by California merchants, bankers, and express companies, including Levi Straus and Wells Fargo, to New York banks, the banks wanting specie to stave off the effects of the financial downturn. The travellers and the cargo reached Panama without incident, and they crossed the isthmus by rail. On September 3, over six hundred people came aboard the CENTRAL AMERICA, as well as $1,219,189 of the gold shipped on the SONORA, the remainder being shipped to England aboard a different vessel. The CENTRAL AMERICA first headed for Havana, which was reached on September 7. There, the ship lay over for a night, and some of the passengers debarked to catch another vessel for New Orleans. On September 8, under clear skies, the CENTRAL AMERICA left Havana for New York, carrying approximately 580 persons and her golden treasure. On the second day out of Havana, the weather changed and a mighty storm came up. What the passengers and crew could not know was that they were headed directly into the teeth of a ferocious hurricane. As the storm worsened around the CENTRAL AMERICA, a leak developed and soon water was rushing into the boat. The water extinguished the fires in the ship’s boilers, and this in turn caused the ship’s pumping system to fail. All able male passengers began a systematic bailing of water out of the ship, but it was to no avail; after thirty frantic hours, the boiler fires would still not light and the water level continued to rise. Knowing the situation was hopeless, Captain William Lewis Herndon managed to hail a passing ship, the brig MARINE, and one hundred persons, including all but one of the women and children aboard, were safely transferred to the other ship. Time and conditions would not allow for any more transfers, however, and shortly after 8 p.m. on September 12, the CENTRAL AMERICA began making its quick descent to the bottom of the ocean. After being flung into the sea, many of the men managed to come to the top and float there, desperately holding onto any buoyant material available. Six to nine hours after the sinking, fifty of these men were rescued by the Norwegian bark ELLEN. Earlier, a small bird had thrice circled the ELLEN and flown directly into the face of the ship’s captain. Taking this as a sign, the captain changed his course to follow from whence the bird had come, and in so doing discovered the fifty floating survivors. Three other men were also rescued when, nine days later and 450 miles away, a ship spotted their lifeboat, which had been riding the Gulf Stream. In all, 153 persons were rescued, while approximately 425 lost their lives. Also lost were hundreds of bags of mail and the $1,219,189 in gold. At the time, there were rumors that other commercial shipments of gold were aboard, but these were quickly discounted. It is true, though, that a significant amount, probably several hundred thousand dollars worth (1857 valuation), of passenger gold was lost. Many passengers had with them their earnings from several years’ labor in the California gold fields. Some kept this gold on their person, while others carried it in carpetbags or trunks. Also, passenger gold could have been checked with the ship’s purser, although these records were lost with the ship. Captain Thomas W. Badger is one example of a passenger carrying gold, he having lost $17,500 of it stored in a carpetbag. Also, the newspapers reporting the disaster contained vivid accounts of men flinging down their hard earned treasure in disgust upon realizing their impending doom. Needless to say, for the next several weeks newspapers around the country devoted much space to the disaster which befell the CENTRAL AMERICA. While people mourned the over four hundred persons who had valiantly lost their lives, they also feared that the loss of such a large amount of specie would exacerbate the country’s already serious financial situation. The commercial shipments of gold had been insured, though, and the insurance underwriters began advertising in the newspapers that they would pay off their commitments upon the proper proofs being presented. Approximately one-third of the treasure had been underwritten by New York insurers while the rest was underwritten in London. Without doubt, most, if not all, of the claims were promptly paid off by the underwriters. Under applicable law, then and now, once the underwriters paid the claims made upon them by the owners of the gold, the treasure became theirs. Thus, less than two weeks after the disaster, the underwriters began negotiating with the Boston Submarine Armor Company about possibly raising the ship and her cargo. Also, on June 28, 1858, two of the underwriters (Atlantic Mutual Insurance Company and Sun Mutual Insurance Company) contracted with Brutus de Villeroi, a Frenchman then living in Pennsylvania, to salvage the gold. The contract states that de Villeroi, “by means of his Invention of a Submarine boat” and at his own expense, would raise the treasure and receive a salvage award of seventy-five percent. At this time, though, no one was quite sure where the boat had gone down, or in how deep of water. At first, some estimated the ship was in only twenty-eight fathoms of water (168 feet), when in fact it was over 8,000 feet below the surface. As would be expected, nothing came of the salvage attempts in the late 1850s, and the issue, and the gold, would lie dormant for over a hundred and twenty years. B. Beginning in the 1970s, a number of individuals and groups began discussing and planning the salvage of the CENTRAL AMERICA, as the decade before had seen a great advance in the technology necessary for deep sea salvage. Still, though, no one was positive where the ship had gone down or in what depth of water. At least one group thought they had found her in shallow water fifteen miles off Cape Hatteras, which in reality was at least one hundred miles from where she actually lay. A number of those interested in salvaging the CENTRAL AMERICA contacted some of the various insurers who had underwritten the gold. The would-be salvors hoped to receive a relinquishment of the insurers’ rights to the property, or at least form a salvage contract with the underwriters. While the underwriters negotiated with several groups about the salvage, they did not enter into any salvage contracts nor did they relinquish any of their rights to the gold. One of the groups that contacted several of the underwriters was Plaintiff Columbus-America Discovery Group, the eventual salvor. Columbus-Ameriea asked the underwriters to convey to it any claims they might have regarding the gold, but this was not done. Another group that was interested in salvaging the gold was Santa Fe Communications, Inc. (“Santa Fe”), whose interests are now owned by Plaintiff-Intervenors Harry G. John and Jack R. Grimm. In 1984, Santa Fe paid Plaintiff-Intervenor Columbia University $300,000 for Columbia’s Dr. William B.F. Ryan to conduct a sonar search over a 400 square mile area of the Atlantic Ocean. During his sonar search, Dr. Ryan identified seven “targets” on the ocean floor. Of these targets, he found only one, target #-4, to be a good candidate for being the CENTRAL AMERICA. Dr. Ryan felt that “this target is almost certainly the scattered debris of a shipwreck,” and his report mentioned that further exploration of it would have been made but for "gale force winds and seas.” In conclusion, he told Santa Fe, “you [Harry John] and Mr. Jack Grimm have a likely candidate for further exploration.” Santa Fe, though, did not further pursue the matter, and on December 31, 1984, it transferred to a Catholic monastic order, the Province of St. Joseph of the Capuchin Order— St. Benedict Friary of Milwaukee, Wisconsin (“the Capuchins”), any and all rights and interests arising out of its undersea salvage operations. It now appears that target # 4 was indeed the CENTRAL AMERICA. The contract between Santa Fe and Columbia provided that Columbia would be able to freely publish the results of the sonar survey, but only after keeping such results confidential for a year. Shortly after the survey, Columbus-America President Thomas Thompson began contacting Dr. Ryan and others at Columbia and Santa Fe in an attempt to learn the results. Over a two-year period, Thompson and Dr. Ryan had a number of conversations about the techniques for identifying sonar images on the ocean floor, but the latter only believed that Thompson, who was associated with the prestigious Battelle Memorial Institute, was interested in this information from a scientific standpoint. On February 12, 1986, Thompson wrote Dr. Ryan and requested certain sonar photographs taken during the survey. The letter also stated, “I am submitting this order primarily out of personal interest. I have a personal source of funds available for data collection and correlation-type work. I am also interested in the techniques for separating anomalies from their environment and in the processing of specific anomalies to determine their character.” Dr. Ryan passed along Thompson’s request to Columbia, which agreed to provide the information. As a condition, though, Columbia told Thompson that “since the data you requested is not in the public domain, we would require your agreement that any photo-copied records or computer tapes you receive would be for your sole use and would not be reproduced for others.” Thompson agreed to this condition, but went ahead and placed the information he received into Columbus-America’s files. C. In 1987, after much effort and expense, Columbus-America believed it had found the CENTRAL AMERICA. Thus, on May 27, 1987, it filed, in the United States District Court for the Eastern District of Virginia, an in rem action against the wreck, alleging that, under the law of finds, it was its “finder,” or, alternatively, under the law of salvage, its “salvor.” Columbus-America then asked for and received, on July 17, 1987, a preliminary injunction enjoining the other would-be salvors from operating within a specified area (“injunction box # 1”) of the sea. Injunction box # 1 covered an area which was approximately thirty miles from Dr. Ryan’s target #4. After receiving this injunction, Columbus-America spent two years attempting to salvage the wreck they thought was the CENTRAL AMERICA — this time was also spent battling the other would-be salvors in court. Plaintiffs recovered several artifacts, as well as a good many lumps of coal, but at some point they recognized that they were salvaging the wrong ship. They then began to look at other likely targets, and, eventually, they discovered the right ship. Thus, Columbus-America requested the Court to grant them, by permanent injunction, exclusive control over the area around this new find, and this was done through an Order entered on August 18, 1989 (“injunction box # 2”). Within the area of injunction box # 2 was Dr. Ryan’s target # 4. Since 1989, Columbus-America, through its invention of a submersible robot which can pick up objects ranging from small gold coins to a ship’s anchor weighing thousands of pounds, has been salvaging objects left on the ocean floor by the CENTRAL AMERICA. Undoubtedly, its major interest is in recovering the gold, and so far several hundred million dollars worth (present value) of gold coins, ingots, and bars have been recovered — it is estimated that the total haul may be worth up to one billion dollars. On September 29,1989, many of the original underwriters of the gold, plus the Superintendent of Insurance of the State of New York for several insurance companies now defunct, filed claims with the district court asserting that they were the proper owners of the gold. After this, extensive discovery was had, and the case was scheduled for trial beginning April 3, 1990. Three days before trial, John and Grimm moved to intervene, as did Columbia two days later. The intervenors claimed that Columbus-America must have used the information from Dr. Ryan’s sonar survey in locating the CENTRAL AMERICA, and thus they wished for a percentage of the recovery. Two weeks earlier, John had bought back for $10 any claims the Capu-chins would have on the CENTRAL AMERICA. When Santa Fe had originally donated their rights to the monks in 1984, the Capuchins recognized the gift as worthless, and John did nothing to enlighten them on the discovery of the ship or the upcoming trial. After later realizing what John was up to, though, the monks must have protested, for on April 10 both John and Grimm signed an agreement with the Capuchins giving the Order one-third of any judgment they (John or Grimm) would recover. The district court allowed John, Grimm, and Columbia to intervene, but it permitted them no discovery — the Court wanting the trial to begin as scheduled. Earlier, the Court had bifurcated the trial, so that the first part would concern only whether Columbus-Ameriea was entitled to finder or salvor status. If the district court found that the insurance companies had somehow abandoned the gold, Columbus-America would be considered its “finder,” and thus its owner. On the other hand, if the underwriters had not abandoned the gold, they would still remain its owners and Columbus-America would be its “salvor.” If the latter scenario were found to be true, a second phase of the trial would be necessary, wherein the Court would have to determine what each underwriter had insured and the amount of Columbus-America's salvage award. Because the trial had been bifurcated, the intervenors wanted their claims adjudicated after the finder/salvor issue was decided. The Court, though, would allow intervention only if the would-be intervenors agreed to have their claims adjudicated at the same time as the finder/salvor issue — that is, beginning the next day. The trial began on schedule, lasted ten days, and received much national attention. Over its course, many witnesses appeared and hundreds of exhibits were entered into evidence. The parties then began an anxious wait for a decision. On August 14, 1990, the Court found for Columbus-America on all the issues, dismissing the claims of the underwriters, Columbia, John, and Grimm. Columbus-America Discovery Group v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 742 F.Supp. 1327 (E.D.Va.1990). On the finder/salvor issue, the district court held that the underwriters had abandoned the gold, and thus Columbus-America was its finder and sole owner. The Court based this finding of abandonment primarily on the supposed fact that the underwriters had intentionally destroyed any documentation they had once had concerning the case. Id. at 1344-48. As for the intervenors, the Court found that they failed to prove that the information furnished Thompson could have assisted in locating the ship, that Columbus-America used this information in any way, or “even if the information was of value and was used, that any such use would entitle them to share in any recovery.” Id. at 1341. The underwriters and the intervenors now appeal. II. A. Historically, courts have applied the maritime law of salvage when ships or their cargo have been recovered from the bottom of the sea by those other than their owners. Under this law, the original owners still retain their ownership interests in such property, although the salvors are entitled to a very liberal salvage award. Such awards often exceed the value of the services rendered, and if no owner should come forward to claim the property, the salvor is normally awarded its total value. On salvage generally, see 3A M. Norris, Benedict on Admiralty: The Law of Salvage (7th ed. rev. 1991). A related legal doctrine is the common law of finds, which expresses “the ancient and honorable principle of ‘finders, keepers.’ ” Martha’s Vineyard, 833 F.2d at 1065. Traditionally, the law of finds was applied only to maritime property which had never been owned by anybody, such as ambergris, whales, and fish. 3A Benedict on Admiralty § 158, at 11-15. A relatively recent trend in the law, though, has seen the law of finds applied to long lost and abandoned shipwrecks. Id. § 158, at 11-16 to 11-18. Courts in admiralty favor applying salvage law rather than the law of finds. As has been succinctly stated by Judge Abraham D. Sofaer: The law of finds is disfavored in admiralty because of its aims, its assumptions, and its rules. The primary concern of the law of finds is title. The law of finds defines the circumstances under which a party may be said to have acquired title to ownerless property. Its application necessarily assumes that the property involved either was never owned or was abandoned.... To justify an award of title (albeit of one that is defeasible), the law of finds requires a finder to demonstrate not only the intent to acquire the property involved, but also possession of that property, that is, a high degree of control over it. These rules encourage certain types of conduct and discourage others. A would-be finder should be expected to act acquisitively, to express a will to own by acts designed to establish the high degree of control required for a finding of possession. The would-be finder’s longing to acquire is exacerbated by the prospect of being found to have failed to establish title. If either intent or possession is found lacking, the would-be finder receives nothing; neither effort alone nor acquisition unaccompanied by the required intent is rewarded_ Furthermore, success as a finder is measured solely in terms of obtaining possession of specific property; possession of specific property can seldom be shared, and mere contribution by one party to another’s successful efforts to obtain possession earns no compensation. Would-be finders are encouraged by these rules to act secretly, and to hide their recoveries, in order to avoid claims of prior owners or other would-be finders that could entirely deprive them of the property. Hener v. United States, 525 F.Supp. 350, 356 (S.D.N.Y.1981). In sharp contrast to “the harsh, primitive, and inflexible nature of the law of finds” is the law of salvage. Admiralty favors the law of salvage over the law of finds because salvage law’s aims, assumptions, and rules are more consonant with the needs of marine activity and because salvage law encourages less competitive and secretive forms of conduct than finds law. The primary concern of salvage law is the preservation of property on oceans and waterways. Salvage law specifies the circumstances under which a party may be said to have acquired, not title, but the right to take possession of property (e.g., vessels, equipment, and cargo) for the purpose of saving it from destruction, damage, or loss, and to retain it until proper compensation has been paid. Salvage Law assumes that the property being salved is owned by another, and thus that it has not been abandoned. Admiralty courts have adhered to the traditional and realistic premise that property previously owned but lost at sea has been taken involuntarily out of the owner’s possession and control by the forces of nature at work in oceans and waterways; in fact, property may not be “salvaged” under admiralty law unless it is in some form of peril.... Salvage law requires that to be a sal-vor a party must have the intention and the capacity to save the. property involved, but the party need not have the intention to acquire it. Furthermore, although the law of salvage, like the law of finds, requires a salvor to establish possession over property before obtaining the right to exclude others, “possession” means something less in salvage law than in finds law. In the salvage context, only the right to compensation for service, not the right to title, usually results; “possession” is therefore more readily found than under the law of finds_ Moreover, unlike the would-be finder, who is either a keeper or a loser, the salvor receives a payment, depending on the value of the service rendered, that may go beyond quantum meruit. Admiralty’s equitable power to make an award for salvage — recognized since ancient times in maritime civilizations — is a corollary to the assumption of nonaban-donment and has been applied irrespective of the owner’s express refusal to accept such service.... These salvage rules markedly diminish the incentive for salvors to act secretly, to hide their recoveries, or to ward off competition from other would-be sal-vors.... In short, although salvage law cannot alter human nature, its application enables courts to encourage open, lawful, and cooperative conduct, all in the cause of preserving property (and life). Id. at 357-58; see also 3A Benedict on Admiralty § 158, at 11-15 to 11-16. Today, finds law is applied to previously owned sunken property only when that property has been abandoned by its previous owners. Abandonment in this sense means much more than merely leaving the property, for it has long been the law that “[w]hen articles are lost at sea the title of the owner in them remains.” THE AKABA, 54 F. 197, 200 (4th Cir.1893); see also 3A Benedict on Admiralty § 158, at 11-1 to 11-2; Hener, 525 F.Supp. at 357; Wilkie, et al. v. Two Hundred and Five Boxes of Sugar, 29 F.Cas. 1247 (D.S.C.1796) (No. 17,662). Once an article has been lost at sea, “lapse of time and nonuser are not sufficient, in and of themselves, to constitute an abandonment.” Wiggins v. 1100 Tons, More or Less, of Italian Marble, 186 F.Supp. 452, 456 (E.D.Va.1960); see also Wilkie, 29 F.Cas. at 1247 (length of time does not divest an original owner of his derelict property at sea). In addition, there is no abandonment when one discovers sunken property and then, even after extensive efforts, is unable to locate its owner. Weber Marine, Inc. v. One Large Cast Steel Stockless Anchor and Four Shots of Anchor Chain, 478 F.Supp. 973, 975 (E.D.La.1979). While abandonment has been simply described as “the act of deserting property without hope of recovery or intention of returning to it,” Nunley v. M/V DAUNTLESS COLOCOTRONIS, 863 F.2d 1190, 1198 (5th Cir.1989), in the lost property at sea context, there is also a strong actus element required to prove the necessary intent. Zych v. The Unidentified, Wrecked and Abandoned Vessel, 755 F.Supp. 213, 214 (N.D.Ill.1990); THE NO. 105, 97 F.2d 425, 426 (5th Cir.1938). “Abandonment is said to be a voluntary act which must be proved by a clear and unmistakable affirmative act to indicate a purpose to repudiate ownership.” THE PORT HUNTER, 6 F.Supp. 1009, 1011 (D.Mass.1934). The proof that need be shown must be “strong..., such as the owner’s express declaration abandoning title.” T. Schoenbaum, Admiralty and Maritime Law § 15-7, at 512 (1987); Hener, 525 F.Supp. at 357; 3

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine or not there was any amicus participation before the court of appeals.

Was there any amicus participation before the court of appeals?

UNITED STATES of America, Plaintiff-Appellee, v. Robert Blake McCALLUM, Defendant-Appellant. No. 85-1362. United States Court of Appeals, Fifth Circuit. Dec. 23, 1985. Ronald L. Goranson, Dallas, Tex., for defendant-appellant. William Kim Wade, Asst. U.S. Atty., James A. Rolfe, Christopher Lee Milner, U.S. Attys., Lynn Hastings, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee. Before POLITZ, HIGGINBOTHAM, and JONES, Circuit Judges. POLITZ, Circuit Judge: Convicted of 27 counts of knowingly and willfully making' false statements in violation of 18 U.S.C. § 1001, Robert Blake McCallum appeals, challenging evidentiary rulings and the jury charge. Finding no error, we affirm. FACTS McCallum was a bail bondsman in Dallas, Texas. On May 4, 1982, he was empowered by Allied Fidelity Insurance Company to post bonds on its behalf and was given 462 powers-of-attorney. Two days later, Allied’s vice-president who had contracted with McCallum, in writing revoked that authority. On May 6, 1982, Allied’s regional manager for Texas personally visited McCallum, advised that the agency agreement had been revoked, and demanded the return of all powers-of-attorney. McCal-lum demurred. The regional manager personally advised the Dallas County Sheriff’s Office that McCallum was not authorized to act on behalf of Allied. On May 19, Allied’s counsel wrote McCallum, demanding a return of all powers-of-attorney. Notice of the agency revocation was not given to any federal agency or court until August 30, 1982. From June 1 through August 27, 1982, McCallum represented himself as Allied’s agent and signed and presented to the United States District Court for the Northern District of Texas bonds, with attached powers-of-attorney, to secure the appearance of persons charged with immigration law violations. These filings undergird the 27 counts for making, and causing to be made, false and fraudulent statements and representations concerning material facts to a government agency or department. McCallum’s primary defense was that he did not act willfully because he relied on the advice of his attorney, Randy Taylor. Taylor testified that on May 7, 1982, he reviewed the agreement between McCal-lum and Allied, a letter of underwriting authority from Allied to McCallum, and other documents, and then advised McCal-lum that he could continue writing bonds on Allied until Allied’s president revoked his authority in writing. McCallum asserted that he wrote the 27 challenged bonds based on this advice. The government’s case was based primarily on the testimony of three witnesses, Allied’s vice-president who testified that he hired and fired McCallum, exercising authority granted by Allied’s president; the regional manager who testified that he gave McCallum oral notice of termination and demanded the return of all powers-of-attorney; and Allied’s president who testified that in accordance with his authority he had delegated to the vice-president the power to grant and terminate bail bonding authority. The district judge identified three elements of the offense in his charge to the jury: First: That the Defendant knowingly made a false statement, or made or used a false document, in relation to a matter within the jurisdiction of a department or agency of the United States as charged; Second: That the false statement or false document related to a material matter; and Third: That the Defendant acted wil-fully and with knowledge of the falsity. Respecting McCallum’s main defense theory, the court instructed: With regard to the elements of wilful and knowing wrongdoing, the defense introduced evidence that the Defendant acted on the basis of advice from his attorney. If the Defendant, before taking any action, sought the advice of an attorney whom he considered competent, in good faith and for the purpose of securing legal advice on the lawfulness of his possible future conduct, and made a full and accurate report to his attorney of all of the material facts of which he has the means of knowledge, and acted strictly in accordance with the advice of his attorney given following his full report, then the Defendant would not be wilfully doing something the law forbids____ McCallum received 26 concurrent five-year sentences plus five years of probation and a $10,000 fine on the 27th count. ANALYSIS Evidentiary Issues 1. Civil Litigation. McCallum sought to introduce evidence that the Immigration and Naturalization Service had filed suit against Allied to collect on several forfeited bonds which McCallum had signed. The evidence was offered to impeach the testimony of Allied’s officers, impugning their motivation for testifying that McCallum was without authority to bind their company. The district court noted that this evidence might show possible prejudice by Allied’s officers, but that this possibility was “far outweighed under Rule 403 by confusing the jury on a matter that really is not rele-vant____ I don’t want to get off and have to instruct them on what is involved in civil litigation of this kind.” The admissibility of evidence for impeachment purposes is committed to the broad discretion of the trial judge. We perceive no abuse of that discretion. United States v. Landes, 704 F.2d 152 (5th Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 176, 78 L.Ed.2d 158 (1983). 2. Taylor’s Testimony. McCallum assigns three errors arising out of the testimony of Randy Taylor who testified about his interview, document review, and legal advice to McCallum on May 7, 1982, regarding the bond writing. After Taylor completed his testimony, McCallum’s trial counsel sought to return him to the stand to testify about continuing advice he gave McCallum after May 7, 1982. The trial judge refused to permit the recall of Taylor on the grounds that the evidence was both cumulative and irrelevant. We find no evidence presented by the government suggesting any change in McCallum’s state of mind between May 7, 1982 and August 27, 1982, the date of the last bond filing. The government’s case was straightforward. The defense was equally straightforward. Evidence of McCallum’s reliance on advice of counsel was presented by the defense. Wo find no abuse of discretion in the trial judge’s disallowance of the recall of Taylor. Our attention is invited to no relevant evidence that was excluded. McCallum contends that the trial judge erred in refusing to allow Taylor to testify about statements he had made to Taylor prior to and during the course of their May 7, 1982 conference. McCallum offered the statements for the truth of their content under Fed.R.Evid. 803(3). The court allowed the hearsay statements not as assertion of a fact but as fact of an assertion, specifically, “as a predicate for what action was then taken by Mr. Taylor.” The court so charged the jury. There was no error in this ruling. In addition McCallum maintains that the court violated his sixth amendment right to confrontation by excluding Taylor’s testimony about his unsuccessful attempt in September 1982 to deliver Allied’s portion of the bail bond premium to local counsel. Allied’s regional manager had testified that Allied had no record of any premiums having been remitted by McCallum. The sixth amendment is not implicated. The real issue is whether the court erred in excluding evidence to contradict the regional manager’s statement which defense counsel had not challenged on cross. United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). No payments had been made. The district court excluded testimony concerning the attorney’s action after the alleged criminal conduct had occurred as irrelevant and tending to confuse the jury because the attorney acted on behalf of McCallum after McCal-lum “got his tail in the wringer.” We find no abuse of discretion in that ruling and will not reverse it. United States v. Kim-mel, 777 F.2d 290 (5th Cir.1985). 3. Allied’s Bylaws. The bylaws of Allied that were in effect during all times pertinent to the indictment, May-August 1982, were admitted into evidence. McCallum sought to buttress his defense that he had authority to write bonds on Allied by offering copies of Allied’s bylaws in effect from 1972 through April 1982. The district court excluded the earlier bylaws as irrelevant to McCallum’s defense because neither he nor Taylor was aware of the contents of those bylaws during the pertinent period of May-August 1982. Information not known by McCallum, or even his attorney, could not affect his lack of willfulness defense. There was no error in this ruling. The same applies to the court’s refusal to permit McCallum to introduce the testimony of an attorney about the legal consequences of a 1981 amendment to the bylaws involving termination of agency relationship. That which was not known could not be relevant to McCallum’s state of mind. Jury Charge McCallum requested an instruction that if “the power of attorney was not properly and lawfully revoked by Allied ..., then you will return a verdict of not guilty on each count.” Considering the entirety of the charge we find no error in the refusal of this instruction. The court defined a false statement or document as one “made or used if it is untrue and is then known to be untrue,” and instructed the jury “[i]f you find that the accused did not knowingly and wilfully make a false statement as alleged, you should acquit.” If the powers were not in fact revoked there would have been no false representation. The essence, if not exact wording, of the requested charge was given. The court is not obliged to use the defendant’s requested language. The court is to fairly and adequately instruct the jury on its functions, the elements of the offense involved, and the defense theories supported by the evidence. United States v. Schmitt, 748 F.2d 249 (5th Cir.1984); United States v. Fowler, 735 F.2d 823 (5th Cir.1984); see also United States v. Chavis, 772 F.2d 100 (5th Cir.1985). The court a quo did so. The claim is without merit. McCallum finally argues that the district court erred by submitting to the jury offenses not contained in the indictment. McCallum was indicted for making false statements. The jury charge as given tracked the language of 18 U.S.C. § 1001, permitting a conviction for the making of false statements or the use of false documents. The charge as given to the jury provides no grounds for reversal. Citing United States v. Beacon Brass, 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61 (1952), we have held that under 18 U.S.C. § 1001 “there is no distinction between oral and written statements.” United States v. Massey, 550 F.2d 300, 305 (5th Cir.1977). Indeed, the proscribed statements may be “ ‘oral as well as written ... and unsworn as well as sworn.’ ” Id. (quoting United States v. Krause, 507 F.2d 113, 117 (5th Cir.1975)). When McCallum presented himself as an agent for Allied, authorized to bind Allied on bail bonds, and when he executed and submitted each bond to the clerk of court, he made a statement within the meaning and intendment of 18 U.S.C. § 1001. The government’s case and McCallum’s defense stood in stark and certain contrast. In convicting on all counts the jury obviously rejected McCallum’s defense. An abundance of evidence supports the verdict. The convictions are AFFIRMED.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).

This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?

COLONIAL TRUST COMPANY, Appellant, v. George GOGGIN, Trustee in Bankruptcy of the Estate of Intercontinental Airways, Inc., Appellee. No. 14557. United States Court of Appeals Ninth Circuit. Sept. 14, 1955. Overton, Lyman, Prince & Vermille, Dan Brennan, Los Angeles, Cal., for appellant. Craig, Weller & Laugharn, C. E. H. McDonnell, Thomas S. Tobin, Frank C. Weller, Los Angeles, Cal., for appellee. Before FEE and CHAMBERS, Circuit Judges, and TAYLOR, District Judge. JAMES ALGER FEE, Circuit Judge. Intercontinental Airways, Inc., filed a petition under Chapter XI, 11 U.S.C.A. § 701 et seq., and George Goggin, by consideration of the Bankruptcy Court, was appointed Trustee of the estate pending administration. In this proceeding, Colonial Trust Company filed a petition for reclamation of a C-46 aircraft then in possession of the Trustee as a part of the assets of this estate. A short résumé of the facts taken from the record is hereinafter set forth. Colonial Trust Company leased to American Airways, Inc., by written agreement, this C-46 aircraft on August 30, 1951. Colonial Trust Company had no dealings with Intercontinental Airways, Inc., direct, but the latter, at the request of Air America, Inc., U. S. Airlines and various individuals, took the aircraft into its possession and performed work thereon in Los Angeles County, State of California, for which it claims a lien. Intercontinental knew that Colonial Trust was the owner of the aircraft, but macle no attempt to secure written or oral consent of that company for the work or the lien and did not notify Colonial Trust of the contemplated work. When Intercontinental was adjudicated, Goggin as Trustee, took possession of this aircraft. Testimony was taken upon the petition of Colonial Trust for reclamation, and the Referee on the disputed facts held as a matter of law that the aircraft was subject to an “equitable lien” for the work performed by the bankrupt. Through a petition for review, the matter was brought before the United States District Court and there denied, and the order of the Referee was affirmed. From these orders of the District Court affirming the order of the Referee, appeal has been prosecuted by Colonial. The attempt of the Referee to do equity, which was affirmed by the District Court, works out about as well as such attempts usually do. Before a tribunal can administer absolute justice, it should be in possession of attributes of omniscience and omnipotence. These are not usually possessed by referees. The measure of the Referee’s foot is not the standard of adjudication as that of the Chancellor formerly was. The Referee sought to apply the equitable maxim that “He who seeks equity must do equity.” Actually, here the claim of Colonial was for a legal right, namely, the; possession of its property, title to which the Trustee admits is in Colonial. If it were not for the intervention of bankruptcy, Colonial could have tendered $250.00 to Intercontinental and, upon refusal of the tender, have brought action at law. By permission of the court, the receiver could have been a defendant in such an action. The mere fact that Colonial submitted its claim to the Referee in Bankruptcy did not indicate that there was any intention on its part that the adjudication of its title and right to possession should proceed upon such abstract theory of justice which might be entertained by an oriental cadi. The theory of the Referee appears in a sentence of the opinion: “It appears to the Referee that it would be unconscionable if the petitioner were to get back its plane without paying the repair and reasonable storage charges. If petitioner does not pay it will fail to do the equity required and will be unjustly enriched. The bankruptcy court is not bound to follow the California law above cited when determining, as a matter of equity, what is the just and proper thing to do.” This is an erroneous approach. The law of the state of California is paramount upon this question. There is no dispute of fact. Only one question of law is involved. Did the Trustee have an equitable lien on the C-46 Curtis Wright aircraft? In the opinion of the Referee, it was concluded that there was no “legal lien” which could be enforced by the receiver in bankruptcy as against Colonial. It is familiar law that a mechanic’s lien for work and labor expended upon an article, even if possession be retained, is contrary to the concepts of the common law, with the exception of the customary liens such as that of the agister. In the State of California, there is no basis for a lien except as provided by the California Code of Civil Procedure. Certain sections deal directly with aircraft: §§ 1208.61 and 1208.62. These provisions expressly declare the lien is limited to $250.00 (unless actual notice is given to the legal owner) where the work or services were rendered or performed at the-request of any person other than the holder of the legal title. In another section of the California Civil Code a lien is provided for a person doing work on an article of personal property, but this is limited to $100.00 if actual notice be not given to the legal owner. Civ.Code, §§ 3051, 3051a. The question of whether there can be a lien by virtue of the existence of the Civil Aeronautics Act of June 23, 1938, ch. 601, 52 Stat. 977, 49 U.S.C.A. §§ 401-705, has also been argued by appellant. However, inasmuch as Colonial seems to have made apparent its willingness to pay at least $250.00, the Court does not find it necessary to pass upon this question otherwise than to say that, where an article of personal property of whatever character is in possession of one who has expended work and labor thereon at the request of a person lawfully in possession, the domestic law of the place of possession governs as to the extent and character of the lien. The Referee flies in the face of the opinion of Judge Yankwich, which he cites. What is there said is applicable here: “In the case before us, the Referee was induced to disregard binding California law entirely. His memorandum opinion fully demonstrates this. * * * — he proceeds to determine that the lease-contract violates Section 2980 of the Civil Code of California without referring to any cases interpreting the section or defining execution and ignoring * * * even those which were cited to him in the briefs. He bases his decision on his inferences from facts. As to the law, he contents himself with a reference to the rather nebulous ‘equity powers of the bankruptcy court’. * * * Cases depending on statutory interpretation cannot be determined by general references to bankruptcy powers.” In re Quartz Crystal Products Co., D.C., 71 F.Supp. 949, 950. These remarks, which the Referee gave a specious reason for ignoring, are applicable in the case at bar. The Referee attempted to apply the equitable doctrine of “clean hands.” But a person has a right to reclaim his own property from one who illegally has possession of it or withholds possession of it even though sensitive souls may conceive his conduct inequitable. There is no legal or equitable principle either which says that a person who has expended labor and materials upon property which he knows belongs to another without the consent of the owner is entitled to withhold the property, charge rent for storing it or be paid for his trouble. When the Referee determined that appellant was the legal owner and that there was no “legal lien,” he settled the case in favor of Colonial. These principles are well established. “ ‘ “It has not, however, plenary jurisdiction in equity, but is confined, in the application of the rules and principles of equity, to the jurisdiction conferred upon it by the provisions of the Bankruptcy Act, reasonably interpreted. * * * The plain mandate of the law cannot be set aside because of considerations which may appeal to referee or judge as falling within general principles of equity jurisprudence.” ’ ” United States v. Killoren, 8 Cir., 119 F.2d 364, 366. “Rules of equity cannot be intruded in matters that are plain and fully covered by positive statute * * *. Neither a fiction nor a maxim may nullify a statute * * *. Nor will a court of equity ever lend its aid to accomplish by indirection what the law or its clearly defined policy forbids to be done directly * * Lass v. Eliassen, 94 Cal.App. 175, 179, 270 P. 745, 747. The findings of fact of the Referee are approved. The judgment and order of the District Court are reversed and the cause remanded with directions to turn the aircraft in question over to Colonial upon the payment by it of $250.-00 to the receiver. Costs in this Court and in the court below are awarded to Colonial. Reversed.

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".

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?

CUYAHOGA VALLEY RAILWAY CO. v. UNITED TRANSPORTATION UNION et al. No. 84-1634. Decided November 4, 1985 Together with No. 86-170, Brock, Secretary of Labor v. United Transportation Union et al., also on petition for certiorari to the same court. Per Curiam. The Secretary of Labor is authorized to inspect work sites to uncover noncompliance with the Occupational Safety and Health Act. 29 U. S. C. § 657(a). If, as a result of such an inspection, the Secretary discovers a violation of the Act, he is authorized to issue a citation to the employer fixing a reasonable time for the abatement of the violation, § 658(a), and assessing a penalty for the violation. § 666. The employer then has 15 days in which to contest the citation. § 659(a). Similarly, employees have 15 days in which to challenge as unreasonable “the period of time fixed in the citation for the abatement of the violation.” § 659(c). See generally Whirlpool Corp. v. Marshall, 445 U. S. 1, 9, n. 11 (1980). The statute and rules of the Occupational Safety and Health Review Commission also permit affected employees to participate as parties in any hearing in which the employer contests the citation. 29 U. S. C. § 659(c); 29 CFR § 2200.20(a) (1985). If an employer contests the citation, and the Secretary intends to seek its enforcement, the Secretary must file a complaint with the Commission within 20 days, and the employer must file an answer within 15 days. 29 CFR § 2200.33 (1985). Once these pleadings are filed, a hearing to determine the validity of the citation will be held before an administrative law judge (ALJ), with discretionary review by the Commission. 29 U. S. C. §§ 659(c), 661(j). In the present cases, the Secretary cited Cuyahoga Valley Railway Company for a violation of the Act. Cuyahoga contested the citation, the Secretary filed a complaint with the Commission, and Cuyahoga filed an answer. Respondent United Transportation Union, which represents Cuyahoga employees, properly moved to intervene in the proceedings. At the hearing, however, the Secretary moved to vacate the citation on the ground that the Federal Railway Administration, not the Secretary, had jurisdiction over the relevant safety conditions. Despite the Union’s objection, the ALJ granted the Secretary’s motion and vacated the citation. Thereafter, the Commission directed review of the ALJ’s order. The Secretary promptly objected to this action, asserting that part of the citation involved matters beyond the reach of the Act and that additional portions of the citation did not warrant litigation because of the state of the evidence. He also stated that the record before the Commission was inadequate to resolve the issue posed. Some six years later, the Commission rejected this submission and remanded the case to the ALJ for consideration of the Union’s objections. The Court of Appeals for the Sixth Circuit affirmed the Commission’s holding that it could review the Secretary’s decision to withdraw a citation. Donovan v. United Transportation Union, 748 F. 2d 340 (1984). The court recognized that the Secretary “has the sole authority to determine whether to prosecute” a violation of the Act. Id., at 343. Here, however, the court found that the Secretary “had already made the decision to prosecute by filing a complaint and that complaint had been answered at the time the Secretary attempted to withdraw the citation.” Ibid. Because the “adversarial process was well-advanced at the time the Secretary attempted to withdraw the citation,” the court reasoned that the Commission, “as the adjudicative body, had control of the case and the authority to review the Secretary’s withdrawal of the citation.” Ibid. Contrary to the Sixth Circuit’s decision, eight other Courts of Appeals have held that the Secretary has unreviewable discretion to withdraw a citation charging an employer with violating the Occupational Health and Safety Act. Donovan v. Allied Industrial Workers (Midland), 760 F. 2d 783, 785 (CA7 1985); Donovan v. Local 962, International Chemical Workers Union (Englehard), 748 F. 2d 1470, 1473 (CA11, 1984); Donovan v. International Union, Allied Industrial Workers (Whirlpool), 722 F. 2d 1415, 1422 (CA8 1983); Donovan v. United Steelworkers of America (Monsanto), 722 F. 2d 1158, 1160 (CA4 1983); Donovan v. Oil, Chemical and Atomic Workers International (American Petrofina), 718 F. 2d 1341, 1352-1353 (CA5 1983), cert. denied, 466 U. S. 971 (1984); Donovan v. Occupational Safety and Health Review Comm’n (Mobil Oil), 713 F. 2d 918, 926-927 (CA2 1983); Oil, Chemical and Atomic Workers International v. Occupational Safety and Health Comm’n (American Cynamid), 217 U. S. App. D. C. 137, 144-145, 671 F. 2d 643, 650-651, cert. denied, 459 U. S. 905 (1982); Marshall v. Sun Petroleum Products Co., 622 F. 2d 1176, 1187 (CA3), cert. denied, 449 U. S. 1061 (1980). We agree with the decisions of these courts. It is apparent that the Court of Appeals’ decision is inconsistent with the detailed statutory scheme which contemplates that the rights created by the Act are to be protected by the Secretary. See Atlas Roofing Co. v. Occupational Safety and Health Comm’n, 430 U. S. 442, 444-447 (1977); Mobil Oil, supra, at 927; Sun Petroleum Products, supra, at 1187. It is also clear that enforcement of the Act is the sole responsibility of the Secretary. Oil, Chemical and Atomic Workers International v. Occupational Safety and Health Comm’n, supra, at 143, 671 F. 2d, at 649. It is the Secretary, not the Commission, who sets the substantive standards for the workplace, and only the Secretary has the authority to determine if a citation should be issued to an employer for unsafe working conditions, 29 U. S. C. §658. A necessary adjunct of that power is the authority to withdraw a citation and enter into settlement discussions with the employer. Whirlpool, supra, at 1420; Mobil Oil, supra, at 927. The Commission’s function is to act as a neutral arbiter and determine whether the Secretary’s citations should be enforced over employee or union objections. Its authority plainly does not extend to overturning the Secretary’s decision not to issue or to withdraw a citation. The Sixth Circuit’s conclusion that the Commission can review the Secretary’s decision to withdraw a citation would discourage the Secretary from seeking voluntary settlements with employers in violation of the Act, thus unduly hampering the enforcement of the Act. Whirlpool, supra, at 1420; Mobil Oil, supra, at 927. Such a procedure would also allow the Commission to make both prosecutorial decisions and to serve as the adjudicator of the dispute, a commingling of roles that Congress did not intend. Whirlpool, supra, at 1419; Mobil Oil, supra, at 930-931; Sun Petroleum Products, supra, at 1187. Indeed, the Commission itself was created to avoid giving the Secretary both prosecutorial and adjudicatory powers. See generally Senate Committee on Labor and Public Welfare, Subcommittee on Labor, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 (S. 2193, Pub. L. 91-596) (Comm. Print 1971). Accord, Whirlpool, supra, at 1419; Mobil Oil, supra, at 930-931, and n. 21. The other Courts of Appeals to address this problem have recognized the distinct roles of the Secretary and the Commission and accordingly have acknowledged that the Secretary’s decision to withdraw a citation against an employer under the Act is not reviewable by the Commission. Based on these considerations, the petitions for certiorari are granted, and the judgment of the Court of Appeals is Reversed. Justice Brennan and Justice Blackmun dissent from summary disposition. They would grant certiorari and set the cases for oral argument. Justice Marshall dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Maggio v. Fulford, 462 U. S. 111, 120-121 (1983) (Marshall, J., dissenting); Wyrick v. Fields, 459 U. S. 42, 51-52 (1982) (Marshall, J., dissenting). Vacating the citation thus did not rest solely on jurisdictional grounds. Nor did the Court of Appeals’ decision sustaining the Commission’s order focus on jurisdiction. Its holding would permit review by the Commission of the Secretary’s withdrawal of any citation, whatever the reason, provided the adversarial process was sufficiently advanced to vest control in the Commission. For these reasons and because the issue relates to the statutory division of authority between the Secretary and the Commission, rather than the question of judicial review of administrative action, the cases do not pose the question whether an agency’s decision, resting on jurisdictional concerns, not to take enforcement action is presumptively immune from judicial review under the Administrative Procedure Act, 5 U. S. C. § 701(a)(2). See Heckler v. Chaney, 470 U. S. 821, 833, n. 4 (1985). The Court of Appeals also relied to some extent on the position of the Commission as to the scope of its powers. The Commission, however, has since revised its view and now declines to review the Secretary’s dismissal of a citation. Pan American World Airways, Inc., 1984 OSHD ¶26,920; American Bakeries Co., 1984 OSHD ¶26,951; Copperweld Steel Co., 1984 OSHD ¶ 26,956.

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.

What is the issue of the decision?

Jewel C. RICH et al., Plaintiffs-Appellants, v. MARTIN MARIETTA CORPORATION, a Maryland Corporation, Defendant-Appellee, Equal Employment Opportunity Commission, Amicus Curiae. No. 74-1541. United States Court of Appeals, Tenth Circuit. Argued April 30, 1975. Decided Aug. 1, 1975. Rehearing Denied Oct. 14, 1975. As Amended Nov. 20, 1975. George M. Allen, Sheldon, Bayer, McLean & Glasman, Denver, Colo. (Lawrence A. Wright, Jr., Snead, Wright & Babbs, Denver, Colo., on the brief), for plaintiff s-appellants. Richard L. Schrepferman, Holme Roberts & Owen, Denver, Colo., for defendant-appellee. Charles T. Reischel, Washington, D. C. (William A. Carey, Joseph T. Eddins, Jr., Beatrice Rosenberg, Margaret C. Poles, Washington, D. C., on the brief), for amicus curiae. Before SETH, McWILLIAMS and DOYLE, Circuit Judges. WILLIAM E. DOYLE, Circuit Judge. The above named seven plaintiffs originally brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and pursuant also to 42 U.S.C. § 1981 on behalf of themselves and on behalf of the entire affected class. The trial court, after hearing all of the evidence, dismissed the cause for failure, as the court viewed it, of plaintiffs to prove a prima facie case. Martin Marietta, the defendant-appellee, is a national corporation which operates primarily as a manufacturer on behalf of the United States Government in the aerospace industry. The plaintiffs were employed at defendant’s Waterton, Colorado facility during the following periods: Jewel Rich, from 1957 until she voluntarily terminated in March 1970. She was an engineer. Thomas Franklin, from 1959 until the present, originally as an Accountant B on an hourly basis. At the time he filed the charges leading to this complaint he was an Associate Analyst, and subsequent to that he was promoted to a higher grade. Lawrence Collier and John Craig, from 1961 until the present, first as janitors and later as Millwright B’s, but just pri- or to trial they were promoted to Millwright A. Jose Tafoya, hired in 1957 as an electrical mechanic. As of the time of the filing of charges he was a Developer, but prior to trial he was promoted to a salaried position, Associate Analyst. Later he was demoted to Developer due to layoffs. John Langley, hired in 1958 as an E & E Fabricator; promoted to electrical mechanic and then to Developer. In 1972 he was promoted to a salaried position, Manufacturing Engineer. He was laid off, however, prior to trial. Bobby Chappell was hired in 1957 as a janitor. From 1960 to 1971, except for a five-month period, he was an Electrician B. In 1971 he was promoted to Electrician A and continued in that position until the time of trial. With the exception of Jose Tafoya, all of the plaintiffs are black. With the exception of Jewel Rich, all are male. All plaintiffs initially filed charges with the EEOC alleging discrimination in promotions. Additionally, Rich filed a charge of discriminatory firing; Tafoya also claimed harassment. The plaintiffs, with the exception of Chappell, initially filed charges with the Colorado Civil Rights Commission. They thereafter filed their EEOC charges on the following dates: Rich — October 31, 1969; Franklin — August 27, 1969; Tafoya — December 3, 1969; Langley — October 27, 1969; Collier and Craig — August 23, 1969; Chappell — November 4, 1969. The class in the original complaint included all females, Blacks and HispanoAmericans employed at the time or who might in the future be employed by Martin, but in the amended complaint the class was limited to all females, Blacks and Hispano-Americans who are presently employed by Martin. The district court (not the judge who tried the case) defined the classes within the narrowest possible limits. It carved out four subgroups as follows: Female or Black engineers; Black Class B Millwrights; Black accountants; and Hispano electrical employees. As a result of this restricted approach, the class action went away. The total membership in the four sub-groups was limited to but 40. Notices were sent to these 40, nevertheless, allowing them to opt out. Twenty-two persons requested to be excluded. Plaintiffs then conceded that the class as defined was not sufficient to satisfy the numerosity requirement and, therefore, the class action aspect was stricken or dismissed. Plaintiffs had also originally sought to bring the action as a Rule 23(b)(2) class action, but the trial court held on November 9, 1972 that it could not be prosecuted as a (b)(2) class action since damages (back pay) were sought for the class. In the amended complaint filed November 20, 1972, plaintiffs sought to maintain the action as a Rule 23(b)(3) class action, but since the class was not sufficiently numerous the court, on December 7, 1972, declassified the action for failure to meet the requirements of Rule 23. Plaintiffs had sought to obtain information applicable to the entire plant including the company’s hiring practices throughout, the number of promotions in each department, broken down into categories by race and sex, together with detailed information about the departments in which the individual plaintiffs worked. Following the court’s definition of the four sub-groups which have been mentioned, defendant-appellee objected to the scope of the interrogatories as no longer being relevant and also as being burdensome and expensive. This objection was sustained without stating a reason. The cause proceeded to trial on December 10, 1973 on the individual claims of the plaintiffs. There was some evidence at the trial concerning the defendant’s plant-wide activities, but this was largely offered by defendant. For the most part, the testimony at the trial pertained to the individual qualifications and work experience of the several plaintiffs. The Martin plant was first opened in Denver in 1957. It does not appear nor is it contended that Martin had an express policy of segregation of its employees by either race or sex. The total employment during the years 1966 to 1972 ranged between 5,300 and 7,300 employees. About one-half of its employees are professionals; 10% are classified as officials and managers. These two categories are the salaried employees. The black, Spanish-American and female employees are for the most part concentrated in the lower categories. Martin is divided into functional departments such as administration, engineering, manufacturing and finance. There are three main groups, the salaried employees, the hourly in-unit employees who are subject to a collective bargaining agreement, and hourly out-of-unit employees. Salaried employees are promoted strictly on the basis of merit, as are hourly employees promoted to a salary level. The system of promotion applicable to the hourly in-unit employees calls for the promotion being offered first to the most senior qualified employee within the job family group and the other most senior qualified employee within the seniority unit. Finally, the job is offered to an outsider. For out-of-unit employees, excluding key punch, the company policy was to promote qualified employees, taking into account seniority. In the key punch area the most senior employee in the next lower classification was promoted. There is a system of periodic evaluation by supervisors. These evaluations are discussed with the employees. In some of the departments, including engineering, there is a device called a “totem pole” for determining promotions, demotions and layoffs. Each employee who is salaried is ranked in order of merit in his particular unit or section. In the engineering department the unit head meets with the group engineers to discuss and rate the engineers within the salary unit. The defendant offered evidence (Exhibit K) that from 1966 to 1972, a greater percentage of minority employees received merit salary increases and promotions than did non-minority employees. It is noteworthy, however, that minorities also experienced more demotions and layoffs proportionally than did non-minorities. See Chart I-A (Appendix B). The statistics on behalf of the defendant-appellee are not entirely responsive to plaintiffs’ evidence in that the categories of minorities are different. The company was allowed to include Orientals and American Indians as minorities and to exclude white women. Charts I-A and B (Appendix B) show that the exclusion of non-black and non-Spanish-American employees from the category may produce a substantial change in the statistics. Martin’s statistics sought to show with respect to promotions from hourly rating to salary that black and Spanish-American employees received more such promotions in relation to their population in the plant than did non-minorities. This may, however, be incomplete. As shown by Chart II, the blacks and Chícanos received substantially less promotions in relation to their population within the hourly work force. Generally, the statistics presented in this record show blacks and Spanish-Americans to be concentrated in the lower categories, where they tend not to be promoted from the hourly ranks to the salary ranks; that the total percentage of blacks and Spanish-Americans employed by defendant remains pretty much the same between 1966 and 1972. THE INDIVIDUAL PLAINTIFFS’ CASES It is unnecessary to burden the body of this opinion with details of the testimony of the several plaintiffs since the support for allegations that they were the victims of discrimination is largely circumstantial evidence, and the somewhat lengthy facts can be better presented in an appendix to this opinion. See Appendix A. These people had some things in common, that is, they were old employees, all having been hired in the late 1950’s. Secondly, none of them was given either recognition or promotions. Mrs. Rich was a professional salaried employee and was thus subject to the vagaries of the so-called totem pole. Involved in this were various staff meetings between the unit chief and the group engineers who rated the subordinates. Criteria were broad, general and subjective; such things as output, dependability and reliability. The ratings given were reviewed by the section chief who ordinarily ratified them. As to employees Franklin, Tafoya, Langley, Collier, Craig and Chappell, the ratings were given by superiors after consultations. None of the persons in supervisory positions over the plaintiffs were minority members. Supposedly there were inservice training programs which were designed to foster and encourage promotions, but as to the positions in which the plaintiffs were involved, there was little showing of availability of training which would lead to recognition and promotion. There was an organized inservice program for millwrights, but this did not commence until 1969 (which was when the complaints were filed). The somewhat detailed evidence in the appendix shows that for these minorities at least the promotion effort was a lengthy and laborious one which ordinarily ended in only temporary promotion followed by cutbacks, reductions in grade and layoffs. Seemingly little credit was given for experience and lengthy service. The evidence was not so devoid of merit as the trial court found. Had the court approached the problems on the basis that availability of positions for promotion was not limited to a specific date and a specific position, and if it had questioned the legality of the promotion procedures, the result could have been different. THE FINDINGS The trial court made findings which evaluated the plight of each plaintiff individually: As to plaintiff Rich, the court found that her promotions were in accordance with her qualifications and abilities, and that she was not discriminated against either in the failure to promote her or in laying her off. As to Franklin, the court found that he also was promoted according to his ability, job knowledge, experience and future advancement potential; that he was not discriminated against. As to Tafoya, the court said that he failed to meet the Supreme Court’s criteria in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and that the company had based promotions on the bona fide system unrelated to national origin. As to Langley, the court found that it was not until 1972 that he had the requisite qualifications, and at that time he was promoted. The court said that the company’s policies for promotions to salaried positions were non-discriminatory and based on ability. As to Collier and Craig, the court found that they failed to prove that they were qualified for the' Millwright A position. The court further said that it was not significant that there were no Millwright A’s before 1971 who were also black, and this was not discriminatory. As to Chappell, the court said that he failed to prove that he was qualified for promotion to Electrician A from Electrician B; that there was no discrimination in this decision. The court made general findings as well that: The totem pole system was not discriminatory in practice. Although the court noted that it had aspects of subjectivity, it ruled that it furnished a reasonable measure of successful job performance. The fact that all white male supervisors make the evaluations and establish the ratings does not constitute discrimination; that subjective evaluation of black employees by white supervisors is not per se discriminatory. The failure to use a post and bid system of promotion does not establish discrimination; that such a system could be disadvantageous to minority employees. The aerospace industry does not use this system. The system used for determining promotions for plaintiffs and all other employees is based on a valid and reasonable measure of job performance. It does not have an exclusionary effect on blacks, Spanish-Americans or women. The Martin Company actively assists minorities, has an affirmative action program for them and is actively involved in community educational programs for minorities. That substantial overall increases in minority employment occurred between 1966 and 1973. The court further found that the company hired minorities at a rate in excess of the minority population. The contentions: Plaintiffs, with the support of the EEOC, seek reversal alleging the following errors: First, the pretrial court’s action limiting the class to those persons in the same ethnic group and job classification as the named plaintiffs. A subsidiary question is whether class-wide back pay relief is recoverable in addition to injunctive and declaratory relief. The court denied that it would be (under Rule 23(b)(2)). Second, the pretrial court’s denial of plant-wide discovery, a ruling which followed from the narrow limits of the subclasses. Even with these narrow classes and individual claims, proof of pervasive discrimination would have been relevant in proof of the individual claims. Third, defendant’s promotion policies were discriminatory contrary to the trial court’s finding. The trial court erroneously ruled that plaintiffs failed to establish a prima facie case of discrimination in promotions. Fourth, That it was error for the trial court to find that each plaintiff failed to satisfy the criteria announced in McDonnell-Douglas v. Green, supra, with respect to the elements of a prima facie case; appellants contend that the standards of this decision, insofar as applicable, were satisfied. Fifth, that the trial court erred in striking Mrs. Rich’s claim for damages for psychological harm pursuant to 42 U.S.C. § 1981. Sixth, that the court erred in ruling that Rich and Tafoya did not file timely charges under 42 U.S.C. § 2000e et seq. and in failing to consider the applicability of 42 U.S.C. § 1981, which does not have the strict time requirements which Title VII has. I. THE CLASS ACTION QUESTION First and most important is whether the court erred in limiting and restricting the classes by rejecting plaintiffs’ attempt to represent all females, blacks and Spanish-Americans and in limiting the plaintiffs to representation of four subclasses which reflected the occupations of the named plaintiffs, namely: black or female engineers; black Class B Millwrights; black accountants; and black or Spanish-American electronic developers. Notice was sent to the members of these classes as limited. The notice informed them that they could opt out. About half of the members chose to do so. The court then declassified the action giving as a reason failure to meet the numerosity requirement. As it developed the notices could have been dispensed with because at that point it was clear that the numerosity requirement could not be satisfied. The court restricted plaintiffs in another way: Plaintiffs in their original complaint alleged a Rule 23(b)(2) class action, but at the November 9, 1972 hearing the trial court ruled that the action could not be brought as a (b)(2) action because plaintiffs sought money damages on behalf of the class, so plaintiffs amended their complaint to allege a Rule 23(b)(3) class action. The court allowed the amendment, but held this did not alter the proposed classes theretofore established and did not result in making the action a class action. The Rule 23(b)(2) or (b)(3) issue is not primary. Our main concern is with the action limiting the class to those employees who were directly competing with the plaintiffs within their departments. In effect, the class was reduced to those individuals only who were of the same race or ethnic origin and who performed the same job. We must disagree with the action taken as being contrary to the decisions of the Supreme Court and the other federal courts in this type of ease. Class actions are generally appropriate in Title VII employment discrimination cases. The reason for this is that although these suits are self-help, so to speak, actions, they also have a broad public interest in that they seek to enforce fundamental constitutional principles as well as to advance the rights of the individual plaintiffs who bring the action. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971); Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968). See also, Barela v. United Nuclear Corp., 462 F.2d 149 (10th Cir. 1972). Also, the class action avoids a multiplicity of suits. The courts have made clear that in the design of these classes not every member of the class need be in an identical situation as the named plaintiffs. Indeed, the courts have consistently'ruled that even though it appears that the named plaintiffs have not suffered discrimination, this fact does not prevent them from representing the class. Roberts v. Union Co., 487 F.2d 387 (6th Cir. 1973); Smith v. Delta Air Lines, Inc., 486 F.2d 512 (5th Cir. 1973); Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973); Moss v. Lane Co., 471 F.2d 853 (4th Cir. 1973); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir.), cert. denied, 409 U.S. 982, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970). See also, Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3d Cir. 1975), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975), which recognizes that plaintiffs’ voluntary departure from defendant’s employ did not operate to prevent them from representing a class of past and present employees. In Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969), the plaintiff had alleged discharge because of race. He sought to represent all black employees of defendant. However, the trial court restricted the class to persons who had been discharged because of race. The court of appeals reversed saying that plaintiff had made an across-the-board attack on defendant’s hiring, firing and promotion policies as they applied to black employees and, therefore, plaintiff was entitled to represent all of them. See, also, Evans v. Local 2127, Internat’l Bd. of Electrical Wkrs., 313 F.Supp. 1354 (N.D.Ga.1969). In Smith v. Delta Air Lines, Inc., 486 F.2d 512 (5th Cir. 1973), the plaintiff’s claim was somewhat narrow in that it alleged that' the company’s personal grooming regulations were discriminatory in effect. The trial court denied recovery on this ground, holding that these regulations were not discriminatory. It dismissed the class action. However, on appeal the Fifth Circuit remanded for determination of whether other discriminatory practices could be shown and whether a class action might still be appropriate. In the case at bar as in some of the other cases cited, the plaintiffs made a broad scale attack on the defendant’s employment and promotion policies. Their complaint extended beyond challenging the promotional practices in their own departments and alleged that ft the promotional policies throughout the l plant had a discriminatory effect. To 'the extent, therefore, that employees throughout the plant of the Martin Company were discriminated against as a result of the company’s policies, the plaintiffs made claims which embraced these other people regardless of whether they were engaged in work identical to that of the plaintiffs. If the classes were always limited as they were in this case, it would effectively make Rule 23 a nullity. It is understandable that hard pressed trial courts would not consider this too unfavorable a result. But the test of validity or continued existence of the rule is not the difficulty or complexity of administration. So long as it is on the books it is to be given effect. It is also important to stress that in the case at bar the only ground assigned by the court for its action was the failure of the class to satisfy the numerosity element. Since the view which we take is that the plaintiffs’ proposed classification was perfectly valid, it follows that it was error for the court to reject it. On remand there should be no problem in satisfying the numerosity requirement of Rule 23(a). The trial court also ruled that there could not be a class action under Rule 23(b)(2) because damages were sought for the class. It is true that Rule 23(b)(2) provides that a class action is appropriate when: the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed.Rules Civ.Proc., Rule 23(b)(2). The Advisory Committee has noted that “the subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” See also, Barela v. United Nuclear Corp., 462 F.2d 149 (10th Cir. 1972). It is to be emphasized, however, that neither the rule nor any eases construing it hold that a request for class action relief in the form of back pay renders Rule 23(b)(2) inapplicable. True, the primary relief sought must be injunctive or declaratory, but it does not require that this be the only relief sought. The several courts of appeals have uniformly held that relief in the form of back pay may and should be granted in a Rule 23(b)(2) class action case. See, e. g., Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3d Cir. 1975), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974); Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973); Moody v. Albermarle Paper Co., 474 F.2d 134 (4th Cir. 1973), cert. granted, 419 U.S. 1068, 95 S.Ct. 654, 42 L.Ed.2d 664 (1974); Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969). In Robinson v. Lorillard, supra, the court said: This is a case in which final injunctive relief is appropriate and the defendants’ liability for back pay is rooted in grounds applicable to all members of the defined class. Under these circumstances the award of back pay, as one element of the equitable remedy, conflicts in no way with the limitations of Rule 23(b)(2). 444 F.2d at 802. On June 25, 1975, the Supreme Court recognized that in a Rule 23(b)(2) action, while injunction is an appropriate remedy under the express terms of the Rule, also back pay to the class is appropriate under Rule 23(b)(2). The Court’s decision was in Moody v. Albermarle Paper Co., which is cited above. The judgment of the Fourth Circuit reported at 474 F.2d at 134 was vacated and remanded. The Supreme Court said: It is true that backpay is not an automatic or mandatory remedy: like all other remedies under the Act, it is one which the courts “may” invoke. The scheme implicitly recognizes that there may be cases calling for one remedy but not another, and — owing to the structure of the federal judiciary'— these choices are of course left in the first instance to the district courts. The Supreme Court emphasized that the discretion to award back pay was not unlimited and that it must be exercised to accomplish the objects and purposes of Title VII, which objects are to achieve equality of employment opportunity and to deter discriminatory practices. The award of back pay in proper cases serves these objectives. Another Title VII purpose is to make persons whole for injuries suffered on account of unlawful employment discrimination. It was mentioned that the back pay provision of Title VII was modeled after that of the National Labor Relations Act which awards it as a matter of course. The Court then went on to say that lack of bad faith was not a reason for denying back pay since the economic harm was suffered whether or not the employer acted in bad faith. If nothing else, this decision displays a judicial attitude which is vastly different from that adopted by the pretrial as well as the trial court in the instant case. Also, it removes all doubts as to whether back pay can be awarded under Rule 23(b)(2) as well as Rule 23(b)(3). On remand, then, the class action aspect of the case should proceed under Rule 23(b)(2) for purposes of possible injunctive and declaratory relief, and in the event that a case is successfully established for back pay to the affected class, this aspect of the case should, for purposes of injunctive and declaratory relief, proceed under Rule 23(b)(2) and for purposes of back pay under either Rule 23(b)(2) or Rule 23(b)(3). The potential numbers in the class are not so large as to cause insurmountable management problems. There would be not to exceed 500 minority members and 1,000 female members of the class. These numbers are reasonably manageable so that appropriate relief can be awarded. II. DISCOVERY PROBLEMS Following the trial court’s order that the action be declassified, plaintiffs submitted their initial interrogatories which had sought information dealing with plant-wide job and promotional policies. Defendant (quite naturally) objected, the ground being that the proposed interrogatories were irrelevant to the action as redesigned, whereby undue burden would result from compelling answers. There were 69 of these, and they sought extensive information as to basic conditions and trends. A request was made to Martin for names of each of its departments and for the numbers of blacks, Hispanos and women in each. A request was also made for a breakdown of the promotions and layoffs in each of the departments separated into categories of blacks, Hispanos and women. The work records of all employees in these departments were also requested, and still other inquiries pertained to the numbers of blacks, Hispanos and women hired and rejected by the Martin Company. After a hearing, which was not transcribed, the court entered an order sustaining all of the defendant’s objections. Plaintiffs then proceeded to frame a second set of interrogatories. This set was limited to information about employees who worked in the immediate vicinity of the plaintiffs and whose names the plaintiffs could recall. Thus, access was denied to information which would have allowed plaintiffs to establish general overall trends and policies in the defendant’s hiring, promotion, demotion and layoff practices within individual departments on a plant-wide level. The defendant, on the other hand, had plant-wide information and was allowed to present statistics at trial to show that a higher percentage of minorities received promotions in the plant as a whole during the years 1966-72 than non-minorities. Due to the limitations on discovery, plaintiffs were also deprived of information to rebut these general statistics of defendant. For example, it was impossible to show that the large percentage of the minority promotions were at lower employment levels with high turnovers or that substantial numbers of these promotions involved Orientals. Plaintiffs maintain that the limitations which were imposed on them in conducting their discovery constituted prejudicial error. In our opinion the court should have allowed the facts to be explored, for there were no other means of ascertaining whether there was merit in the allegations of the plaintiffs. If the answers to interrogatories failed to establish discrimination, the doubts would be dispelled and the matter would be ended. To frustrate the search is a most unsatisfactory result in that it fosters suspicion. Also, it was grossly unjust to allow the defendant company to utilize plant-wide statistics involving large classes of people plus statistics of other employers in this five-county area, while at the same time restricting the plaintiffs to the narrowest possible scope. It was also inequitable to allow the company to show statistics for a period far beyond the alleged violations while the plaintiffs, because of inability to discover, could not gain information or statistics to show that Martin changed its promotion policies immediately following the EEOC complaint being filed. It is plain that the scope of discovery through interrogatories and requests for production of documents is limited only by relevance and burdensomeness, and in an EEOC case the discovery scope is extensive. This is a factor which the court should balance on the benefit side as against the burden to the defendant in answering the interrogatories. See 8 C. Wright & A. Miller, Federal Practice and Procedure § 2174, at 548 (1970). If the information sought promises to be particularly cogent to the case, the defendant must be required to shoulder the burden. There is a remedy, of course, if the effort fizzles. The costs can finally be assessed to the interrogating parties. Our court has in prior cases dealt with the issue of relevancy of plant-wide employment practices and employment practices within individual departments. Thus, in Joslin Dry Goods Co. v. EEOC, 483 F.2d 178 (10th Cir. 1973), the complaint was unlawful discharge. EEOC issued a subpoena requesting hiring and firing practices of all of defendant’s stores in the area. The district court refused to enforce the subpoena. Our court agreed that the request should have been limited to the store in which the plaintiff was employed; it also recognized the relevancy of store-wide inquiry, and in doing so reversed the district court’s ruling that the EEOC was barred from investigating hiring as well as firing practices. In a more recent case, EEOC v. University of New Mexico, 504 F.2d 1296 (10th Cir. 1974), the complainant alleged discriminatory failure to promote and retaliatory discharge. Again an EEOC subpoena issued demanding copies of personnel files of all persons terminated between 1970 and 1973, and personnel files for all faculty members employed by the defendant as of the date of complainant’s termination. The district court enforced the subpoena and the Tenth Circuit affirmed. In Circle K Corporation, Inc. v. EEOC, 501 F.2d 1052 (10th Cir. 1974), an applicant was told to return when she finished a cashier training program. She did so and was then told that she would be contacted. However, she never was contacted, and when she reapplied she was told that she did not qualify. The EEOC pursued a broad scope of discovery. It consisted of: a list of all applicants and present employees subjected to the polygraph examination, their racial-ethnic identity and whether they were accepted or rejected; documentation of the nature, standardization and validity of the polygraph test and a list of questions asked of each applicant; qualifications of the examiners who administered the tests; testimony under oath of all knowledgeable employees and officers; and all related matters. Id. at 1054. The district court turned away the demand for access to this information. Our court reversed, refusing to recognize the objections that the information lacked relevancy and was too burdensome. It cannot be said, therefore, that thé policy of this court has been to narrowly circumscribe discovery in EEOC cases. The fact that these cases had to do with discovery efforts by the EEOC itself rather than by individuals cannot serve as a point of departure. See Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th Cir. 1973). The Act’s purposes in each instance are the same. Whether, then, the action is by a plaintiff or by the government, the object is “the elimination of employment discrimination, whether practiced knowingly or unconsciously and in relation to employment or advancement criteria which, although neutral on its face, is in fact discriminatory in its application.” EEOC v. University of New Mexico, 504 F.2d at 1302. Information relevant in an EEOC inquiry is equally relevant in a private action. The plaintiffs’ requested information as to hiring, firing, promotion and demotion of blacks, Hispanos and women on a plant-wide basis and within individual departments was relevant in either an individual or class action. Particularly in light of the contention of the defendant and the findings of the court that the circumstantial evidence was ambiguous, it became the more necessary for the plant-wide statistics and facts to be obtained and presented, for they very likely would prove crucial to the establishing or failure to establish a prima facie case. In Woods v. North American Rockwell Corp., 480 F.2d 644 (10th Cir. 1973), the plaintiff contended that he was given an examination which was irrelevant in relationship to the job he was seeking. The court held that since the plaintiff made no showing that the test itself produced a discriminatory result, plaintiff had failed to establish a prima facie case. The court went on to hold that the plaintiff was required to demonstrate with statistics or otherwise the discriminatory effect of the promotion test. We think it is plain, therefore, that the plaintiffs had a right to the information and statistics from which they could have compiled trends and policies on the numbers of white persons receiving promotions during the relevant time periods in the departments and throughout the plant opposed to the number of blacks, Hispanos and women who received promotions. If it is true that the immediate evidence and circumstances pertaining to the plaintiffs are not sufficient to constitute a prima facie case, plant-wide statistics and department statistics are of the highest relevance. If the plaintiffs do establish a prima facie case and if the defendant is able to rebut it by showing a business necessity, such information or statistics would also be relevant to an attempt by the plaintiffs to show that the business necessity was pretextual. See McDonnell-Douglas Corp. v. Green, 411

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine or not there was any amicus participation before the court of appeals.

Was there any amicus participation before the court of appeals?

The HOBART MANUFACTURING COMPANY, Plaintiff-Appellant, v. The FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendant-Appellee. No. 16303. United States Court of Appeals Sixth Circuit. May 13, 1966. William D. Ginn, Cleveland, Ohio, for appellant, Robert A. Bergquist, Thompson, Hiñe & Flory, Cleveland, Ohio, on the brief. Walter A. Bates, Cleveland, Ohio, for appellee, Peter Reed, Arter, Hadden, Wykoff & Van Duzer, Cleveland, Ohio, on the brief. Before O’SULLIVAN, EDWARDS and CELEBREZZE, Circuit Judges. CELEBREZZE, Circuit Judge. Plaintiff-Appellant, The Hobart Manufacturing Company, appeals from a final judgment for Defendant-Appellee, The Fidelity & Deposit Company of Maryland, entered on a motion for a directed verdict at the close of the Plaintiff’s evidence. The parties will be hereinafter referred to as Plaintiff and Defendant. D. Omer Tobias, an employee of Plaintiff, swindled from the Plaintiff approximately $400,000., therefore this appeal necessitates a determination of the extent of coverage of Clauses 1 and 1(a) of Defendant’s depositor’s forgery bond. Plaintiff is one of the world’s largest manufacturers of food preparation equipment. In addition to its domestic sales, Plaintiff exported its products to many foreign countries. Tobias worked in the export department and maintained all the records relevant to the export accounts. He was authorized to determine company creditors, to calculate amounts due them, and to requisition checks in payment of those creditors. When Tobias determined the amount due to an export agent, or creditor, he would prepare a requisition form, sign his name, and send the form to the General Accounting Department. The General Accounting Department would prepare a two-part voucher check. The voucher check, together with the requisition form, was then sent to the Treasurer’s Department for signature, after signature, the voucher check was returned to the General Accounting Department. The General Accounting Department retained the carbon copies for internal purposes, and the original voucher check was returned to Tobias in the Export Department. Tobias would then transmit the check, with its two halves intact, to the named payee. The top half of the two-part voucher check was a negotiable check, containing the name of the Plaintiff as drawer, the First Troy National Bank and Trust Company, as drawee, the authorized signature of the drawer, S. T. Kunkel, the date, the amount, the words “Pay to the order of”, and the check number. The check portion was attached to the voucher portion by a perforated line. Just below the perforated line were the words “Please detach before depositing”. The voucher contained six columns. In the following order they were labeled: “Invoice No.”, “Date”, “Am’t. of Invoice”, “Deductions”, “Discount”, and “Net Amount”. In some instances rather than forwarding the check directly to the export agent, Plaintiff was instructed by the export agent to forward the check to a collecting agent. The check would then be made payable to the collecting agent, and Plaintiff would then charge the account of the export agent. The eighty-nine checks involved in this suit were requisitioned by Tobias in the manner just described. However, the ostensibly legitimate debts to the export agents were in fact fictitious. The purported collection agents were in fact real persons, or an existing bank. In requisitioning these checks, Tobias did not request that they be payable directly to the export agent, but rather to a collecting agent. Tobias requisitioned twenty-six checks totaling $39,328.00 to Maude Feld as the named payee. He requisitioned thirty-one checks, totaling $176,-202.44, to Thelma Harding as the named payee. Tobias represented to the Plaintiff that Peld and Harding were authorized to receive the funds on behalf of the designated export agent. The voucher part named the export agent whose account was charged by Plaintiff. Feld and Harding were in fact antique dealers from whom Tobias had purchased large quantities of antiques. Tobias would detach the voucher portion and send the checks to the named payees. By detaching the voucher, Tobias concealed from Peld and Harding the purpose for which the checks were drawn. Each of the checks payable to Peld and Harding were endorsed by them, deposited for collection, and paid by the drawee bank. The account of the Plaintiff was then charged by the bank. These checks were thus used to discharge Tobias’ personal obligations to Feld and Harding. Tobias also requisitioned thirty-two checks, totaling $145,362.54 to the Guaranty Trust Company of New York, as the named payee. The voucher part stated the name of the export agent or individual whom Tobias represented as being authorized to receive the funds on behalf of the designated creditor. It was intended by the Plaintiff that the Guaranty Trust Company would deposit the funds to the account of the export agent named in the voucher. Again, only Tobias knew that the ostensibly legitimate debts were in fact fictitious. Tobias would either physically alter the voucher by crossing out the name of the export agent and inserting his own name, or he would detach the voucher and instruct the bank to deposit the funds to his own account. Each check was endorsed by the Guaranty Trust Company, and sent to the Troy Bank which paid the check and charged Plaintiff’s account. Guaranty Trust Company, in turn credited the amount of the check to Tobias’ account, and Tobias later withdrew the money. By altering or detaching the vouchers, Tobias succeeded in concealing from the Guaranty Trust Company the intended purpose of the Plaintiff in issuing the cheeks. It is upon these facts that Plaintiff asserts its claim against the Defendant under the Defendant’s depositor’s forgery bond. The pertinent parts of this bond are as follows: “In consideration of an agreed premium, Fidelity and Deposit Company of Maryland, a corporation of the-State of Maryland, with its Home Office in the City of Baltimore, hereinafter referred to as Underwriter, hereby undertakes and agrees to idemnify [The Hobart Manufacturing Company] designated as Insured in Section 10 of this bond to the amount specified therein for losses sustained and discovered as hereinafter set forth through: “Insuring Clauses “1. FORGERY or ALTERATION of, on, or in any check, draft, promissory note, bill of exchange, or similar written promise, order or direction to pay a sum certain in money, made or drawn by, or drawn upon the Insured, or made or drawn by one acting as agent of the Insured, or purporting to have been made or drawn as hereinbefore set forth, including “(a) any check or draft made or drawn in the name of the Insured, payable to a fictitious payee and endorsed in the name of such fictitious payee whether or not such endorsement be a forgery within the law of the place controlling the construction thereof: * * *» Plaintiff advances two theories under either of which it would be entitled to recover from the Defendant under the depositor’s forgery bond. The Plaintiff first maintains that the unauthorized alteration of the voucher or the unauthorized detachment of the top half from the bottom half of the two-part voucher check before transmittal of the top half to the named payee constituted a “forgery or alteration” within the meaning of the Defendant’s forgery bond. Plaintiff also maintains that the payees named were “fictitious” payees, within the meaning of Defendant’s forgery bond. There is no question that Tobias defrauded his employer. However, we are not dealing here with a fidelity bond, but with a depositor’s forgery bond. The bond issued by Defendant requires a forgery or alteration "of, on, or in any check, draft, promissory note, bill of exchange or similar written promise, order or direction to pay a sum certain in money”. The instrument used by the Plaintiff was a two-part voucher check commonly used by many companies. The Plaintiff intended and instructed the payee to detach the voucher before depositing the check. The voucher served as a receipt, and also indicated the goods, services, or debts owed. This was the usual and intended purpose of the Plaintiff’s two-part voucher checks. However, in the eighty-nine checks here in evidence, the purported collection agent was named as the payee on the check portion, and the purported account to be credited was named on the voucher portion. Tobias’ scheme was perfected by naming as the payee a real person or an existing bank intended by Tobias to receive the check, endorse it, and deposit it for collection. This was done in each case by the named payee. There was no forged endorsement, and there was no need to forge or alter the check. Because of the alteration or detachment of the vouchers, neither the payees, the bank, nor the Plaintiff discovered the fraud. A check has been defined as an unconditional order in writing drawn on a bank, requiring the bank to pay on demand a sum certain in money to order or bearer. Former Ohio Revised Code Sections 1307.03 and 1305.02; State v. DeNicola, 163 Ohio St. 140, 126 N.E.2d 62 (1955). A check has also been referred to as a complete negotiable instrument. Royal Jewelers, Inc. v. Tanner, 95 Ohio App. 339, 108 N.E.2d 291 (1952). We think this common and accepted definition of a check is the definition intended in the insuring clauses here in issue. We do not construe forgery or alteration of a check to include forgery or alteration of a voucher. The Plaintiff intended only that the top half, or the check half, would be negotiated. The voucher was attached by a perforation with- the instruction to detach before depositing. It is the negotiable check which determines the rights and obligations of the parties to the instrument. We have considered Plaintiff’s contention that there is no issue of negotiability or of banking practices; that the only issue is what constitutes an alteration of the instrument within the meaning of Defendant’s bond. In effect, Plaintiff’s contention is that a different rule of construction than that generally accepted must be applied to language in a recovery bond. We disagree with this contention. We must give to the language contained in the bond the same meaning and effect that the language conveys in the general application of the rule of negotiability as to what constitutes a check. We cannot apply one rule of construction as to what constitutes a check in the channels of commerce and another rule of construction because the language is contained in a bond. The same fundamental principles of construction are involved in either case, and unless specific language to the contrary is contained in the bond instrument the same rule of construction that is applicable to the rules of negotiability must be applied. To hold that an alteration or unauthorized detachment of a voucher constitutes a forgery or altera.tion of a check would be to raise a serious question as to whether a check which initially had a perforated voucher attached thereto with instructions to detach before depositing would be accepted. The check travels as a “courier without luggage”. The essence of this clever scheme was fraudulently obtaining firm funds for an unauthorized purpose, not in falsifying .negotiable paper. We can only conclude that forging or altering a voucher is beyond the risk intended to be covered by Defendant’s bond, and consequently was not a forgery or alteration of a check. Plaintiff next contends that the checks here in issue were made payable to fictitious payees. These checks were drawn prior to the adoption of the Uniform Commercial Code in Ohio, In Ohio, prior to the adoption of the Commercial Code, an instrument made payable to the order of a fictitious or non-existent person, or a real person not intended to have an interest therein, and such fact was known to the person making it so payable, was deemed payable to bearer. Hartford Accident & Indemnity Co. v. Fifth-Third Union Trust Company, 111 F.2d 762 (C.A. 6, 1940); Former Ohio Revised Code Section 1301.11; 40 O.Jur. 2d, Negotiable Instruments, Section 49.' Under this rule, the drawee bank would not sustain a loss in handling checks so payable, since the drawer’s order would be complied with in making payment to the bearer, thus eliminating the possibility of forgery. A check drawn to a fictitious payee is not payable to bearer where the non-existence of the payee was not known to the drawer. 10 Am.Jur.2d, Banks, Section 640; Callaway v. Hamilton National Bank of Washington, 90 U.S.App. D.C. 228, 195 F.2d 556 (1951). Prior to the Uniform Commercial Code, a check was not payable to bearer where an employee without authority to draw negotiable paper had his employer sign a check payable to a fictitious employee, and forged the employee’s name. American Sash and Door Co. v. Commerce Trust Co., 332 Mo. 98, 56 S.W.2d 1034 (1932). The test then, is not whether the payee is a fictitious creditor, as urged by the Plaintiff, but whether the drawer of the cheek intended the payee to have an interest in the check. In this case, Tobias authorized the issuance of the checks, and S. T. Kunkel, authorized to do so, signed the checks. If Kunkel’s intent controls, the checks were not payable to a fictitious payee since Kunkel did not know the payees were in fact fictitious, for he intended the payees to have an interest in the checks. In Ohio, Tobias’ intent would control, both before and after the adoption of the Uniform Commercial Code. Jones v. People’s Bank Co., 95 Ohio St. 253, 116 N.E. 34 (1917) held the person authorized to request checks was the person making the checks payable to a fictitious payee. This was the minority rule. Beutel’s Brannan Negotiable Instruments Law, Section 9(3), p. 317. Under the Uniform Commerical Code, Section 3-405, Ohio Revised Code Section 1303.41, an “in-dorsement by any person in the name of a named payee is effective if * * * (c) an agent or employee of the maker or drawer has supplied him with the name of the payee intending the latter to have no such interest.” Tobias intended the named payees to receive possession of the checks. The named payees endorsed the checks, and obtained the proceeds. The proceeds were subsequently either deposited to Tobias’ account, or used to discharge Tobias’ personal obligations to the named payees. Under these circumstances, we cannot say the checks were payable to fictitious payees. The judgment is affirmed.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".

This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?

LOGAN CHARTER SERVICE, INC., in personam and the TUG CITY OF JOLIET, Her Engines, Tackle, Furniture, etc., in rem, Appellant, v. CARGILL, INC., The Continental Insurance Company, United Barge Co., Inc., Dairyland Power Co-operative and the United States of America, Appellees. No. 18088. United States Court of Appeals Eighth Circuit. Feb. 6, 1967. George B. Matthews, of Lemle & Kelleher, New Orleans, La., for appellant; Curtis L. Roy and Dorsey, Owen, Mar-quart, Windhorst & West, Minneapolis, Minn., were with him on the briefs. T. C. W. Ellis, of Faris, Ellis, Cutrone, Gilmore & Lautenschlaeger, New Orleans, La., for appellees Cargill, Inc., Continental Ins. Co., United Barge Co. and Dairy-land Power Cooperative; Richards, Montgomery, Cobb & Bassford, Minneapolis, Minn., were with him on the brief for those appellees. Martin Jacobs, Atty., Dept, of Justice, Washington, D. C., for appellee United States; John W. Douglas, Asst. Atty. Gen., David L. Rose and Miles W. Lord, U. S. Atty., Minneapolis, Minn., were on the brief. Before VOGEL, Chief Judge, and MATTHES and MEHAFFY, Circuit Judges. MEHAFFY, Circuit Judge. This appeal is from a decree of the United States District Court for the District of Minnesota, sitting in admiralty, growing out of a collision of the tow M/V CITY OF JOLIET with Lock and Dam No. 3 on the upper Mississippi River. The District Court found the crew of the CITY OF JOLIET at fault for the collision and awarded damages for the loss of the barge and its cargo and for damage to the dam. We affirm. A number of interests are involved. Dairyland Power Cooperative, a libelantappellee, owned the sunken barge DP-223. Libelant-appellee, United Barge Company, Inc., was the owner pro hac vice of the sunken barge DP-223. Libel-ant-appellee, Cargill, Inc., owned the barge’s cargo of rye. Respondent-appellant, Logan Charter Service, Inc., was the owner pro hac vice of the tug CITY OF JOLIET. Logan bareboat chartered the CITY OF JOLIET from the American Commercial Barge Lines and contracted with Cargo Carriers, Inc. to tow barges between specified points for a daily rate. The tow involved here was made up in St. Paul, Minnesota, and consisted of three tiers of two covered grain-carrying barges each, with barge DP-223 occupying the port side of the aft tier. The CITY OF JOLIET faced up to the stern of the tow. On a voyage down the Mississippi River from St. Paul, a tow must transit a number of locks. The lock and dam involved is located near Red Wing, Minnesota and is owned by the United States and operated by its Corps of Engineers. The lock is on the right descending bank of the river and has a six hundred foot long guidewall on the up-river side. Opposite the guidewall is a shorter wall — a “bull nose” — which extends a short distance upstream from the lock’s upper gate. Dam No. 3 is east of the lock. The current approaching the lock and dam flows into the right or west bank above the guidewall, and then moves to the left bank toward the dam, creating a strong “outdraft.” The crew of the CITY OF JOLIET consisted of Captain Radford, Pilot Houchins, Mate Rinehart, and .deckhands Evans and Sellars. The locktenders were Hartnagel and Flynn, civilian employees of the Corps of Engineers. The record contains the testimony of each of the above except Rinehart, who did not testify. The accident occurred when the CITY OF JOLIET lost control of her tow while attempting to maneuver into position to negotiate the lock, resulting in the tow colliding with the up-river side of the dam causing the barge DP-223 and its cargo to sink. The CITY OF JOLIET, with the assistance of another tug which arrived from downstream, rescued the other five barges. The following Findings of Fact of the District Court aptly describe the events occurring immediately before and resulting in the collision: “12. Prior to 12:00 o’clock midnight Captain Radford was the pilot on duty. He was relieved at midnight by Pilot Houchins. Prior to being relieved Captain Radford had experienced difficulty and had spent some time (30 to 45 minutes) in attempting to maneuver the tow into position to enter the lock chamber. About the time that Captain Radford was being relieved he told Pilot Houchins, ‘there is an awful outdraft here — we are having a little difficulty getting our tow in the chamber of the lock.’ After Pilot Houchins took over as pilot he attempted for a considerable time (30 to 60 minutes) to bring the tow into the guidewall. Both Captain Radford and Pilot Houchins were experienced river pilots. “13. The Joliet in approaching the lock engaged in a flanking operation. The head of the tow was pointed out in the river and the stern was placed next to the right descending bank. The tug continued to flank the stern starboard barge down on the upper guide-wall. Nylon lines were placed on the buttons on the guidewall and on cavils on the stern starboard barge. The pilot then went ahead on the port engine and backed up slow on the starboard engine. The steering rudders were thrown hard down to starboard and the backing rudders were thrown down hard to port. The two lines on the starboard stern barge were being held. This involved a kind of pivoting ■operation. The head of the tow moved slowly to starboard and toward the guidewall. There was increasing strain on the stern lines caused by the outdraft and the movement of the engines. In a customary maneuver when the bow reaches the guidewall the stern of the tow will be close or against the guidewall and the stern lines will be cast off and the tow will proceed along the guidewall and into the lock chamber. “14. Locktenders Hartnagel and Flynn were on duty at the lock at the time of the accident. Deckmen Rinehart and Evans were on the stern starboard barge. Deckman Sellars was at the bow of the tow. Evans was near the stern end of the stern starboard barge, and Rinehart was more forward of Evans on the same barge. Hartnagel threw heaving lines to Rinehart and Evans, who passed nylon lines back to Hartnagel who then put the nylon line on a button on the guidewall. Evans then wrapped the nylon line around the cavil on the barge and made it fast with a figure eight and three or four loops. The starboard side of the tow was then fifteen to twenty feet from the guidewall. The stern proceeded to go away from the lock wall and made the lines tighter. Evans made more loops and let the line play, but the line kept getting tighter and tighter. He let out as much line as he could to keep the line from breaking. The line got down to all that Evans could hold and all that he could wrap around, and at the time that he was holding only the end of the line he was forced to let go. Rinehart was doing the same thing with his line and he let go a few minutes later. The stern of the tow continued to fall off. The engines of the Joliet were reversing. After Evans and Rinehart let their lines go, the tow went cross-ways into the dam. The nylon lines, which were relatively new, did not part or break. Hartnagel told Evans to keep the lines tight. Evans heard no instructions of any kind from Pilot Houchins. ****** “17. Loektender Flynn assisted at the guidewall near the bow of the starboard barge. Deckhand Sellars was at the forward end of the barges. Flynn tied a nylon line to the button on the guidewall. Sellars tiea his line to the cavil on the barge and held it. Flynn said nothing to Sellars. The tow line did not break. Sellars could no longer hold the line and let go. Sellars received no instructions from Pilot Houchins. “18. The tow moved ahead slowly. The stern was too far out. Pilot Houchins decided to go in. The two stem lines were slacked off and cast off. The tow moved forward but was swinging out. Hartnagel became concerned about the barge striking the upper right gate, which would cripple the lock for a month. Hartnagel told Pilot Houchins to back down. Houchins started backing, the stern kept swinging out, and the current again caught the tow. The bow of the barges cleared the bull nose. The crash of DP-223 into the pier nose of the dam occurred about 1:00 a. m. on June 8, 1963.” After finding that the testimony of Captain Radford and Pilot Houchins was “in many respects unworthy of belief and in some respects incredible,” the court found that each was guilty of negligence. The court also found that deckhands Rinehart and Evans were negligent in failing to hold the stern lines tight as ordered. Additionally, the court found that deckhand Sellars was guilty of some slight degree of negligence in his handling of the bow lines. The court ultimately found that the sole direct proximate cause of the collision was the negligent operation and navigation of the CITY OF JOLIET by employees of Logan Charter Service, Inc. Appellant’s principal argument for reversal is that the trial court erred in finding appellant, rather than the Government, at fault. The only witnesses to the collision were employees of appellant and the Government, who gave conflicting versions of how the collision occurred. According to the Government’s witnesses, the flotilla’s approach to the guidewall was normal but the stern was never maneuvered closer than forty feet to the wall. Thus, the flotilla never achieved a proper position to transit the lock. Employing a “flanking maneuver,” the flotilla approached the guidewall with the head barges angling out in the river. When the stern was fifty or sixty feet from the wall, mooring lines were secured from the aft starboard barge to the guidewall. The lines were tied so that the deckhands were able to control the lines, releasing them gradually, to help bring the tug closer to the guide-wall. The tug pilot maneuvered the head of the tow from its outstream position into proper position near the wall, ready to negotiate the lock if the stern barges and the tug also had been brought into proper position alongside the wall. Thus, according to Government witness Hartnagel, the flotilla was not ready to enter the lock as its stern was too far out. Nevertheless, Hartnagel testified, the flotilla started forward and he heard Pilot Houchins say, “O.K.. ;.Let her go. We’re going in.” The deckhands on the aft barge cast off the lines. Surprised and frightened at the improper approach, Hartnagel warned the tug to back out, knowing otherwise the flotilla would damage the lock. The pilot then attempted to back away but the flotilla was caught in the current and cast upon the dam with the resulting damage to the dam and sinking and loss of barge DP-223 and its cargo. Hartnagel’s testimony is supported by the testimony of the other Government witnesses and by the written statements of the pilot of the tug made shortly after the occurrence of the accident. The log entry contains this statement of the pilot: “11:15 A.M. — 12:00 M./P. — flanking down #3 running water. “1:00 A.M. — Stern got out to (sic) wide tow topped across Dam DP-223 got two holes knocked in it. One in Bow Rake & one in No. 1 hold — stb side & taking water fast — can’t get DP-223 off dam — too much current.” The accident report reflects the following statement from the pilot: “Nature of Accident. “Left-out draft boat wood (sic) not lift — sturn (sic) line let go on sturn (sic) went board (sic) side onto pier noses.” Additionally, an expert witness testified that for proper entry in the lock, the stem might be a little ways out but not far, and that it would be very dangerous to cast off the stern lines while at the mercy of the current. Contrary to the above recited testimony, appellant produced evidence that locktender Flynn, a farm laborer relatively unskilled at directing river traffic, positioned on the wall near the bow of the flotilla, ordered the bow or head of the tow tied off and its forward motion stopped as the flotilla was attempting to enter the lock, causing the stern to be carried out into the current and onto the dam. It would serve no useful purpose to point out the other conflicts in the evidence or various inferences that might be drawn therefrom. Our standard of review in eases of this kind is found in McAllister v. United States, 348 U.S. 19 at page 20, 75 S.Ct. 6, at page 7, 99 L.Ed. 20 (1954), where the Supreme Court said: “The first question presented is whether the Court of Appeals in reviewing the District Court’s findings applied proper standards. In reviewing a judgment of a trial court, sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous. No greater scope of review is exercised by the appellate tribunals in admiralty cases than they exercise under Rule 52(a) of the Federal Rules of Civil Procedure.” Our latest expression on the clearly erroneous rule is found in Worthen Bank & Trust Co. v. Franklin Life Ins. Co., 370 F.2d 97 (8th Cir. 1966). See also Travis v. Motor Vessel Rapids Cities, 315 F.2d 805, 809-810 (8th Cir. 1963), where this court applied the clearly erroneous rule in an admiralty case. The trial court credited the testimony of the Government witnesses and characterized the testimony of the Captain and Pilot of the CITY OF JOLIET as being “in many respects unworthy of belief and in some respects incredible.” The trial court could properly make such determinations. See Worthen Bank & Trust Co. v. Franklin Life Ins. Co., supra. A canvass of the record reveals ample evidence to support the finding that appellant’s crew members were negligent in attempting to transit the lock when the stern was far outstream at the mercy of the current and the bow near the wall; that the pilot and crew should not have attempted a forward movement or cast off their lines, placing them in such a perilous position certain to result in disaster. The court was fully justified, therefore, in finding appellant guilty of negligence which caused the collision and that the Government was guiltless of actionable negligence. Appellant next contends that the District Court erred in applying the common law rule of proximate cause. It asserts that the test of causation in admiralty is not “proximate cause,” but rather “contributing cause” and the accompanying concept of divided damages. This admiralty rule applies only where two parties are jointly responsible for a tort. It has no bearing here as the court specifically found that the Government locktenders were not negligent. The court further found that the negligence of the crew of the CITY OF JOLIET was “the sole direct or proximate cause of the collision.” This assignment of error is prompted by the court’s additional finding that if either of the Government employees was negligent, his negligence was not a direct or proximate cause of the accident. Obviously, this latter finding was merely explanatory and unnecessary in light of the court’s specific finding of no negligence on the part of the Government’s employees. At most, it was an explanation of a simple rule of tort law and could not possibly result in any prejudice to appellants. Appellant complains of the court's statement that the doctrine of res ipsa loquitur was applicable to the instant case. As a general proposition, this doctrine is applicable to admiralty cases. In the instant case, the trial court attributed liability solely to the specific negligence of the crew of the CITY OF JOLIET. The court’s conclusion was not based on the doctrine of res ipsa loquitur. And in this aspect, the case is analogous to Ayres Marine Service v. W. Horace Williams Co., 213 F.2d 27, 30 (5th Cir. 1954), where the court there properly, we think, rejected a similar contention as appellant here advances. The argument is also made that the doctrine does not apply where there is joint control or responsibility, but as the court exonerated the locktenders of negligence, it follows that there was no joint control or responsibility making the doctrine of res ipsa loquitur inapplicable. Finally, appellant contends that the court erred in not holding that the lock operators were in charge of the navigation of the CITY OF JOLIET and flotilla. The argument is based upon a regulation of the Secretary of the Army pursuant to § 7 of the River and Harbor Act of August 8, 1917, 40 St. at 250, which provides: “AUTHORITY OF LOCKMAS-TERS. The movement and position of all boats and floating craft of every description while at or near the locks and dams and in canals shall be subject to the direction of the lockmaster, whose orders shall be obeyed in the operation and mooring of such boats and craft. * * * ” A reading of the other regulations makes it clear that this regulation was not designed to absolve the crew of an approaching vessel from negligence. For example, the regulations require a vessel to approach the lock with caution and forbid its entering the lock until the lockmaster signals for entry. The regulations specifically provide that they shall not affect the liability of the owners and operators for any damage caused by the operations to locks or other structures. Additionally, we note that Congress has enacted rules for navigation of the Mississippi River, 33 U.S.C.A. § 301 et seq. 33 U.S.C.A. § 351 provides that nothing in the rules “shall exonerate any vessel, or the owner or master or crew thereof * * * of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.” The record shows that the loektenders were not seamen and had no control over the navigation of the flotilla other than to forbid its entry into the lock until the entrance could be safely accomplished. They could not be held responsible for the crew’s failure to maneuver the flotilla into proper position to enter the lock. In urging this point, appellant relies upon the case of Rebel Towing Co. v United States (S.D.Tex. Admiralty #64-H-67 Mar. 3, 1965), an unreported district court opinion appended to appellant’s brief. In Rebel Towing, the trial court found the accident occurred after the tow had entered the lock and its control turned over to the lockmen who were moving the barges by the use of moving cavils on the lock. The court found the lock operators at fault and found that the owners and operators of the tug were guilty of no fault which caused the collision. Rebel Towing is obviously distinguishable. In our opinion, appellant’s suggested construction of the regulation is erroneous as it is inconsistent with other regulations and statutes. Our canvass of the record as a whole leads us to conclude that the evidence justified the court’s findings and conclusions that the members of the crew of the CITY OF JOLIET were negligent, and that such negligence constituted the sole proximate cause of the collision. The record is free of prejudicial error and the judgment of the District Court is affirmed. . The court found as to the negligence of Radford and Houchins the following: “22. Captain Radford was in complete charge of the tow. He and Pilot Houchins were responsible for the navigation of the tow and placing the tow in the lock chamber. “23. Radford permitted Houchins to relieve him at a time when the tow was in a difficult situation. Radford decided to let Houchins extricate himself from this position of danger. Rad-ford was negligent. “24. After being relieved, Radford absented himself for a short time but soon reappeared. He failed to give proper assistance or direction to Houchins. Radford was negligent. “25. Radford ordered the two stern lines held tight. The two stern lines were not held tight. Radford failed to obtain observance of his orders. Radford was negligent. “26. Customary or normal procedure required that the stern end of the tow be brought in near the guidewall. Captain Radford failed to navigate the tow into proper position. Radford was negligent. “27. Customary or normal procedure required that the starboard side of the stern barge be kept or maintained near the guidewall. Pilot Houchins failed to keep or maintain this position. Houchins was negligent. “28. Customary or normal procedure required that when the head of the tow touched the guidewall that the stern of the tow maintain a proper position. Pilot Houchins permitted the stern of the tow to angle out. Houchins was negligent. “29. Customary or normal procedure required that the stern of the tow be reasonably close to the guidewall so that the stern lines could be cast off and the tow proceed ahead into the lock chamber. Pilot Houchins failed to properly navigate the tow to make this possible. Houchins was negligent. “30. The Joliet was powered by two 600 horsepower engines. Pilot Houchins believed that the engines had horsepower of 2400. Houchins’ experience on Diesel towboats related to engines with 1800 to 3600 horsepower. A pilot should be familiar with the power under his control. Houchins did not have this knowledge. Houchins was negligent. “31. When the stern and bow lines were let go, Pilot Houchins had the duty to reasonably and properly back down or back out. He failed to navigate the tow in a reasonable and proper manner. Houchins was negligent.” . It is stated in 2 Am.Jur.2d Admiralty § 206 (1962), “The doctrine of res ipsa loquitur is recognized and applied in admiralty.” See also The Anaconda, 164 E.2d 224, 228 (4th Cir. 1947), and cases therein cited. . In Ayres Marine, supra 213 F.2d at page 30, the court said: “Appellant’s attack upon the court’s conclusions of law is predicated upon the proposition that the trial judge erred in placing reliance on the doctrine of res ipsa loquitur. Appellant relies upon Commercial Molasses Corporation v. New York Tank Barge Corporation, 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89, 1941 A.M.C. 1697, which does indeed hold that the doctrine is an aid to the plaintiff in sustaining the burden of proving breach of the duty of due care but does not avoid the requirement that upon the whole case he must prove the breach by the preponderance of evidence. But what appellant overlooks is that the District Court did plainly state that the burden of proof was upon the libelant. And, while the court thought libelant was entitled to invoke the aid of the doctrine, it did not base its decision solely on that ground for it held and we think properly that libelant sustained its burden of showing negligence on the part of appellant by a preponderance of the evidence.” . “The navigation of the tow in approaching the guidewall or the lock chamber is the responsibility of the pilot. In approaching the lock the lockmaster has authority to protect the safety of the lock and dam structure. The lockmaster can halt a hazardous approach by barring entry to the lock. The lockmaster cannot order and control the maneuvers for a safe approach. The lockmaster does have control in the handling of a tow once the tow is in the lock chamber.” . “Vessels must approach the locks with caution and shall not enter nor leave the lock until signaled to do so by the lock-master. $ $ $ * $ “In no case will boats be permitted to enter or leave the locks until directed to do so by the lockmaster. & ífc Sfc * “The regulations contained in this section shall not affect the liability of the owners and operators of floating craft for any damage caused by their operations to locks or other structures.”

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 33. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 33? Answer with a number.

Donald S. TRYON and Karen Tryon, Plaintiffs-Appellees, v. The FIRST NATIONAL BANK OF SIB-LEY, IOWA, and Leo Carlson, Jr., Executive Vice President and Cashier of the First National Bank of Sibley, Iowa, Defendants-Appellants. No. 71-1591. United States Court of Appeals, Eighth Circuit. Submitted May 10, 1972. Decided June 20, 1972. Maurice B. Nieland and Robert E. Beebe, Sioux City, Iowa, for defendants-appellants. Mr. Donald E. O’Brien, Sioux City, Iowa, for plaintiffs-appellees. Before VOGEL, LAY, and BRIGHT, Circuit Judges. BRIGHT, Circuit Judge. Appellees, Donald Tryon and his wife, Karen, brought this diversity action against the First National Bank of Sib-ley, Iowa (Bank), and its executive vice-president, Leo Carlson. The Try-ons’ complaint alleged that the Bank, through its agent Carlson, negligently filed a false financing statement whch indicated that the plaintiffs were indebted to the Bank. As a result of this filing, plaintiffs claim that their credit rating was impaired, that they were consequently unable to borrow additional business capital to sustain their business operation, and as a result, they lost substantially all of their assets. The case was tried before a jury which returned a verdict for the plaintiffs in the amount of $50,000. Both defendants appealed the judgment entered upon that verdict. We reverse for the reasons stated below. The Tryons formerly operated a wholesale fishing tackle, sporting goods, and minnow supply business near Spirit Lake, Iowa. Needing additional financing for the expansion of this business, Donald Tryon contacted defendant Carlson seeking a loan from the Bank. Carlson initially refused to approve such a loan because the Tryons lacked sufficient security to justify the advancement of additional credit. Carlson suggested that the Tryons attempt to obtain a cosigner to provide the necessary security for a loan from the Bank. The Tryons then approached one Fred Dow-den, who, for a finder’s fee of five per cent of the principal amount, agreed to cosign a $20,000 note at the Bank. The Tryons executed a note for that amount and a chattel mortgage on December 10, 1965, in favor of their “cosigner,” Fred Dowden. The note was prepared on the Bank’s printed form but the name of the Bank was crossed out as the payee and Fred Dowden’s name was substituted. The chattel mortgage showed Dowden as mortgagee and referred to Dowden as the payee of the note executed in conjunction with the chattel mortgage. The reverse side of the note contained Fred Dowden’s signature and endorsement as follows: “Pay to the order of the First National Bank of Sibley, Sib-ley, Iowa, WITH FULL RECOURSE.” The chattel mortgage was properly filed on December 16, 1965, with the County Recorder for Dickinson County, Iowa. The following July 4, 1966, the Uniform Commercial Code became effective in the State of Iowa, and in August of that year defendant Carlson contacted the Tryons seeking the execution of a standard form financing statement which the Bank intended to file in order to record the Bank’s interest in the $20,000 note. The Tryons signed this financing statement and it was recorded with the Dickinson County Recorder and in the office of the Secretary of State. In this action the parties are agreed that, as a result of these transactions, the Tryons owed money only to Dowden. The Bank apparently acted merely as an agent of Dowden in receiving payments on the Tryons’ indebtedness. The County Recorder’s records, however, not only reflected an indebtedness to Dowden secured by the chattel mortgage, but also indicated an indebtedness to the Bank by virtue of the filed financing statement. The Tryons contended at trial that the Bank wrongfully obtained and negligently filed the financing statement, and that the resultant “double filing” with respect to their indebtedness so impugned their credit position that they could not acquire additional business financing between 1966 and 1968, thus causing their financial ruin. The trial court submitted to the jury the issues of negligence, proximate cause, and damages, denying the defendants’ motion for a directed verdict, and their post-verdict motion for judgment n. o. v. On this appeal, the appellants contend that the plaintiffs failed to make out a case of negligence on the part of defendants, or to show that the defendants’ negligence, if any, caused the plaintiffs’ damages. For the purposes of this appeal, we will assume, without so deciding, that the Tryons succeeded in establishing that the Bank and defendant Carlson were negligent in filing the financing statement which erroneously indicated an indebtedness to the Bank on the part of the Tryons. We turn our attention, therefore, to whether the Tryons demonstrated that their business losses resulted from the “double filing” concerning their indebtedness to Dowden. The burden was on the Tryons to prove that the defendants’ negligence, if any, proximately caused their injury. Ford Motor Co. v. Mondragon, 271 F.2d 342, 345 (8th Cir. 1959). In that case we referred to the following explication of the Iowa law which governs a diversity case such as this one: * * * negligence which appears to have no causal connection with the injury is not actionable. It must appear that the injury was the natural and probable consequence of the negligence, wrongful act, or breach of duty. [271 F.2d at 345, citing Fanelli v. Illinois Central R.R., 246 Iowa 661, 69 N.W.2d 13, 19 (1955), and in accord, Brewer v. Johnson, 247 Iowa 483, 72 N.W.2d 556, 558 (1955)]. Applying this rule to the evidence viewed most favorably to the Tryons, we are convinced that they failed to establish that the defendants’ conduct proximately caused the Tryons’ losses. The Tryons offered no direct evidence that the “double filing” effect of the financing statement served as any impediment to the Tryons obtaining additional business loans. Although the Tryons attempted to secure financing through the Small Business Administration and other places, they did not show the reason why these loans were denied. Plaintiffs’ claim for damages, allegedly resulting from the “double filing,” rests upon Donald Tryon’s own, unsupported claim testimony. He testified in part as follows: * * * In my opinion, as shown from my complaint, my loss for loss of credit standing is $25,000 * * *. My complaint shows and my opinion is that from the loss of my entire business and accounts resulting from false filing I lost $100,000. It is my opinion that loss for the attachment and confiscation of my business as the result of the false filing is $25,000. It is my opinion that the loss I suffered and the loss of my homestead and house is $10,000. My loss of ability to make a living is $25,000 and it is my opinion that damages for past loss of reputation is $50,000, and that the future loss I will sustain for loss of reputation for business is $50,000. [App. 33-34] The defendants did not contest the fact that the Tryons suffered financial ruin. Further, defendant Carlson admitted that, in his opinion, the notice given by a financing statement could affect the “borrowing power” of the party denominated as the debtor. On the basis of this evidence and Tryon’s additional testimony that he experienced “no luck” in his attempts to secure business financing, appellees urge that the evidence was sufficient for the jury to properly infer that plaintiffs’ loss was proximately caused by defendants’ negligence. We fail to see how this testimony provides any inference that the “double filing” contributed to the Tryons’ business failure. The record shows that the business operated by the Tryons was under-capitalized as early as 1965, and that the Tryons possessed inadequate security to finance their business expansion in that year and in subsequent years. Donald Tryon’s testimony disclosed that he had become financially over-extended and unable to pay his debts in 1968 in part because other loan obligations had matured and were unpaid. Without some competent evidence showing a reasonably probable connection between the alleged negligent act and the alleged loss, the jury verdict becomes one resting wholly upon speculation or possibilities, not probabilities. It, therefore, cannot be allowed to stand. See Mondragon, supra, 271 F.2d at 348; Bokhoven v. Hull, 247 Iowa 604, 75 N. W.2d 225, 227 (1956); Brewer v. Johnson, 247 Iowa 483, 72 N.W.2d 556, 558-559 (1955); Fanelli v. Illinois Central R.R., 246 Iowa 661, 69 N.W.2d 13, 19-21 (1955). Accordingly, we remand this ease to the district court and direct that it enter a judgment dismissing plaintiffs’ cause of action. . In December 1966, a new note was executed by the Tryons in favor of Dowden in the amount of $15,000, representing a renewal for the unpaid balance on the original instrument. This note indicated that it was secured by a “security agreement.” Contemporaneously with the execution of this renewal note, the Tryons executed a security agreement in favor of the Bank, and a supplemental security agreement in favor of Fred Dowden and the Bank. These two security agreements, in substance, covered the trucks, inventory, and equipment of the Tryons’ business. . Appellees contend that they did not commit any negligent act by filing the financing statement in question, since, under the U.C.C., the Bank could have legitimately looked to the Tryons for payment of the note in the event of Dow-den’s default. In addition, the defendants insist that the financing statement did not disclose any indebtedness on the part of the Tryons to the Bank, but merely put the world on inquiry that an indebtedness to the Bank might exist. We find it unnecessary to discuss this defense here.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.

This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?

ATCHISON, T. & S. F. RY. CO. v. JARBOE LIVESTOCK COMMISSION CO. No. 3340. Circuit Court of Appeals, Tenth Circuit. Jan. 27, 1947. M. M. Gibbens, of Oklahoma City, Okl. (Rainey, Flynn, Green & Anderson, of Oklahoma City, Okl., and Biddison & Rheam, of Tulsa, Okl., on the brief), for appellant. William K. Powers, of Tulsa, Okl., for appellee. Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges. MURRAH, Circuit Judge. This in an appeal from a judgment of the District Court awarding damages to a shipper of livestock for loss of weight allegedly caused by the negligent failure of the carrier to notify the shipper of a delay in the arrival time of the train on which the livestock was to be shipped. The primary question is whether the facts support the trial court’s findings of negligence, and if so, whether it applied the correct measure of damages. The case was tried to the court without a jury, and its factual findings are not in material dispute. Jarboe Livestock Commission Company (herein called shipper), ordered twenty-five cars for the shipment of cattle on April 11, 1944, over the Santa Fe Railroad (herein called carrier). Ten of the cars of cattle were to be shipped to Hamburg, Iowa, eleven to Toronto, Kansas, and four to Oklahoma. The four carloads destined to Oklahoma were weighed and sold at Dodge City, and are not involved in this suit. The other twenty-one cars were contracted to be sold to consignees at the intermediate point of Emporia, Kansas, based on dry weights there, plus an allowance of 5% for contemplated shrinkage during the trip from Dodge City to Emporia.- After weighing, feeding, and watering at that point, the cattle were to be reloaded and continue to their respective destinations of Hamburg and Toronto. The bills of lading, or shipping contract, provided for the shipment to the respective destinations, with feeding and resting at Emporia, but did not stipulate that the cattle were to be weighed or sold at that point. Shipper began driving the cattle from its ranches to Dodge City, a distance of ten or twelve miles, early on the morning of April 11th. The cattle arrived at the loading pens about 3:30 or 4:00 o’clock in the afternoon, and shipper began preparations for feeding and watering before loading. Before, however, the cattle had time to take on any substantial amount of feed and water, an employee of the railroad notified him to begin loading immediatelyj because the train on which the cattle were to be shipped would pick them up at 6:00 P.M. Shipper completed the loading of the cattle, without feeding and watering them, by 6:00 o’clock, but the train did not pick up the cars and depart from Dodge City until 12:50 A.M. the next day. This stock train ran daily, but due to priority of troop and passenger trains, and other congested wartime conditions, it was not adhering to a strict schedule. A severe snow storm had swept Eastern Colorado and Western Kansas, and communications were impaired, but carrier’s agent at Dodge City received information at 12:45 P.M. on the 11th that the train would arrive at 6:30 P.M.; at 3:12 P.M. it was reported to arrive at 5:45 P.M.; at 3:34 P.M. it was reported to arrive at 6:00 P.M., and at 7:46 P.M. the time of arrival-was given as 10:00 P:M. The crew to take over at Dodge City and operate the train Eastward was called at 9:30 P.M. It was customary, to call the train crew about, one and one-half hours prior to expected departure. At Garden City, Kansas, some distance from Dodge City’ the conductor of the train was ordered to pick up ten cars of sheep at Cimarron, Kansas, a station nineteen miles west of Dodge City. The train reached Cimarron at 4:00 P.M., but because of congested traffic conditions and loading time, it did not depart from Cimarron until 9:30 P. M. finally reaching Dodge City at 11:10.P. M. After picking up the cattle cars, the train departed from Dodge City at 12:50 A. M. on the 12th, arriving at Emporia at 2:15 P.M. the same day, twenty-three hours after loading time. The cattle were unloaded at Emporia and sold dry weight, after which they were fed, watered, and reloaded to continue the trip to final destinations. By this suit, shipper seeks to recover damages for the amount of excessive shrinkage caused by the alleged negligent delay in the transportation of the cattle. It is alleged that by reason of this negligent, careless and unlawful delay, and by denying it an opportunity to feed and water the cattle before loading, they suffered excessive shrinkage in weight, to the shipper’s damage, in the amount of $5,928.36. The carrier’s defense in the trial court and here is that it received and forwarded the shipper’s cattle with reasonable dispatch, taking into consideration the congested traffic conditions due to the war effort, and the disruption of communication lines due to the severe storm on the day preceding the shipment. In that connection, it pleads the provisions of the shipping contract to the effect that except in cases of its negligence proximately contributing thereto, it is not liable for any loss or damage to the livestock caused -by an act of God, such as the storm, authority of law, such as wartime priorities, or to transport the livestock otherwise than with reasonable dispatch. This defense would undoubtedly be good under the facts as against the charge of negligent delay in the operation of the train. Indeed, the trial court specifically rejected the shipper’s plea of negligence in the operation of the train from the time of its departure at Dodge City until it arrived at Emporia, holding that the movement between these two points was “handled with reasonable dispatch”. But the trial court’s judgment does not rest upon the alleged negligent operation of the train,- either -before or after its arrival in Dodge City. It is based squarely upon the proposition that no matter how meritorious the excuses offered for delay in transportation, the duty nevertheless rested upon the carrier to inform the shipper of the known delay, and that the breach of that common law duty was not lessened by the plea of a “busy railroad”, citing Ott v. Atchison, T. & S. F. R. Co., 102 Kan. 254, 169 P. 957. Nor did the provisions of the shipping contract exculpate it from the duty to notify. The cause of action based upon such breach of duty sounds in tort, not contract, and is therefore governed by common law principles rather than any duty imposed by statute or contract. Other courts have recognized and applied the rule under facts which leave no doubt of its applicability here. Ott v. Atchison, T. & S. F. R. Co., supra; Holland v. Hines, Mo.App., 234 S.W. 366; St. Louis & S. F. R. Co. v. Vaughan, 88 Ark. 138, 113 S.W. 1035; Texas & P. R. Co. v. Moore, Tex.Civ.App., 119 S.W. 697; Chicago R. I. & P. R. v. Stallings, 132 Ark. 446, 201 S.W. 294; 10 C.J., Sec. 412, 13 C.J.S., Carriers, Sec. 199. The trial court found that the carrier knew, or should have known, that the departure of the cattle train would be delayed far beyond the time given the shipper when it ordered the cattle loaded without feed and water, and that a timely word to the shipper would have insured proper handling of the cattle, thus obviating the long wait without feed and water in the Dodge City yards. It was pointed out that at Garden City, many miles west of Dodge City, the carrier learned that the train would have to load ten cars of sheep at Cimarron, which would reasonably take two hours and fifteen minutes; that at Cimarron, the carrier knew of the greater delay occasioned by loading and side tracking for priority trains; and that such information should have been transmitted to Dodge City and to the shipper. To further emphasize the carrier’s “dereliction” toward the shipper, the trial court referred to the fact that the train crew to take over at Dodge City was not called until 9:30 P.M., which, according to practice, was for duty on a midnight train. The trial court apparently treated the allegations of negligent delay in transportation as sufficiently broad to include the tort action. It decided the lawsuit on that theory, and we accept the cause of action as well pleaded. Its findings of actionable negligence on this cause of action are amply supported by the evidence, and they must therefore stand on review. In the absence of any evidence of the actual weight of the cattle at Dodge City, the trial court determined from competent evidence that the total shrinkage of the cattle en route was 8%, 5% of which was allowed in the purchase contract, leaving 3% to be compensated as damages. Thus, the trial court added a net 3% to the dry weight of the cattle at Emporia, and based on the purchase price, calculated and awarded damages in the sum of $1,718.57. The carrier raises no objection to the amount of shrinkage, nor does it contena' that the purchase price at Emporia was nor the market price there. It does, however, strenuously object to the use of this formula as a measure of damages, because it is based upon weights and prices at Emporia, and not at final destination. It invokes the. rule that the measure of damages to livestock for delay in shipment is the difference between the market value of livestock in the condition they were when delivered at destination, and the market value in the condition they would have been in if the delay had not occurred. See Kurn v. Westheimer & Daube, 181 Okl. 345, 73 P.2d 835. It also points to the Kansas rule that the measure of damages allowable in cases of this kind is the expense of reproducing the weight or shrinkage shown to have been lost by reason of the negligent acts of the carrier. Colson v. Midland Valley R. Co., 113 Kan. 667, 215 P. 1004. In any event, it is said that the shipper may recover only such damages as may reasonably be supposed to have been in the contemplation of both parties at the time they made the shipping contract. Such is, and has been, the universal rule in contract actions since Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Reprint 145, 5 Eng. Ruling Cases 502; Globe Refining Co. v. Landa Cotton Oil Co., 190 U.S. 540, 23 S.Ct. 754, 47 L.Ed. 1171; 15 Am.Jur. Damages, p. 451, and cases cited; McCormick on Damages, p. 562. Making application of this rule, it is said that the shipping contract did not provide, nor did the carrier know, that the cattle were to be weighed and sold at Em-poria, an intermediate point, and that therefore the weights and prices at that point cannot be the legal basis for the calculation of damages for the breach of the shipping contract — that damages based upon any value other than at point of final destination were not within the contemplation of the parties, and consequently not recoverable. According to the record, it was not unusual or a special circumstance for cattle destined to points beyond Emporia to be weighed and sold there. It seems to be customary among cattlemen to sell cattle in transit at Emporia, based upon dry weights there, and after feeding and watering at that point, continue to final destination under a through bill of lading. If this be true, it may not be said that the sale of the cattle at weights and prices at Emporia was not reasonably within the contemplation of the parties. The trial court made no specific finding concerning whether the sale of the cattle at Emporia, based upon weights there, was an unusual or special circumstance. It did rightly observe, however, that the rule relating to the measure of damages, based upon market value at destination, was not inflexible, but applied to the usual situation where cattle are being shipped to market; and that where the factual situation was different, the formula should not be applied. The court’s ultimate judgment is based upon the theory of damages that the loss sustained should be compensated; that the breach of duty on the part of the carrier resulted in a loss to the shipper; and that because the loss was determined at Emporia, rather than at final destination, should not deprive the shipper of its right of recovery. There is nothing in this record to show that the sale price at Emporia was not the market price at final destination, or that the damages would have been lessened by a calculation based upon the market price at point of final destination. Moreover, the cattle were sold at Emporia, and title passed there, hence the shipper did not own the cause of action beyond that point. If he is to recover, it must be upon the basis of weights and prices at Emporia. The law does not deny him recovery for the want of a formula to measure his damages. Regardless of the rule of “foreseeability” in actions on the breach of a contract, it has no application where, as here, the cause of action sounds in tort. It is well settled that a wrongdoer is liable for all of the natural and probable consequences of his negligent acts, whether within the contemplation of the parties or not. Bartlett v. Federal Outfitting Co., 133 Cal.App. 747, 24 P.2d 877; Western Union Telegraph Co. v. Green, 153 Tenn. 522, 284 S.W. 898; Id., 153 Tenn. 59, 281 S.W. 778, 48 A.L.R. 301; Annot. 48 A.L.R. 318. In the words of Mr. Justice Holmes in Globe Refining Co. v. Landa Cotton Oil Co., supra, 190 U.S. p. 543, 23 S.Ct. 755, “When a man commits a tort, he incurs, by force of the law, a liability to damages, measured by certain rules. When a man makes a contract, he incurs, by force of the law, a liability to damages, unless a certain promised event comes to pass. But, unlike the case of torts, as.the contract is by mutual consent, the parties themselves, expressly or by implication, fix the rule by which the damages are to be measured.” It is thus clear that in the assessment of damages, the trial court was not restricted to the narrow rule applicable in contract cases, and urged by the carrier as grounds for reversal. From the evidence adduced here, we cannot say that the damages assessed, based upon the weights and prices at Emporia, are not the probable consequences of the negligent failure of the carrier to notify the shipper of the delay in arrival of the train at Dodge City. The judgment is therefore affirmed.

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".

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?

AT&T TECHNOLOGIES, INC. v. COMMUNICATIONS WORKERS OF AMERICA et al. No. 84-1913. Argued January 22, 1986 Decided April 7, 1986 White, J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a concurring opinion, in which BURGER, C. J., and Marshall, J., joined, post, p. 652. Rex E. Lee argued the cause for petitioner. With him on the briefs were David W. Carpenter, Gerald D. Skoning, Charles C. Jackson, Howard J. Trienens, Alfred A. Green, and Joseph Ramirez. Laurence Gold argued the cause for respondents. With him on the brief were Irving M. Friedman, Stanley Eisenstein, Harold A. Katz, David Silberman, and James Coppess. Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States by John S. Irving, Carl L. Taylor, and Stephen A. Bokat; and for the National Association of Manufacturers by Jan S. Admundson and Gary D. Lipkin. David E. Feller filed a brief for the National Academy of Arbitrators as amicus curiae urging affirmance. Justice White delivered the opinion of the Court. The issue presented in this case is whether a court asked to order arbitration of a grievance filed under a collective-bargaining agreement must first determine that the parties intended to arbitrate the dispute, or whether that determination is properly left to the arbitrator. HH AT&T Technologies, Inc. (AT&T or the Company), and the Communications Workers of America (the Union) are parties to a collective-bargaining agreement which covers telephone equipment installation workers. Article 8 of this agreement establishes that “differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder” must be referred to a mutually agreeable arbitrator upon the written demand of either party. This Article expressly does not cover disputes “excluded from arbitration by other provisions of this contract.” Article 9 provides that, “subject to the limitations contained in the provisions of this contract, but otherwise not subject to the provisions of the arbitration clause,” AT&T is free to exercise certain management functions, including the hiring and placement of employees and the termination of employment. “When lack of work necessitates Layoff,” Article 20 prescribes the order in which employees are to be laid off. On September 17, 1981, the Union filed a grievance challenging AT&T’s decision to lay off 79 installers from its Chicago base location. The Union claimed that, because there was no lack of work at the Chicago location, the planned layoffs would violate Article 20 of the agreement. Eight days later, however, AT&T laid off all 79 workers, and soon thereafter, the Company transferred approximately the same number of installers from base locations in Indiana and Wisconsin to the Chicago base. AT&T refused to submit the grievance to arbitration on the ground that under Article 9 the Company’s decision to lay off workers when it determines that a lack of work exists in a facility is not arbitrable. The Union then sought to compel arbitration by filing suit in federal court pursuant to § 301(a) of the Labor Management Relations Act, 29 U. S. C. § 185(a). Communications Workers of America v. Western Electric Co., No. 82 C 772 (ND Ill., Nov. 18, 1983). Ruling on cross-motions for summary judgment, the District Court reviewed the provisions of Articles 8, 9, and 20, and set forth the parties’ arguments as follows: “Plaintiffs interpret Article 20 to require that there be an actual lack of work prior to employee layoffs and argue that there was no such lack of work in this case. Under plaintiffs’ interpretation, Article 20 would allow the union to take to arbitration the threshold issue of whether the layoffs were justified by a lack of work. Defendant interprets Article 20 as merely providing a sequence for any layoffs which management, in its exclusive judgment, determines are necessary. Under defendant’s interpretation, Article 20 would not allow for an arbitrator to decide whether the layoffs were warranted by a lack of work but only whether the company followed the proper order in laying off the employees.” App. to Pet. for Cert. 10A. Finding that “the union’s interpretation of Article 20 was at least ‘arguable,’” the court held that it was “for the arbitrator, not the court to decide whether the union’s interpretation has merit,” and accordingly, ordered the Company to arbitrate. Id., at 11A. The Court of Appeals for the Seventh Circuit affirmed. Communications Workers of America v. Western Electric Co., 751 F. 2d 203 (1984). The Court of Appeals understood the District Court to have ordered arbitration of the threshold issue of arbitrability. Id., at 205, n. 4. The court acknowledged the “general rule” that the issue of arbitrability is for the courts to decide unless the parties stipulate otherwise, but noted that this Court’s decisions in Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574 (1960), and Steelworkers v. American Mfg. Co., 363 U. S. 564 (1960), caution courts to avoid becoming entangled in the merits of a labor dispute under the guise of deciding arbitrability. From this observation, the court announced an “exception” to the general rule, under which “a court should compel arbitration of the arbitrability issue where the collective bargaining agreement contains a standard arbitration clause, the parties have not clearly excluded the arbitrability issue from arbitration, and deciding the issue would entangle the court in interpretation of substantive provisions of the collective bargaining agreement and thereby involve consideration of the merits of the dispute.” 751 F. 2d, at 206. All of these factors were present in this case. Article 8 was a “standard arbitration clause,” and there was “no clear, unambiguous exclusion from arbitration of terminations predicated by a lack of work determination.” Id., at 206-207. Moreover, although there were “colorable arguments” on both sides of the exclusion issue, if the court were to decide this question it would have to interpret not only Article 8, but Articles 9 and 20 as well, both of which are “substantive provisions of the Agreement.” The court thus “decline[d] the invitation to decide arbitrability,” and ordered AT&T “to arbitrate the arbitrability issue.” Id., at 207. The court admitted that its exception was “difficult to reconcile with the Supreme Court’s discussion of a court’s duty to decide arbitrability in [John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543 (1964)].” The court asserted, however, that the discussion was “dicta,” and that this Court had reopened the issue in Nolde Brothers, Inc. v. Bakery Workers, 430 U. S. 243, 255, n. 8 (1977). 751 F. 2d, at 206. We granted certiorari, 474 U. S. 814 (1985), and now vacate the Seventh Circuit’s decision and remand for a determination of whether the Company is required to arbitrate the Union’s grievance. II The principles necessary to decide this case are not new. They were set out by this Court over 25 years ago in a series of cases known as the Steelworkers Trilogy: Steelworkers v. American Mfg. Co., supra; Steelworkers v. Warrior & Gulf Navigation Co., supra; and Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593 (1960). These precepts have served the industrial relations community well, and have led to continued reliance on arbitration, rather than strikes or lockouts, as the preferred method of resolving disputes arising during the term of a collective-bargaining agreement. We see no reason either to question their continuing validity, or to eviscerate their meaning by creating an exception to their general applicability. The first principle gleaned from the Trilogy is that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Warrior & Gulf, supra, at 582; American Mfg. Co., supra, at 570-571 (Brennan, J., concurring). This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration. Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 374 (1974). The second rule, which follows inexorably from the first, is that the question of arbitrability — whether a collective-bargaining agreement creates a duty for the parties to arbitrate the particular grievance — is undeniably an issue for judicial determination. Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator. Warrior & Gulf, supra, at 582-583. See Operating Engineers v. Flair Builders, Inc., 406 U. S. 487, 491 (1972); Atkinson v. Sinclair Refining Co., 370 U. S. 238, 241 (1962), overruled in part on other grounds, Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235 (1970). Accord, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 626 (1985). The Court expressly reaffirmed this principle in John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543 (1964). The “threshold question” there was whether the court or an arbitrator should decide if arbitration provisions in a collective-bargaining contract survived a corporate merger so as to bind the surviving corporation. Id., at 546. The Court answered that there was “no doubt” that this question was for the courts. “‘Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties.’ . . . The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty.” Id., at 546-547 (citations omitted). The third principle derived from our prior cases is that, in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims. Whether “arguable” or not, indeed even if it appears to the court to be frivolous, the union’s claim that the employer has violated the collective-bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator. “The courts, therefore, 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. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious.” American Mfg. Co., 363 U. S., at 568 (footnote omitted). Finally, it has been established that where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that “[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” Warrior & Gulf, 363 U. S., at 582-583. See also Gateway Coal Co. v. Mine Workers, supra, at 377-378. Such a presumption is particularly applicable where the clause is as broad as the one employed in this case, which provides for arbitration of “any differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder . . . .” In such cases, “[i]n the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.” Warrior & Gulf, supra, at 584-585. This presumption of arbitrability for labor disputes recognizes the greater institutional competence of arbitrators in interpreting collective-bargaining agreements, “furthers the national labor policy of peaceful resolution of labor disputes and thus best accords with the parties’ presumed objectives in pursuing collective bargaining.” Schneider Moving & Storage Co. v. Robbins, 466 U. S. 364, 371-372 (1984) (citation omitted). See Gateway Coal Co., supra, at 378-379. The willingness of parties to enter into agreements that provide for arbitration of specified disputes would be “drastically reduced,” however, if a labor arbitrator had the “power to determine his own jurisdiction . . . .” Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482, 1509 (1959). Were this the applicable rule, an arbitrator would not be constrained to resolve only those disputes that the parties have agreed in advance to settle by arbitration, but, instead, would be empowered “to impose obligations outside the contract limited only by his understanding and conscience.” Ibid. This result undercuts the longstanding federal policy of promoting industrial harmony through the use of collective-bargaining agreements, and is antithetical to the function of a collective-bargaining agreement as setting out the rights and duties of the parties. With these principles in mind, it is evident that the Seventh Circuit erred in ordering the parties to arbitrate the arbitrability question. It is the court’s duty to interpret the agreement and to determine whether the parties intended to arbitrate grievances concerning layoffs predicated on a “lack of work” determination by the Company. If the court determines that the agreement so provides, then it is for the arbitrator to determine the relative merits of the parties’ substantive interpretations of the agreement. It was for the court, not the arbitrator, to decide in the first instance whether the dispute was to be resolved through arbitration. The Union does not contest the application of these principles to the present case. Instead, it urges the Court to examine the specific provisions of the agreement for itself and to affirm the Court of Appeals on the ground that the parties had agreed to arbitrate the dispute over the layoffs at issue here. But it is usually not our function in the first instance to construe collective-bargaining contracts and arbitration clauses, or to consider any other evidence that might unmistakably demonstrate that a particular grievance was not to be subject to arbitration. The issue in the case is whether, because of express exclusion or other forceful evidence, the dispute over the interpretation of Article 20 of the contract, the layoff provision, is not subject to the arbitration clause. That issue’should have been decided by the District Court and reviewed by the Court of Appeals; it should not have been referred to the arbitrator. The judgment of the Court of Appeals is vacated, and the case is remanded for proceedings in conformity with this opinion. It is so ordered. Article 8 provides, in pertinent part, as follows: “If the National and the Company fail to settle by negotiation any differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder, such differences shall (provided that such dispute is not excluded from arbitration by other provisions of this contract, and provided that the grievance procedures as to such dispute have been exhausted) be referred upon written demand of either party to an impartial arbitrator mutually agreeable to both parties.” App. 21. Article 9 states: “The Union recognizes the right of the Company (subject to the limitations contained in the provisions of this contract, but otherwise not subject to the provisions of the arbitration clause) to exercise the functions of managing the business which involve, among other things, the hiring and placement of Employees, the termination of employment, the assignment of work, the determination of methods and equipment to be used, and the control of the conduct of work.” Id., at 22. Article 20 provides, in pertinent part, that “[w]hen lack of work necessitates Layoff, Employees shall be Laid-Off in accordance with Term of Employment and by Layoff groups as set forth in the following [subpara-graphs stating the order of layoff].” Id., at 23. ' Article 1.11 defines the term “Layoff” to mean “a termination of employment arising out of a reduction in the force due to lack of work.” Id., at 20. Section 301(a), 61 Stat. 156, 29 U. S. C. § 185(a) states: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect of the amount in controversy or without regard to the citizenship of the parties.”

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.

What is the issue of the decision?

UNITED STATES of America, Defendant, Appellant, v. MASSACHUSETTS BONDING AND INSURANCE COMPANY et al., Plaintiffs, Appellees. No. 5024. United States Court of Appeals First Circuit. Argued Oct. 4, 1955. Decided Oct. 31, 1955. Rehearing Denied Dec. 15, 1955. Benjamin Forman, Washington, D. C., with whom Warren E. Burger, Asst. Atty. Gen., Anthony Julian, U. S. Atty., Boston, Mass., and Paul A. Sweeney, Washington, D. C., were on the brief, for appellant. Edward A. Crane, John R. Kewer, John M. Hogan, Russell J. Coffin, Dale Vincent and Jules E. Angoff, Boston, Mass., for appellees. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. MAGRUDER, Chief Judge. A complaint under the Federal Tort Claims Act was filed in the United States District Court for the District of Massachusetts, seeking recovery against the United States of money damages on account of the death of Jeremiah C. Crowley. The death was caused by the alleged negligent operation of traveling cranes by various government employees at the Watertown Arsenal, Watertown, Mass., while acting within the scope of their employment. The plaintiffs named in the complaint, as amended, were the administratrix of the estate of Jeremiah C. Crowley, suing on behalf of the statutory next of kin pursuant to the Massachusetts Death Act, and the insurer of Crowley’s employer who, having paid compensation to the decedent’s dependents, was empowered to sue the tortfeasor under a subrogation provision of the Massachusetts Workmen’s Compensation Act. Mass.G.L.(Ter.Ed.) c. 152, § 15. After trial, the district court made findings and conclusions to the effect that under the facts disclosed the United States was liable for compensatory damages on account of Crowley’s death, and that the resulting pecuniary injuries to Crowley’s widow and children, who were his statutory next of kin, amounted to the aggregate sum of $60,000. These findings as to the liability of the United States and the amount of pecuniary injury to the next of kin are not now challenged on this appeal. But the district court went on to rule, as a matter of law, that the compensatory damages to be paid by the United States were not subject to the limitation upon recovery specified in the Massachusetts Death Act. Accordingly, judgment was entered against the United States in the amount of $60,000, from which judgment this appeal has been taken, presenting to us the sole question whether the damages in this case recoverable against the United States may exceed the statutory maximum of $20,000 contained in the Massachusetts Death Act. We are called upon to interpret and apply the provisions of the Federal Tort Claims Act, to ascertain the “intention of Congress,” as the saying goes, in a matter with respect to which, unfortunately, the Congress has not expressed its intention with the clarity and precision which might be desired. The Federal Tort Claims Act was first enacted in 1946, 60 Stat. 842. The key section was § 410(a), reading as follows: “Subject to the provisions of this [Act], the United States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred, * * * sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claim for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this [Act], the United States shall be liable in respect of such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances, except that the United States shall not be liable for interest prior to judgment, or for punitive damages. * * * [Italics added.] Thus the section did not amount to the creation of a new comprehensive code of federal tort liability. Its purpose was not “the creation of new causes of action but acceptance of liability under circumstances that would bring private liability into existence.” Feres v. United States, 1950, 340 U.S. 135, 141, 71 S.Ct. 153, 157, 95 L.Ed. 152. The liability so accepted on behalf of the United States has been referred to as a liability on principles of “respondeat superior.” National Mfg. Co. v. United States, 8 Cir., 1954, 210 F.2d 263, 278. Ordinarily this means that the employer has to respond in damages where some employee, acting within the scope of his employment, has subjected himself to a tort liability under the applicable local law. However, there may be exceptional cases in which the employee who committed the wrongful act has a personal immunity from any tort liability to the particular plaintiff, yet where, under the local law, his employer, if a private person, may have to respond in damages to the injured individual. See Schubert v. August Schubert Wagon Co., 1928, 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293; O’Connor v. Benson Coal Co., 1938, 301 Mass. 145, 16 N.E.2d 636; Am.L. Inst., Rest, of Agency § 217(2). No doubt, under such circumstances, there might be a liability against the United States under the Tort Claims Act, though the injured person was disabled from recovering any damages against the wrongdoing employee. See United States v. Hull, 1 Cir.1952, 195 F.2d 64, 68. Under the original statutory scheme of § 410(a), as set forth above, we think it is accurate to say that the United States could never be liable for a greater amount than that for which its wrongdoing employee would be liable under the local law, except in the one situation, just noted, where the injured individual could recover nothing from the employee only because the latter had a personal immunity from such tort liability. As we pointed out in United States v. Hull, supra, 195 F.2d at page 67, the waiver of sovereign immunity under the Tort Claims Act is not unlimited; the Congress has not thrown the door wide open to suits against the United States in tort in all cases where the United States, if it were a private individual, would be liable in like circumstances under the applicable local law. See also the exceptions specifically listed in § 421 of the original act, 60 Stat. 845-846, now found in 28 U.S.C. § 2680. So, too, under § 410(a) of the original act, the United States, if liable at all, was liable “to the same claimants, in the same manner, and to the same extent” [italics added] as a private employer under like circumstances; yet this generalization was subject to the qualification or exception “that the United States shall not be liable for interest prior to judgment, or for punitive damages.” Thus, even though under the statutory law of some states a private defendant in a tort action might be liable for interest, from the date the action was instituted, on the amount of damages ultimately determined, see Moore-McCormack Lines, Inc., v. Amirault, 1 Cir., 1953, 202 F.2d 893, nevertheless the Congress has stipulated that the United States shall not be liable in such eases “for interest prior to judgment.” Likewise, though under the law of some states a private employer, particularly a corporate employer, might be liable for punitive damages where the wrongdoing employee, because of the flagrant character of his wrong, might be subject to liability for punitive as well as compensatory damages, see 61 Harv.L.Rev. 119-21 (1947), yet the Congress chose to prescribe in § 410(a) that the United States shall not be liable for “punitive damages.” It was brought to the attention of the Congress that this flat prohibition against the recovery of “punitive damages” produced the unintended effect of precluding all liability of the United States for wrongful death in two states of the Union. The Death Acts of Alabama and Massachusetts, departing from the Lord Campbell’s Act prototype, provided or had been construed to provide that, in suits for death by wrongful act, the amount of liability of the defendant should be assessed, not with reference to the amount of pecuniary loss suffered by the next of kin, but rather on a punitive basis with reference to the degree of culpability of the wrongdoer. The Congress was understandably unwilling on this account to repeal outright the provision of law forbidding the assessment of punitive damages against the United States. But the Congress did not merely make an amendment to the effect that such prohibition against punitive damages should not apply to suits against the United States under the Death Act of any state which provided, as against a private employer, for the amount of liability to be assessed purely on a punitive basis. If it had done the latter, the Congress would have preserved the symmetry of the Act by permitting recovery against the United States only to the extent permitted by the local law as against a private employer. Instead, on August 1, 1947, the Congress added the following proviso to the language of § 410(a) above quoted, 61 Stat. 722: “Provided, however, That in any case wherein death was caused, where the law of the place where the act or omission complained of occurred, provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons, respectively, for whose benefit the action was brought, in lieu thereof. * * *” In the process of enactment of the foregoing amendment, the committee reports in both the House and Senate, after pointing out that under the scheme of the Federal Tort Claims Act each case is determined “in accordance with the law of the State where the death occurred,” made the following comment: “This bill simply amends the Federal Tort Claims Act so that it shall grant to the people of two States the right of action already granted to the people of the other 46. “This bill, with the committee amendment, will not authorize the infliction of punitive damages against the Government, and as so amended, it is reported favorably by a unanimous vote. . “Its passage will remove an unjust discrimination never intended, but which works a complete denial of remedy for wrongful homicide.” H.R.Rep. No. 748, Committee on the Judiciary, 80th Cong., 1st Sess.; Sen.Rep. No. 763, Committee on the Judiciary, 80th Cong., 1st Sess. The substantive provisions of § 410 (a), as thus amended, have since been split up and reenacted in separate sections of Title 28, U.S. Code, as follows: “§ 1346. United States as defendant ****** “(b) Subject to the provisions of chapter 171 of this title, the district courts, * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. * * * ” “§ 2674. Liability of United States “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. “If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof.” Under the provisions of the Federal Tort Claims Act as they now appear in Title 28 of the Code, it is still true that Congress has not enacted a new comprehensive code of federal tort liability. It is still true that the Act in general calls for an application of the law of the state where the wrongful act or omission occurred. Also, the generalization is still in the law that the United States is to be held liable in tort “in the same manner and to the same extent as a private individual under like circumstances.” The exceptional situation covered by the second paragraph of 28 U.S.C. § 2674 applies only to two of the 48 states, for in 46 of the states recovery under their respective Death Acts rests upon a compensatory basis. In about a dozen of these 46 states, the local Death Act contains some maximum limit on the amount of recovery. See Note, 26 Ind. L.J. 428, 440 n. 40 (1951). In these states, as the plaintiffs are bound to concede, the United States could not be liable for more than the statutory maximum permitted by state law in suits against private employers. Such is the clear mandate of the first paragraph of 28 U.S.C. § 2674. As a matter of fact, the Congress and its committees were mistaken in supposing, when the 1947 amendment was enacted, that the Massachusetts Death Act at that time provided for the imposition of damages solely on a punitive basis. Such for many years had been so, but on June 7, 1947, the legislature had amended the statute so as to provide solely for compensatory damages of not less than two thousand nor more than fifteen thousand dollars, “to be assessed with reference to the pecuniary loss sustained by the parties entitled to benefit hereunder.” Mass. Acts 1947, C. 506, § 1A. If the local Death Act had remained in this form, then the 1947 amendment of § 410(a) of the Federal Tort Claims Act (now the second paragraph of 28 U.S.C. § 2674) would have had no application; and clearly the United States could not have been held liable for more than the statutory maximum which, under the local Death Act, could have been assessed against a private employer. However, the Massachusetts legislature soon changed its statute again, and when the tortious act occurred in the present case, and at all times thereafter, the local Death Act contained the-following terms, Mass.G.L.(Ter.ed.) C. 229, § 20, as amended: “§ 2C. Damages for Death by Negligence, etc.; General Provisions. * * * a person who by his negligence or by his wilful, wanton or reckless act or by the negligence or wilful, wanton or reckless act of his agents or servants while engaged in his business, causes the death of a person in the exercise of due care, who is not in his employment or service, shall be liable in damages in the sum of not less than two thousand nor more than twenty thousand dollars, to be assessed with reference to the degree of his culpability or of that of his agents or servants, to be recovered in an action of tort, * * * to be distributed as provided in section one.” Mass.Acts 1951, c. 250. Therefore, the plaintiffs were quite right in contending that the second paragraph of 28 U.S.C. § 2674 applied to the case at bar. As suggested above, the 1947 amendment to the Tort Claims Act did make a partial break in the original pattern of the Act in that, wherever the amendment was applicable, it became possible (1) that the United States might be held liable for a greater sum of damages, assessed on a compensatory basis, than might be assessed under the local Death Act against a private employer in cases in which the wrongdoer was deemed to have been guilty of the minimum degree of culpability, and (2) the United States might be liable for no substantial damages at all, where the plaintiff failed to prove any pecuniary injury to the next of kin, as was the case in Heath v. United States, D.C.N.D.Ala.1949, 85 F.Supp. 196, though under the local Death Act a private employer might be subject to large damages assessed on a punitive basis. Thus in either of these situations the United States would not be liable “to the same extent” as a private employer under like circumstances, which is the generally applicable standard in the first paragraph of 28 U.S.C. § 2674. But we think it is unnecessary to construe the 1947 congressional amendment, which was intended to remove what was deemed to be a discrimination in a very narrow situation, so as to effectuate a far greater discrimination and incongruity. If the contention of the plaintiffs were accepted, then in Massachusetts alone, of all the states whose respective Death Acts contain a maximum limit of recovery, the United States may be held liable in an amount in excess of the maximum limit of recovery permitted against a private employer. The plaintiffs would have us read literally, and in isolation, the language of the second paragraph of 28 U.S.C. § 2674 that, in lieu of punitive damages, “the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought.” It is argued that since the damages, so computed, have been found to be $60,000, and since the Congress has imposed no maximum limit of recovery, then necessarily, by the very command of the Congress, the judgment against the United States here must be in the sum of $60,000. The trouble with the foregoing argument is that the Federal Tort Claims Act, as amended, must be read as an organic whole. In 1947, when the Congress enacted the amendment, it demonstrated no objection to that portion of the Massachusetts Death Act which contained a maximum limit of recovery. That was purely a matter of local legislative policy, and if a private employer could not be held for more than $20,000, then the Congress, in waiving the governmental immunity of the United States, had no reason to impose a liability upon the United States in excess of the maximum limit applicable to a private employer. What the Congress did not want was to have damages assessed against the United States on a punitive basis. We give full effect to the language of the congressional amendment if we assess damages against the United States on a compensatory basis measured by the pecuniary injuries resulting to the next of kin. Having done that, and if the amount so computed is in excess of $20,000, it is in no way inconsistent to cut down the larger sum to $20,000, the maximum amount recoverable under the terms of the Massachusetts Death Act. All of the $20,-000 to be recovered in such a case would be compensatory damages — not one cent of it would be punitive damages — and thus there would be achieved the congressional objective of preventing the infliction of punitive damages against the United States. In other words, except where Congress has clearly provided otherwise, it is the general scheme of the Tort Claims Act to refer questions of liability of the United States to the provisions of “the law of the place where the act or omission complained of occurred.” Thus we must look to the local law to see who is entitled to sue, and for whose benefit; we must look to the local law on whether contributory negligence of the decedent, or a release by him during his lifetime, bars the action for wrongful death; and we must also apply the provision of the local law as to the maximum amount of recovery, for in none of these particulars is there .any inconsistent provision in the federal Act. The judgment of the District Court is vacated and the case is remanded to the District Court for further proceedings not inconsistent with this opinion. . This is so because in Alabama, though damages under its Death Act are assessed on a punitive basis, there is no maximum limit on the amount of recovery. See Heath v. United States, D.C.N.D.Ala. 1949, 85 F.Supp. 196. In all the other states whose acts contain a maximum limit, the damages are assessed upon a compensatory basis, so the second paragraph of 28 U.S.C. § 2674 is inapplicable.

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number.

VALINDA F. OLADEINDE, PATRICIA L. FIELDS, Plaintiffs-Counterclaim Defendants-Appellees, v. CITY OF BIRMINGHAM, a municipal corporation, Richard Arrington, individually and in his capacity as Mayor of the City of Birmingham, Arthur Deutsch, individually and in his capacity as Chief of Police of the City of Birmingham, Julius Walker, individually and in his capacity as Provisional Captain of Administrative Vice-Narcotics Division, R.L. Webb, individually and in his capacity as Provisional Captain of Internal Affairs Division, Defendants-Counterclaim Plaintiffs-Appellants, David Barber, Roger Brown, United States of America, State of Alabama, Movants. No. 91-7518. United States Court of Appeals, Eleventh Circuit. June 24, 1992. Kenneth L. Thomas, Thomas, Means & Gillis, Birmingham, Ala., for Walker. Joe R. Whatley, Jr., Samuel H. Heldman, Cooper, Mitch, Crawford, Kuykendall & Whatley; and Donald V. Watkins, Birmingham, Ala., for all other defendants. William M. Dawson, Jr., and Gayle H. Gear, Dawson, Ramsey & Wiley, Birmingham, Ala., for appellees. Before EDMONDSON and COX, Circuit Judges, and MERHIGE , Senior District Judge. Honorable Robert R. Merhige, Jr., Senior U.S. District Judge for the Eastern District of Virginia, sitting by designation. EDMONDSON, Circuit Judge: Defendants, sued under 42 U.S.C. § 1983, appeal the district court’s order denying their motion to dismiss based, among other things, on qualified immunity. We reverse in part and affirm in part. BACKGROUND Plaintiffs, Yalinda F. Oladeinde and Patricia L. Fields, are Birmingham Police Department officers who filed a section 1983 action against the City of Birmingham, Birmingham Mayor Richard Arrington, Birmingham Police Chief Arthur Deutsch, Provisional Captain Julius Walker of the Vice-Narcotics Division of the Birmingham Police Department and Provisional Captain R.L. Webb of the Department’s Internal Affairs Division. (Excluding the City, defendants were sued in their official and individual capacity.) Plaintiffs alleged that defendants violated plaintiffs’ rights to free speech, due process, equal protection and freedom of association by retaliating against plaintiffs’ “whistleblowing” about wrongdoing in the Police Department. Defendants moved unsuccessfully to dismiss the original complaint and then moved for dismissal again after some discovery and pretrial proceedings. The district court denied this second motion, but certified the denial order for interlocutory appeal. This court denied permission to appeal; we were unable to determine what question of law might control plaintiffs’ claims because plaintiffs’ complaint was a “shotgun” pleading containing rambling facts and multiple claims for relief all under one count and because we were unable to determine from the district court’s order whether the district court ruled on a question of law. See Oladeinde v. City of Birmingham, No. 91-2061 (11th Cir. filed May 8, 1991). The case went back to the district court, which allowed plaintiffs to amend their complaint. Defendants again moved for dismissal after plaintiffs amended their complaint; the motion to dismiss was based on these grounds: (1) complaint’s failure to conform to Fed.R.Civ.P. 8; (2) complaint’s failure to state a claim for which relief might be granted; (3) the substance of the alleged wrongful activity was privileged from discovery; (4) qualified immunity; and (5) for the state-law claims, defendants’ argument that the district court should exercise no pendent jurisdiction. The district court denied defendants’ motion with the following brief statement: Defendants evidently got carried away by the Eleventh Circuit’s comments by way of dicta and citation to Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir.1991) [(condemning “shotgun” pleadings), cert. denied, — U.S. —, 112 S.Ct. 167, 116 L.Ed.2d 131 (1991)]. This court is satisfied that plaintiffs’ complaint falls comfortably in between what would be required by strict common law pleading and “shotgun” or nebulous and vague pleading so as to find acceptance under the notice pleading requirements of the federal rules. In addition, defendants’ motion to dismiss appears to be fired out of the same or a similar shotgun from which they accuse plaintiffs of firing. In any event none of the grounds or rounds fired are sufficient to justify a grant of the motion to dismiss. Oladeinde v. City of Birmingham, No. 91-AR-0196-S (N.D.Ala. filed June 2, 1991). Apart from stating that plaintiffs’ complaint met federal civil procedure pleading requirements, the district court never explained why it rejected defendants’ other grounds for dismissal. This appeal by the individual-capacity defendants followed. DISCUSSION Defendants argue that the district court erred by concluding that plaintiffs’ complaint conformed to procedural rules, by concluding that plaintiffs’ complaint stated a claim for which relief might be granted, and by rejecting defendants’ qualified-immunity defense. Many factors complicate our review of defendants’ three claims, but no factor plays as dominant a complicating role as the long and wordy nature of plaintiffs’ amended complaint. In all kinds of cases, pleadings should be “simple, concise, and direct.” Fed.R.Civ.P. 8(e)(1). We are perplexed and frustrated by the fact that, despite clear guidance from this court, “the complaint presented to us ... [continues to be] a typical ‘shotgun’ pleading.” Oladeinde v. City of Birmingham, No. 91-2061, slip op. at 2 (11th Cir. filed May 8, 1991). But in the light of the fact that this case is presented to us for the third time (although the case has yet to advance much beyond the initial-pleadings stage) and in the interest of judicial economy and efficiency, we will review defendants’ claims instead of remanding this case for further repleading. We admit to serious doubt that the complaint complies with Rule 8, but we will not reverse the district court on this point. We reject defendants’ first point on appeal. On a related question about pleadings (whether the complaint states a claim), we want to use this opportunity to repeat that, “in an effort to eliminate nonmeritorious claims on the pleadings and to protect public officials from protracted litigation involving specious claims, we, and other courts, have tightened the application of Rule 8 to § 1983 cases.” Arnold, v. Board of Educ. of Escambia County, 880 F.2d 305, 309 (11th Cir.1989) (citation omitted). In pleading a section 1983 action, some factual detail is necessary, especially if we are to be able to see that the allegedly violated right was clearly established when the allegedly wrongful acts occurred. We also stress that this heightened Rule 8 requirement—as the law of the circuit—must be applied by the district courts; and we had anticipated that it would be rigorously applied by the district court in this case, particularly in the light of our earlier decision denying defendants’ appeal. Rule 12(b)(6) and Qualified Immunity At this early stage in the proceedings, the Rule 12(b)(6) defense and the qualified-immunity defense become intertwined. Under Rule 12(b)(6), defendants can defeat plaintiffs’ cause of action if the complaint fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Under the qualified-immunity defense, defendants are immune from liability and even from trial if plaintiffs’ complaint fails to state a violation of “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). And as the Supreme Court has stated, “[a] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.” Siegert v. Gilley, — U.S. —, —, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). When reviewing motions to dismiss, we follow the same standards as the trial courts. All well-pleaded facts in plaintiffs’ complaint and all reasonable inferences drawn from those facts are taken as true. See, e.g., Stephens v. Department of Health and Human Servs., 901 F.2d 1571, 1573 (11th Cir.1990). Guided by this standard and by the heightened specificity requirement of Rule 8 in section 1983 cases, we now address plaintiffs’ claims. We will first discuss plaintiffs’ separate claims and then discuss how plaintiffs’ surviving claims affect defendants in their individual capacity. Separate Claims We can immediately dispose of two claims contained in plaintiffs’ complaint: equal protection and freedom of association. Our review of the complaint and relevant case law shows that no set of facts alleged support either of these two claims. This conclusion is made even easier by plaintiffs’ counsel’s admission during oral argument that she was “persuaded” by defendants’ arguments and by applicable case law that the alleged equal-protection and freedom-of-association claims were legally unsupportable and that, if given the chance, she would “not include” these claims in another amended complaint. Plaintiffs, then, have concededly failed to state equal-protection and freedom-of-association claims for which relief might be granted. Plaintiffs have also failed to state a due-process claim for which relief might be granted. Plaintiffs’ complaint alleges that plaintiff Oladeinde’s reputation was soiled, that plaintiffs Oladeinde and Fields were transferred for no good reason, and that plaintiff Oladeinde was denied a promotion. None of these allegations implicate the due-process protection of the Fourteenth Amendment. We first examine whether plaintiffs alleged a violation of their procedural due-process rights. When reviewing a due-process claim, the threshold question is whether plaintiffs were deprived of a protected property or liberty interest. See, e.g., Faucher v. Rodziewicz, 891 F.2d 864, 869 (11th Cir.1990). Our inquiry will start with the only allegation affecting both plaintiffs: the transfers. Because we continue to be unwilling to hold that a transfer, which involves no loss of pay and no loss of rank, deprives a plaintiff of a protected liberty or property interest, we conclude that plaintiffs have alleged no procedural due-process violation on this point. “The internal transfer of an employee, unless it constitutes such a change of status as to be regarded essentially as a loss of employment, does not provide the additional loss of a tangible interest” that deserves Fourteenth Amendment protection. See Faucher, 891 F.2d at 870 (citation omitted). We also conclude that the alleged defamatory remarks made about plaintiff Oladeinde fall outside the protection of constitutional due process. Plaintiff Oladeinde tries to rely on Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), to argue that allegations of criminal acts may invoke due-process protection. This reliance is misplaced, however, because plaintiff in Owen had been discharged immediately following, and presumably because of, the allegedly false statements. Id. at 633 n. 13, 100 S.Ct. at 1406-07 n. 13. Here, no loss of income or rank occurred, and absent a discharge or more, injury to reputation itself is not a protected liberty interest. See, e.g., Siegert v. Gilley, — U.S. at —, 111 S.Ct. at 1794. Plaintiff Oladeinde’s promotion is also not a protected property or liberty interest. In Wu v. Thomas, 847 F.2d 1480, 1485 (11th Cir.1988), this court stated that “a prospective promotion is not a property or liberty interest protected by the fourteenth amendment.” Here, no protected interest arose from the mere recommendation of a promotion. Aside from failing to state a claim for a violation of procedural due-process rights, plaintiffs have also failed to state a claim for a violation of substantive due-process rights. Substantive due process is a difficult concept to define. But “substantive due process is violated only when the government engages in actions which ‘offend those canons of decency and fairness which express the notions of justice....’ ” Faucher, 891 F.2d at 871 (citations omitted). Unless the alleged conduct by the state actor shocks the conscience, substantive due process is not implicated. Id. Here, no shocking conduct was alleged, no substantive due-process rights were violated, and no due-process claim was stated for which relief might be granted. Plaintiffs, however, have successfully stated a free-speech claim for which relief might be granted. Bearing in mind that all facts alleged in the complaint and all reasonable inferences drawn from those facts must be takfen as true on a motion to dismiss, see, e.g., Stephens, 901 F.2d at 1573, plaintiffs have alleged the following: before, during and after their time in the Birmingham Police Department Narcotics Unit, plaintiffs sought to expose allegedly corrupt connections between police, city officials and drug dealers; and, as a result of these efforts, plaintiffs were exposed to retaliatory harassment, threats and transfers to keep them quiet about affairs that might be a matter of public concern. In essence, plaintiffs allege that they are “whistleblowers” and that defendants violated plaintiffs’ free-speech rights by retaliating against them for their efforts. Taking these allegations as true, plaintiffs have stated a free-speech claim for which relief might be granted. Cf. Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 n. 2 (11th Cir.1989) (First Amendment protects public employees’ right to speak about issues of public concern). Although plaintiffs have successfully stated a free-speech claim, they have stated this claim only against three of the individual-capacity defendants: Deutsch, Walker and Webb. Nowhere do plaintiffs allege particular wrongful acts by Mayor Arrington and nowhere do plaintiffs allege a sufficient causal connection between the alleged free-speech violation and the Mayor’s conduct. Absent these allegations, plaintiffs’ complaint fails to state a section 1983 claim against the Mayor. See, e.g., Hansen v. Black, 885 F.2d 642, 645-46 (11th Cir.1989). Plaintiffs came closest to alleging the Mayor’s involvement when plaintiffs made the following statements in their complaint: “As a result of plaintiffs’ [whistleblowing], defendants Webb, Walker, Deutsch and Arrington took certain actions in an effort to punish, harass, and intimidate such ‘whistleblowers....’” Plaintiffs’ Amended Complaint at 7, para. 20; and “Defendants illegally conspired to violate plaintiffs’ rights....” Id. at 18, para. 43. In the light of the heightened specificity requirements for Rule 8 in section 1983 cases, we look for definiteness in the averment of wrongful acts. These vague allegations, which are supported by no specific factual allegations against the Mayor, constitute no basis for a section 1983 cause of action. The district court, therefore, should have dismissed the claims against the Mayor. Defendants in their Individual Capacity We now address the question whether the remaining individual-capacity defendants are entitled to qualified immunity against plaintiffs’ free-speech claim. We conclude that, based on the record before us, Deutsch, Walker and Webb are unentitled to qualified immunity at this stage in the proceedings. Defendants correctly argue that, in free-speech cases, “[b]ecause no bright-line standard puts the reasonable public employer on notice of a constitutional violation, the employer is entitled to immunity except in the extraordinary case where [the balancing test from Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (free-speech interest of employee must be weighed against employer’s interest in performing public services efficiently)], would lead to the inevitable conclusion that the [retaliatory action] was unlawful.” Dartland, 866 F.2d at 1323. Dartland is the law. But considering the complaint only, this appears to be a case in which such an inevitable conclusion would be reached. Therefore, at this stage in the proceedings, the qualified-immunity defense of Deutsch, Walker and Webb fails because the limited record before us does not support defendants’ contention that, in the light of prevailing legal standards, their interest in efficiently operating the police department arguably outweighed plaintiffs’ free-speech rights on a matter of public concern. We stress, however, that defendants retain the right to assert the qualified-immunity defense at the next stage of the proceedings (and, for that matter, throughout the proceedings) as more facts are developed. CONCLUSION Because plaintiffs’ complaint fails to state a claim for which relief might be granted on the assertions that defendants violated plaintiffs’ rights to due process, freedom of association and equal protection and because plaintiffs’ complaint fails to state a claim against Mayor Arrington, we REVERSE the district court’s denial of defendants’ motion to dismiss these claims. But we AFFIRM the district court’s decision in all other respects. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. . Plaintiffs also raised state-based tort claims. . We deem abandoned those motion-to-dismiss arguments that defendants advanced in the district court but failed to raise on appeal. See, e.g., Rogero v. Noone, 704 F.2d 518, 520 n. 1 (11th Cir.1983). . Rule 8 requires, among other things, that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although "[e]ach averment of a pleading shall be simple, concise, and direct[,] ... [n]o technical forms of pleading ... are required.” Id. 8(e)(1). . See Oladeinde v. City of Birmingham, Nos. 91-2061 & 91-2063 (11th Cir. filed May 8, 1991) (denying permission to appeal and denying mandamus petition); Oladeinde v. City of Birmingham, No. 91-7530 (11th Cir. filed July 29, 1991) (denying mandamus petition and granting stay pending appeal). . In asserting their Rule 12(b)(6) motion to dismiss for failure to state a claim, we note that defendants have attacked the validity of each constitutional claim allegedly asserted in plaintiffs’ complaint. See, e.g., Defendants’ Motion to Dismiss at 15-23.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).

This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?

INSULAR POLICE COMMISSION v. LOPEZ. No. 4192. Circuit Court of Appeals, First Circuit. March 26. 1947. Writ of Certiorari Denied June 16, 1947. See 67 S.Ct. 1743. Samuel D. Slade, Department of Justice, of Washington, D. C. (John F. Sonnett, Asst. Atty. Gen., Paul A. Sweeney and Emery Cox, Jr., Attys., Department of Justice, Mastín G. White, Sol., Department of Interior, and Irwin W. Silverman, Chief Counsel, Division of Territories and Island Possessions, Department of Interior, all of Washington, D. C., of counsel), for appellant. Angel M. Villamil and Gaetan Roberts & Alcala, all of San Juan, P. R., for ap-pellee. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAGRUDER, Circuit Judge. Carlos M. Lopez, an honorably discharged veteran of the United States Army, filed a petition in the District Court of the United States for Puerto Rico under § 8 of the Selective Training and Service Act of 1940, as amended, 54 Stat. 890, 56 Stat. 724, 58 Stat. 798, 50 U.S.C.A.Appendix, § 308. He sought a judgment ordering defendant, Insular Police Commission, an agency of the Government of Puerto Rico, to restore him to his former position as an insular policeman at a salary of $83.33 per month and to compensate him for his interim loss of salary. A motion to dismiss for lack of jurisdiction was filed by defendant; but this motion was denied for lack of prosecution, and thereafter defendant filed its answer admitting most of the factual allegations of the petition. After a pretrial conference, the district court, on May 29, 1946, filed its findings of fact and conclusions of law and its judgment in the case (67 F.Supp. 112). The court concluded that petitioner was entitled to be reinstated in his former position as insular policeman “since it does not appear that respondent’s circumstances are so changed as to make it impossible or unreasonable to reinstate petitioner to his former position and since it further appears that petitioner is qualified to perform the duties of said position.” The judgment, which is the subject of the present appeal, ordered that petitioner be reinstated to the position of insular policeman; that he be not discharged from such position without cause within one year after December 7, 1945 (the date on which he applied for reemployment), and that he “be paid his regular salary for the period beginning December 7, 1945 up to this date.” The only question presented to us by appellant is whether the court below had jurisdiction of a suit to enforce a veteran’s reemployment rights as against an agency of the Government of Puerto Rico, a territory of the United States, in the absence of a provision in the Selective Training and Service Act authorizing such a suit. Under the Organic Act, 48 U.S.C.A. § 863, the United States District Court for Puer-to Rico has “jurisdiction of all cases cognizable in the district courts of the United States,” plus certain additional jurisdiction not now relevant. As appears from the text of the Selective Training and Service Act, the pertinent portions of which are quoted above in the footnote, the only provision there made for judicial enforcement of a veteran’s reemployment rights is contained- in § 8(e) relating exclusively to positions in the employ of any private employer. It seems that the district court erroneously thought that the case came within § 8(e), for one of the court’s stated conclusions was that defendant’s circumstances had not so changed as to make it impossible or unreasonable to reinstate petitioner to his former position— a condition precedent having to do with reinstatement to private employment only, not to reinstatement to a position “in the employ of the United States Government, its Territories or possessions, or the District of Columbia”. In Lynch v. United States, 1934, 292 U.S. 571, 582, 54 S.Ct. 840, 845, 78 L. Ed. 1434,-the court said: “When the United States creates rights in individuals against itself, it is under no obligation to provide a remedy through the courts. United States v. Babcock, 250 U.S. 328, 331, 39 S.Ct. 464, 63 L.Ed. 1011. It may limit the individual to administrative remedies. Tutun v. United States, 270 U.S. 568, 576, 46 S.Ct. 425, 70 L.Ed. 738.” So far as we can find, the legislative history of the Selective Training and Service Act is barren of any intimation that the Congress contemplated any judicial enforcement of the rights conferred as against the Government of the United States or of its territories or possessions. Though the petition based the jurisdiction of the court below solely on § 8 of the Selective Training and Service Act, appellee now suggests that jurisdiction may be based upon paragraph (14) of § 24 of the Judicial Code,'28 U.S.C.A. § 41(14), reading: “The district courts shall have original jurisdiction as follows: * * * (14) Suits to redress deprivation of civil rights. “Fourteenth. Of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage, of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States.” In this connection, reference is made to 8 U.S.C.A. § 43, derived from § 1 of the Civil Rights Act of April 20, 1871, 17 Stat. 13, as reenacted with modifications in R.S. § 1979: “§ 43. Civil action for deprivation of rights. "Every person who, under color of any statute, ordinance, regulation, custom, or uságe, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall'be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” We do not think that the above provisions of law have any relevance to the present case. This is not a suit against public officials as individual wrongdoers to recover damages or to enjoin a threatened invasion of plaintiff’s rights. The object of the suit, as Well as the effect of the judgment, is to require affirmative official action putting plaintiff on the payroll as an employee of the insular government and reimbursing plaintiff out of the public treasury for his interim loss of salary. It is in substance a suit against the insular government, a subordinate arm of the Government of the United States which has not consented to such suit. Mine Safety Appliances Co. v. Forrestal, 1945, 326 U.S. 371, 66 S.Ct. 219. It is to be noted that § 8(b) (A) of the Selective Training and Service Act puts in a single category positions “in the employ of the United States Government, its Territories or possessions, or the District of Columbia”, Suppose a veteran should bring suit in a district court against an official of the Government of the United States to obtain reemployment in a federal position under the jurisdiction of such official. Cf. Ballf v. Kranz, 9 Cir., 1936, 82 F.2d 315. Such a suit obviously could not be maintained under the jurisdictional provision of § 24(14) of the Judicial Code, because the respondent official, in denying the application for reemployment, could not be said to be acting “under color of any law * * * of any State.” As judicial enforcement of a veteran’s reemployment rights could not be had in such a case, it certainly cannot be supposed, in the absence of explicit legislative provision, that Congress contemplated judicial enforcement of a veteran’s reemployment rights covered by § 8(b) (A) where the public position happened to be in the employ of a territorial government. Jurisdiction of the court below cannot be rested on paragraph (1) of § 24 of the Judicial Code, 28 U.S.C.A. § 41(1), conferring original jurisdiction upon the district courts in “all suits of a civil nature, at common law or in equity, * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States * * In the first place, the requisite jurisdictional amount is lacking. In the second place, the judgment now appealed from is in the nature of mandamus; and district courts do not have general original jurisdiction in cases of mandamus, but may issue such writ only in aid of their jurisdiction in cases already pending, under § 262 of the Judicial Code, 28 U.S.C.A. § 377. For a long time, proceedings in mandamus have not been deemed to be “suits of a civil nature, at common law or in equity.” Bath County v. Amy, 1871, 13 Wall. 244, 248, 20 L.Ed. 539; Rosenbaum v. Bauer, 1887, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743, affirming Rosenbaum v. Board of Supervisors, C.C.D.Cal., 1886, 28 F. 223; Knapp v. Lake Shore R. Co., 1905, 197 U.S. 536, 25 S.Ct. 538, 49 L.Ed. 870; Covington & Cincinnati Bridge Co. v. Hager, 1906, 203 U.S. 109, 27 S.Ct. 24, 51 L.Ed. 111; Barber v. Hetfield, 9 Cir., 1925, 4 F.2d 245; Torre v. Fulton, 1 Cir., 1928, 28 F.2d 1020; Ballf v. Krantz, 9 Cir., 1936, 82 F.2d 315; Youngblood v. United States, 6 Cir., 1944, 141 F.2d 912. Ballf v. Kranz, just cited, is close to the case at bar in the situation presented. The petition filed in a district court alleged that petitioner had been employed as a clerk in the district office of the United States Civil Service Commission at San Francisco, California, of which office respondent was the district manager; that petitioner was ordered to active military duty as an officer of the Reserve Corps, United States Army ; that at the expiration of said period of military service, petitioner requested restoration to his position in said district office, to which he was entitled by virtue of the Act of May 12, 1917, 40 Stat. 72, providing that “members of the Officers’ Reserve Corps who are in the employ of the United States Government or of the District of Columbia and who are ordered to duty by proper authority shall, when relieved from duty, be restored to the positions held by them when ordered to duty”; that notwithstanding this provision of law, respondent had refused to restore petitioner to said position. The prayer of the petition was for a writ of mandamus compelling respondent to restore petitioner to his position in the district office and to pay petitioner the salary of said position from the date on which he had applied for reinstatement. It was held that the district court properly dismissed the petition for lack of jurisdiction. The judgment of the District Court is vacated and the case is remanded to that court with direction to dismiss the petition for lack of jurisdiction. “Sec. 8. (a) Any person inducted into the land or naval forces under this Act for training and service, who, in the judgment of those in authority over him, satisfactorily completes his period of training and service under section 3(b) shall be entitled to a certificate to that effect upon the completion of such period of training and service, which shall include a record of any special proficiency or merit attained. * * * “(b) In the case of any such person who, in order, to perform such training and service, has left ox- leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perforxn the duties of such position, and (3) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after dischax'ge for a period of not more than one year— “(A) if such position was in the employ of the United States Government, its Territories or possessions, or the District of Columbia, sueh person shah be restored to sueh position or to a position of like senioi'ity, status, and pay; “(B) if such position was in the employ of a private employer, such employer shall restore such person to snch position. or to a position of like seniority, status, and pay unless the employer’s circumstances have so changed as to make it impossible or unreasonable tó' do so; * * * “(e) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of training and service in the land or naval forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by tbe employer pursuant to established roles and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not bo discharged from snch position without cause within one year after such restoration. * * * “(e) In case any private employer fails or refuses to comply with the provisions of subsection (b) or subsection (c), the district court of the United States for the district in which such private employer maintains a place of business shall have power, upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, to specifically require such employer to comply with such provisions, and, as an incident thereto, to compensate such person for any loss of wages or benefits suffered by reason of snch employer’s unlawful action. The court shall order a speedy hearing in any such case and shall advance it on the calendar. Upon application to the United States district attorney or comparable official for tbe district in which such private employer maintains a place of business, by any person claiming to be entitled to the benefits of such provisions, such United States district attorney or official, if reasonably satisfied that the person so applying is entitled to such benefits, shall appear and act as attorney for such person in the amicable adjustment of tbe claim or in the filing of any motion, petition, or other appropriate pleading and the prosecution thereof to specifically require such employer to comply with such provisions: Provided, That no fees or court costs shall be taxed against the person so applying for such benefits. * * * ” In addition it could not bo said that the official had deprived the plaintiff of any right secured by the Constitution of the United States “or of any right secured by any law of the United States providing for equal rights of citizens of the United States.”

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 "labor relations".

What is the specific issue in the case within the general category of "labor relations"?

ELIZABETHTOWN GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Columbia Gas Transmission Corporation, Consolidated Edison Company of New York, Inc., Philadelphia Gas Works, Brooklyn Union Gas Company, Bay State Gas Company, et al., Algonquin Gas Transmission Company, Consolidated Gas Supply Corporation, Indiana Gas Company, Inc., United Cities Gas Company, Somerset Gas Service of Somerset, Kentucky, Public Service & Gas Company, Long Island Lighting Company, General Motors Corporation, Public Service Commission of the State of New York, Central Illinois Public Service Company, Arkansas-Missouri Power Company, Associated Natural Gas Company, Texas Gas Transmission Corporation, Municipal Distributors Group, Texas Eastern Transmission Corporation, Equitable Gas Company, and Philadelphia Electric Company, Intervenors. ELIZABETHTOWN GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Consolidated Gas Supply Corporation, Brooklyn Union Gas Company, Consolidated Edison Company of New York, Inc., Texas Eastern Transmission Corporation, Somerset Gas Service of Somerset, Kentucky, Carnegie Natural Gas Company, Public Service Electric and Gas Company, Bay State Gas Company, et al., Algonquin Gas Transmission Company, Municipal Distributors Group, Public Service Commission of the State of New York, General Motors Corporation, Central Illinois Public Service Company, Intervenors. Nos. 77-1666, 78-1041. United States Court of Appeals, District of Columbia Circuit. Argued May 4, 1979. Decided Dec. 23, 1980. John T. Miller, Jr., Washington, D. C., for petitioner. Andrew M. Zack, Atty., Federal Energy Regulatory Commission, Washington, D. C., for respondent. Howard E. Shapiro, Sol., Federal Energy Regulatory Commission, and Donald C. Simpler, Atty., Federal Energy Regulatory Commission, Washington, D. C., were on brief, for respondent. Platt W. Davis, III, Washington, D. C., with whom J. Evans Attwell and Judy M. Johnson, Houston, Tex., were on brief, for intervenor Texas Eastern Transmission Corporation. John E. Holtzinger, Jr., Karol Lyn Newman and Charles R. Brown, Washington, D. C., were on brief, for intervenor Consolidated Gas Supply Corporation. Barbara M. Gunther, Joseph P. Stevens and Alvin Adelman, Brooklyn, N. Y., were on brief, for intervenor Brooklyn Union Gas Company. William I. Harkaway, Washington, D. C., was on brief, for intervenor, Consolidated Edison Company of New York, Inc. Jerome C. Muys and Paul T. Nowak, Jr., Washington, D. C., were on brief, for intervenor Somerset Gas Service of Somerset, Kentucky. William R. Duff, Carl W. Ulrich, Washington, D. C., Edward S. Kirby and James R. Lacey, Newark, N. J., were on brief, for intervenor, Public Service Electric and Gas Company. Francis J. McShalley and John S. Schmid, Washington, D. C., were on brief, for intervenor, Algonquin Gas Transmission Company- Barton A. Hertzbach and Stephen Schachman, Philadelphia, Pa., were on brief, for intervenor, Philadelphia Gas Works. William T. Miller, Washington, D. C., was on brief, for intervenor, Municipal Distributors Group. Peter H. Schiff, Gen. Counsel, Public Service Commission, Albany, N. Y., Richard A. Solomon, Dennis Lane and Sheila S. Hollis, Washington, D. C., were on brief, for intervenor, Public Service Commission of the State of New York. Edward J. Grenier, Jr., Richard P. Noland and Jay L. Lazar, Washington, D. C., were on brief, for intervenor, General Motors Corporation. John D. Daly and Giles D. H. Snyder, Charleston, W. Va., were on brief, for intervenor, Columbia Gas Transmission Corporation in No. 77-1666 only. Stephen J. Small, Charleston, W. Va., was on brief, for intervenor, Columbia Gas Transmission Corporation in No. 77-1666 only. Also Edward H. Gerstenfield, Bethesda, Md., entered an appearance for intervenor, Carnegie Natural Gas Company in No. 78-1041 only. Also John S. Schmid and Paul W. Fox, Washington, D. C., entered appearances for intervenor, Bay State Gas Company, et al. in Nos. 77-1666 and 78-1041. Also James K. Mitchell, Bloomfield Hills, Mich., entered an appearance for intervenor, Central Illinois Public Service Company in Nos. 77-1666 and 78-1041 and intervenor, Arkansas-Missouri Power Company, et al. in No. 77-1666 only. Also Jack M. Irion, Shelbyville, Tenn., entered an appearance for intervenor, United Cities Gas Company in No. 77-1666 only. Also H. Kent Howard and Jon D. Noland, Indianapolis, Ind., entered appearances for intervenor, Indiana Gas Company, Inc. in No. 77-1666 only. Also Robert C. Richards, Mineóla, N. Y., entered an appearance for intervenor, Long Island Lighting Company in No. 77-1666 only. Also Augustine A. Mazzei, Jr., Asst. General Counsel, Pittsburgh, Pa., entered an appearance for intervenor, Equitable Gas Company in No. 77-1666 only. Also Christopher T. Boland and John F. Harrington, Washington, D. C., entered appearances for intervenor, Texas Gas Transmission Corporation in No. 77-1666 only. Also Eugene J. Bradley, Philadelphia, Pa., entered an appearance for intervenor, Philadelphia Electric Company in No. 77-1666 only. Also Philip R. Telleen, Atty., Federal Energy Regulatory Commission, Washington, D. C., entered an appearance for respondent in No. 77-1666 only. Before LEVENTHAL , ROBINSON and ROBB, Circuit Judges. Circuit Judge Leventhal, a member of the panel which heard oral argument in this case, died before the case was decided. Opinion PER CURIAM PER CURIAM: Petitioner Elizabethtown Gas Company seeks review of a series of orders issued by the Federal Energy Regulatory Commission (FERC) and its predecessor the Federal Power Commission approving an interim plan for curtailment of gas by the Texas Eastern Transmission Corporation (Tetco). Elizabethtown challenges the validity of the curtailment plan as a system purportedly based upon the eventual end uses of natural gas, and questions the method established by FERC for challenging the data underlying the curtailment plan. Elizabethtown also raises arguments concerning the plan’s exemption for small customers, the categorization of gas kept in storage in proportion to the actual uses served, and the reservation of the issue of compensation pending the development of a record on the need for a compensation feature. For the reasons which follow, we affirm the Commission’s action in approving the plan here at issue. Tetco owns and operates a major interstate natural gas pipeline extending from Texas to New York, selling gas to distributors for resale rather than directly to consumers (end-users). Petitioner Elizabeth-town, one of Tetco’s large distributors, purchases gas for resale from Tetco and two other interstate pipelines. In the early 1970’s Tetco began experiencing shortages of natural gas, and was unable to fulfill its contractual sales obligations. In 1973, Tet-co filed with the Commission tariff sheets detailing a system-wide plan for the curtailment of gas deliveries. After extensive proceedings at the agency level, FERC approved an interim curtailment plan which is currently in effect. The plan is based upon a settlement agreement approved by the vast majority of Tetco’s purchasers. The dissenting purchasers sought review within the agency, but only Elizabethtown now seeks judicial review. Before the onset of natural gas shortages, Tetco’s customers were entitled to receive up to 100% of the contracted-for supply. Under the curtailment plan, Tetco replaced these contract entitlements with Annual Quantity Entitlements (AQEs), based upon the volume of gas each distributor actually purchased from Tetco during a fixed period in the early 1970’s, rather than upon the volume of gas to which the distributor was contractually entitled. Tetco collected data regarding the actual use which the customers of its distributors made of the gas purchased from Tetco (end-use data) for the base period, and established a system of priorities for the curtailment of gas. The Tetco plan places residential and small uses of natural gas in the highest priority (priority 1). Priority 2 includes such needs as larger commercial requirements, firm — not interruptible — industrial requirements, and plant protection. The lowest priority (priority 9) is composed of interruptible requirements over a certain volume per day, for which alternative fuel sources are available. The lower priorities are to be fully curtailed before higher priorities are affected under the Tetco plan. The Commission held hearings on various aspects of the Tetco plan, and adopted with modifications the agreement submitted by the parties but opposed by Elizabethtown. The agreement accepted by the AQE system in place of contract entitlements, and approved the priority of service categorization with an exception to provide for “storage sprinkling.” Storage sprinkling requires that gas placed in storage during the summer be reclassified according to its actual end use during the winter months, when it is withdrawn from storage. The agreement also provided for a “peak day exemption” for small customers with no alternative gas supply, to exempt them from curtailment below their maximum contract entitlement on any one day. In addition, the plan completely exempted from curtailment the priority 1 volumes of small customers, provided that they incur no net growth that would increase their dependence on Tetco for gas. In Opinion 787, the FPC concluded that the data base underlying the end-use curtailment calculations should be subject to cross-examination by the parties, but that this procedure would be considered waived if the challenging parties did not demonstrate to the administrative law judge the areas of unreliability in the current data. The Commission also determined that the record relating to storage sprinkling should be supplemented, and that the plan would be an interim rather than a permanent one, until the Commission could review a final environmental impact statement. In all other respects the Commission accepted the settlement as an interim curtailment plan as of September 1,1976. In Opinion 787-A, the FPC on rehearing found that the appropriateness of a compensation feature should be considered by the administrative law judge in remanded proceedings, reaffirmed its other conclusions, and ordered Tetco to make necessary filings to implement the interim plan. In Opinion 787-B, FERC concluded that implementation of storage sprinkling was required, in view of the decision of this court in City of Willcox v. Federal Power Commission, the record compiled, and the revised tariff sheets filed by Tetco. Petitioner Elizabethtown now appeals from the series of orders approving the Tetco plan. The end-use plan When Tetco originally entered into contractual agreements with its customers, it apparently agreed to provide the purchasers with as much gas as they could use — with as much as the pipes could carry at maximum flow. This volume became known as contractual entitlement. An AQE is based upon the quantity of gas which a particular distributor actually purchased from Tetco during an “average” year, as opposed to the quantity of gas which that particular distributor was contractually entitled to purchase. Larger distributors historically purchased about 97% of their contract entitlements, while small distributors historically purchased only about 38% of theirs. Under the curtailment plan, purchaser is restricted to the quantity of gas which it normally purchased in an average year (the AQE), rather than its contractual entitlement. Curtailment of AQEs takes place according to the priority classifications under the Tet-co plan. Elizabethtown first contends that the approved plan is not really an end-use plan, and that curtailment pursuant to the plan effects undue discrimination and unjust and unreasonable results, in violation of 15 U.S.C. § 717c. Elizabethtown argues that the plan curtails wholesalers rather than end-users, on the basis of claimed end-use requirements, while the wholesalers are free to distribute the gas according to operational requirements. Thus, petitioner asserts that because Tetco serves wholesalers, it actually has no “high priority” or “low priority” customers, and therefore FERC could not evaluate the varying impact of the plan on ultimate consumers. Elizabethtown would substitute for this end-use plan a plan based on a straight pro rata sharing of the shortfalls based upon historical usage of Tetco’s supply. We reject petitioner’s contention that because Tetco’s customers are wholesalers, its curtailment plan cannot be based upon the ultimate end use of the gas supply. The legality of end-use plans as an appropriate method of curtailment is firmly established. State of North Carolina v. FERC, 190 U.S.App.D.C. 22, 26, 584 F.2d 1003, 1007 (1978); Consolidated Edison Co. v. FPC, 168 U.S.App.D.C. 92, 98, 105-06, 512 F.2d 1332, 1338, 1345-46 (1975). Although the Commission cannot control how the gas is actually used, it may found a curtailment plan upon a profile of each distributor, drawn by reference to detailed information from end-use customers who purchase gas from Tetco’s buyers. Elizabethtown also contends that FERC was not justified in relying upon the end-use data collected by Tetco, because the information was not submitted under oath, and that FERC improperly placed on challengers of the plan the burden of establishing the data’s unreliability. The priority profiles of the Teteo purchasers were compiled based on a questionnaire which Teteo had sent to each of its purchasers, asking for information as to how the gas which they distributed was actually used by their customers for the base period. During the hearings on the plan, a data verification committee was established to review the submitted data, with each party entitled to participate. The committee collected additional detailed information from each distributor. All parties were free to review this data, and to contest the accuracy of the data base. Elizabethtown, among others, actively participated in the data verification proceedings. At the conclusion of the proceedings the Commission believed that there were no major deficiencies in the data base, but to achieve further accuracy it remanded the data issue to the administrative law judge with directions for opposing parties to take the lead in identifying problem areas. No party, including Elizabethtown, took advantage of this opportunity. This court affirmed FERC implementation of a similar method for compiling curtailment data — customer reports to the pipelines regarding ultimate end use of natural gas — in City of Wiilcox v. FPC, 185 U.S.App.D.C. 287, 313-14, 567 F.2d 394, 420-21 (1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 724, 54 L.Ed.2d 755 (1978). In that case, the court rejected petitioners’ challenge to collected data and their request for cross-examination of the distributors’ figures, and upheld FERC’s determination that the distributors’ “nominations” were presumptively accurate, absent a showing of specific evidence of substantial abuse. The opinion also pointed out that any other program for estimating usage probably would involve some degree of inaccuracy. The court specifically noted that “the Commission has here merely chosen a method of obtaining the data necessary to implement its end-use curtailment plan. Absent a strong showing of unworkability, methodology is best left to an enforcing agency’s own determination.” Id. at 314, 567 F.2d at 421. The Commission here made similar efforts to procure accurate data and to provide challenging parties an opportunity to show substantial shortcomings in the method. Since Elizabethtown failed to make such a showing, or even to participate in the proceeding for doing so, we affirm FERC’s action in relying upon the data submitted by Tetco’s customers. In its brief on appeal, Elizabethtown argues that the end-use data on which curtailment is based must be updated, because end users may now be using gas in different proportions than they were in 1973. Relying on State of North Carolina v. FERC, 190 U.S.App.D.C. 22, 584 F.2d 1003 (1978), petitioner claims that the profiles which establish priorities for curtailment may no longer be accurate. It became evident at oral argument, however, that this issue was not raised before the Commission. Elizabethtown may not now challenge for the first time the agency’s failure to update the data base underlying the curtailment plan. See D.C. Transit System, Inc. v. Washington Metropolitan Area Transit Authority, 151 U.S.App.D.C. 223, 242-43, 466 F.2d 394, 413-14, cert. denied, 409 U.S. 1086, 93 S.Ct. 688, 34 L.Ed.2d 673 (1972). Small customer exemption The curtailment plan exempts in two respects small wholesale customers whose contract entitlements are below a certain level and who have no other pipeline suppliers. These customers have a peak-day exemption, which allows them to take up to their maximum daily contract entitlement on days of peak usage (rather than be limited to the AQEs established under curtailment), and are completely exempt from curtailment as to their priority 1 (residential and small commercial) requirements. Elizabethtown complains that the priority 1 exemption, leaves uncurtailed, without justification, the priority 1 requirements of small customers, while similar requirements of other wholesale customers are curtailed. Petitioner asserts that the exempt smaller customers are not a separate class justifying preferential gas service, and that the result is undue discrimination because larger customers are forced to meet their needs by resort to more expensive supplemental gas supplies. Elizabethtown also challenges FERC’s conclusion that the impact of the exemptions would be de minimis. The small customer exemption does not unduly discriminate against large distributors, but rather, is a reasonable means of protecting high priority uses of small distributors under the end-use curtailment plan. The change to AQE from contract entitlement impacted on small customers more heavily than on large, because the latter have low priority, interruptible requirements upon which to draw during periods of peak use, while the small customers historically relied on their contract entitlements to provide flexibility. Since the small distributors purchased only about 38% of their contract entitlements during the base period, as compared to approximately 97% for the large distributors, the small distributors lost their flexibility when the curtailment plan redefined entitlement according to actual purchases during the fixed period. Without an exemption, therefore, the small customers could not adequately protect service to high priority users during periods of deep curtailment. In contrast to the small distributors’ dependence on the Tetco supply, the large distributors generally obtain gas from a variety of sources, and even can generate it themselves. Curtailment therefore imposes special hardships on Tetco’s small customers. Their use of capacity to transport gas historically was much lower than that of larger customers, they have few or no industrial or interruptible customers, and they have much less operating flexibility to withstand periods of deep curtailment. In addition, the effect of the exemption on larger distributors is minimal. The Commission found that the small customer exemption for priority 1 service would only increase the curtailment of the remaining distributors by approximately .46%. The hardship of forcing the small distributors to find alternative sources of gas for priority 1 uses outweighs the negligible increase in curtailment of the larger distributors. Under the circumstances, therefore, the provision exempting from curtailment the priority 1 uses of small customers is a reasonable means of protecting the higher priority uses against the impact of curtailment. Storage Sprinkling The interim curtailment plan provides for storage sprinkling, which involves classifying gas placed in storage in all priorities according to the winter market profile of each Tetco customer. This procedure is designed to reflect more accurately the actual end use of the stored gas. Initially the Commission had thought that all gas pumped into storage should be treated as priority 2 gas, but later it decided that because storage reflects a deferral of use rather than an end use, such gas should be classified according to its actual winter use. Consequently, the Commission “sprinkled" the storage gas among all nine priorities of a distributor in accordance with the winter market profile of that distributor. Elizabethtown objects to this mechanism, claiming that it unjustifiably suffers increased curtailment as other distributors’ stored gas is promoted from priority 2 to priority 1. Petitioner contends that FERC failed to justify its sudden adoption of storage sprinkling, and improperly shifted the burden of justification from Teteo' to its customers. The Commission, however, had not completely rejected the idea of storage sprinkling in its earlier opinions, but had found the record incomplete and had remanded the issue to the administrative law judge. Teteo then filed revised tariff sheets containing sprinkling provisions. In addition, this court’s intervening decision in City of Willcox v. FPC required that “the priority accorded to natural gas kept in storage be in proportion to the eventual end-uses of that gas, unless the Commission wishes to support with an evidentiary hearing the importance of storage gas irrespective of the end-use to which it is eventually put.” 185 U.S.App.D.C. 287, 307, 567 F.2d 394, 414 (1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 724, 54 L.Ed.2d 755 (1978). Storage sprinkling categorizes gas pumped into storage during slack periods according to its use during peak months of consumption. Thus, after Willcox, FERC in Opinion 787-B concluded that its priority 2 treatment of storage gas was unreasonable, and that the end-use classification in the revised tariff sheets, which provided for storage sprinkling, was required. The Willcox mandate compels such a provision, absent proof to the contrary. FERC was therefore more than justified in approving the Teteo plan with the sprinkling provision, as a means of categorizing storage gas according to its end use. Compensation Elizabethtown challenges FERC’s approval of the curtailment plan prior to determining the appropriateness of a compensation feature, and urges that if compensation is in order, it be made retroactive to the implementation of the curtailment plan under review. Review of the compensation issues at this stage is premature. The settlement submitted to FERC by the parties did not include a compensation feature, and thus provided no record support for such a feature in the interim plan. Until this court’s decision in Elizabethtown Gas Co. v. FERC, 188 U.S.App.D.C. 4, 575 F.2d 885 (1978), FERC believed it lacked the power to include compensation provisions in curtailment plans. The Commission therefore had approved the interim curtailment plan in this case before learning that a compensation scheme might be in order. Subsequently the Commission initiated further proceedings, presently unresolved, to determine whether a compensation provision should be included in Tetco’s curtailment plan. The relevant precedent requires consideration of the issue on an appropriate record, but does not mandate that this court withhold approval of the underlying curtailment plan pending such consideration. We therefore conclude that the Federal Energy Regulatory Commission acted properly in approving the provisions of the Texas Eastern Transmission Corporation curtailment plan here under review. Accordingly, the orders approving the interim plan are Affirmed. . One intervenor supports Elizabethtown’s position on appeal. . 185 U.S.App.D.C. 287, 567 F.2d 394 (1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 724, 54 L.Ed.2d 755 (1978). . While petitioner raises this issue too late in the day, we note that a number of factors distinguish this case from North Carolina v. FERC. None of the numerous parties to this proceeding — including Elizabethtown — complains of a mismatch between the data relied upon and the current market realities, nor is there any proof of such a problem. In North Carolina, by contrast, the court noted repeatedly the likelihood of disparity between the data and the current conditions, and the severity with which curtailment under the plan struck certain regions. Id. at 29-33, 584 F.2d at 1010-14. That opinion specifically found that the Transco end-use system fell “with unmitigated harshness on customers who are wholly dependent upon Transco,” and did not adequately protect current high priority uses. Id. at 31-33, 584 F.2d at 1012-14. The Tetco curtailment plan contains features which address the concerns underlying the remand in North Carolina —protection of current high priority needs of small distributors. See Id. at 32 n.20, 33 n.28, 584 F.2d at 1013 n.20, 1014 n.28. The peak-day exemption for users with no alternative supply, the total exemption of priority 1 uses of small customers, and the categorization of storage gas according to actual use all reflect the concern of the drafters of the Teteo plan that the end-use curtailment system adequately safeguards high-priority uses. . 74 of Tetco’s 98 distributors are “small distributors,” who collectively distribute only about 1.5% of Tetco’s supply. . Elizabethtown Gas Co. v. FERC, 188 U.S.App.D.C. 4, 575 F.2d 885 (D.C.Cir.1978); Mississippi Public Service Commission v. FPC, 522 F.2d 1345 (5th Cir. 1975), cert. denied, 429 U.S. 870, 97 S.Ct. 181, 50 L.Ed.2d 149 (1976).

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.

Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?

HUTTO v. BENSON et al. NEWARK INS. CO. v. BENSON et al. Nos. 11873, 11874. United States Court of Appeals Sixth Circuit. April 30, 1954. Jesse C. Parks, Jr., and Joe Van Der-veer, Chattanooga, Tenn., for appellant A. F. Hutto. Erma Greenwood, Knoxville, Tenn., R. R. Kramer, Knoxville, Tenn., on brief for appellant Newark Ins. Co. H. H. McCampbell, Jr., Knoxville, Tenn., for appellees. Before SIMONS, Chief Judge, and Al-LEN and MILLER, Circuit Judges. ALLEN, Circuit Judge. These two appeals, one instituted by the appellant Hutto, hereinafter called Hutto, in a personal injury action, and the other by the appellant Newark Insurance Company, hereinafter called Newark, insurer under the Workmen’s Compensation Act of Texas, Vernon’s Ann.Civ.St. art. 8306 et seq., involve the same transactions and were consolidated for argument and decision. Each attacks a judgment of the District Court which dismissed an action against a third party resident in the State of Tennessee upon the ground that the Tennessee statute of limitations had run. This statute provides a limitation of one year for personal injury cases, Code, § 8595, while the Texas period of limitation in such cases is two years, Vernon’s Ann.Civ.St. art. 5526. On August 20, 1952, Hutto filed a complaint against the appellees, residents of the State of Tennessee, in the District Court for the Eastern District of Tennessee. Hutto alleged that he was a painter by trade and that on or about the 13th day of August, 1951, while he was engaged in the performance of his duties in Wichita Falls, Wichita County, Texas, a scaffold made or manufactured by the appellees and then being used by Hutto, gave way by reason of negligent or defective construction, causing Hutto to fall and suffer serious injuries. Later Hutto prayed for leave to amend his complaint by adding two new paragraphs which read as follows: “That his injuries arose ‘out of’ and ‘in the course of’ his employment and by reason thereof he filed a claim with the Industrial Accident Board of the State of Texas for those benefits provided by the Workmen’s Compensation Act of that State on September 13,1951, his employer, the C. H. A. Paint Company, and their workmen’s compensation insurance carrier, the Newark Insurance Company, being duly notified. The Industrial Accident Board of the State of Texas, duly charged with the administration of the Workmen’s Compensation Act of that State, determined that he was entitled to compensation, and accordingly made an award in an amount unsatisfactory to him. That thereafter he appealed the decision of the Industrial Accident Board to the U. S. District Court for the Northern District of Texas, Wichita Falls Division, and while his suit was pending therein entered into a compromise agreement under the terms of which the Newark Insurance Company, as the Workmen’s Compensation insurance carrier for his employer, paid to him the sum of Forty-five Hundred ($4,500.00) Dollars in addition to the sum of One Hundred Seventy-five ($175.00) Dollars which the Newark Insurance Company had theretofore paid him and in addition to medical expenses to that date incurred by him in the amount of Four Hundred Four ($404.64) and 64/100 Dollars. That on the 29th day of November, 1951, the Industrial Accident Board of the State of Texas entered an order approving the compromise settlement made by the parties. “That under the provisions of the Workmen’s Compensation Act of the State of Texas, the injured employee, having collected from his employer or its insurer those benefits provided by the Workmen’s Compensation Act of the State of Texas, may then proceed at law against a negligent third party, or that party responsible for his injuries, and recover damages therefor. That the amount received by him under the provisions of the Workmen’s Compensation Act of the State of Texas are hideously inadequate in view of the seriousness of his injuries and he therefore now brings this action.” Appellant Newark filed a motion to intervene as plaintiff and tendered a complaint which, in addition to the facts set forth in Hutto’s complaint, reads as follows: “6. That on or about September 13, 1951, the original plaintiff herein, A. F. Hutto, duly filed his claim for compensation for injury with the Industrial Accident Board of Texas under the style and number of A. F. Hutto v. C. H. A. Painting Company, No. K-45259. “7. That on or about November 23, 1951, and during the pendency of said claim before the Industrial Accident Board of Texas the parties entered into a compromise settlement agreement of said claim under the terms of which the Newark Insurance Company as Workmen’s Compensation insurance carrier for C. H. A. Painting Company was to pay to said A. F. Hutto the sum of Four Thousand Five Hundred ($4,-500.00) Dollars in addition to the sum of One Hundred Seventy-five ($175.00) Dollars which the said Newark Insurance Company had theretofore paid to the said A. F. Hutto, and in addition to medical expenses in the amount of Four Hundred Four and 65/100 ($404.65) Dollars incurred by or for the said A. F. Hutto as the result of the accidental injuries aforesaid. That on the 29th day of November, 1951, the Industrial Accident Board of Texas entered an order approving the compromise settlement agreement made by the parties. “8. That pursuant to said order this intervenor, Newark Insurance Company, on or about December 1, 1951, paid to the said A. F. Hutto the additional sum of Four Thousand Five Hundred ($4,500.00) Dollars, making in all the sum of Five Thousand Seventy-nine and 65/100 ($5,079.65) Dollars paid by this in-tervenor as compensation benefits and medical services to the said A. F. Hutto as a result of the accidental injuries received by the said Hutto at the time and place aforesaid. “9. That under the provisions of the Workmen’s Compensation Act of Texas the employee, having collected benefits from his employer or its insurer under the provisions of the Workmen’s Compensation Act of Texas, may then proceed at law against a negligent third person to recover damages for the injuries sustained by him. However, under the provisions of the Workmen’s Compensation Act of Texas in those instances in which the employee prosecutes an action against a negligent third person after having received compensation benefits from his employer or its insurer, such employee may not recover from such negligent third party the sums paid by the insurer or employer. However, an insurer which has paid compensation benefits to an injured employee is subrogated to the rights of such injured employee against a negligent third party to the extent of payments made, expenses incurred, etc., and may itself maintain an action against such negligent third party, or may intervene as a party plaintiff in such an action brought by the injured employee and may itself recover from the negligent third party such sums paid by it to the employee together with the reasonable costs of such liability as determined by the court trying the case.” Newark demanded judgment for the sum of $5,079.65 with interest, together with the reasonable cost of enforcing the liability and the costs of the action. The District Court considered that the action was barred by the statute of limitations of Tennessee and therefore refused to permit Hutto’s amended complaint and Newark’s intervening complaint to be filed. D.C., 110 F.Supp. 355. Appellant contends that this holding runs counter to the decisions of this court in Wilson v. Massengill, 6 Cir., 124 F.2d 666, and Maki v. George R. Cooke Co., 6 Cir., 124 F.2d 663, 146 A.L.R. 1352. In these cases our court applied the doctrine that, where by statute a state creates a cause of action for wrongful death and prescribes in the same statute a limitation period for such action, such limitation will be applied in the forum of a sister state, although the period of limitation for a like action in the latter state is shorter. See also Theroux v. Northern Pacific R. Co., 8 Cir., 64 F. 84; Lewis v. Reconstruction Finance Corporation, 85 U.S.App.D.C. 339, 177 F.2d 654. This contention cannot be sustained, for the premise upon which the cited cases were based is absent here. No limitation period is prescribed in the Workmen’s Compensation Act of Texas. The applicable provision is part of the general Texas statute of limitations. Moreover, the Supreme Court of the United States in the case of Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211, has recently cast doubt upon the doctrine of Wilson v. Massengill, supra. In that case the alleged wrongful death occurred in Alabama and the action was instituted in Pennsylvania. The statute creating the cause of action for wrongful death in Alabama prescribed a limitation of two years, while the period set in the Pennsylvania general statute of limitations provided one year. Although the Alabama statute construed embodied a limitation provision, the Pennsylvania District Court, 102 F.Supp. 519, and the Court of Appeals, 3 Cir., 195 F.2d 814 applied the one-year limitation and the Supreme Court of the United States affirmed the judgment, holding that it did not violate the Full Faith and Credit Clause of the Constitution. However, on another point the majority of the court thinks appellant’s contentions are more tenable. The precise provision of the Workmen’s Compensation Act of Texas compelled Hutto first to apply for compensation to the Industrial Accident Board of Texas before bringing action against the third party alleged tort-feasor. Under this statute as construed by the Texas courts the right of the employee to sue the third party does not accrue until the insurer under the Workmen’s Compensation Act has assumed liability for compensation or has paid such compensation. Buss v. Robison, Tex.Civ.App., 255 S.W.2d 339. A compromise settlement between the parties herein was finally approved by the Industrial Accident Board of Texas on November 29, 1951. Hutto could not maintain the instant case until November 29, 1951, without being penalized by losing his action for workmen’s compensation. The Tennessee statute of limitations, Section 8595, Code of Tennessee, provides that actions “for injuries to the person” must be brought “within one year after cause of action accrued.” If Hutto’s action against the third party did not accrue until November 29, 1951, the complaint filed in Tennessee August 20, 1952, was timely brought. In Tennessee the statute of limitations runs only after the accrual of a complete right of action. Reynolds Tobacco Co. v. Carson, 187 Tenn. 157, 213 S.W.2d 45. The complete right of action here would certainly comprehend the right to sue the third party tort-feasor. The controlling question, therefore, is when the action against the appellees accrued. The District Court relied upon the Restatement of Law, Conflict of Laws, Sections 585 and 603, which provide that all matters of procedure are governed by the law of the forum, and that if action is barred by the statute of limitations of the forum no action can be maintained, though action is not barred in the state where the cause of action arose. But the Tennessee statute comes into force when the action accrues and the question when the action accrues is settled by the Texas decisions. We think the Texas legislature by its treatment of the action against the third party tort-feasor qualifying and abridging the common-law right of action incorporated it into and made it a part of the local law. In recognition of the fact that Hutto is drastically penalized for bringing his third party action before pursuing his workmen's compensation claim, the Texas courts hold that the right to sue the third party tort-feasor accrues after settlement of the workmen’s compensation claim. Thus Fidelity Union Casualty Co. v. Texas Power & Light Co., Tex.Civ.App., 35 S.W.2d 782, 784, held that no cause of action accrued on the respective claims (of the insurer and the injured employee) “until the final judgment of this court, when the facts necessary to give the casualty company and Riley [the injured plaintiff] an enforceable right, was given the judicial determination contemplated by said statute.” While Webster v. Isbell, 71 S.W.2d 342, held that the running of the statute of limitations was suspended in a workmen’s compensation case until the Industrial Accident Board finally acted upon and approved the claim, the holding in the controlling cases is that the action does not accrue until compensation is either paid or assumed by the insurance company. This was the rule laid down in Buss v. Robison, supra, decided in 1952. In that case the court cited the Texas authorities, pointed out that some of them had been unconditionally approved by the Supreme Court of Texas, and specifically held that the claim of the wife of the decedent employee suing individually and as next friend of her minor children, and for the use and benefit of the insurance company, and of the father and mother of the decedent employee, did not accrue until the insurance company assumed liability. In view of the Texas decisions we think no question of conflict exists between the Tennessee statute and the Texas statute. Since the action did not accrue until after the settlement of the compensation claim it is timely brought, whether the one-year statute of Tennessee or the two-year statute of Texas is applied. The conclusion of the majority of the court that the action was timely brought requires that the District Court’s denial of the motions to amend and to intervene be reversed. The judgment is reversed and the case is remanded to the District Court for proceedings in accordance with this opinion.

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.

What is the number of judges who dissented from the majority?

Mary B. CLARK, individually and as survivor-at-law of Ray Sharp, a/k/a Willie Clark and Shirley Clark, Administratrix of the Estate of Ray Sharp, Plaintiffs-Appellees, v. David C. EVANS, et al., Defendants, Lanson Newsome and Robert Coleman, Defendants-Appellants. Mary B. CLARK, et al., Plaintiffs-Appellants, v. David C. EVANS, et al., Defendants-Appellees. Nos. 86-8685, 86-8878. United States Court of Appeals, Eleventh Circuit. March 25, 1988. William F. Amideo, Staff Asst. Atty. Gen. Atlanta, Ga., for defendants-appellants. Kenneth L. Shigley, Van Gerpen & Rice, Atlanta, Ga., John P. Batson, Augusta, Ga., plaintiffs-appellees. John P. Batson, Augusta, Ga., Martha A. Miller, Atlanta, Ga., for plaintiffs-appellants. Kenneth L. Shigley, Atlanta, Ga., for defendant-appellee Cowart. Before RONEY, Chief Judge, ANDERSON and EDMONDSON, Circuit Judges. ANDERSON, Circuit Judge: This civil rights action arose when plaintiffs’ decedent, Ray Sharp, was shot and killed while attempting to escape from Georgia State Prison at Reidsville. Plaintiffs Mary Clark and Shirley Clark (hereinafter “Clark”) sued several defendants, as follows: Evans, the Commissioner of the Department of Corrections; Newsome, the Warden of the Georgia State Prison; Coleman, the guard in the tower who fatally shot Sharp; and Cowart, Oliver, Berry, Spell, Lewis, Lane and Todd, all guards who were on the yard or in the building complex when Sharp made his escape attempt. Plaintiffs sued under 42 U.S.C. § 1983, claiming that the several defendants had violated Sharp’s constitutional rights. The district court granted summary judgment in favor of a first set of defendants — namely, Evans, Cowart, Oliver, Berry, Spell, Lewis, Lane, and Todd — and dismissed them from the case. However, the district court rejected the qualified immunity defense asserted by Newsome and Coleman in their individual capacities, and ordered the case against these two defendants to proceed to trial. Newsome and Coleman brought an immediate appeal on the qualified immunity question. The plaintiffs also appealed the dismissal of the first set of defendants. We affirm the district court’s grant of summary judgment as to the first set of defendants. With respect to all of plaintiffs’ theories against both Coleman and Newsome, we conclude that their qualified immunity defense was valid, and thus we reverse with respect to Coleman and New-some. I. FACTS Sharp was a life sentence inmate in Georgia State Prison. Sharp suffered from paranoid schizophrenia and had delusions that the prison staff was trying to kill him. About two weeks prior to the incident which led to his death, Sharp received a committal order which obliged the prison to transfer him to a mental institution. The committal order was still being processed at the time of the incident. Sharp’s mental illness had previously led to problems at the prison. Once he seriously injured a guard with a mop wringer; this episode led to his involuntary commitment order. Twice he attempted to hang himself. One week prior to the fatal incident, Sharp made an escape attempt in which he tried to climb the interior fence, but was caught and subdued by prison officials. The incident which formed the basis for the instant lawsuit involved another escape attempt by Sharp. While he was in the exercise yard, Sharp began to behave strangely. Sharp ran to the interior fence and began climbing over it into the area known as “no man’s land.” Guards on the yard ran after him until Sharp climbed over the interior fence; they continued yelling at him to stop, but Sharp kept running. A guard in the closest tower, Officer Coleman, saw him attempting to climb over the perimeter fence, which was forty feet away from the tower. Two warning shots with shotguns were fired, and when Sharp got over the perimeter fence and began to run, Coleman shot him. Sharp died from his injuries and his relatives sued, claiming various theories of liability. II. BACKGROUND Prior to the episode which led to the filing of this action, Georgia State Prison at Reidsville had been the subject of a class action lawsuit based on conditions in the prison. That case, Guthrie v. Evans, No. 3068 (S.D.Ga.1972), led to the filing of a remedial consent decree which ordered changes in many aspects of the prison. In relevant part, the Guthrie order dealt with such issues as use of force, security, training of officers, and medical and mental health treatment. Georgia State Prison thus operated under this consent decree and everyone who worked at the prison was familiar with and bound by its provisions. III. DEFENDANTS COLEMAN AND NEWSOME A. Qualified Immunity Defendants Coleman and Newsome appeal the refusal of the district court to dismiss them from the case on the basis of their qualified immunity defense. This issue is immediately appealable, based on the authority of Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Defendants are entitled to qualified immunity if the law with respect to their actions was unclear at the time the cause of action arose. Mitchell, 472 U.S. at 530, 105 S.Ct. at 2818; Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1983). As the Supreme Court said in Harlow, [Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.... If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Id. at 818-19, 102 S.Ct. at 2738. The Supreme Court, by adopting this test, has balanced the public interest in deterring unlawful conduct and compensating victims against the fairness of imposing liability only where officials had notice that their conduct was unlawful. On summary judgment, then, the judge must determine not only the currently applicable law but also whether that law was clearly established at the time the action arose. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Thus, our task with regard to each of plaintiffs’ theories of liability is to determine the clarity of the law at the time Sharp was shot. Defendant Coleman, the officer who fatally shot Sharp, was sued on theories that he violated Sharp’s Eighth and Fourteenth Amendment rights in three ways: (1) by using deadly force; (2) by failing to use disabling force prior to using deadly force; and (3) by using deadly force against someone who was mentally ill. Defendant Newsome, the warden of the prison, was sued: (1) on a respondeat superior theory with respect to the deadly force issue; (2) on the theory that the training his staff received was inadequate because they were not trained to shoot to disable; and (3) on the theory that security at the prison was inadequate and allowed incidents like this to happen. Thus, we must inquire about the law regarding the use of deadly force and the law regarding prison security measures. B. Law Regarding Use of Deadly Force Plaintiffs argue that Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), clearly establishes the law that the use of deadly force has constitutional limits. Although plaintiffs acknowledge that the Gamer opinion was published after the incident here, they argue that the Guthrie order placed these defendants on notice of and clearly established the applicable constitutional principle. The portion of the Guthrie order relied upon by plaintiffs reads as follows: An officer may discharge a firearm or taser under the following circumstances: ... at an escaping inmate, if the escape is actually in progress and cannot be reasonably prevented in a less violent manner. Georgia State Prison Use of Force Policy Statement 515.1, activated October 8, 1982, p. 4; adopted as order in Guthrie on June 16, 1983. For purposes of this opinion, we assume arguendo, without deciding, that the Guthrie order above quoted properly articulates the applicable constitutional principle and that it was clearly established at the time of the incident. However,.plaintiffs’ argument nevertheless fails because “a reasonable officer could have believed ... [Coleman’s actions] to be lawful, in light of clearly established law and the information ... [Coleman] possessed.” Anderson v. Creighton, — U.S. -, -, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987). We examine the information available to the reasonable officer in Coleman’s shoes. Coleman knew that Sharp was housed in Building M which was a maximum security area designed to house the most violent and dangerous inmates. Coleman recognized Sharp at the time of the incident. He knew about the previous incident involving a serious assault by Sharp on a correctional officer with a mop wringer. He knew about the previous escape attempt by Sharp. With respect to the escape attempt itself, Coleman saw Sharp climb over the interior fence, run across the approximately 20 feet of “no man’s land,” climb up the perimeter fence and jump down into the open land which separates the prison from the wooded area approximately 60 yards from the perimeter fence. While Sharp was climbing over the fences, numerous guards and inmates inside the fence were calling to Sharp to stop, as was Coleman himself. Also, two warning shots were fired. After Sharp cleared the perimeter fence, jumped down to the ground outside the prison, and started to escape, Coleman fired the fatal shot. The only other relevantly placed guard was Prescott. At the time the attempted escape commenced, Prescott was sitting in a white van outside the perimeter fence, some distance away from the point where Sharp scaled the fence. When Prescott saw Sharp start climbing up the perimeter fence, he cranked his van, drove on the road, and parked on the shoulder of the road. Prescott testified that the distance from the tower on which Coleman was posted to the perimeter fence where Sharp jumped over was approximately 25 feet, and that Prescott parked his car about the same distance behind Tower 3. Prescott testified that Sharp was at the top of the perimeter fence at the time Prescott pulled up and parked on the shoulder of the road. Prescott got out of his car, pulled out his revolver, hollered at Sharp, heard one of the warning shots, and saw Sharp land on the ground outside the perimeter fence, get up and make a motion like he was starting to take a step or run. Prescott aimed his pistol at Sharp and about that time Coleman fired the fatal shot. The district court noted that it was unclear whether Prescott was in a position so that he could have subdued Sharp with “hands on force,” thus avoiding the necessity of shooting. On that basis, the district court concluded that there was a genuine issue of fact relevant to the determination of whether Sharp’s escape could reasonably have been prevented in a manner less violent than shooting. We conclude that the district court asked the wrong question. The proper inquiry, under Anderson v. Creighton, is “the objective (albeit fact-specific) question whether a reasonable officer could have believed ... [Coleman’s actions] to be lawful, in light of clearly established law and the information ... [Coleman] possessed.” — U.S. at -, 107 S.Ct. at 3040. The Supreme Court: recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officers — like other officials who act in ways they reasonably believe to be lawful— should not be held personally liable. Id. at -, 107 S.Ct. at 3039. In other words, the proper question is not whether in fact the escape could reasonably have been prevented in a less violent manner; rather, the issue is whether a reasonable officer with the information available to Coleman could have believed that less violent means were not reasonably available. In other words, could a reasonable officer under these circumstances have believed it was lawful to shoot rather than permitting Sharp to proceed in reliance upon the ability of Prescott to subdue Sharp without using deadly force? We have no hesitation in concluding that a reasonable officer could have believed that Coleman’s actions were lawful. Under these circumstances it was objectively reasonable to believe that the escape could not be reasonably prevented in a less violent manner. We believe that this is precisely the kind of case contemplated in Anderson v. Creighton in which the qualified immunity defense should prevail. Thus, the district court erred in rejecting Coleman’s qualified immunity defense. It follows that Newsome, the prison warden, is also entitled to qualified immunity. C. The Law Regarding Use of Disabling Force Plaintiffs further argue that Coleman had a duty to shoot to disable Sharp rather than to kill him. Of course, Coleman did fire warning shots, but plaintiffs argue that he then should have fired to disable (e.g., at the legs) before firing to kill him. Similarly, plaintiffs argue that Newsome had a duty to train his officers to shoot to maim rather than to shoot to kill. We need not decide whether such a duty exists or is constitutionally mandated; rather, our sole inquiry is whether the law at the time of the shooting clearly established a requirement of firing disabling shots prior to deadly shots. We cannot say that the law clearly establishes a duty to use disabling force prior to using deadly force. No case has expressly held that an officer has to first shoot to maim before shooting to kill. Nor have those cases which have dealt with the use of deadly force in fleeing felon situations even distinguished between deadly force and disabling force. See, e.g., Tennessee v. Garner, 471 U.S. at 8-12, 105 S.Ct. at 1700-01; Pruitt v. City of Montgomery, 771 F.2d 1475, 1479 n. 10 (11th Cir.1985); Acoff v. Abston, 762 F.2d 1543 (11th Cir.1985). Similarly, the Guthrie order is silent with regard to use of disabling force. Neither defendant was put on notice that not shooting to disable would subject him to liability. Since the law on this point was not clearly established at the time Sharp was shot, defendants Coleman and New-some can properly claim a defense of qualified immunity as against the disabling force theory of liability. D. Use of Force on Mentally III Inmates Another of plaintiffs’ theories of liability against Coleman and Newsome involves the use of force when a mentally ill inmate is involved. There are two prongs to plaintiffs’ argument: (1) the law forbids the execution of insane persons; and (2) deadly force cannot be used when an inmate is trying to commit suicide. This line of argument is creative but has no merit. While it is true that the law clearly establishes a prohibition against executing the insane, Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), Sharp’s death hardly amounts to an execution. He was not shot and killed as punishment for a crime he had committed; rather, he was shot in order to stop an escape attempt. Since there is no clearly-established law regarding whether an insane person can be shot during an escape attempt, defendants can appropriately raise a qualified immunity defense. As for the theory that Sharp’s aetion amounted to a suicide attempt and the use of deadly force was therefore prohibited, this argument must also fail. It is true that the Guthrie order and the Georgia State Prison Use of Force Policy Statement state that “[u]nder no circumstances may deadly force be used to stop or prevent an inmate from injuring himself.” Georgia State Prison Use of Force Policy Statement 515.1, activated October 8, 1982, p. 5; adopted as order in Guthrie on June 16, 1983. It may also be the case that Sharp’s actions were so futile and foolhardy that death or injury was a likely result. But there is a distinction between Sharp’s actions in climbing over the fence and his suicide attempts when he attempted to hang himself, not unlike the difference between a Kamikaze pilot and someone who takes an overdose of drugs. One action, though ultimately suicidal, carries with it the risk of danger to others. Sharp’s escape attempt, regardless of the motivations, presented a risk to members of the community outside the prison. Defendant Coleman was charged with the duty of preventing such risks. From his point of view, therefore, Sharp’s mental state was fairly irrelevant. In any event, the Guthrie order on this point does not deal with the specific situation of escaping mentally ill inmates, which presents conflicting duties as laid out above. We conclude that the law on this point is unclear, and Coleman and Newsome again have a qualified immunity defense against this theory of disability. E. Security Measures Turning to plaintiffs’ final theory of liability against defendant Newsome, we must examine whether Newsome can raise a qualified immunity defense against the claim that security measures at the prison were inadequate. Plaintiffs allege that there are three ways in which security at Georgia State Prison was inadequate at the time of the shooting. One, the perimeter fence of the institution, over which Sharp had just climbed when he was shot, was decrepit, too low, and lacking an alarm system. Two, the keys to the gate of the perimeter fence were not kept in an easily-accessible location, thus preventing the guards who ran after Sharp from capturing him without use of force. Three, the one roving perimeter patrol guard on the outside of the fence was unable to handle escape situations like this because he had too many duties unrelated to perimeter security that took him away from the vulnerable area near the fence. We have carefully reviewed the provisions of the several Guthrie orders relating to each of the three security measures alleged to be inadequate. Although each is discussed, we find nothing sufficient to place defendant Newsome on notice that at the time of Sharp’s death the status of the fence, the key system or the roving patrol would violate Sharp’s constitutional rights. Accordingly, Newsome is entitled to qualified immunity. F. Claims Asserted Under Guthrie v. Evans Plaintiffs assert yet another basis for their lawsuit against defendant New-some: that Sharp’s rights under Guthrie v, Evans were denied without due process and that this creates an independent basis for § 1983 liability. The Fifth Circuit, in Green v. McKaskle, 788 F.2d 1116 (5th Cir.1986), concluded that “remedial decrees are the means by which unconstitutional conditions are corrected but ... they do not create or enlarge constitutional rights.” Id. at 1123. The court reasoned that because the remedial device of contempt is in place to ensure the enforcement of court orders, there “is no need to allow court orders to serve as the basis of § 1983 liability.” Id. The Green court also addressed policy considerations underlying its conclusion. Despite the fact that Green is squarely on point, we need not decide the issue of whether the Guthrie remedial order in fact created substantive constitutional rights, in addition to enforceable rights, in light of our discussion in the sections above. With regard to the alleged violation of the Guthrie order limiting the use of deadly force, we held in Section III.B. that a reasonable officer in Coleman’s shoes could have believed his actions were lawful under the Guthrie order. We thus held that both Coleman and Newsome were entitled to qualified immunity. With regard to each of the other alleged violations of Guthrie by Newsome, we held in the sections above that Newsome was entitled to qualified immunity because neither the Guthrie order nor any other source clearly established that there would be a violation of constitutional rights. Having already held that Newsome has not violated any clearly-established precept of Guthrie, plaintiffs’ argument in this section must fail. IV. DEFENDANT EVANS Defendant Evans, the Commissioner of the Georgia Department of Corrections, was sued by plaintiffs on an entirely different theory than those discussed above. Plaintiffs argue that there was a policy, instituted and perpetuated by Evans, that committal orders of state court judges would be ignored. Two weeks before his death, Sharp had been involuntarily committed. Plaintiffs assert that Sharp’s death occurred as a direct result of Sharp’s not having been transferred to a mental hospital pursuant to the committal order. If a policy of refusing to comply with committal orders in fact exists, the Constitution might be implicated. The Supreme Court has held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ ... proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). See also Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Ruiz v. Estelle, 503 F.Supp. 1265, 1332-40 (S.D.Tex.1980), aff'd in fart and rev’d in part on other grounds, 679 F.2d 1115 (5th Cir.1982). However, though the allegations made by plaintiffs are troubling, we dq not think that they are sufficient to establish liability on the part of defendant Evans. The facts supporting plaintiffs’ claims are as follows. In August 1984, Sharp assaulted and seriously injured a correctional officer by striking him with a mop wringer. As a result of that attack, charges were brought against Sharp. Pri- or to trial, Judge Cavender appointed a psychiatrist, Dr. William Miles, to determine whether Sharp was competent to stand trial. Dr. Miles examined Sharp in January 1985, and in his February 5, 1985, report, Dr. Miles found Sharp mentally ill and incompetent to stand trial. On May 20, 1985, Judge Cavender conducted a competency hearing. At the conclusion of the hearing, the judge declared Sharp incompetent. to stand trial and directed that Sharp be transferred to Central State Hospital for treatment of his mental condition. The transfer order was filed on May 28, 1985. Because all orders for the transfer of inmates from Georgia Department of Corrections must come from the Department’s Atlanta headquarters, Judge Cavender’s transfer order was sent to Atlanta. Frances Smith is the Department’s employee responsible for processing such court orders affecting Georgia State Prison inmates. In her deposition, Smith testified that she knew from previous experience that committal orders were of questionable validity due to a .1970 Attorney General Opinion Letter. That Opinion Letter reasons that because the committal order of one judge necessarily interferes with the running of a sentence imposed by another judge, compliance with the committal order would be in violation of Georgia law. Smith testified that her usual procedure upon receiving a committal order is to contact the Attorney General’s Office to inquire about the status of the 1970 Opinion Letter. If Smith finds, as she always has, that the Opinion Letter is still in effect, then Smith telephones the clerk’s office in the county where the commitment order was entered and advises them that the department is “not going to be able to comply with the order.” Smith deposition at 9. After that telephone call, Smith places the order in the inmate’s file and takes no further steps. Id. at 10. In Smith’s experience, the Department has never transferred an inmate to Central State Hospital as a result of a state court’s order to commit the inmate. In the four years she had worked in this capacity, Smith had received four or five such orders, all of which had been handled in the same manner. With specific regard to Sharp’s committal order, Smith contacted Daryl Robinson of the Attorney General’s Office on June 7, 1985, for assistance in dealing with the transfer order. Robinson indicated that he would check into the matter and get back to her on Monday, June 10. However, on June 9, Sharp made his fatal escape attempt. The district court concluded that the requisite causal connection was lacking between Sharp’s death and the department’s failure to process the committal order. We need not reach this causation issue, because plaintiffs’ claim must fail for the following reason. Plaintiffs do not allege that defendant Evans knew about a policy of disregarding committal orders, if such a policy even existed. Indeed, there is undisputed evidence that Evans did not know. See Deposition of Evans at 11-21. Only Smith testified that she knew of and acted pursuant to such a policy, and she is not a defendant in this case. Of course, Evans cannot be liable on a respondeat superior theory. He might be liable if a history of widespread abuses put him on notice of the need for improved training or supervision, and he failed to take action. Fundiller, 777 F.2d at 1443; Wilson v. Attaway, 757 F.2d 1227, 1241 (11th Cir.1985). However, it is clear that four cases in four years would have been insufficient to put Evans on notice, especially since the record is clear that such matters were handled at lower administrative levels and would not have come to the attention of Evans. Thus, we affirm the district court’s dismissal of defendant Evans on this theory of liability. V. DEFENDANTS COWART, OLIVER, BERRY, SPELL, LEWIS, LANE AND TODD Finally, plaintiffs appeal the summary judgment granted to defendants Co-wart, Oliver, Berry, Spell, Lewis, Lane and Todd. These defendants were, at the time of the shooting, guards stationed either on the recreation yard near Sharp or nearby in the building complex. The district court concluded that the facts did not support a conclusion that these defendants were deliberately indifferent to Sharp’s safety or serious medical needs. We agree. On the day of the escape attempt,. Co-wart was the first to notice Sharp climbing the interior fence and he shouted to the other officers. Berry, who was stationed in the hallway, let himself and the other officers into recreation pen three. The officers attempted to pull Sharp off the fence, but they were unable to reach him because “[e]very time [they would] try to jump to get him, [he would] raise his foot up.” Deposition of Ronnie Berry at 22. Because the keys to the gate were in the tower, the guards’ sole means of exiting the pen was to scale the twelve-foot interi- or razor-topped fence. In Estelle v. Gamble, 429 U.S. at 103-04, 97 S.Ct. at 290-91, the Supreme Court held that the state owes a duty of care to inmates for whom it is responsible; however, the Constitution was implicated only in cases where an inmate can show “deliberate indifference” to a serious medical need. Plaintiffs seem to contend that because Sharp was mentally ill, defendants had an absolute duty to do all they could to prevent Sharp from bringing harm upon himself. That duty, plaintiffs assert, includes climbing over razor-covered fences. We agree with the district court that this argument is frivolous; the Eighth Amendment duty of care clearly does not stretch so far. Plaintiffs also argued that the guards should have communicated to Officer Coleman in the guard tower that Sharp was mentally ill and should not be shot.. Regardless of whether such a communication would have been a good idea, at most the failure to make such a communication would have been negligent and not an example of deliberate indifference to Sharp’s needs. Thus, under the facts of this case, we hold that the actions of defendants Co-wart, Oliver, Berry, Spell, Lewis, Lane and Todd do not constitute deliberate indifference to Sharp’s mental problems. VI. CONCLUSION The district court properly granted summary judgment to defendants Evans, Co-wart, Oliver, Berry, Spell, Lewis, Lane and Todd and we affirm the judgment of the district court in this regard. However, the district improperly rejected the qualified immunity defenses of defendants Coleman and Newsome. With respect to all of plaintiffs’ theories of liability against both Coleman and Newsome, we conclude that their qualified immunity defense was valid. Thus we reverse as to Coleman and Newsome. The judgment of the district court is AFFIRMED in part, REVERSED in part, and REMANDED. . The district court dismissed all claims against all defendants in their official capacities, and plaintiffs’ challenge to this ruling is foreclosed by Supreme Court precedent. . The issues raised in this appeal were certified pursuant to 28 U.S.C. § 1292(b). . A description of the physical layout of the prison is important to an understanding of the facts of this case. In the recreation area, there are seven recreation pens. The back fence of the recreation pens comprises part of the perimeter security. Perimeter security consists of two fences. The first fence ("interior fence”) separates the recreation pens from a barren piece of land which is approximately twenty feet wide and is referred to as "no man’s land.” The second fence (“perimeter fence”) surrounds "no man’s land,” separating it from the unenclosed land surrounding the prison. The characteristics of the fences are hotly contested by the parties. The interior fence is approximately twelve feet high and the perimeter fence is approximately nine feet high. The interior fence is topped with concertina razor wire and the perimeter fence with barbed wire. Due to the poor condition of the fences, however, the extent to which either fence constitutes an imposing structure is subject to dispute. There is a gate on each fence. The gate on the interior fence is located in recreation pen three and the gate on the exterior fence is directly across from the gate on the interior fence. For security purposes, the keys to the gates are kept in guard towers located outside the perimeter fence. There are two guard towers outside the perimeter fence adjacent to the complex where Sharp was housed. The towers have armed correctional officers on guard at all times. Surrounding the towers is approximately sixty yards of open land. At the edge of the open land is a wooded area and beyond that there is a perimeter road patrolled by an armed correctional officer, known as the roving patrol. There is no radio contact between the tower and the road patrolman. . Thus we are assuming, but expressly not deciding, several principles. First, we are assuming that the portion of the Guthrie order quoted in the text accurately articulates the principle of law relating to the use of deadly force which was later articulated and clearly established in Tennessee v. Gamer. Second, we are assuming that the Garner principle of law, which was announced in the context of the seizure of a felony suspect and the Fourth Amendment ramifications thereof, applies with equal force and would also clearly establish the law in the different context of a prison escape and the Eighth Amendment ramifications thereof. Third, we are assuming that the above-quoted Guthrie order could serve to anticipate the Gamer constitutional principle and to place defendants on notice of that principle as a clearly established constitutional principle. Cf. Williams v. Bennett, 689 F.2d 1370, 1385-86 (11th Cir.1982), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983). Because of our disposition of this case as explained in the text below, we need not address or decide any of these issues, and we expressly do not do so. . The district court did not have the benefit of the Supreme Court’s reasoning in Anderson v. Creighton, since it was published after the district court decision in this case. . The foregoing recitation of facts attempts to draw all reasonable inferences in plaintiffs' favor, as required by the current summary judgment posture of this case. We note that the district court indicated that it was not clear whether Sharp began running to escape after clearing the perimeter fence, or merely began "walking." Whether Sharp began to run after clearing the final fence, or began to walk, a fair reading of the depositions clearly indicates that Sharp continued at that point to disregard all of the warnings including the warning shots, and was continuing his escape attempt. The district court also indicated that Prescott’s precise location was unclear and that this was relevant to a determination of whether Prescott would have been able to subdue Sharp with “hands on force" instead of shooting. However, Prescott’s precise location is not relevant to our decision (e.g., whether he was approximately 50 feet from Sharp as Prescott estimated, or more or less), nor is the fact that he might have been áble to subdue Sharp with "hands on force.” Rather, our conclusion is that a reasonable officer with the information available to Coleman could reasonably have believed that his actions were lawful, i.e., that it was not legally necessary to rely upon the ability of Prescott to subdue Sharp with “hands on force." . We note in addition that Newsome’s liability in any event would be derivative and that a § 1983 action cannot be sustained solely on a theory of respondeat superior. Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir.1985). . Plaintiffs also assert this claim as against defendant Evans, the Commissioner of the Georgia Prison System. For reasons to be discussed in Section IV below, this argument fails simply because the facts do not support a conclusion that Evans’ actions were actionable. . Nothing said herein indicates our approval of the procedures by which committal orders for inmates were processed. Rather, the undisputed facts do not support a conclusion that defendant Evans could be liable for a policy of ignoring committal orders.

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 - civil rights claims by prisoners and those accused of crimes".

What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"?

In The Matter of the Complaint of SEDCO, INC., as owner of the MOBILE DRILLING UNIT SEDCO 135, its engines, tackle, apparel, etc., in the cause of Exoneration from or limitation of Liability, Plaintiff-Appellee, v. PETROLEOS MEXICANOS MEXICAN NATIONAL OIL CO., (PEMEX), Defendant, Performaciones Marinas Del Golfo, S.A. (Permargo), Defendant-Appellant. No. 84-2512. United States Court of Appeals, Fifth Circuit. Aug. 12, 1985. Hirtz & McDonough, Ted Hirtz, Lawrence A. Lynn, Houston, Tex., Michael Marks Cohen, New York City, for Perforaciones Marinas Del Golfo, S.A. Vinson & Elkins, Theodore G. Dimitry, Henry S. Morgan, Jr., Houston, Tex., Jim Mattox, Atty. Gen., Austin, Tex., Crady & Peden, Douglas S. Johnston, Houston, for plaintiff-appellee. Daniel K. Hedges, U.S. Atty., Houston, Tex., Wells D. Burgess, Atty. Gen. Litigation Section, Washington, D.C., for U.S.A. —other interested party. Before BROWN, POLITZ and JOLLY, Circuit Judges. JOHN R. BROWN, Circuit Judge: Before us is an appeal from the district court’s order, 610 F.Supp. 306, refusing to order arbitration in a major lawsuit flowing out of the world’s largest oil spill. Presently plaguing the long suffering mariners on their litigious voyage is an historically hatched rule of admiralty which often rears its head like a leviathan from the deep in order to founder those who seek interlocutory relief. Today, however, possessed with recent chartings by the Supreme Court and Congress, we are able to keep hands steady on the helm past the Schoenamsgruber peril. As pilots, we have often groused about the treacherous course compelled by these instructions from astronautical heights. But as mariners of all ages, until such time as the wrecks and shoals disappear, we must ply our course with the navigational aids at our disposal. We hope our log which follows makes the voyage easier for those who must travel after us. The prizes secured on our voyage — judicial economy and the promotion of arbitration — are recompense for the perils. Safely ashore, we remand for the district court to order that Sedeo and Permargo proceed to arbitration in accordance with their contract. Upon remand, the district court should consider whether the remaining litigation should be stayed pending arbitration. I. The Voyagers In June of 1979 the semi-submersible drilling vessel, SEDCO 135, owned by Sedeo, Inc. (Sedeo), was in the bay of Campeche, Gulf of Mexico, under bareboat charter to Perforaciones Marinas del Golfo, S.A. (Permargo), a Mexican drilling company. Permargo had contracted with Petroleous Mexicanos (Pemex), the Mexican state owned oil company, to drill oil wells. On June 3, a massive blowout took place. The SEDCO 135 was a total loss; the flow of oil into the Gulf became the largest oil spill in history. On September 11, 1979, Sedeo filed a petition under the Limitation of Shipowners Liability Act, 46 U.S.C. § 181 et seq. All litigation by shrimpers, hotel owners, and governmental entities against Sedeo, Permargo, and Pemex was consolidated into the limitation proceeding. On September 23, Sedeo tendered its defense to Permargo pursuant to an indemnity clause in the charter party. In part, the bareboat charter party stated that Permargo would: assume all responsibility for, including control and removal of, and to protect, and indemnify and hold harmless the owner [Sedeo] and the vessel [SEDCO 135] from loss or damage arising from pollution or contamination, regardless of cause and without regard to the negligence of any party. Permargo refused to defend Sedeo. In the limitation proceeding Sedeo then filed a third-party claim against Permargo and Pemex alleging that Permargo had breached its obligation to hold Sedeo harmless under the charter. Sedeo sought damages for the breach, indemnity for any sums Sedeo was found liable to pay to third-parties, and attorneys’ fees. The district court originally dismissed Pemex under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq., but denied Permargo’s motion to dismiss. Sedeo then settled with the United States and certain class action plaintiffs. Sedeo demands indemnity from Permargo for these payments. Throughout the district court proceedings, Permargo has made extensive efforts to resist discovery on jurisdictional grounds. As a result of this jurisdictional jousting, Permargo did not file its first answer to Sedco’s third party complaint until April 8, 1983; Permargo’s answer thus came almost three years after being sued by Sedeo. This answer raised as a defense an arbitration clause in the charter party between Sedeo and Permargo. Then, on April 12, 1983, Permargo filed motions (i) for a stay pending arbitration and (ii) a mandatory order to direct arbitration. On August 24, 1984, the district court issued an order reconsidering its dismissal of Pemex. The same order summarily denied both Permargo’s motions regarding arbitration with the statement that “Pemex is now a party to the pending litigation and complete resolution of the matters before this court cannot be had without Permargo’s participation as a party to this litigation.” The questions for us to decide in this appeal are: (1) whether the district court’s order refusing to order arbitration (with a stay of proceedings pending arbitration) is appealable; and, (2) if so, whether Permargo has waived its right to arbitration. II. Arbitration A. The Party’s Agreement Clause 21 of the charter party between Sedeo and Permargo provides that they would submit “any dispute or difference between the parties” to arbitration in New York under the rules of the International Chamber of Commerce. Sedeo is a Texas company; Permargo is a Mexican company. Both Mexico and the United States are signatories to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention), 3 U.S.T. 2517, T.I.A.S. No. 6957, 330 U.N.T.S. 38 [1970], republished as a note following 9 U.S.C. § 201. The Convention contemplates a very limited inquiry by courts when considering a motion to compel arbitration: 1) is there an agreement in writing to arbitrate the dispute; in other words, is the arbitration agreement broad or narrow; 2) does the agreement provide for arbitration in the territory of a Convention signatory; 3) does the agreement to arbitrate arise out of a commercial legal relationship; 4) is a party to the agreement not an American citizen? Ledee v. Ceramiche Ragno, 684 F.2d 184, 185-86 (1st Cir.1982). If these requirements are met, the Convention requires district courts to order arbitration. Language similar to that used in the charter party arbitration clause between Sedeo and Permargo has been described by the Court in Caribbean Steamship Co. v. Sonmez Denizcilik Ve Ticaret, 598 F.2d 1264, 1266 (2d Cir.1979). The court said “[i]t is difficult to imagine broader general language than that contained in the charter party’s arbitration clause, ‘any dispute’____” Additionally, when confronted with arbitration agreements, we presume that arbitration should not be denied “unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue____” Commerce Park of DFW Free-port v. Mardian Construction Co., 729 F.2d 334, 338 (5th Cir.1984), quoting Wick v. Atlantic Marine, Inc., 605 F.2d 166, 168 (5th Cir.1979). Thus, as a general rule, whenever the scope of an arbitration clause is in question, the court should construe the clause in favor of arbitration. United Steel Workers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960); City of Meridian, Miss. v. Algernon Blair, Inc., 721 F.2d 525, 527 (5th Cir.1983). We hold that the arbitration agreement between Sedeo and Permargo is of the broad type. B. The Arbitration Convention The Convention was negotiated pursuant to the Constitution’s Treaty power. Congress then adopted enabling legislation to make the Convention the highest law of the land. As such, the Convention must be enforced according to its terms over all prior inconsistent rules of law. Congress’ implementing legislation for the Convention is found as part of the Arbitration Act. 9 U.S.C. § 1 et seq. Chapter 1 of Title 9 is the Federal Arbitration Act passed long ago to overcome American courts’ common law hostility to the arbitration of disputes. Chapter 2 of Title 9 is devoted entirely to the Convention and Congress’ enabling legislation. Thus, § 201 provides that the Convention “shall be enforced” by United States courts. In substance, the Convention replicates the Federal Arbitration Act. Indeed, § 208 of the enabling legislation for the Convention incorporates all of the Convention into Chapter 1 of Title 9. But while the Convention requires courts of the United States to enforce arbitration clauses along lines similar to those specified in the Arbitration Act, its reach is broader than the Arbitration Act. Both the Arbitration Act and the Convention provide that if a dispute in a pending lawsuit is subject to arbitration, the district court “shall on application of one of the parties stay the trial of the action until such arbitration has been had.” Both provide that the district court “shall make an order directing the parties to proceed to arbitration” when the site for arbitration is within the district. But § 206 of the enabling legislation for the Convention also authorizes district courts to order parties to proceed with a Convention arbitration even outside the United States. C. The Policy of Encouraging Arbitration and the End of the Intertwining Doctrine The Supreme Court leaves no doubt that: The goal of the convention, and the principal purpose underlying American adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements and international contracts and to unify the standard by which the agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries. Scherk v. Alberto-Culver Co., 417 U.S. 506, 517 n. 10, 94 S.Ct. 2449, 2456, 41 L.Ed.2d 270 (1974). The Fifth Circuit has been friendly to arbitration except possibly in those limited areas affected by the intertwining doctrine; the securities and antitrust laws. Now, however, the Supreme Court has rejected the intertwining doctrine and mandated that courts enforce arbitration agreements as part of party’s legitimate contractual expectations. Dean Witter Reynolds v. Byrd, — U.S. -, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), involved the securities laws — long held to be an area of special federal concern in our circuit. Based on this special concern for the exclusive federal interest in enforcement of the securities laws, we used the intertwining doctrine to override party’s arbitration agreements to prevent the piecemeal adjudication of disputes. As the Court said in Dean Witter Reynolds: the Arbitration Act requires district courts to compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possible inefficient maintenance of separate proceedings in different forums____ By its terms, the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed. (emphasis in original). Thus, Dean Witter Reynolds confirms the Court’s teaching in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1982). In Moses Cone the Supreme Court held “[t]he Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Thus, “[ajbsent allegations of fraud in the inducement of the arbitration clause itself, arbitration must proceed when an arbitration clause on its face appears broad enough to encompass the party’s claims.” Life of America Insurance Co. v. Aetna Life Insurance Co., 744 F.2d 409, 413 (5th Cir.1984); Commerce Park at DFW Freeport v. Mardian Constr. Co., 729 F.2d 334, 338 (5th Cir.1984); Prima Paint Corp. v. Flood and Conklin Manufacturing Co., 388 U.S. 395, 406, 87 S.Ct. 1801, 1807, 18 L.Ed.2d 1270 (1967). “Under the Arbitration Act, an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute, but not to the arbitration agreement.” Tai Ping at 1146; Cf. Commerce Park at 339. D. The Schoenamsgruber Peril: Appealability of the Motion to Compel Arbitration In Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989 (1935), the Supreme Court held Courts of Appeals lacked jurisdiction to hear appeals from a district court’s order staying an admiralty proceeding pending arbitration. Accordingly, we must closely examine the district court’s order and the Convention to see if Schoenamsgruber causes us to founder. The district court had before it two separate motions from Permargo. It chose, however, to dispose of both motions by means of one order. The district court denied both Permargo’s motions (i) for an order directing arbitration and (ii) to stay all proceedings pending arbitration. The court denied the motions because of its ruling that Pemex was now a party to the litigation. In its order, the district court stated that arbitration had to be denied since Pemex was not bound by the arbitration clause in the charter party agreement between Sedeo and Permargo. While it appears that the district court based its decision to deny Permargo’s motions upon the now rejected doctrine of intertwining, our case cannot be solved by a simple remand. The district court rejected motions made under the Convention. This Convention is the supreme law of the land. By its ratification in 1970, the United States obligated itself to enforce arbitration agreements between foreign and domestic contracting parties. Any law or decision prior in time to this express undertaking must be construed as consistent with the Convention or set aside by it. Our decision is further supported by the recent opinion in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., — U.S. -, 105 S.Ct. 3346, 85 L.Ed.2d - (1985). Despite the uniform rule throughout the Circuits that federal antitrust claims are inappropriate for arbitration, the Court ruled that antitrust claims are arbitrable under the Federal Arbitration Act when they are encompassed within a valid arbitration clause in an agreement embodying an international commercial transaction. The Court focused on: concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes require that we enforce the parties’ agreement, even assuming that a contrary result would be forthcoming in a domestic context. The Convention was passed in order to secure the right of arbitration in a commercial context among foreign and domestic parties. Congress could not have intended that a court’s refusal to enforce an arbitration agreement falling under the Convention would be immediately appealable in a nonmaritime action — at law or equity — but would be shielded from appellate scrutiny in an admiralty suit. Accordingly, Schoenamsgruber’s mummified prohibition on the nonappealability of stays in admiralty, to the extent that it interferes with United States obligations under the Convention, must give way. We cannot extend the relic of Schoenamsgruber under 9 U.S.C. § 8 to 9 U.S.C. § 206. We hold that we have jurisdiction on this appeal to carry out the important congressional policy of insuring that arbitration contracts are enforced in the courts pursuant to the Convention. Moreover, to the extent that Schoenamsgruber was influenced by the ancient view that an admiralty court lacked the power to issue an injunction, the law has progressed. Judges may now “stride the quarterdeck” and issue injunctions. C.A.V.N v. Perez, 303 F.2d 692 (5th Cir. 1962), cert. denied, 371 U.S. 942, 83 S.Ct. 321, 9 L.Ed.2d 276 (1962). Although the trial court did not style its order as the denial of an injunction, its order has all the earmarks of a denial of injunctive relief under 28 U.S.C. § 1292. Permargo sought an order to compel the affirmative action of arbitration outside the litigation. If Permargo’s motion had been granted instead of denied, the court’s order would have required Sedeo to participate in arbitration in New York. Such an order would be, in effect, a mandatory injunction. Accordingly, the district court’s refusal to grant the injunction mandated by the Convention is appealable under 28 U.S.C. § 1292 in order to prevent the United States from violating its Treaty obligations with 65 nations. Although our usual course would be to remand for the district court to correct its error of law in not ordering arbitration, here the district judge who entered the order is no longer on the bench. However, after three years of extensive discovery with well over 400 docket entries, the record before us is adequate to see that the requisites mandating the issuance of an order to arbitrate under the Convention have been met. Indeed, under the Convention any factual inquiry prior to a court being required to enforce an arbitration clause is strictly limited. See, Convention, Art. II; Ledee v. Ceramiche Ragno, 684 F.2d at 185-86; Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1982); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404, 87 S.Ct. 1801, 1806-07, 18 L.Ed.2d 1270 (1967); cf. Oil, Chemical & Atomic Workers v. American Petrofina Co., 759 F.2d 512, 515 (5th Cir.1985) (“obligation of the parties to submit to the arbitrator the issue of arbitrability____”). As we have emphasized throughout, the arbitration clause, in light of the substantive provisions of the charter party, is extremely broad. Consequently, we determine that it encompasses substantially all of the potential controversies growing out of the blowout of the IXTOC I well. Although in some situations we have stated that the court should first determine whether, and what, issues are for arbitration, we think that given the broad framework of the arbitration clause in this situation, the arbitrators should initially determine which of the intricate factual disputes come within the arbitration clause. It goes without saying that questions as to the conduct of the arbitration are reserved to the United States District Court for the Southern District of Texas. E. The Possibility of Waiver Although arbitration is a contractual right which can be waived and Article II of the Convention contemplates the possibility of waiver of an arbitration agreement, the facts of this case do not demonstrate such a waiver. See I.T.A.D. Associates, Inc. v. Podar Bros., 636 F.2d 75, 77 (4th Cir.1981). Here Permargo raised the defense of arbitration in its answer. The only foundation for Sedco’s assertion of waiver is the passage of time between filing of the limitation proceeding and the filing of Permargo’s answer. As the court observed in Hilti v. Oldach, 392 F.2d 368, 371 (1st Cir.1968) “[w]e start with the fact that defendant’s answer, in its special defense, served notice on plaintiff of the arbitration defense. Given this, the burden is heavy on one who would prove waiver.” Indeed, though the sparring in Hilti was for “nearly two years,” the court thought it more important that the delay in the proceedings was caused by legitimate prearbitration discovery. Southwest Industrial Import & Export v. Wilmod Co., Inc., 524 F.2d 468, 470 (5th Cir.1975) (willing participation in settlement discussions & reselling goods not waiver of arbitration rights); Germany v. River Terminal Railway Co., 477 F.2d 546, 547 (6th Cir.1973) (“waiver may not be inferred from the fact that a party does not rely exclusively on the arbitration provisions of a contract, but attempts to meet all issues raised in litigation between it and another party to the agreement.”) In the case before us, the long fought dispute about whether the district court had jurisdiction over Permargo and Pemex likewise must be described as legitimate. Nor has Sedeo been able to demonstrate that this jurisdictional jousting has been prejudicial. See also I.T.A.D. Associates, Inc. at 77; Robert Lawrence Co. v. Devonshire Fabrics, 271 F.2d 402, 412-13 (2d Cir.1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618 (1960), cert. denied, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960). We hold there has been no waiver. Conclusion Our review of the language and purposes of the Convention and its enabling legislation lead us to conclude that (i) this appeal is properly before us and (ii) the district court erred in refusing to order arbitration. The parties agreed in writing that all disputes arising from their contractual relationship would be submitted to arbitration. Such an agreement falls squarely within Article II of the Convention. 9 U.S.C. § 206 does not confer discretion in compelling arbitration. I.T.A.D. Associates, Inc. v. Podar Bros., 636 F.2d 75, 77 (4th Cir. 1981). On remand the district court should order the parties to perform their arbitration agreement. REMANDED WITH INSTRUCTIONS. . The district court entered its order on August 21, 1984. This order amended the court's order of March 30, 1982. See, Matter of Sedco, Inc., 543 F.Supp. 561 (S.D.Tex.1982). The March 1982 order had dismissed Petróleos Mexicanos (Pemex) under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq. The August 1984 order vacated this decision and the district court ordered that Pemex’ motion to dismiss for lack of subject matter jurisdiction be carried along with the trial on the merits. Before us, however, is the further portion of the district court’s August 1984 order which denied the motion of Perforaciones Marinas del Golfo S.A. (Permargo) to order arbitration and issue a stay of litigation pending arbitration. . In Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989 (1935), the Supreme Court held that Courts of Appeals lacked jurisdiction to hear an appeal from a district court’s stay of admiralty proceedings pending arbitration. The Court held that such stays are not final orders under what is now 28 U.S.C. § 1291, that they are not injunctions under what is now 28 U.S.C. § 1292(a)(1), and that they are not appealable interlocutory decrees under what is now 28 U.S.C. § 1292(a)(3). The Court reached its decision by means of an analytical framework premised on the differences among actions at law, in equity, or in admiralty. Stays in admiralty were deemed calendar orders and were nonappealable. The Supreme Court has reaffirmed its allegiance to Schoenamsgruber. See Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 182-85, 75 S.Ct. 249, 253-54, 99 L.Ed.2d 233 (1955); Coastal (Bermuda) Ltd. v. E.W. Saybolt & Co., Inc., 761 F.2d 198, 202 (5th Cir.1985); Texaco, Inc. v. American Trading Transportation Co., 644 F.2d 1152, 1154 (5th Cir.1981). . At oral argument, the Court sua sponte raised the issue of whether it had appellate jurisdiction because of Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989 (1935). While neither party in this case challenges our jurisdiction, we must, of course, resolve any such problem before reaching the merits. . Coastal (Bermuda) Ltd. v. E. W. Saybolt & Co., Inc. at 200 (“a lumbering, antedeluvian concept that remains embedded in the judicial esse.’’); Texaco v. American Trading at 1154; Mar-Len of Louisiana, Inc. v. Parsons-Gilbane, 732 F.2d 444, 445-47 (5th Cir.1984) (Rubin, J., dissenting). . After this appeal was taken, and subsequent to oral argument, the district court certified this case as worthy of an interlocutory appeal under 28 U.S.C. § 1292(b). Seeing no need to cross this jurisdictional reef in order to dispose of this case, we do not rush where angels fear to tread. For the record, the appeal came within ten days after entry of the order. . The blowout was finally capped in March of 1980. . The district court has determined that the SEDCO 135 is a vessel under the Limitation Act. Matter of Sedco, Inc., 543 F.Supp. 561 (S.D.Texas 1982). That determination is not before us on this appeal. . In its entirety Clause 21 states: 21. The construction, validity and performance of this Charter shall be governed by the laws of the State of New York, U.S.A. Each party hereby consents to submit to the jurisdiction of the courts of the State of New York. Any dispute or difference between the parties arising out of this Charter shall, at the request of either party, be referred to three arbitrators, one to be appointed by each party, and the third to be appointed by the two arbitrators. Such arbitration shall be in accordance with and subject to the rules of the International Chamber of Commerce and shall be conducted in New York City, New York, U.S.A. The decision of such arbitrators shall be binding on the parties and may be enforced in any court of competent jurisdiction. (emphasis added). . The United States ratification made the following reservations: The United States of America will apply the Convention, on the basis of reciprocity, to the recognition and enforcement of only those awards made in the territory of another Contracting state. The United States of America will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the United States. The Convention applies to all of the territories for the international relations of which the United States of America is responsible. These reservations are not at issue in this case. . As the court in Prudential Lines, Inc. v. Exxon Corp., 704 F.2d 59, 64 (2d Cir.1983) said: [s]imply stated, a court should compel arbitration, and permit the arbitrator to decide whether the dispute falls within the clause, if the clause is “broad.” In contrast, if the clause is “narrow,” arbitration should not be compelled unless the court determines that the dispute falls within the clause. Specific words or phrases alone may not be determinative although words of limitations would indicate a narrower clause. The tone of the clause as a whole must be considered. . The charter party contains several examples that the parties anticipated a possible blowout of the IXTOC I well. Clause 25 refers to a "wild well.” Clause 24 specifies Permargo’s obligations to indemnify Sedeo for "loss or damage arising from pollution or contamination.” Such anticipations are exactly the kinds of damage at issue in this lawsuit. This suffices to make Sedco’s reliance upon Texaco, Inc. v. American Trading Transportation Co., 644 F.2d 1152 (5th Cir.1981), ill-founded. In Texaco there was no question that Texaco’s delictual claim for damages to its dock arose outside the Charter. Here the precise issues at stake — pollution, contamination, drilling operations, indemnity — revolve around a "contemplated” blowout and thus fall within the Charter party agreement between Sedeo and Permargo. . See H.R.Rep. No. 96, 68th Cong., 1st Sess., 1 (1924): The need for the law arises from an anachronism of our American law. Some centuries ago, because of the jealousy of the English courts for their own jurisdiction, they refused to enforce specific agreements to arbitrate upon the ground that the courts were thereby ousted from their jurisdiction. This jealousy survived for so long a period that the principle became firmly embedded in the English common law and was adopted with it by the American courts____ This bill declares simply that such agreements for arbitration shall be enforced, and provides a procedure in the Federal courts for their enforcement. Cf., Lincoln Mills of Alabama v. Textile Workers Union, 230 F.2d 81 (5th Cir.1956) (Brown, J. dissenting), reversed, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). . 9 U.S.C. § 201: The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall be enforced in United States courts in accordance with this chapter. . 9 U.S.C. § 208: Chapter 1 applies to actions and proceedings brought under this chapter to the extent that that chapter is not in conflict with this chapter or the Convention as ratified by the United States. . 9 U.S.C. § 3: If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration, (emphasis added). . 9 U.S.C. § 4: A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be an issue, the court shall proceed summarily to the trial thereof____ If the jury find that an agreement for arbitration was made in writing and that there-is'a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof. (emphasis added). . 9 U.S.C. § 206: A court having jurisdiction under this chapter may direct that arbitration be held in accordance with the agreement at any place therein provided for, whether that place is within or without the United States. Such court may also appoint arbitrators in accordance with the provisions of the agreement. See also Article II: 1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or Which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. 2. The term "agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. 3. The court of a Contracting State, when seized of an action in a manner in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. . We most recently summarized the intertwining doctrine in Tai Ping Insurance Co. v. M/V WARSCHAU, 731 F.2d 1141 (5th Cir.1984): the intertwining doctrine... is triggered when a party asserts several causes of action, at least one of which falls within the exclusive jurisdiction of the federal courts. In such a case, notwithstanding the existence of an arbitration clause, the entire dispute must remain in federal court to avoid encroachment by the arbitrator into an area that Congress has deemed to be within the federal court’s exclusive jurisdiction. . "Along with the Ninth Circuit in this case, the Fifth and Eleventh Circuits have relied on the ‘doctrine of intertwining.’ ” Dean Witter Reynolds at 1240. "In contrast, the Sixth, Seventh and Eighth Circuits have held that the Federal Arbitration Act divests the district courts of any discretion regarding arbitration____” Dean Witter Reynolds at 1240. "We agree with these latter courts____’’ Dean Witter Reynolds at 1241. “[T]he relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement.” Dean Witter Reynolds at 1242, quoting Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1982) (emphasis in original). . The Supreme Court was quite clear: [tjhat a court must compel arbitration of otherwise arbitrable claims, when a motion to compel arbitration is made. The Act, after all, does not mandate the arbitration of all claims, but merely the enforcement — upon the motion of one of the parties — of privately negotiated arbitration agreements. The House Report accompanying the Act makes clear that its purpose was to place an arbitration agreement “upon the same footing as other contracts, where it belongs”... and to overrule the judiciary’s long standing refusal to enforce agreements to arbitrate. Dean Witter Reynolds at 1242. (citation omitted). . See note 2, supra. We have, of course, consistently adhered to Schoenamsgruber. See Texaco, Inc. v. American Trading Transp. Co

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.

Are there two issues in the case?

George BIDERMAN et al., Plaintiffs-Appellants, v. Rogers C. B. MORTON, Secretary of Interior, et al., Defendants-Appellees. No. 976, Docket 73-2842. United States Court of Appeals, Second Circuit. Argued May 15, 1974. Decided May 30, 1974. Donald J. Cohn, New York City (Angus MacBeth, New York City, Thomas H. Jackson, of counsel), for plaintiff s-appellants. Harold J. Friedman, Asst. U. S. Atty. E. D. N. Y. (Edward John Boyd V, Acting U. S. Atty. E. D. N. Y., on the brief; Raymond J. Dearie, Asst. U. S. Atty. E. D. N. Y., of counsel), for Federal defendants-appellees. Edward S. Raskin, Asst. Islip Town Atty., Islip, N. Y. (Francis G. Caldevia, Islip Town Atty., Islip, N. Y., on the brief), for Islip defendants-appellees. C. Francis Giaccone, Lake Ronkonkoma, N. Y., on the brief, for Brookhaven defendants-appellees. J. Stewart McLaughlin, Bay Shore, N. Y., for Ocean Beach defendants-appellees. Before KAUFMAN, Chief Judge, and HAYS and OAKES, Circuit Judges. IRVING R. KAUFMAN, Chief Judge: Efforts by environmentalists to preserve our natural habitat — in this instance, Fire Island — cannot help but strike a sympathetic chord. Indeed, this is particularly true where, as here, this laudable purpose appears frustrated by a federal statutory scheme which, despite its lofty terms, provides a mere chimera of environmental protection. Although appellants evoke our empathy and full understanding of their justifiable frustrations, we can find nothing in the law to justify reversal of the district court’s denial of the preliminary injunctive relief they sought principally to restrain the municipalities located on Fire Island from issuing various construction permits and granting zoning variances pending preparation of an environmental impact statement [EIS] by the federal appellees. We, like the court below, cannot bend- well-settled principles of federal jurisdiction even to staunch what the appellants allege to be overdevelopment of Fire Island. Accordingly, we affirm. I. Fire Island, as described by Judge Dooling below, is 32 miles long, a slender barrier sand-bar between the Atlantic Ocean and the South Shore of Long Island, dividing the Great South Bay and the westerly end of Moriches Bay from the Atlantic Ocean and extending from a point roughly opposite Babylon to a point roughly opposite East Moriches. It varies in width from as little as 550 feet to not more than about 1,760 feet. At its westerly extremity, and covering some five miles, is the Robert Moses State Park, and at that point, Fire Island is connected across Great South Bay and intervening islands to the West Islip-Brightwaters area by the Robert Moses Causeway. . About six miles or so from the east end of Fire Island a second connection to Long Island in the Mastic Beach area is furnished by a bridge from Smith Point County Park on Fire Island to William Floyd Parkway. . . . The beauty of the island, the western portion of which lies within a mere 50 miles of New York City, is well captured in a report prepared by the Department of the Interior in 1963 for the Senate Committee on Interior and Insular Affairs. That report, in the form of a letter addressed to the Committee Chairman, Senator Jackson, states, in pertinent part: Fire Island contains an impressive array of seashore resources. The beaches are wide, clean, and gently sloping. The dunes are imposing and usually well stabilized by beach grass, bayberry, other vegetation, and some low-lying pitch pine. The sunken forest, in the western half of the island, is a gem of its kind, dominated by American holly trees — some several hundred years old — with an accompaniment of sassafras, red-cedar, and pitch pine. 1964 U.S.Code Cong. & Adm.News, p. 3714. That Fire Island would be attractive to the vast urban population residing in such close proximity is hardly surprising. Indeed, we are told, for example, that the Village of Ocean Beach, which covers approximately 1800 feet of sand from bay to ocean, experiences a virtual population explosion in the summer months, with its winter population of 100 increasing hundredfold to in excess of 10,000. With the potential for despoliation no doubt in mind, Congress, on September 11, 1964, passed the Fire Island National Seashore Act, 16 U.S.C. § 459e et seq., thereby establishing the “Fire Island National Seashore” [Seashore]. The purpose of the statute, in the words of the Act, is: [To conserve and preserve] for the use of future generations certain relatively unspoiled and undeveloped beaches, dunes, and other natural features within Suffolk County, New York, which possess high values to the Nation as examples of unspoiled areas of great natural beauty in close proximity to large concentrations of urban population .... § 459e(a). To effectuate this commendable goal, however, Congress provided the Secretary of the Interior with but a single weapon — condemnation. That power, moreover, was further limited in application to unimproved, privately-owned property, with the exception that the Secretary was empowered to condemn “improved property,” zoned in a manner not “satisfactory to the Secretary,” or which had been “subject to any variance, exception, or use that fails to conform to any applicable standard contained in regulations of the Secretary issued pursuant to this section and in effect at the time of passage of such ordinance . . . . ” Thus, Congress carefully avoided interfering with the power of the municipalities on the Seashore to enact zoning ordinances or grant zoning variances. Federal oversight was restricted to condemnation upon the Secretary’s post-implementation disapproval of a “duly adopted, valid, zoning ordinance,” or variance. The Act, furthermore, requires the Secretary to issue regulations “specifying standards that are consistent with the purposes of sections 459e to 459e-9 of this title for zoning ordinances which must meet his approval,” and, quite reasonably, prohibits him from approving any ordinance or amendment thereof . which (1) contains any provisions that he considers adverse to. the protection and development, in accordance with the purposes of sections 459e to 459e-9 of this title, of the area comprising the national seashore; or (2) fails to have the effect of providing that the Secretary shall receive notice of any variance granted under, or any exception made to, the application of such ordinance or amendment. The Act, finally, authorizes an appropriation of “not more than $16,000,000 for the acquisition of lands” consistent with the statute’s limitations, and establishes a fifteen-member Fire Island National Seashore Advisory Commission to advise the Secretary on the development of the Seashore and on his exercise of condemnation power. Soon after the Act’s passage, according to an affidavit by James Godbolt, presently Superintendent of Fire Island National Seashore and formerly Chief, Operations Evaluation, for the Northeast Region of the National Park Service [NPS], a Master Plan for the Seashore was developed by NPS. This plan, however, was considered deficient in certain respects and was not approved by the Director of NPS. Indeed, Godbolt’s affidavit further relates that work on the Master Plan did not begin anew until June 1971 when funds for that purpose once again became available. By this time, moreover, Congress had enacted the National Environmental Policy Act [NEPA], which requires all federal agencies to prepare an EIS for any “major Federal action significantly affecting the quality of the human environment . . . ' 42 U.S.C. §4332(2) (C). Determining that a Master Plan constitutes a “major Federal action,” NPS also undertook preparation of an EIS in conjunction with the development of the Master Plan. Neither document, however, has been completed to date, and at argument we were informed that completion is not expected before January, 1975. Expenditures for acquisition of property pursuant to the Seashore Act have not been held in abeyance pending completion of the Master Plan and the EIS. In fact, the initial $16,000,000 appropriation has been virtually exhausted. Lawrence Hadley, Assistant Director, Park Management, of the NPS, reports by affidavit that, as of June 30, 1972, $15,723,439 had been spent for Seashore property, while the remaining $276,561 of appropriated funds is reserved against awards in excess of the Government’s estimate in any of the eleven condemnation cases still pending in the district court. The NPS, according to the Government’s brief on appeal, is awaiting completion of the Master Plan and EIS before asking Congress for a new appropriation. On August 9, 1972, with almost eight years having elapsed since passage of the Seashore Act and no Master Plan or EIS in the offing, George Biderman, the first Chairman of the Seashore Advisory Commission, Charles Lowry, then Chairman of that Commission, and twelve other property owners on Fire Island, commenced this action in the Eastern District of New York against the Secretary of the Interior, various officials of the NPS, officials of the Towns of Islip and Brookhaven, and the Villages of Ocean Beach and Saltaire. The complaint sought relief, in the nature of mandamus, requiring the Secretary of the Interior to prepare an EIS “as soon as practicable,” and declaratory relief, not here relevant, concerning motor vehicle traffic on the Seashore and the acquisition of ocean beaches. As to the municipal defendants, plaintiffs requested a prohibitory injunction, restraining those defendants from issuing any permits for building construction or swimming pools, granting zoning variances, or amending zoning ordinances, with regard to real property located within the Seashore until the Secretary of the Interior prepares a proper and adequate environmental impact statement and any required changes, amendments or additions to the Regulations governing local zoning ordinances are promulgated and in effect. Further injunctive relief against the municipalities, not relevant to this appeal, was sought in connection with the operation and use of motor vehicles on the Seashore. Before joining issue on the merits, the federal and Brookhaven defendants moved to dismiss the complaint primarily on the ground that, in alleging only federal inaction, the complaint failed to state a claim under NEPA. Judge Dooling, in an unreported opinion, denied the motions to dismiss, holding: Plaintiffs are entitled to present their case that federal inaction has proceeded to the point at which a court must be asked to determine whether or not the Secretary is liable to an order of mandamus requiring him forthwith to embark upon the performance of his duties imposed upon him by law, and whether plaintiffs are entitled to such incidental and preliminary relief as is necessary to preserve the subject matter of the action from further dissipation. Moreover, with respect to the further contention of the Brookhaven defendants that they had not been charged with acting in an unlawful manner, the district judge commented only: It will be seen that the Town officials’ points are presented very much in the same context as those of the federal defendants, and, for the same reason, in this most unusual case, it is concluded that their motion to dismiss must be denied. On August 22, 1973, upon numerous affidavits and exhibits supporting the claim that the Seashore had already been irreparably harmed through overdevelopment, plaintiffs moved for a preliminary injunction restraining “defendants” from approving, issuing, granting or authorizing, with respect to the Seashore: (a) permits for commercial or industrial construction, or swimming pools, (b) zoning variances, (c) zoning amendments, (d) permits for construction of any sort forward of a line 100 feet behind the dune line, (e) permits for construction on or dredging of the wetlands, (f) permits for other than essential motor vehicle use. Judge Dooling, in another unreported opinion, denied the motion for injunctive relief as to items (a) through (e) and held decision as to item (f), concerning motor vehicle use, “in abeyance.” He concluded, in essence, that the court was powerless to enjoin the municipalities from implementing their zoning ordinances or any modifications thereto because the municipal action in no sense contravened federal law. Thus, Judge Dooling stated: The difficulty, if it be one, is plainly that no governmental action or controlling law has arrested the course of a lawful and continuing evolution of land use. We are constrained to agree. II. Although plaintiffs phrased their request for injunctive relief to apply to all “defendants” without distinction, it is clear that such relief is sought primarily against the municipal defendants, the local officials, who, after all, effectively “approve, grant, issue or authorize” the various permits, variances and amendments which appellants oppose. Indeed, with congressional funding essentially exhausted, it would appear rather meaningless to enjoin the federal defendants from exercising their limited, post-enactment approval authority for in no event could condemnation now result from that decision. Moreover, Godbolt, in his affidavit in support of the Government’s opposition to preliminary injunctive relief, stated: [T]he Superintendent [of Fire Island National Seashore] on behalf of the NPS, will refrain from approving any building permit applications, zoning variance applications or amendments to zoning regulations, provided that if special circumstances warrant, on 30 days written notice to plaintiffs, the Superintendent may take such action. Accordingly, to the extent that plaintiffs seek preliminary injunctive relief against federal defendants, we agree with the court below that such relief is not appropriate under the circumstances here. Turning to the relief sought against the municipal defendants, we find an insurmountable, threshold barrier in appellants’ failure to identify a discernible basis for the exercise of federal injunctive power over these non-federal defendants. Appellants do not suggest that the Seashore Act, alone, provides a cause of action against the municipal defendants under the facts of this case. That Act, quite simply, does not prohibit any zoning action by the various local governments located on the Seashore. As we have noted, the Secretary of the Interior is authorized only to condemn property zoned in a manner of which he disapproves — an action which cannot possibly be interpreted as a retroactive declaration of municipal illegality. And, we might add, appellants do not contend that NEPA itself imposes a duty directly upon non-federal entities, such as the Seashore municipalities, to perform or cease to perform any particular activity. This route has already been foreclosed by a number of appellate decisions. See e. g. Proetta v. Dent, 484 F.2d 1146 (2d Cir. 1973); Bradford Township v. Illinois State Toll Highway Auth., 463 F.2d 537, 540 (7th Cir.), cert. denied, 409 U.S. 1047, 93 S.Ct. 518, 34 L.Ed.2d 499 (1972); Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971). To be sure, it is well settled that non-federal parties may be enjoined, pending completion of an EIS, where those non-federal entities have entered into a partnership or joint venture with the Federal Government, and are thus recipients of federal funding. See e. g. Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958); Proetta v. Dent, supra, 484 F.2d at 1148; Silva v. Romney, 473 F.2d 287, 289-290 (1st Cir. 1973); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1329 (4th Cir.), cert. denied, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972); Named Individual Members of San Antonio Conservation Society v. Texas Highway Dept., 446 F.2d 1013, 1027 (5th Cir. 1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972). But cf. Ely v. Velde, supra, 451 F.2d at 1139. The rationale behind this extension of federal power appears to be grounded in notions of consent. Thus, the Fifth Circuit stated: No one forced the State to seek federal funding, to accept federal participation, or to commence construction of a federal aid highway. The State, by entering into this venture, voluntarily submitted itself to federal law. It entered with its eyes open, having more than adequate warning of the controversial nature of the project and of the applicable law. And while this marriage between the federal and state defendants seems to have been an unhappy one, it has produced an already huge concrete offspring whose existence it is impossible for us to ignore. Individual Members of San Antonio Conservation Society v. Texas Highway Dept., supra, 446 F.2d at 1028 (footnote omitted). In this case, however, there is no contention that the municipal defendants solicited federal aid in any way and, indeed, it is the very lack of cooperative effort between the federal and municipal defendants which has so rankled appellants. Nor is this a case in which non-federal action cannot lawfully begin or continue without the prior approval of a federal agency. See e. g. Greene County Planning Board v. Federal Power Commission, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed. 2d 90 (1972) (transmission lines could not be strung without Federal Power Commission license); West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971) (timber-cutting and mining activity in Monongahela National Forest could not proceed without NPS permission). In such instances, if NEPA is construed to mandate that the requisite agency decision be enlightened by and grounded on an EIS, it is beyond cavil that the court may then enjoin the non-federal actors pending completion of that impact statement. Indeed, were such non-federal entities to act without the necessary federal approval, they obviously would be acting unlawfully and subject to injunction. Cf. West Virginia Highlands Conservancy v. Island Creek Coal Co., supra; Citizens for Clean Air, Inc. v. Corps of Engineers, U. S. Army, 349 F.Supp. 696, 706 (S.D.N.Y.1972). But, as we have attempted to make clear, the federal government does not have what we characterize as “go-ahead” power over the zoning decisions of the Seashore municipalities. The validity — the operative effect — -of the local zoning ordinances, variances and amendments does not depend on the prior approval of the Secretary of the Interior. He is authorized merely to acquire by condemnation “improved property” not zoned in an approved manner. At the present time, moreover, even this circumscribed option is not available to the Secretary because, as we have indicated, the $16,000,000 appropriated by Congress has been spent or earmarked for committed expenditure. Accordingly, we need not reach the issue of the celerity with which the Secretary must prepare an EIS, for assuming arguendo he were required to complete one forthwith, the municipal defendants would still remain outside the ambit of federal injunctive relief. Absent funds for condemnation, the statutory scheme devised by Congress leaves the Secretary absolutely powerless to arrest the allegedly destructive development of Fire Island. We simply cannot, by granting injunctive relief, arm the Secretary with “go-ahead” power when Congress, in the Seashore Act, saw fit not to do so. On the basis of the affidavits and interrogatories in the record before us, there is little doubt in our minds that environmentalists — and indeed courts— have been and will continue to be frustrated in their commendable efforts to safeguard the natural beauty of Fire Island. In their justifiable frustration, plaintiffs have sought relief from the courts, but it is clear that only Congress can provide the remedy. Denial of the preliminary injunctive relief sought by plaintiffs must, therefore, be affirmed and the case remanded for further proceedings not inconsistent with this opinion. Nevertheless, precatory though our words must necessarily be, we cannot help but urge those with the power and authority to preserve this gem of an island to halt their procrastination and get on with the urgent business of saving this charming and fragile outpost of nature before the encroachments of haphazard development irrevocably despoil it. . Plaintiffs-appellants, fourteen Fire Island property owners, are suing individually and as representatives of a number of property owners associations. . The municipal defendants-appellees are the governing officials of the Towns of Islip and Brookhaven, and the Villages of Ocean Beach and Saltaire. . The federal defendants-appellees are the Secretary of the Interior and various officials of the National Park Service. To the extent that appellants sought preliminary injunctive relief against these defendants, we find no grounds for such relief. . Judge Dooling’s memorandum opinion, dated February 6, 1973, denying motions to dismiss tbe complaint by the federal and Brookhaven appellees, is unreported. . Tbe municipal appellees vigorously argue that Congress could do no more, constitutionally, than authorize condemnation of non-federally owned land on Fire Island; that it has no jurisdictional basis for exercising regulatory police powers over the area. We need not decide whether Congress has the power to do more, for it clearly chose only the condemnation route to protect the Fire Island landscape. . Section 459e-l(a) provides that “[a]ny property or interest therein [on the Seashore] owned by the State of New York, by Suffolk County, or by any other political subdivision of said State may be acquired only with the concurrence of such owner.” . In addition to the exception discussed in the text, the Secretary is authorized to condemn improved property, without regard to applicable, local zoning ordinances, “in the approximately eight-mile area from the easterly boundary of the Brook-haven town park at Davis Park, in the town of Brookhaven, to the westerly boundary of the Smith Point County Park.” § 459e-l(e). . § 459e-l(f). . § 459e-l(e). . § 459e-2(e). . § 459e-l(e). . § 459e-2(e). . § 459e-2. . § 459e-2(d). . § 459e-9. . § 459e-8. . See 37 Fed.Reg. 4373 (1972). . It is undisputed that plaintiffs, in their motion for a preliminary injunction, did not repeat — and thus, of course, Judge Dooling did not consider — their request that the Secretary of the Interior be ordered to prepare an EIS “as soon as practicable.” For the first time in their reply brief, however, appellants suggest the possibility that such relief may now be appropriate. They state: If Federal defendants are now saying that an impact statement is voluntary on their part, we would ask this Court to issue a mandatory injunction requiring the Federal defendants to prepare a proper Environmental Impact Statement as soon as practicable .... Reply Brief of Appellants at 7. Suffice to say in response that we do not understand the federal defendants to be saying that an EIS is “voluntary on their part.” As we noted, the NPS has announced its determination that a Master Plan is a “major Federal action” requiring preparation of an EIS. See note 17 supra. . Appellants urge that McLean Gardens Residents Association v. National Capital Planning Commission, 2 ELR 20659 (D.D.C.1972), in which the “local” D.C. Zoning Commission was preliminarily enjoined from granting a zoning variance pending completion of an EIS by the “federal” National Capital Planning Commission [NCPC], is precedent for enjoining the conduct of an entity not directly controlled by NEPA, although the federal agency so governed has something less than the “go-ahead” power discussed in the text. Regrettably, we find the reasoning in McLean somewhat obscure. In any event, the case is factually distinguishable from the one before us. Although it is true that the “[D.C.] Zoning Commission [is not] bound to follow the recommendation of the NCPC,” Citizens Ass’n of Georgetown, Inc. v. Zoning Com’n of D. C., 155 U.S.App.D.C. 233, 477 F.2d 402, 407 (1973), the McLean court did not seem to focus on the NCPC’s less than “go-ahead” role. Indeed, the court’s finding of fact #24 suggests a contrary view: The D.C. Zoning Regulations call for the review and approval of the National Capital Planning Commission before the D.C. Zoning Commission disposes of a preliminary application for a planned unit development. (emphasis added) McLean Gardens Residents Association v. National Capital Planning Commission, supra, 2 ELR at 20661. In addition to this possible confusion over the power of the NCPC, which at the very least beclouds the premise upon which the court based its conclusion, it is important to note that the NCPC’s role in the D.C. zoning process is preliminary to action by the “local” Zoning Commission and not, as here, subsequent to the implementation of local zoning ordinances. Accordingly, an argument might be made that since Congress intended the “local” Zoning Commission to be informed by the NCPC before it enacted a zoning ordinance or variance, Congress also intended the Zoning Commission to await preparation of the EIS required of the NCPC before making that zoning decision. Yet, even this minimal degree of federal agency influence is not reflected in the posi-implementation, federal review procedure embodied in the Seashore Act. . Were funds still avaialble for condemnation, the Secretary would at least have some control over land use on the Seashore, although we note parenthetically that appellants never sought to restrain the Secretary or his delegates from spending these funds pending completion of an EIS. Whether such federal power, in light of the apparent effort by Congress to preserve “home rule,” would suffice to justify injunctive relief against these municipalities predicated on a theory of ancillary jurisdiction, is to be sure a thorny question, but one we need not resolve here. . Although we find no ascertainable basis for subject matter jurisdiction over the municipal defendants with respect to the injunctive relief denied below, we note that plaintiffs have requested injunctive relief, in addition, to restrain the issuance by the municipalities of motor vehicle permits for nonessential vehicle use on the Seashore. As we have indicated, decision as to this portion of the preliminary injunctive relief sought by plaintiffs was held in abeyance by the district court, and thus, was not a part of this appeal. Accordingly, we express no view on whether jurisdiction over the municipal defendants might lie for this purpose.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine or not there was any amicus participation before the court of appeals.

Was there any amicus participation before the court of appeals?

Peter BOGART and June Bogart, Appellants, v. PEOPLE OF the STATE OF CALIFORNIA, Appellee. No. 22089. United States Court of Appeals Ninth Circuit. March 17, 1969. Rehearing Denied April 25, 1969. Sam Bubriek, Los Angeles, Cal., for Peter D. Bogart & June Bogart. Evelle J. Younger, Dist. Atty., Robert J. Lord, Asst. Dist. Atty., Los Angeles, Cal., for appellee. Before BARNES, DUNIWAY and ELY, Circuit Judges. BARNES, Circuit Judge: This appeal was set for oral argument on March 4, 1969. At that time, upon oral motion made by counsel for appellants to be relieved as counsel for appellants, and upon consent expressed in open court by each appellant that the motion be granted, the motion was granted. Appellants thereupon each requested in open court that the appeal be submitted on the brief on file (no brief had been filed by appellee). It was so ordered. This matter has been before this court previously. For a recital of the complicated facts through 1965, see our opinion appearing at 355 F.2d 377 (1966), particularly pages 378 to 380. In that case we concluded: “The order of the district court remanding the cause to the state court is affirmed.” The date of that opinion was January 13, 1966. A petition for rehearing was denied by this court on February 21, 1966. A petition for certiorari was filed with the Supreme Court of the United States, and we stayed our mandate. The petition for certiorari was denied by the Supreme Court on October 10, 1966, 385 U.S. 888, 87 S.Ct. 132, 17 L.Ed.2d 117, and a rehearing denied by that same Court on November 21, 1966, 385 U.S. 964, 87 S.Ct. 400, 17 L.Ed.2d 310. Our judgment (now mandate) was issued on January 16, 1967, and “filed and spread and entered” in the district court on February 6, 1967. As of that date, the matter (No. 20,050 in this court and No. 34749 in the district court) was final, and the appellants’ cause of action was in the state court, and not in the federal courts. All previously issued stays had expired by their own terms. On February 6, 1967, appellants “lodged” with the district court two documents, each entitled “FIRST AMENDED PETITION FOR REMOVAL OF PROSECUTION BY DEFENDANTS DENIED CIVIL RIGHTS. 28 U.S.C. §§ 1U3, 1U6.” (T.R. 39, et seq.) On that same date, the Hon. Charles H. Carr entered an order with respect to the “lodged” papers (1) denying consideration of the amended removal petitions, and (2) denying motions to appoint counsel for alleged indigent appellants. On February 13, 1967, appellants lodged, and on February 15, 1967, filed, a notice of appeal from (1) and (2), supra, and (3) “from all orders and final judgments made on said February 6, 1967 in said cause.” The only order made on that day other than (1) and (2), supra, was that the mandate of this court of appeals be spread. (R.T. 3-9.) The two orders denying appellants’ motions were premised on the fact that the trial court’s previous order of March 31, 1965, remanding appellants’ cases to the California Superior Court, had been affirmed by this court; his ruling was thus the law of the case, and res adjudicata (R.T. 9). We hold the district court was correct. At the time of the original order of transfer appellants made no offer or effort to amend their petitions. Their untimely attempts, made almost two. years later, to amend came too late, for there was then nothing before the district court to amend. Appellants ask this court in their brief filed August 14, 1968, “to extend their notice of appeal to an order made by Judge Carr entered on March 13, 1967 denying them leave to appeal in forma pauperis.” No appeal having been taken from this order, we are without jurisdiction to entertain any such appeal, or “to extend” the earlier and timely notice of appeal. Fed.R.App.P., Rule 26(b); Rule 2. 222 East Chestnut St. Corp. v. Lakefront, 256 F.2d 513 (7th Cir.) cert. den. 358 U.S. 907, 79 S.Ct. 232, 3 L.Ed.2d 228 (1958); Britton v. Dowell, Inc., 243 F.2d 434 (10th Cir. 1957); Pioche Mines Consol., Inc. v. Foley, 237 F.2d 164 (9th Cir.1956); Food Handlers Local No. 425, v. Pluss Poultry, Inc., 23 F.R.D. 109 (W.D.Ark. 1958); Jones v. Kennedy, 2 F.R.D. 357 (D.D.C.1942). Affirmed.

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.

What is the number of judges who dissented from the majority?

Ricky Lee WILKERSON, Petitioner-Appellant, v. WARDEN OF U. S. REFORMATORY, EL RENO, OKLAHOMA, et al., Respondent-Appellee. No. 72-1354. United States Court of Appeals, Tenth Circuit. Aug. 7, 1972. Ricky Lee Wilkerson, pro se. Jerry Cord Wilson, Asst. U. S. Atty., Oklahoma City, Okl., for appellee. Before LEWIS, Chief Judge, and McWILLIAMS and BARRETT, Circuit Judges. PER CURIAM. Wilkerson, an inmate of the United States Reformatory at El Reno, Oklahoma, seeks to restrain the institution’s warden from interfering with the ability of Wilkerson and an individual portrayed as his “best friend” to assist each other concerning legal matters. The “best friend” is also in federal custody, but his detention is at Bossier, Louisiana. The district court dismissed Wilkerson’s action without a hearing. We affirm. The case of Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) has been cited in support of the position that the two friends not be precluded from - generally providing each other with legal aid. One manner in which Wilkerson desires to be assisted by his layman friend is in the capacity of legal counsel on federal criminal charges stated to be pending against Wilkerson in Louisiana. As the district court noted, the rationale of Johnson obviously does not apply to such a situation where one is entitled to and receives legal representation. See, similarly, Guajardo v. Luna, 432 F.2d 1324 (5th Cir. 1970). In the instant case, there is no indication that the district court in Louisiana will not furnish Wilkerson with legal representation for any criminal proceedings. Wilkerson, however, also argues that Johnson requires a declaration that the geographically-distant friends be permitted to communicate as to the preparation and pursuance of post-conviction actions. Johnson cannot be so extended. The question presented by a federal prisoner who wishes to correspond with another individual in a separate place of confinement is not resolved by the narrow exception engrafted on the general rule that the regulation of incoming and outgoing prison mail is essentially an administrative matter in which the courts will not intervene. Pope v. Daggett, 350 F.2d 296 (10th Cir. 1965); Krupnick v. Crouse, 366 F.2d 851 (10th Cir. 1966); and, Cox v. Crouse, 376 F.2d 824 (10th Cir. 1967), cert. denied 389 U.S. 865, 88 S.Ct. 128, 19 L.Ed.2d 136 (1967). The narrow exception expressly refers to correspondence with designated public officials, the courts, and the prisoner’s attorney, for certain purposes. LeVier v. Woodson, 443 F.2d 360 (10th Cir. 1971) and Sostre v. McGinnis, 442 F.2d 178, 200 (2d Cir. 1971), cert. denied, Sastre v. Aswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972). It does not appear that Wilkerson has in any way been denied access to the courts in this regard. Cf. Nolan v. Scafati, 430 F.2d 548, 551 (1st Cir. 1970). That prison officials would restrain the type and method of communication sought by Wilkerson is not an unreasonable restriction. See Johnson v. Avery, supra, 393 U.S. at 490, 89 S.Ct. 747, 21 L.Ed.2d 718. We notified Wilkerson that the court was considering summary affirmance. Although afforded an opportunity to submit a memorandum addressing the issues and opposing summary disposition, he has not responded. A careful review of the file and record in the case convinces us that the judgment of the district court is correct and that there is no need for further argument. Affirmed.

What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.

What is the number of judges who voted in favor of the disposition favored by the majority?

James R. WEBER, Appellant, v. Hugh F. RIVERS, etc., et al., Appellees. John LEE, Appellant, v. Hugh F. RIVERS, D. C. Parole Board et al., Appellees. Robert WRIGHT, Appellant, v. The DISTRICT OF COLUMBIA BOARD OF PAROLE, Appellee. Nos. 10358, 10362, 10375. United States Court of Appeals Fourth Circuit. Argued March 9, 1966. Decided April 7, 1967. Thomas R. Dyson, Jr., Washington, D. C. (Court-assigned counsel), for appellant Weber. Richard W. Barton, Assistant Corp. Counsel, District of Columbia (Milton D. Korman, Acting Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, District of Columbia, on brief), for appellees in No. 10358. Charles S. Perry, Alexandria, Va. (Court-assigned counsel) [Boothe, Dudley, Koontz, Blankingship & Stump, Alexandria, Va., on brief], for appellant Lee. Charles S. Perry, Alexandria, Va. (Court-assigned counsel) [Boothe, Dudley, Koontz, Blankingship & Stump, Alexandria, Va., on brief], for appellant Wright. John R. Hess, Asst. Corp. Counsel, District of Columbia (Milton D. Korman, Acting Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, District of Columbia, on brief), for appellees in Nos. 10362 and 10375. Before HAYNSWORTH, Chief Judge, and SOBELOFF and J. SPENCER BELL, Circuit Judges. PER CURIAM: In each of these three cases, a District of Columbia prisoner, confined in Lorton Reformatory in the Northern District of Virginia, filed a proceeding against the District of Columbia Parole Board complaining of its procedures in revoking the parole of the complainant. In each instance, the District Court dismissed the petition on the merits, and an appeal was taken. The Government challenges the jurisdiction of the District Court to determine the cases on the merits, and we conclude that the cases should have been transferred to the District of Columbia Circuit. Lorton Reformatory is a penal institution operated by the District of Columbia. Since it is physically located in the Eastern District of Virginia, the District Court for the Eastern District of Virginia has jurisdiction to entertain habeas corpus proceedings, and personal jurisdiction of the Warden, of course, may be obtained in that District. The members of the District of Columbia Parole Board, however, reside in the District of Columbia, and it is there that they perform their official functions. Jurisdiction may not ordinarily be obtained of that Board in the Eastern District of Virginia. The Courts of the District of Columbia Circuit are called upon with frequency to review the proceedings and actions of the District of Columbia Parole Board. The Courts of the District of Columbia have prescribed certain standards, to which the District of Columbia Parole Board must conform its proceedings. See Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225. If, in a particular case, personal jurisdiction of the members of the District of Columbia Parole Board was obtained in the Eastern District of Virginia, exercise of the jurisdiction would be highly questionable when the District Court, and this Court on appeal, would be confronted with the dilemma of speaking with the voice of the District of Columbia Circuit, or subjecting the District of Columbia Parole Board to the grave possibility of inconsistent and disruptive requirements with respect to the routine conduct of its affairs. We conclude that each of these cases should have been transferred to the District of Columbia Circuit. Under the circumstances, the orders dismissing the petitions on the merits will be vacated and the cases will be remanded to the District Court for the Eastern District of Virginia, with instruction to transfer them to the United States District Court for the District of Columbia. Vacated and remanded. Judge Bell expressed approval of the result in these cases, though he died before this opinion was prepared.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.

This question concerns the second 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?

Harry L. BREWER, Jr., Appellant, v. J.D. SWINSON, Superintendent, FPC, Duluth, MN, U.S. Parole Commission, et al., Appellees. No. 87-5228. United States Court of Appeals, Eighth Circuit. Submitted Jan. 21, 1988. Decided Jan. 25, 1988. Order of March 4, 1988. Order of March 15, 1988. Andrew Dunne, Minneapolis, Minn., for appellant. Franklin L. Noel, Minneapolis, Minn., for appellees. Before McMILLIAN, FAGG and BOWMAN, Circuit Judges. McMILLIAN, Circuit Judge. Harry L. Brewer, Jr., appeals pro se from a final order entered in the District Court for the District of Minnesota denying his 28 U.S.C. § 2241 petition for a writ of habeas corpus. For reversal, appellant argues that the district court erred in (1) concluding that because he is a sub-class representative in a pending class-action suit raising issues identical to those in his habe-as petition, the merits of his habeas claim should not be reached, and (2) denying his request to withdraw from the class action in order to proceed with his habeas petition. For the reasons discussed below, we reverse the district court’s denial of habeas relief and remand the case to the district court with instructions to permit appellant to withdraw from the Cosgrove 1 class action lawsuit, to grant the petition for writ of habeas corpus and to direct the United States Parole Commission (USPC) to conduct a parole hearing for appellant, applying the District of Columbia (D.C.) parole guidelines, within ten days of the date of this opinion. Appellant, an inmate at the Federal Prison Camp in Duluth, Minnesota, was convicted of forgery in violation of the D.C. Criminal Code, and on January 14, 1976, was sentenced by the D.C.Superior Court to serve two concurrent ten-year prison terms. Under D.C. law, offenders convicted of violating local laws may be assigned by the Attorney General to serve their sentences in either federal institutions or facilities maintained by the District. D.C.Code Ann. § 24-425 (1981). Appellant was assigned to a federal institution. Appellant was paroled on three separate occasions between 1978 and 1986. On each occasion he committed acts which led to his return to federal custody and revocation of parole. Following his last parole revocation, appellant was ordered to serve to the expiration of his sentence. Appellant appealed to the National Appeals Board of the USPC which affirmed the decision. On December 9, 1986, appellant filed this petition for a writ of habeas corpus challenging the legality of the USPC’s decision for the reason that the order was based upon federal parole criteria, rather than D.C. parole standards, thereby violating his right to equal protection and the prohibition against ex post facto laws. Appellant claimed that as a D.C.Code offender and pursuant to D.C.Code Ann. § 24-209 (1981), D.C. parole guidelines should have governed all parole decisions concerning him even though he was confined in a federal institution; he sought a new parole hearing under the D.C. parole scheme. At the time appellant filed his habe-as petition, there was pending in the United States District Court for the District of Columbia a certified class-action suit, Cos-grove v. Smith, No. 80-0516 (D.D.C. filed Feb. 25, 1980) (Cosgrove 7), in which appellant was a named representative of a designated sub-class. According to appel-lees, the issues raised in Cosgrove I are identical to those raised in appellant’s habe-as petition; therefore, appellees moved the district court to dismiss appellant’s habeas petition in order to avoid duplicative litigation. The United States magistrate to whom appellant’s habeas petition was referred, agreed and recommended denying appellant’s petition on that basis, inter alia. In addition, the magistrate recommended denying appellant’s request to withdraw from Cosgrove I in order to pursue his habeas petition. Appellant filed objections and the district court, after completing a de novo review, adopted the magistrate’s report and recommendation. Thereafter, appellant filed this appeal. Counsel was appointed to represent appellant on appeal, and the appeal was expedited. Oral argument was presented by counsel for both parties by telephone conference call on January 21, 1988. Although no precise rule has evolved with regard to the handling of instances where identical issues are raised in cases pending in different federal courts, the general principle is to avoid duplicative litigation. Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). The threshold question to be addressed is whether the issues raised in appellant’s habeas petition are, indeed, identical to those in the Cosgrove I class action. As we read appellant’s habeas petition, his claim constitutes a direct challenge to the authority of the USPC under D.C.Code Ann. § 24-209 to employ federal parole standards in making parole determinations for D.C.Code offenders assigned to federal institutions. This issue is presently pending in Cosgrove I. While the general principle is to avoid duplicative litigation, the determining factors should be equitable in nature, giving regard to wise judicial administration. Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952). Under this principle, the district court in Walker v. Luther, 644 F.Supp. 76 (D.Conn.1986), aff'd, 830 F.2d 1208 (2d Cir.1987), exercised its concomitant jurisdiction and allowed Cosgrove I class members to proceed with their independent habeas claims. Here, appellant’s situation is one of urgency because his parole rehearing date under the D.C. parole guidelines may have already passed. In addition, the magistrate’s recommendation of February 17, 1987, was based upon the assumptions that Cosgrove I would be decided within a short time and that the issue at bar was one of disparate treatment which would require extensive development of facts. To date, almost eleven months later, the Cosgrove I litigation still continues. See Cosgrove I, No. 80-0516 (D.D.C.) (cross-motions for summary judgment pending and discovery reopened on October 8, 1987). We assume for the purposes of analysis in this case that the habeas court has the discretion to permit appellant to withdraw from the Cos-grove I class action lawsuit, even though appellant is a named, representative of a designated sub-class in Cosgrove I, in order to proceed with his independent habeas claims. Cf. Walker v. Luther, 644 F.Supp. at 79 n. 9 (government conceded during oral argument that habeas court has discretion to allow class members to withdraw from Cosgrove class action). Permitting appellant to withdraw from Cosgrove I need not prejudice the other members of that sub-class or otherwise interfere with the progress of that litigation. See 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1765, at 288-91 n. 43 (2d ed. 1986) (citing cases in which class actions continued because of the presence of other class representatives or were held open until another member of the class was granted leave to intervene). Accordingly, we deem the present case to be an appropriate one for the exercise of concomitant jurisdiction. As previously noted, the issue presented by appellant is a question of statutory interpretation of D.C.Code Ann. § 24-209 to be determined as a matter of law; as such, we need not remand the issue for resolution. Because the language of D.C.Code Ann. § 24-209 is at least arguably not free from doubt, we must analyze the statute’s plain language in light of its legislative history and consider other evidence of its import. Our interpretation of Congress’s reasons for adopting D.C.Code Ann. § 24-209 is the same as that reached by the majority in Cosgrove v. Smith, 225 U.S.App.D.C. 235, 697 F.2d 1125, 1134 (1983) (Cosgrove II), and Johnson v. Williford, 821 F.2d 1279 (7th Cir.1987). See Calvin v. United States Parole Comm’n, 672 F.Supp. 256, 257-58 (E.D.Va.1987). But see Cosgrove II, 697 F.2d at 1134-43 (Bork, J., concurring in part and dissenting in part). As Johnson v. Williford, 821 F.2d at 1283, makes clear, the 1932 Act establishing the Board of Indeterminate Sentence and Parole for the District of Columbia (the D.C.Parole Act) was intended to provide the District of Columbia with a modern parole system that would be a model for the states. However, after passage of the D.C.Parole Act, it became necessary to send some D.C.Code offenders to federal prisons because of a lack of funding for a planned expansion of the prison at Lorton, Virginia, to house D.C.Code offenders. Congress was concerned that D.C.Code offenders housed in federal prisons would be ineligible for parole because neither the D.C.Board of Parole nor the United States Board of Parole (now the USPC) had authority to parole them. Id. at 1284. On the one hand, the D.C.Board of Parole had no jurisdiction over prisoners in federal institutions; on the other hand, the United States Board of Parole’s authority extended only to those prisoners serving definite sentences, while all D.C.Code offenders served indeterminate sentences. Id. Accordingly, Congress amended the D.C.Parole Act by the Act of June 5, 1934, Ch. 391, 48 Stat. 880 (the 1934 Amendment), to include current D.C.Code Ann. § 24-209. Johnson v. Williford, 821 F.2d at 1284. The legislative history of the 1934 Amendment shows that Congress intended D.C.Code offenders housed in federal prisons to retain the benefits of the modern parole system created by the D.C.Parole Act. The letter of transmittal submitted by the D.C.Board of Commissioners to Congress with the proposed 1934 Amendment shows that the parole standards of the United States Board of Parole were deemed inapplicable to the D.C.Code offenders, because D.C.Code offenders served indeterminate sentences. H.R.Rep. No. 1446, 73d Cong., 2d Sess. (1934); Johnson v. Williford, 821 F.2d at 1284-85. Congress viewed the D.C.Parole Act as instituting a penal philosophy for the District of Columbia and intended the 1934 Amendment to extend this philosophy to D.C.Code offenders housed in federal prisons. Johnson v. Williford, 821 F.2d at 1285; Cosgrove II, 697 F.2d at 1130. Furthermore, as explained in Walker v. Luther, 830 F.2d at 1214-15, current and contemporaneous judicial construction of D.C.Code Ann. § 24-209 also supports our conclusion that the statute requires the USPC to apply D.C. parole guidelines. The statute’s plain language, judicial construction and Congressional intent, as evidenced by the legislative history of D.C. Code Ann. § 24-209, lead us to hold that D.C.Code Ann. § 24-209 requires the USPC to apply D.C. parole guidelines in making parole determinations for D.C.Code offenders. The court commends counsel for both parties for their cooperation in briefing and in presenting oral argument in this expedited appeal. The court also expresses its appreciation to Mr. Andrew Dunne for his assistance and able representation of appellant as appointed counsel. Accordingly, the judgment of the district court is reversed and the case is remanded to the district court with instructions to permit appellant to withdraw from the Cos-grove I class action lawsuit, to grant the petition for writ of habeas corpus and to direct the USPC to conduct a parole hearing for appellant, applying the D.C. parole guidelines, within ten days of the date of this opinion. ORDER March 4, 1988. The Parole Commission’s motion for recall of mandate and petition for rehearing are denied. . As of April 8, 1987, appellant’s projected mandatory release date is February 14, 1988. . Appellant concedes that with regard to his last parole revocation decision, the USPC did apply one D.C.Code parole provision, D.C.Code Ann. § 24-206(a) (1981), which states in pertinent part, ”[t]he time a prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced.” Previously, under USPC guidelines, appellant was credited for time spent on parole. . D.C.Code Ann. § 24-209 (1981) (emphasis added) provides: The [United States] Board of Parole created by § 723a of Title 18, United States Code, shall have and exercise the same power and authority over prisoners convicted in the District of Columbia of crimes against the United States or now or hereafter confined in any United States penitentiary or prison (other than the penal institutions of the District of Columbia) as is vested in the District Board of Parole over prisoners confined in the penal institutions of the District of Columbia. . In Cosgrove v. Smith, No. 80-0516 (D.D.C. filed Feb. 25, 1980) (Cosgrove I), male D.C.Code offenders assigned to federal prisons brought suit challenging the application of federal parole guidelines to decisions on their parole. The government filed a motion for summary judgment which was sustained. On appeal, the court reversed and remanded for, inter alia, a factual resolution of the claim of disparate impact between federal and local parole standards. See Cosgrove v. Smith, 225 U.S.App.D.C. 235, 697 F.2d 1125, 1134 (1983) (Cosgrove II). . On September 20, 1983, following remand to the district court, the Cosgrove / plaintiffs filed a second amended and consolidated complaint in which they specifically alleged that D.C.Code Ann. § 24-209 requires the application of D.C. parole guidelines to D.C.Code offenders housed in federal penal institutions. . Pursuant to D.C.Mun.Regs. tit. 28, § 103.4 (1984), rehearings for violators, such as appellant, with less than five years remaining to be served whose parole was revoked on the basis of technical violations shall ordinarily be held every six months. The USPC requires that subsequent hearings be held not less frequently than every twenty-four months for a prisoner with a sentence of seven years or longer. 18 U.S.C. § 4208(h)(2) (repealed effective Nov. 1, 1987). Appellant’s last parole hearing was on July 21, 1986, and thus, his parole rehearing date under D.C. parole guidelines would probably have been January 21, 1987. Applying USPC regulations, however, appellant will never have the opportunity to be reconsidered for parole, because his statutory release date is February 14, 1988, less than twenty-four months after his last parole hearing. . In Johnson v. Williford, 821 F.2d 1279 (7th Cir.1987), the appellant, a D.C.Code violator, confined in a federal prison outside the district, filed a petition for habeas corpus following a USPC decision denying him parole. Specifically, the appellant challenged the authority of the USPC, inter alia, to decide his suitability for release under federal parole criteria on the basis that the statutory authority of the USPC pursuant to D.C.Code Ann. § 24-209 is limited to "the same power and authority” as that of D.C. parole authorities and, therefore, the USPC must apply D.C. parole laws and regulations. Id. at 1280. Following a thorough examination of the legislative history of D.C.Code Ann. § 24-209, its application by federal agencies, and relevant case law, the court concluded that Congress statutorily mandated federal parole authorities to apply D.C. parole laws to all D.C.Code offenders. Id. at 1283-88. . The court expresses no opinion as to whether or not appellant should actually be released on parole in advance of his mandatory release date.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.

This question concerns the second 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?

CRANOR v. COOPER. No. 13337. United States Court of Appeals Ninth Circuit. April 30, 1953. Smith Troy, Atty. Gen., Rudolph Nac-carato, Asst. Atty. Gen., and Cyrus A. Dimmick, Asst. Atty. Gen., State of Wash., for appellant and cross-appellee. Amos Doris Cooper, in pro. per. Before HEALY, BONE and POPE, Circuit Judges. HEALY, Circuit Judge. The Superintendent of the Washington State Penitentiary appeals from the conditional grant by the district court of a writ of habeas corpus on application of an inmate, herein referred to as the petitioner. The latter gave notice of a cross-appeal, but his brief here is devoted exclusively to an effort to support the trial court’s findings and decision. Accordingly it is to be assumed that his appeal has been abandoned. The findings below were as follows r Petitioner was charged in the Superior Court of the State of Washington with the crime of robbery and was convicted by jury verdict on November 10, 1947. Ten days later a supplemental information was filed against him in the same court, charging him with being an habitual criminal. The supplemental information was dismissed on January 13, 1948 on motion of petitioner’s attorney, and at that time the petitioner, by oral pronouncement of the judge, was sentenced to serve 25 years. The sentence was never reduced to writing and signed by the judge. On January 13, 1948 the State of Washington gave notice of appeal from the dismissal of the supplemental information. Thereafter an agreement was made between the judge and the State of Washington, acting through its duly authorized officers, to the effect that the State would withdraw its appeal from the dismissal of the supplemental information on condition that petitioner be sentenced to serve not more than 40 years in the state penitentiary. On January 20, 1948 petitioner was brought before the' Superior Court and, pursuant to the foregoing agreement, the State withdrew its appeal and petitioner was sentenced to 40 years’ confinement in the penitentiary, the sentence imposed being within the maximum provided by state law. On the same day the judge signed and entered a judgment embodying the petitioner’s 40-year sentence. Neither petitioner nor his attorney ever participated in or assented to the agreement and arrangement between the judge and the State whereby petitioner was to receive the aforesaid sentence. The court was of opinion that the first sentence of 25 years pronounced orally was not a final, valid, and binding sentence. It concluded, however, that in sentencing petitioner to 40 years’ confinement the judge did not exercise any discretion or judgment, but arbitrarily set the quantum of the confinement at a figure agreed upon in advance with the officials and agents of the State of Washington, without the participation or assent of petitioner or his attorney. On the basis of this conclusion it determined that the 40-year sentence is invalid and void, and petitioner is entitled to the issuance of the writ unless within 30 days he be re-sentenced by the Superior Court. Two aspects of this decision immediately challenge scrutiny: First, the court did not in terms hold the sentence invalid on any federal constitutional ground. In the second place, assuming the existence of a federal ground, it does not appear that the point on which the decision turned has ever been presented to or ruled upon by the state court. We first glance at the latter situation. The petition for the writ in this instance proceeded solely upon the claim that the oral sentence of 25 years was valid, and that such being the case the Superior Court was without statutory or other authority subsequently to re-sentence petitioner for a greater term. From the allegations of the petition it appears that a number of applications for the writ had theretofore unavailingly been made by petitioner to the Washington Supreme Court, and certiorari denied. Presumably, since there is no indication or claim to the contrary, these applications proceeded on the same ground as here. In the brief of the State it is asserted — and the assertion is nowhere contradicted — that petitions for the writ were presented to the Washington Supreme Court and denied on September 16, 1949, on May 18, 1951, and again on July 27, 1951, in all of which petitioner’s contention was identical with the one made here, namely that the 25-year sentence was valid ant the 40-year sentence void, in that the oral sentence constituted a judgment in the cause and upon rendition thereof the court lost jurisdiction subsequently to modify it by imposing a greater penalty. It is true that in the Washington court petitioner had attacked the validity of the second sentence, but that in itself is not enough. The vital thing is that he has neither sought nor obtained a state court ruling on the matter of law and fact thought by the district judge to be decisive of the issue of validity, namely whether a sentence entered by a judge pursuant to agreement with the state and therefore without the exercise of his untrammeled discretion, is for such reason a void sentence. Under the provisions of 28 U.S.C.A. § 2254, prior exhaustion of state remedies is of the essence of the right to resort to the federal courts. We think the grant of the writ here runs counter to the purpose and intent of Congress as expressed in the statute. Turning again to the first point, we are unable to discover in the findings or conclusions of the trial court any circumstance amounting to a denial to the petitioner of due process or of any other right guaranteed by the federal Constitution. Certainly in the circumstances here appearing the considerations upon which the state judge reached his decision as to the severity of.the sentence he would impose are not matters of federal but of state concern. While we think it unnecessary to pursue the subject further, it may be well to add that under state law it appears that in cases of conviction of certain felonies, including, robbery, imprisonment for any number of years up to life may be imposed. Rem.Rev.Stat. § 2418; § 10249-2 Rem.Supp.1947. After conviction of a crime, if the defendant is found to have had two or more prior convictions of felony — as was -presumably the supplemental charge filed- against this petitioner — a sentence of life imprisonment becomes mandatory. Rem.Rev.Stat.. § 2286. Notwithstanding the assumptions of the district court in respect of the failure ,on the part of the superior judge to exercise discretion or judgment, it may .very well be that the latter anticipated a reversal of his dismissal of the habitual criminal charge and thought it in the interest of the petitioner to pursue the course follo;wed. Unless the federal courts are to take over supervision of the administration of criminal justice by the states a line must be drawn somewhere, and we entertain no doubt that the bounds were overstepped, in this instance.. Reversed with directions to dismiss. . It may be observed in passing that petitioner’s claim of validity as regards the 25-year sentence in effect negatives his right to release from confinement at this juncture, since assuming the correctness of his contention, he would under settled principles obtaining in the federal jurisdiction become entitled to the writ only after service of the allegedly valid sentence. . In the State’s brief it is said that the application to the Washington Supreme Court made on September 16, 1949 was designated Case No. 31,121; that the petition of May 18, 1951 appears as Cause No. 31,732; and that of July 27, 1951 is denominated Cause No. 31,822. We have not been able to find in the published reports of the Supreme Court of the state any reference to these causes, and assume that they appear only on the court’s docket.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).

This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?

Edward J. WARREN et al., Appellants, v. NORMAN REALTY CO. et al., Appellees. No. 74-1459. United States Court of Appeals, Eighth Circuit. Submitted Feb. 10, 1975. Decided March 21, 1975. W. Edward Thompson, Washington, D. C., for appellants. Steven J. Riekes, Omaha, Neb., for ap-pellee, Norman. Larry R. Demerath, Omaha, Neb., for appellee, McFadden. Stephen Muehlberg, Asst. U. S. Atty., Omaha, Neb., for appellee, Schlesinger. Before MATTHES, Senior Circuit Judge, and HEANEY and WEBSTER, Circuit Judges. MATTHES, Senior Circuit Judge. Plaintiffs in the district court, appellants here, appeal from the dismissal of their civil rights action for housing discrimination. The opinion of the district court is reported at 375 F.Supp. 478 (D.Neb.1974). At issue is the important question of which statute of limitations should apply. In dismissing the suit of the appellants, the district court held that the action was barred by the 180-day limitations period in Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., otherwise known as the Fair Housing Act of 1968. We affirm, but on reasoning other than that relied upon by the district court. The appellants are Mr. and Mrs. Edward Warren, who are black. This lawsuit, brought on behalf of themselves and their children, arose out of a series of events which occurred after Mr. Warren, who is a sergeant in the Air Force, was transferred in September of 1971 to Offutt Air Force Base, near Omaha. In searching for housing near Offutt for himself and his family, Sergeant Warren was referred by the Air Force Housing Service to Norman Realty Company. An employee of Norman Realty, Hugh Abrahamson, located a house for the Warrens to rent. The house was located in nearby Millard, Nebraska, and was owned by one Delores McFadden. On September 14, 1971, the Warrens and Norman Realty (acting as agent for McFadden) executed a one-year contract for lease of the home. On September 17, Abrahamson notified the Housing Service and the Warrens that the owner, McFadden, had changed her mind and was breaking the contract signed only three days before. The reason given by Norman Realty for the breach was that McFadden had decided that an Air Force program subsidizing rental payments by the Warrens was unsatisfactory. Nevertheless, McFadden allegedly came personally to the rented home on September 24 and told the Warrens that their presence in the house would reduce property values in the area and cause neighbors to move. The Warrens believed that the conduct of Norman Realty, Abrahamson, and McFadden was motivated by racial discrimination, and Sergeant Warren brought the matter to the attention of his superiors at the air base. After what the Warrens describe as a summary investigation within the chain of command of their housing discrimination complaint, Sergeant Warren was notified by a General Allman on February 28, 1972, that the Air Force, having found no indication of discrimination, considered the case closed. Warren was advised that if he desired to seek further relief within the Air Force or the Department of Housing and Urban Development, he should act within 180 days of the date of the alleged discriminatory conduct. Sergeant Warren took no steps to initiate any further administrative investigation of his complaint within the 180-day period. Instead, dissatisfied with the handling of his case by the Air Force, Warren advised his superior in February of 1972 that he intended to seek relief in the federal courts. He asked for, and received, a day off duty to obtain a lawyer. This suit, however, was not initiated until July 31, 1973, nearly 18 months later. The amended complaint, filed February 1, 1974, named as defendants Norman Realty, Abrahamson, McFadden, and Secretary of Defense Schlesinger, and alleged that the conduct of the defendants (or, in the case of defendant Schlesinger, the conduct of his agents) amounted to racial discrimination in housing, in violation of §§ 810 and 812 of the Fair Housing Act, 42 U.S.C. §§ 3610 and 3612, as well as other civil rights statutes, 42 U.S.C. §§ 1981, 1982, 1983, and 1985. In dismissing, Judge Denney of the district court first ruled that any cause of action the Warrens had under § 810 or § 812 of the Fair Housing Act was barred by the specific 180-day limitations period established in the two sections for bringing suit pursuant to either section. 375 F.Supp. at 480—481. Judge Denney further held that the Warrens had failed to state a claim under 42 U.S.C. § 1983 since the complaint did not allege that the defendants acted under color of state law, and also held that the allegations of conspiracy in the complaint were insufficient to state a claim under 42 U.S.C. § 1985. 375 F.Supp. at 481 n. 4. On this appeal, however, the appellants do not contest any of the rulings recited in the previous paragraph. Instead, the focus of their attack on appeal is upon the district court’s dismissal of their actions for failing to state a claim for relief under 42 U.S.C. §§ 1981 and 1982. Judge Denney ruled that, since the Fair Housing Act of 1968 was a detailed and specific statutory scheme to eliminate housing discrimination, the 180-day limitations period provided in that Act also should be applied to housing discrimination suits under the more broadly worded provisions of §§ 1981 and 1982, which derive from the civil rights acts of the previous century, in order to achieye a functional harmony between the newer and older legislation. Otherwise, Judge Denney reasoned, the detailed provisions of the 1968 Act governing when and how judicial relief from housing discrimination may be obtained could be easily circumvented by a plaintiff who filed an action under § 1981 or § 1982. In footnote four to his opinion, the judge recognized that Nebraska has a specific statute condemning housing discrimination, Neb.Rev.Stat. §§ 20 — 105 to 20 — 125 (Reissue of 1970), and that it contains a 180-day limit on private civil actions for housing discrimination. The court noted that one could argue that the 180-day limit in the state statute barred this federal action, but opted to premise its ruling on the rationale set forth in the preceding paragraph. I Appellants urge that the 180-day limitation of the Fair Housing Act does not apply to a housing discrimination suit brought under § 1982. We agree. In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) , the Supreme Court expressly stated that the 1968 Act had no effect upon an action brought under § 1982: “The Civil Rights Act of 1968 does not mention 42 U.S.C. § 1982, and we cannot assume that Congress intended to effect any change, either substantive or procedural, in the prior statute.” 392 U.S. at 416 n. 20, 88 S.Ct. at 2191. This position was reaffirmed by the Court in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969). To be sure, such a holding permits a plaintiff to circumvent the elaborate procedures and limitations in the 1968 Act by suing pursuant to § 1982. Nevertheless, we point out that the incongruity of allowing a party to evade a limitations provision of the Fair Housing Act by means of § 1982 is much less startling when one recognizes that the 1968 Act itself permits a party to circumvent the administrative conciliation procedures of § 810 by seeking direct judicial relief under § 812 of the very same Act. See, e. g., Crim v. Glover, 338 F.Supp. 823 (S.D.Ohio 1972); Johnson v. Decker, 333 F.Supp. 88 (N.D.Cal.1971); Note, Discrimination in Employment and in Housing: Private Enforcement Provisions of the Civil Rights Acts of 1964 and 1968, 82 Harv.L.Rev. 834, 855-859 (1969). The defendant-appellees, on the other hand, cite a passage from the Supreme Court opinion in Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969), for the proposition that the 1968 Act must be construed as limiting actions under § 1982. The Court in Hunter was confronted with the question whether a city charter amendment requiring voter approval of any fair housing ordinance was a denial of equal protection to blacks and other minorities. In the course of the opinion the Court observed: The 1968 Civil Rights Act specifically preserves and defers to local fair housing laws, and the 1866 Civil Rights Act considered in Jones should be read together with the later statute on the same subject . . . so as not to pre-empt the local legislation which the far more detailed Act of 1968 so explicitly preserves. [Footnotes omitted.] 393 U.S. at 388, 89 S.Ct. at 559. We believe that this language must be construed as saying nothing more than'that since § 1982, which emanates from the Civil Rights Act of 1866, obviously had no specific provision on the matter of local fair housing legislation, it should not be read contrary to the later more detailed legislation of Congress in 1968, which did expressly refer to and preserve local fair housing laws. Accord, Johnson v. Zaremba, 381 F.Supp. 165 (N.D.Ill.1973). Thus the statement from Hunter does not serve as support for the proposition that the 1968 Act operates to limit in any way the relief available under § 1982 itself. Moreover, the Hunter opinion preceded the subsequent reaffirmation in Sullivan of the language in Jones that the Fair Housing Act has no effect on 1982. Consequently, we hold that an action under 42 U.S.C. § 1982 is not barred by the 180-day limitations period of § 810 or § 812 of the Fair Housing Act of 1968. The United States Court of Appeals for the Fourth Circuit is in agreement. Hickman v. Fincher, 483 F.2d 855 (4th Cir. 1973). See also Young v. AAA Realty Co., 350 F.Supp. 1382, 1387 (M.D.N. C.1972); cf. McLaurin v. Brusturis, 320 F.Supp. 190 (E.D.Wis.1970). II Since we have held that the limitation period of the 1968 Act does not apply to housing discrimination suits under § 1982, and since Congress has not otherwise provided a statute of limitations for 1982 actions, we must turn to state law for the controlling limitation period. Hickman v. Fincher, supra; Baker v. F & F Investment, 420 F.2d 1191 (7th Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49 (1970); C. Antieau, Federal Civil Rights Acts §§ 27, ■85 (1971). We agree with appellees that the state statute of limitations applicable to this federal suit is the 180-day limitations period of the Nebraska Civil Rights Act of 1969. The federal courts have not reached uniform results in determining which state statute of limitations should be applied to various civil actions under the federal civil rights statutes. See generally Note, A Limitation on Actions for Deprivations of Federal Rights, 68 Colum.L.Rev. 763 (1969). The ultimate goal is to apply the same limitations period to the federal civil rights action as would be applied if a similar action were brought in state court. See, e. g., Franks v. Bowman Trans. Co., 495 F.2d 398, 405 (5th Cir.), cert. denied, 419 U.S. 1050, 95 S.Ct. 625, 42 L.Ed.2d 644 (1974); Glasscoe v. Howell, 431 F.2d 863, 864 (8th Cir. 1970); Beard v. Stephens, 372 F.2d 685, 688 (5th Cir. 1967); Swan v. Board of Higher Education, 319 F.2d 56, 59 (2d Cir. 1963); C. Antieau, supra, § 85. Thus, “the federal district court must apply the statute of limitations of the state where it sits which would be applicable to the most closely analogous state action.” Franks v. Bowman Trans. Co., supra, 495 F.2d at 405. But the difficulty has been that many states have not recognized a cause of action similar to a federal action for denial of civil rights, and therefore have not created a limitations period for such civil rights actions. Consequently, many federal courts have been forced to apply the state statute of limitations applicable to what the particular federal court considers to be no more than a remotely analogous state cause of action. Conclusions as to which state cause of action is analogous to a particular type of federal civil rights action have varied, as evidenced by this court’s treatment of § 1983 actions. In some instances the court on the facts of the particular case has characterized the federal civil rights action as similar to a state tort or contract action, and the appropriate state tort or contract limitations period has been applied to the federal civil rights suit. See, e. g., Johnson v. Dailey, 479 F.2d 86 (8th Cir.), cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 246 (1973); Savage v. United States, 450 F.2d 449 (8th Cir. 1971), cert. denied, 405 U.S. 1043, 92 S.Ct. 1327, 31 L.Ed.2d 585 (1972). The court in another case, however, declined to apply the state limitations period applicable to a tort or contract action, stressing that a federal civil rights action involves more than a tort or breach of contract, and applied alternatively the state statute of limitations for statutorily created liabilities or the limitation for actions not otherwise covered by a statute of limitations. See Glasscoe v. Howell, supra. See also Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962); Lazard v. Boeing Co., 322 F.Supp. 343 (E.D.La.1971). A single test for uniformly determining which state limitations period should apply in a federal civil rights case when there is no express state limitations period for civil rights suits has not yet been established in this circuit. See Reed v. Hutto, 486 F.2d 534 (8th Cir. 1973). But in the case before us, unlike in the 1983 actions discussed above, we need not employ any of the various tests of characterization and analogy to theorize what limitations period would apply if a similar housing discrimination suit had been brought in Nebraska state court. Nebraska has its own housing discrimination law, and it is apparent that if a suit similar to this federal action had been brought in state court it would have been controlled by the 180-day limitations period established in that state housing discrimination statute. The Nebraska Civil Rights Act of 1969, patterned after the federal civil rights act of the preceding year, provides for both administrative and judicial relief from housing discrimination. Neb. Rev.Stat. §§ 20 — 105 to 20 — 125 (Reissue of 1970). Upon the complaint of an individual, the Nebraska Equal Opportunity Commission may bring a civil action to enforce the complainant’s right to freedom from housing discrimination. Neb. Rev.Stat. § 20 — 117. Further, Neb.Rev. Stat. § 20 — 119 provides: Any person entitled to file a complaint with the commission pursuant to sections 20 — 105 to 20 — 125 . . . may file, on his own behalf, a civil action in the district court of the county in which a discriminatory housing practice is alleged to have occurred, or in which the respondent resides or maintains his principal place of business. Such action shall be commenced within one hundred eighty days after the complaint arose, or it shall be waived. The action authorized by this section shall be considered an alternative to the other procedures provided by sections 20 — 105 to 20 — 125 Since it is apparent that if the Warrens had brought an action similar to the present suit in Nebraska state court the provisions of Neb.Rev.Stat. § 20 — 119 would have applied, we believe that the limitations period of § 20 — 119 should apply to this federal action seeking to remedy precisely the same wrong condemned by the Nebraska statute. The appellants cite Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir. 1970), and urge that it is authority for declining to apply the limitations period of the Nebraska housing discrimination statute to this federal housing discrimination suit. See also Smith v. Perkin-El-mer Corp., 373 F.Supp. 930 (D.Conn. 1973). In Waters, the court of appeals held that the 120-day limitations period for seeking administrative and judicial relief under the Illinois Fair Employment Practices Act, Ill.Rev.Stat. ch. 48, § 851 et seq. (1967), did not apply to plaintiffs’ federal action under 42 U.S.C. § 1981 for alleged racial discrimination in employment. In declining to apply the limitation of the Illinois fair employment statute, the Waters court explained: We are not convinced that the Illinois F.E.P.A. is the most analogous state action under these provisions. The Illinois Act provides only for administrative remedy and review of the F.E.P. C.’s [Fair Employment Practices Commission] findings in the state courts. Different considerations obviously apply to suits by private litigants in courts of law. 427 F.2d at 488. Similarly, in Smith the court noted that judicial action under the Connecticut F.E.P.A. was not analogous to a § 1981 suit for employment discrimination since, unlike a 1981 action, the judicial relief provided under the state law was merely an administrative review of state agency action and not an independent suit brought by a private litigant in which all the issues of the case could be tried de novo. But in our case, the civil action created pursuant to Neb.Rev.Stat. § 20 — 119 specifically creates a civil action for private litigants which is expressly stated to be an alternative to any administrative relief provided elsewhere in the state law. Consequently, suit under § 20-119 is a state equivalent of this federal housing discrimination action, and the 180-day limitations period applicable to § 20 — 119 litigation should also apply to this federal suit. The judgment of dismissal is affirmed. . The Warrens in their amended complaint also alleged that the agents of Schlesinger had failed to comply with certain Air Force regulations on processing housing discrimination complaints. The district court ruled that these allegations failed to state a cause of action under any of the civil rights provisions of the United States Code. We agree. . United States v. Stewart, 311 U.S. 60, 64-65, 61 S.Ct. 102, 85 L.Ed. 40 (1940), and Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 34, 2 L.Ed. 15 (1801), cited by the Court in Hunter, further indicate that the Hunter Court believed the 1968 and 1866 legislation should be construed in pari materia, rather than the 1968 Act operating to limit § 1982. . Appellants seek to avoid the 180-day limit of § 20-119 by urging that their amended complaint also alleges a cause of action under 42 U.S.C. § 1981 for denial of contract rights because of race and that therefore the five-year Nebraska statute of limitations for breach of contract actions should apply to their 1981 action. Neb.Rev.Stat. § 25-205. In light of the existence of a specific Nebraska action for housing discrimination and a limitations period applicable thereto, we decline the invitation to characterize the present action as one sounding in tort or contract and note simply that the whole thrust of the appellants’ complaint is an action for relief from housing discrimination and that the breach of contract was incidental to the alleged racial discrimination in housing. Cf. Johnson v. Railway Express Agency, Inc., 489 F.2d 525, 529 (6th Cir. 1973), aff’d, - U.S. -, 95 S.Ct. 1716, 44 S.Ct. 295 (1975).

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").

This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.

Eartha L. ST. ANN, etc., et al., Plaintiffs-Appellants, v. Vincent PALISI, etc., et al., Defendants-Appellees. No. 73-2558. United States Court of Appeals, Fifth Circuit. June 6, 1974. Rehearing Denied July 24, 1974. William E. Rittenberg, Nils R. Douglas, Ronald P. Nabonne, New Orleans, La., for plaintiffs-appellants. Franklin V. Endom, Jr., Samuel I. Rosenberg, New Orleans, La., for defendants-appellees. Before TUTTLE, GEWIN and RO-NEY. Circuit Judges. GEWIN, Circuit Judge: On this appeal Mrs. Eartha St. Ann, individually and on behalf of her minor children, presents a substantive due process challenge to Orleans Parish School Board Regulation XIX which allows school children to be suspended for their parents’ misconduct. We vacate the district court’s order of dismissal insofar as it relates to the claims of the minor plaintiffs and remand. The challenge presented is prompted by the following occurrences. On September 27, 1972, the appellant’s son, Maurice, received a three day suspension from his seventh grade classes at Martin Behrman Middle School because of excessive tardiness and absenteeism. The following day Mrs. St. Ann went to the school with her daughter, Lavida, in order to check her into school because she was tardy. While in the school office, she inquired about her son’s suspension. A disagreement ensued between Mrs. St. Ann and the assistant principal,' Mr. Achary. Mrs. St. Ann became enraged and struck Mr. Achary on the face with her fist in which she was holding a key chain. As a consequence Mrs. St. Ann was charged with battery and pled guilty in Orleans Municipal Court. Because of their mother’s attack and pursuant to the aforementioned regulation, Mrs. St. Ann’s two children were suspended from school by notices dated September 29, 1972. The principal, Vincent Palisi, recommended that the suspension be for an indefinite period of time. The District Superintendent, Mr. Monie, scheduled a conference concerning the suspensions for October 10th, but due to her change of address Mrs. St. Ann did not receive notice of the conference. When she failed to appear on October 10th, Mr. Monie telephoned her in an attempt to schedule another conference, but Mrs. St. Ann advised him that the matter had been referred to her attorney. She subsequently filed suit on October 13th. At the district court’s request a conference between the parties was held on October 25, 1972. The conference did not result in the children’s reinstatement at Martin Behrman, however, because Mrs. St. Ann refused the school officials’ demands for an apology. After this conference the two children were transferred officially to Karr School which they had been attending since October 17, four days after the suit was filed. The district court concluded that “Regulation XIX does not abuse the discretion allowed to school authorities to formulate rules for the maintenance of discipline in the public schools, Accordingly, Regulation XIX was held not to violate the substantive due process guarantee of the fourteenth amendment and the complaint was dismissed with prejudice. As the district court indicated, school principals must be given considerable freedom to achieve effective school administration, but courts should not hesitate to act when fundamental constitutional liberties are contravened. Freedom from punishment in the. absence of personal guilt is a fundamental concept in the American scheme of justice. In order to intrude upon this fundamental liberty governments must satisfy a substantial burden of justification. Since the school officials have failed to meet this burden we must vacate the district court’s order of dismissal with prejudice with respect to the claims of the minor plaintiffs, and remand for proceedings consistent with this opinion. I The due process clause of the fourteenth amendment protects from state encroachment those fundamental concepts of justice which lie at the base of our civil and political institutions. It is established beyond question that these substantive due process rights are not limited to those liberties specifically enumerated in the Bill of Rights. The rights of marital privacy and interstate travel are but two examples of protections which arise from a free society but are not explicitly mentioned in the Constitution. The appellant contends that predicating punishment only upon personal guilt is such a fundamental notion that it should be placed in the same category. The school’s policy which attributes a parent’s misconduct to other family members is asserted to be guilt by association wholly alien to American liberty. Substantial Supreme Court authority supports the appellant’s contentions. Traditionally, under our system of justice punishment must be founded upon an individual’s act or omission, not from his status, political affiliation or domestic relationship. This principle has often been recognized by the Court in cases involving membership in subversive organizations. In Scales v. United States Justice Harlan emphasized the personal guilt requirement: In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity ., that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment. Further evidence of judicial solicitude for the concept of personal guilt appears in the Court’s acknowledgement that the indiscriminate classification of innocent with knowing activity must likewise fall as an impermissible assertion of arbitrary power. Accordingly, a state cannot punish innocent membership in a group without regard for the accused’s knowledge of the nature of the group. Moreover, personal guilt has not been confined to problems involving political associations. In Levy v. Louisiana an equal protection violation was found when illegitimate children were denied an opportunity to pursue an action for the death of their mother under the Louisiana wrongful death statute. The illegitimate children were not to be deprived due to the indiscretion of their parents. Recently Louisiana’s workmen’s compensation laws which discriminated against illegitimate dependents were invalidated on similar 'grounds. Writing for the Court, Justice Powell stated: The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible laisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffee-tual — as well as unjust — way of deterring the parent. II These Supreme Court pronouncements provide ample indication that personal guilt is a fundamental element in the American scheme of liberty. The appel-lees do not forcefully dispute this conclusion. Rather they assert, for a variety of reasons, that personal guilt considerations are inappropriate here. Initially the appellees contend that substantive due process is not applicable unless a federal statutory or constitutional right is being violated. Furthermore, they claim that since San Antonio School District v. Rodriguez, it has been settled that the right to a public education is not a right guaranteed by the Constitution or by Congress. Therefore, appellees conclude that substantive due process cannot be applicable here because no right is being violated. This syllogism is, of course, irrelevant and erroneous and must be rejected. The argument is irrelevant because the children do not complain that they were denied the constitutional right to an education, but that they were punished without being personally guilty. Thus a cardinal notion of liberty is involved and substantive due process is applicable. Secondly, the appellees are in error if they regard San Antonio as granting the states the power to arbitrarily deny individuals the right to a public education. Finding that education was not a right explicitly or implicitly protected by the Constitution was merely the Court’s analysis of why education is not regarded as fundamental for purposes of “strict scrutiny” under the equal protection clause. Appellees also argue that there has been no punishment without personal guilt present here because there has been, in fact no punishment. The suspension and transfer were allegedly not designed to punish the St. Ann children. According to school authorities these actions were taken in order to maintain discipline and decorum at the Behrman School. This argument, however, is belied by the language of Regulation XIX itself. It provides: Should the principal or teacher be called to account or be reproved in an offensive manner in the classroom or elsewhere, verbally or in writing, by a parent or guardian, the child or ward of such parent or guardian shall, by reason of such conduct, be liable to suspension or other punishment. (emphasis added) Furthermore, this court has recognized that a lengthy suspension does constitute a serious punishment, the imposition of which must be preceded by a due process hearing. Since the regulation provides for punishment and the St. Ann children were in fact suspended and transferred, the conclusion is inescapable that punishment resulted. The motives of the school officials are not controlling. Ill Having established a significant encroachment upon a basic element of due process, the state, in order to justify this encroachment, must satisfy a substantial burden. In order to assess the strength of the school officials’ interest one must examine the circumstances allegedly creating the need for such a regulation and the reasonableness of the methods used. The school officials argue that Regulation XIX facilitates preservation of discipline and decorum in the schools. We do not question either the necessity or authority of the Orleans Parish School Board in establishing regulations and rules for the maintenance of discipline and decorum in its schools. But the focus must be more narrow here. One must analyze the compelling reason for a regulation which punishes a child for the misconduct of the parent. It should be noted that the school officials commendably do not appear to argue that such a regulation will deter parental misconduct. Rather the argument appears to be that all children tend to ridicule a teacher who is insulted or attacked by a parent, and that if the children of the offending parent are removed from the school the ridicule will allegedly cease and discipline and teacher authority will be restored. Initially the premise upon which this argument is based might be challenged; for an arbitrary exercise of the power to punish may do more to destroy respect for those in authority than to restore it. This is, however, essentially a legislative judgment, and if it were the only weakness in the appellees’ argument we would not substitute our judgment for that of a legislative body without further evidence. Nevertheless, there are further indications that Regulation XIX was less than essential. This court was informed upon oral argument that the Orleans Parish School Board has abolished Regulation XIX subsequent to the district court judgment. The repeal itself supports the contention that the challenged regulation is not completely indispensable even if it may arguably serve to restore an offended teacher’s authority. After an examination of the exigency for the questioned regulation, an inquiry should be made as to the existence of reasonable alternative means for fulfilling that need. Non-students upon school property can be controlled or excluded by local regulations. Persistent violators may be enjoined or prosecuted under state law. Those who attack school officials are subject to state civil and criminal penalties just as Mrs. St. Ann was in the instant altercation. These are traditional and effective remedies for school officials who are disturbed by non-students. All these remedies place restraint on the offending individuals, not on the innocent members of the family. School officials can be relatively certain that news of such remedies will reach the school children, and perHaps the children will realize that the remedy did not arise from the arbitrary use of power but from the traditional precepts of justice in our society. Since there are alternative paths to restoring teacher authority, and since Regulation XIX is not justifiably or reasonably necessary we must hold that the school officials have been unable to demonstrate a compelling governmental interest. Therefore, this inroad upon the theory of personal guilt cannot be sustained. Even if the challenged regulation were only to be tested against the “mere rationality” standard its constitutionality would be a matter of serious concern. The question would then become whether the regulation is a rational means of advancing a valid state interest. The state may find it difficult to show by more than testimonial surmise that punishment of this type actually creates a better educational atmosphere. Furthermore, statute's that make parents liable for the misconduct of their children have been similarly criticized as irrational and violative of personal guilt. At least in parent-child cases, however, the parent arguably has the power and duty to control his children. Clearly the children do not have the same opportunity. Conclusion Because the school officials cannot justify this infringement of a fundamental liberty guaranteed by the due process clause of the fourteenth amendment, we vacate the order of the district court dismissing the appellants’ case insofar as it relates to the claims of the minor plaintiffs and remand for proceedings consistent with this opinion. We only hold that the court committed error in dismissing the appellant’s complaint on behalf of the minor plaintiffs and make no suggestibn or intimation with respect to the value or lack of value of her claim for monetary damages on their behalf. That issue must be decided by the district court in the first instance. Vacated and remanded. . Orleans Parish School Board Regulation XIX provides: A parent or guardian dissatisfied with the conduct of any teacher toward his child or ward shall first lay his complaint before the teacher, and, if not satisfied, may appeal to the principal. The principal shall hear such complaints only in the presence of the teacher concerned. If the matter is not satisfactorily resolved, the parent or guardian may appeal to the assistant superintendent in charge of the district, who shall hear the case only in the presence of the principal and teacher. Should the principal or teacher be called to account or be reproved in an offensive manner in the classroom or elsewhere verbally or in writing, by a parent or guardian, the child or ward of such parent or guardia/n shall, by reason of such conduct, be liable to suspension or other punishment. Said suspension or other punishment shall not be made until after the parent or guardian has refused to make proper amends. (Emphasis added) . Murray v. West Baton Rouge Parish School Board, 472 E.2d 438, 444 (5th Cir. 1973). . Karr v. Schmidt, 460 F.2d 609, 615, n. 12 (5th Cir. 1972) (En Banc). . Nothing we say should be construed as an approval of Mrs. St. Ann’s conduct. This opinion relates entirely to the rights of the minor plaintiffs she represents, her two children. Mrs. St. Ann has not asserted or demonstrated any error by the district court in dismissing her individual claim; therefore we affirm that portion of the order. . Powell v. Alabama, 287 U.S. 45, 67, 53 S. Ct. 55, 63, 77 L.Ed. 158,169 (1932). In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the “traditions and [collective] conscience of our people” to determine whether a principle is “so rooted [there] * * * as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S. Ct. 330, 332, 78 L.Ed. 674, 677 (1934). Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct. 1678, 1686, 14 L.Ed.2d 510, 520 (1965) (Goldberg, J. concurring). . Karr v. Schmidt, 460 F.2d 609, 614 (5th Cir. 1972) (En Banc). . Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). . Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L.Ed.2d 600 (1969). . See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (State cannot make the “status” of narcotic addiction a criminal offense). . 367 U.S. 203, 224, 225, 81 S.Ct. 1469, 1483, 1484, 6 L.Ed.2d 782, 799 (1961). . The restraints imposed upon legislation by the due process clause of the fifth and four-' teenth amendments are generally considered the same. Heiner v. Donnan, 285 U.S. 312, 326, 52 S.Ct. 358, 361, 76 L.Ed. 772, 779 (1932). Even if different constructions of the provisions may be proper in appropriate eases there is no indication that such a distinction is relevant here. . Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 218, 97 L.Ed. 216, 222 (1952). . Id. The concept has been further refined to require a showing of a specific intent to assist in achieving an organization’s unlawful ends. Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238,16 L.Ed.2d 321 (1966). . 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). . See also Glona v. American Guar. and L. Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L. Ed.2d 441 (1968). But cf. Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). . Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) . . Id. at 175, cited with approval Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, 591 (1973). . 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) . . Indeed the Court mentioned with approval several eases that have held the right to acquire useful knowledge a constitutionally protected liberty. Id. at 30. . Black Students v. Williams, 470 F.2d 957 (5th Cir. 1972). Ten days was held to be a substantial period of suspension so as to require a due process hearing. . Griswold v. Connecticut, 381 U.S. 479, 504, 85 S.Ct. 1678, 1692, 14 L.Ed.2d 510, 527 (1965) (White, J., concurring), quoting Bates v. City of Little Bock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480, 486 (1960); Karr v. Schmidt, 460 F.2d 609, 615, n. 12 (1972). The United States Supreme Court has consistently distinguished between regulatory statutes in the economic sphere and those which are aimed at restricting more personal freedoms. In the case of economic regulation, the Court has stated that a “rational basis” for the legislation will suffice to meet the constitutional requisites of due process; on the other extreme, a clear and present danger to the public safety is required to justify a restriction on the first amendment right to free speech, (footnotes omitted). Note, A Constitutional Caveat on the Vicarious Liability of Parents, 47 Notre Dame Lawyer 1321,1325 (1972). . See p. 428 infra. . The appellants seek an award of monetary damages as well as declaratory and injunctive relief. The repeal of Regulation XIX may indeed moot all claims except that for monetary damages. See Nat’l Lawyers Guild, Univ. of Texas Chapter v. Bd. of Regents of the Univ. of Texas Sys., 490 F.2d 97 (5th Cir. 1974) and the cases cited therein. . An inquiry into reasonable alternative means to achieve a goal is an appropriate inquiry when analyzing a fourteenth amendment 1 due process challenge. In Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) the Court held that Connecticut could not create an irrebuttable presumption of nonresidence for college tuition purposes when the state had reasonable alternative means for determining residence. Id. at 452. . See note 21 supra. . E. g. Thompson v. Gallagher, 489 F.2d 443 (5th Cir. 1973). . See Note, A Constitutional Caveat on the Vicarious Liability of Parents, 47 Notre Dame Lawyer 1321 (1972); cf. Hippard, The Unconstitutionality of Criminal Liability Without Fault: An Argument for a Constitutional Doctrine of Mens Rea, 10 Hous.L. Rev. 1039 (1973).

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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.

What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.

John F. CIEMPA, Plaintiff-Appellant, v. Andrew E. CONFORTI, and Dorothy Drewniak, Defendants-Appellees. No. 74-1339. United States Court of Appeals, First Circuit. Argued Dec. 2, 1974. Decided Dec. 9, 1974. W. Wright Danenbarger, Manchester, N. H., with whom Wiggin, Nourie, Sun-deen, Pingree & Bigg, Manchester, N. H., for plaintiff-appellant. Clifford J. Ross, Manchester City Sol., for defendants-appellees. Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges. PER CURIAM. This is an action brought pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983 by a prospective, and eventually unsuccessful, candidate for the New Hampshire legislature, alleging that the practices adopted in the ward in which he was running deprived him of due process. The complaint sought an injunction. The court held an evidentiary hearing, and then dismissed the complaint, both for failure to state a cause of action, and on the basis of the facts found. In light of the broad allegations of the complaint we might have some question as to the propriety of the first of these rulings, but we sustain the second. It appeared that the plaintiff was running against a candidate who, at the time, was the Ward Clerk. The Moderator in charge of the election had a standing rule that candidates must stay beyond the door of the polling place, except when voting, but there was a further exception, and the cause of this dispute: the Ward Clerk is expected to work inside the polling place, even if a candidate. The court found, “As Ward Clerk, Mrs. Drewniak spends all of Election Day in the polling place working under the direction of the Moderator. Her main tasks are to check off absentee ballots and to determine, by telephoning the City Clerk’s office, whether or not people who are not on the checklist should have been placed on the checklist for Ward 6. She has nothing to do with voting and has nothing to do with the checklist. She is not seated so that she has access to any voters prior to the time that they actually vote. She can, however, be seen by voters as they proceed by the checklist to the voting machines. She does not and, of course, could not do any electioneering in the polling place, but she does say hello to friends and neighbors or wave to them.” Strictly, under these circumstances, greeting by speaking, waving, and presumably smiling, may be thought a mild form of electioneering. At the same time one could hardly expect a candidate who is spoken to, or waved to, not to respond. To ignore the greeter would be electioneering in reverse. We must feel that perfection would dictate that the candidate not be in the polling place at all, or, at least, not be stationed where voters could see her before they had voted. We do not conceive our duty, however, to require us to supervise state elections to that degree. There are no racial overtones in this case, no deliberate discrimination, and no electioneering beyond the minimum involved in the carrying out of the candidate’s regular activities implicit in her current office. There are various ways in which individuals already in office have, or may be thought to have, certain minor advantages. That does not automatically make a federal case. Affirmed.

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 "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.

This question concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant?

UNITED STATES of America, for the Use and Benefit of GLOBAL BUILDING SUPPLY, INCORPORATED, Plaintiff-Appellant, v. WNH LIMITED PARTNERSHIP; Thomas P. Harkins, Incorporated; Harkins Builders, Incorporated; the Federal Insurance Company, Defendants-Appellees, and Toledo Drywall, Incorporated, Defendant. UNITED STATES of America, for the Use and Benefit of SUPERIOR SUPPLY ASSOCIATES, INCORPORATED, Plaintiff-Appellant, v. WNH LIMITED PARTNERSHIP; Thomas P. Harkins, Incorporated; Harkins Builders, Incorporated; Toledo Drywall, Incorporated; Today Contractors, Incorporated; the Federal Insurance Company, Defendants-Appellees. Nos. 92-1467, 92-1775. United States Court of Appeals, Fourth Circuit. Argued March 4, 1993. Decided June 9, 1993. Robert Keith Richardson, Odin, Feldman & Pittleman, P.C., Fairfax, VA, argued, for plaintiff-appellant. David Charles Hjortsberg, Reese & Carney, Columbia, MD, argued, for defendants-appellees. Before PHILLIPS and NIEMEYER, Circuit Judges, and RESTANI, Judge, United States Court of International Trade, sitting by designation. OPINION PHILLIPS, Circuit Judge: The Miller Act, 40 U.S.C. § 270a et seq., requires persons awarded substantial public works contracts with the United States to post a payment bond protecting some of those supplying the contract’s labor and materials from defaults in payment. In this case we consider whether two materials suppliers victimized by such a default can lay claim to the bond or whether they are too distant from the party contracting with the government to do so. The district court took the latter view, and we affirm its summary judgment rejecting their claims. I In September of 1989, Thomas P. Harkins, Inc. (Harkins Inc.) contracted with the United States Navy to construct and lease a large apartment complex. Harkins Inc. had been organized in 1965. At the time of contracting, its shareholders were its president, J.P. Blase Cooke, and its chairman, Thomas P. Harkins (Harkins). Harkins and Cooke later formed another entity to execute the project, WNH Limited Partnership. They installed Harbor Land Company — a corporate shell wholly owned by Harkins — as the general partner and themselves as limited partners. Harbor Land Company held only one percent of the partnership; Harkins and Cooke owned the remainder. On May 10, 1990, WNH assumed Harkins Inc.’s obligations under the lease/construction contract with the Navy pursuant to agreements among WNH, Har-kins Inc., and the United States; Harkins Inc. remained involved in the contract solely as guarantor of performance for WNH. That same day WNH also contracted with another entity, Harkins Builders, Inc. (Builders), to construct the complex, thereby subcontracting a substantial portion of WNH’s total contractual obligation to the Navy. Organized in 1974, Builders is wholly owned by its chairman, Harkins, and its president, Cooke. A week later WNH posted the payment bond required by the Miller Act, with Federal Insurance Company as surety. Federal had conditioned its agreement to serve as surety on execution of an indemnity agreement by all members of the Harkins Group, which included Harkins Inc., WNH, Builders, and two other corporate entities not otherwise relevant here. Shortly thereafter Builders commenced construction. In late 1990 and early 1991 it retained Today Contractors, Inc. and Toledo Drywall, Inc. to furnish and install drywall on the project. Global Building Supply, Inc., one of the plaintiffs-appellants here, supplied materials to Toledo. Superior Supply Associates, Inc., the other plaintiff-appellant, supplied materials to Toledo and Today. Neither supplier was paid. Consequently, both sued. Global sought relief against Toledo on the supply contract and also brought a use-suit against Harkins Inc., WNH, Builders, and Federal (as surety) on the Miller Act payment bond; Superior filed a similar claim on amounts owed it by both Toledo and Today. Following submission of stipulated exhibits, memoranda, and oral argument in the Global suit, the district court entered a default judgment for Global on its contract claim against Toledo but also granted summary judgment for Harkins Inc., WNH, Builders, and Federal on the Miller Act claim, holding that Global’s relationship to WNH was of too remote a degree to permit recovery under the Miller Act. Superior agreed to rest on Global’s exhibits and arguments and submitted its case on the briefs. The district court granted summary judgment for Superior on its contract claims against Toledo and Today but once again, and for identical reasons, granted summary judgment for Harkins Inc. and its associates on the Miller Act claim. Both Global and Superior appealed the grants of summary judgment for Harkins Inc., WNH, Builders, and Federal on the Miller Act payment bond. Global also appealed the. district court’s denial of its own motion for summary judgment on the Miller Act claim, but Superior filed no equivalent motion. We consolidated the two appeals at the request of all parties. II A In reviewing the district court’s decision, we apply the same standard it did, viewing all facts and inferences in the light most favorable to the nonmovant to determine whether summary judgment was appropriately granted. Moore v. Winebrenner, 927 F.2d 1312, 1313 (4th Cir.), cert. denied, — U.S. -, 112 S.Ct. 97, 116 L.Ed.2d 68 (1991). The Miller Act protects those who furnish labor or material for substantial federal public works contracts from defaults in payment by compelling the party awarded the government contract (the “contractor”) to post a payment bond against which the suppliers of labor or materials may claim in the event of such a default. 40 U.S.C. § 270a(a)(2), 270b(a). This provides laborers and materialmen on federal projects with a substitute for the common law materi-alman’s lien and its relatives, which can’t attach to federal property. J.W. Bateson Co. v. United States ex rel. Board of Trustees, 434 U.S. 586, 589, 98 S.Ct. 873, 875, 55 L.Ed.2d 50 (1978). The statute doesn’t apply to everyone who supplies labor or materials toward the completion of the federal public works contract, however; it’s limited to those who “deal directly with the prime contractor” and those who “have [a] direct contractual relationship with a subcontractor.” Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., 322 U.S. 102, 107, 64 S.Ct. 890, 894, 88 L.Ed. 1163 (1944). Global and Superior claim no express or implied contractual relationship with the prime contractor in this case; instead, they assert direct relationships with the “subcontractors” Toledo and Today. Bateson, however, essentially limited statutory “subcontractors” to first-tier subcontractors, i.e. those having direct contractual relations with the prime contractor. 434 U.S. at 594, 98 S.Ct. at 877. That means parties other than first-tier subcontractors and those having direct contractual relations with them are too remote to recover under the statute. This poses problems for Global and Superior, because a formal approach to this case would label WNH the prime contractor, Builders the subcontractor, and Toledo and Today second-tier subcontractors. Global and Superior only had contracts with Toledo and Today, so this approach would identify them as third-tier subcontractors, placing the Miller Act payment bond posted by WNH beyond their reach. Not surprisingly, Global and Superior seek to avoid this harsh result by taking a different tack. They argue for a functional, rather than formal, definition of “prime contractor” that, given the inbred nature of the contractual relationships here and the alleged virtual identity of WNH and Builders, would collapse those two entities into one prime contractor. That would bring Global and Superior within reach of the payment bond by transforming Toledo and Today into first-tier subcontractors, leaving Global and Superior in the position of second-, rather than third-, tier subcontractors. We reject this approach, for the reasons that follow. B Global and Superior correctly assert that the Miller Act’s remedial purposes require liberal construction and application. MacEvoy, 322 U.S. at 107, 64 S.Ct. at 893. That liberality animated the Supreme Court’s construction of the Act in F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974), heavily relied on by Global and Superior, wherein the Court adopted “a functional rather than a technical definition for the term subcontractor” focusing on “the substantiality and importance of [the entity’s] relationship with the prime contractor.” Id. at 123, 94 S.Ct. at 2162. Rich involved a Miller Act payment bond claim by Industrial Lumber Company, which had supplied plywood to Cerpac Company for ultimate provision to the F.D. Rich Company, a government contractor. Id. at 118-20, 94 S.Ct. at 2159-61. Relying on MacEvoy’s holding that a direct contractual relationship with a mere supplier of — rather than subcontractor for — the prime contractor doesn’t permit recovery under the Miller Act, Rich argued that its plywood supply contract with Cerpac, for the satisfaction of which Industrial had been retained, rendered Cerpac a supplier and therefore barred Industrial’s recovery on the bond. Id. at 122, 94 S.Ct. at 2161. Unlike the supplier in MacEvoy, however, Cerpac had two contracts with Rich arising out of the latter’s government contract. Although one was the simple plywood supply contract described above, the other was more involved, calling for Cerpac to select, modify, detail, and install custom mill-work on the government project. Id. at 119, 94 S.Ct. at 2160. With this in mind, Industrial argued that the Court should consider the entirety of Cerpac’s relationship with Rich and find it a subcontractor under the Act. The Court agreed, finding that the commonality of ownership, the conduct of prior dealings, and the multiplicity of contracts between Cerpac and Rich rendered the former a subcontractor, and not merely a supplier, of the latter. Id. at 124, 94 S.Ct. at 2162. Taken together, MacEvoy, Rich, and Bate-son present a functional approach to distinguishing first-tier “subcontractors” from other entities contracting with the prime contractor circumscribed by bright-line rules barring recovery by second-tier entities contracting with nonsubcontractors and by all entities beyond the second-tier. Global and Superior seek to undermine the latter restriction by relying on Rich’s functional approach to collapse a putative general contractor and a putative first-tier subcontractor into a single entity. But the Supreme Court’s application of a functional test to determine whether one entity was a subcontractor of another rather than a mere supplier certainly doesn’t compel a similar approach to the question whether two distinct corporations should be treated as a unitary “contractor” under the Miller Act. See United States ex rel. Gold Bond Bldg. Prods, v. Blake Constr. Co., 820 F.2d 139, 142 (5th Cir.1987). In fact, neither MacEvoy, Rich nor Bateson resolves the question with which we are now presented. Considerations of sound policy coupled with the general tenor of prior judicial decisions, however, lead us to reject appellants’ contentions. In the context of the Miller Act, the Supreme Court has repeatedly warned that the “salutary policy [of liberal construction of remedial statutes] does not justify ignoring plain words of limitation and imposing wholesale liability on payment bonds.” Bateson, 434 U.S. at 594, 98 S.Ct. at 878 (quoting MacEvoy, 322 U.S. at 107, 64 S.Ct. at 893). That warning is apt here. The statute in question identifies the (prime) “contractor” as the person awarded the contract with the government, 40 U.S.C. § 270a(a), or the person posting the payment bond, 40 U.S.C. § 270b(a); it leaves little room for interpretation. Unless Builders can be collapsed into WNH or otherwise considered the legal “person” awarded the government contract or posting the payment bond, it can’t be classified a prime contractor. We think that’s appropriate only where ordinary principles of corporate law permit the courts to disregard corporate forms. The aging pre-Bateson cases on which Global and Superior rely, Glens Falls Ins. Co. v. Newton Lumber and Mfg. Co., 388 F.2d 66 (10th Cir.1967), cert. denied, 390 U.S. 905, 88 S.Ct. 821, 19. L.Ed.2d 873 (1968); Continental Casualty Co. v, United States ex rel. Conroe Creosoting Co., 308 F.2d 846 (5th Cir.1962); Fine v. Travelers Indemnity Co., 233 F.Supp. 672 (W.D.Mo.1964), arguably applied a more lenient standard, but each understandably fails to address the Supreme Court’s more recent admonition in Bateson to heed the Miller Act’s terms and avoid imposing “wholesale liability” on payment bonds. 434 U.S. at 594, 98 S.Ct. at 878. The statute by its terms limits recovery to those having direct contractual relationships with subcontractors who in turn have direct contractual relationships with the “contractor furnishing [the] payment bond,” 40 U.S.C. § 270b(a), and we must-enforce that limitation. In rigorously applying it, we follow other courts which have recognized that “in [the Miller Act’s] risk-allocation scheme certainty is essential.” Gold Bond, 820 F.2d at 142; see United States ex rel. K & M Corp. v. A & M Gregos, Inc., 607 F.2d 44 (3d Cir.1979); see also Bateson, 434 ,U.S. at 593, 98 S.Ct. at 877 (noting “the importance of certainty with regard to bonding practices on Government construction projects”). While the possibility that general contractors will weave elaborate webs of do-nothing subcontractors between themselves and the ranks of legitimate subcontractors in order to deprive them, of Miller Act coverage cannot be discounted altogether, it must be balanced against the uncertain allocation of risks that might result from a more open-ended inquiry and the ability of professional parties to provide contractually their own insurance against defaults. Parties contracting with others who can either produce a contract with the government or produce a contract with a subcontractor who can in turn produce a government contract will have the assurance of a Miller Act remedy. All other parties will have the assurance of its lack, and the incentive to order their affairs accordingly. C Having established the rule to be applied where a party seeks to collapse two entities into a single prime contractor under the Miller Act, we now apply it. Corporate forms exist to limit liability, and courts are reluctant to set them aside simply because they’ve done so. Decisions to “pierce the corporate veil” turn on a case-by-ease factual inquiry in which the presence of the following factors suggests with varied force the appropriateness of disregarding the corporate forms distinguishing two business entities: gross undercapitalization of the subservient corporation, failure to observe corporate formalities, nonpayment of dividends, siphoning of the subservient corporation’s funds, non-functioning officers and directors, a lack of corporate records, and the fact that the corporation is merely a facade for the operation of the dominant stockholder or stockholders. Keffer v. H.K Porter Co., 872 F.2d 60, 65 (4th Cir.1989). The general absence of these factors here suggests that disregarding corporate forms would be inappropriate. Global and Superior presented no evidence that Builders was un-dercapitalized, lacked corporate records separate from WNH’s, or was a victim of siphoning by WNH. They argue, in essence, that both WNH and Builders are mere facades for Harkins and Cooke, occasionally suggesting in addition that corporate forms haven’t been observed and that WNH’s and Builder’s officers and directors really have no role. We disagree. The record shows that Builders is a fully functional general contractor operating independently of WNH. The fact that Harkins Inc. was marketing the collective expertise of the Harkins Group when it bid on the contract doesn’t render WNH and Builders the same corporation. Harkins and Cooke installed WNH rather than Builders as the government contractor for a variety of sound business reasons, not simply to deprive remote subcontractors of a statutory remedy. WNH was a single-project development partnership whose role was to acquire the property, build the project, and lease it to the government for twenty years. Its limited partnership form provided well known tax advantages not available to a corporation like Builders. Builders, by contrast, was a general contractor of long standing with a number of other clients whose role was to perform the actual construction. Separating the two entities kept WNH’s mortgage creditors out of Builders’s coffers and Builders’s other construction creditors away from WNH’s funds. The evidence doesn’t support the intimation by Global and Superior that WNH and Builders failed to observe corporate forms. Their relations were governed by a valid and enforceable contract. WNH breached its contractual obligation to the government by inadvertently omitting certain provisions in that contract, but this doesn’t make WNH and Builders the same corporation. Nor does the fact that WNH’s standard form contract with Builders refers to the former as the project “owner” and the latter as the “contractor.” The claim that WNH and Builders had nonfunctional officers is likewise unsustainable. Harkins and Cooke controlled both corporations and served as their chief officers, so it’s unsurprising that they resolved disputes between them. Richard Lombardo, Vice President of Harbor Land Company, WNH’s general partner, administered the project for WNH. James Tobin, a Vice President of Builders, ran the job for that corporation. The fact that Harkins and Cooke resolved disputes between. the, two corporations doesn’t change that; they were, after all, the chief officers of WNH’s general partner and of Builders. Global and Superior rely heavily on this commonality of ownership and control between WNH and Builders, but that without more doesn’t justify setting aside corporate forms, and nothing more exists. Global and Superior point to a host of facts alleged to be material, but they’ve failed to establish that any party had difficulty determining whether it was dealing with WNH or Builders. Under the circumstances, disregarding corporate forms would be inappropriate. IV Viewing the parties’ contentions in the light most favorable to the nonmovants Global and Superior, it’s nonetheless apparent that application of our construction of the Miller Act to the facts presented here leaves Global and Superior in the position identified as theirs by the district court — third-tier subcontractors for whom WNH’s Miller Act payment bond was beyond reach. We therefore affirm that court’s challenged orders granting summary judgment for Harkins Inc., WNH, Builders, and Federal on the Miller Act claims brought by Global and Superior and denying summary judgment for Global on the same. SO ORDERED. . At the time it was called Harkins CM, Inc. . Because WNH owns the project here and merely leases the complex to the government, it appears that those remedies were actually available to Global and Superior in this case. See Va.Code Ann. § 43-1 et seq. . Claims by the latter group also require provision of timely notice of claim to the prime contractor, 40 U.S.C. § 270b(a), but that’s not contested here. . Moreover, all who have direct contractual relations with the prime contractor aren’t "subcontractors"; the term includes only those who ”perform[] for and take[] from the prime contractor a specific part of the labor or material requirements of the original contract.” MacEvoy, 322 U.S. at 109, 64 S.Ct. at 894. Ordinary laborers and materialmen don't qualify. Id. Appellees don’t deny that Toledo and Today were performing a specific part of the original contract, however; they claim only that Toledo and Today were second-tier subcontractors rather than first-tier ones. . It’s not clear whether federal or state corporate law supplies the rule governing our decision whether to disregard the corporate forms distinguishing WNH from Builders, compare Kamen v. Kemper Fin. Servs., Inc., —. U.S. -,- -, 111 S.Ct. 1711, 1717-18, 114 L.Ed.2d 152 (1991) (requiring incorporation of state law concerning shareholder demand requirement as rule of decision in private action under federal securities laws because parties expect their corporate affairs to be governed by state law and because incorporating the state rule wouldn't impair the federal remedy or contravene the statute), with United States ex ret Woodington Elec. Co. v. United Pac. Ins. Co., 545 F.2d 1381, 1382 (4th Cir. 1976) (applying federal law to determine whether two parties are contractor-subcontractor or joint venturers in Miller Act action) (citing Rich, 417 U.S. at 127-28, 94 S.Ct. at 2164). Since appellants rested their hopes on the contention that the standard for collapsing two corporations under the Miller Act was "not nearly so stringent" as the test for piercing the corporate veil, Appellants' Brief at 35, and appellees contended ■that a "sham” rule was inappropriate under any circumstances and its application unwarranted here regardless, neither party found it necessary to address the conflicts question we've identified. Finding the substantive result unambiguous under. any of the conceivably applicable tests for , disregarding corporate form, we decline to take up this unargued question here. See Keffer v. H.K. Porter Co., 872 F.2d 60, 65 (4th Cir.1989); Travel Committee, Inc. v. Pan American World Airways, Inc., 91 Md.App. 123, 603 A.2d 1301, 1317-19(19.92); Beale v. Kappa Alpha Order, 192 Va. 382, 64 S.E.2d 789, 797-98 (1951).

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". 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".

This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?

William Harris SHARPE, Appellant, v. UNITED STATES of America, Appellee. Donald Davis SAVAGE, Appellant, v. UNITED STATES of America, Appellee. Nos. 79-5314, 79-5315. United States Court of Appeals, Fourth Circuit. Argued Jan. 8, 1981. Decided Sept. 4, 1981. Rehearing and Rehearing En Banc Denied Dec. 18, 1981. Mark J. Kadish, Atlanta, Ga. (Rhonda A. Brofman, E. Marcus Davis, Kadish, Davis & Brofman, P. C., Atlanta, Ga., Larry Turner, Dennis E. O’Neill, Burkett, Wooddy, Bargmann & Cisa, Charleston, S.C., Edward T. M. Garland, Garland, Nuckolls & Catts, P. A., Atlanta, Ga., on brief), for appellants. Lionel S. Lofton, Asst. U. S. Atty., Charleston, S.C. (Thomas E. Lydon, Jr., U. S. Atty., Columbia, S.C., on brief), for appellee. Before WINTER, RUSSELL and ERVIN, Circuit Judges. ERVIN, Circuit Judge: William Sharpe and Donald Savage were indicted for possession with intent to distribute a controlled substance (marijuana) under 21 U.S.C. § 841(a)(1) and 18 U.S.C. §2. At the hearing on the motions to suppress, which was conducted during the bench trial of these charges, Sharpe and Savage challenged the admission of certain evidence as the fruit of unlawful searches and seizures in violation of the Fourth and Fourteenth Amendments. The district court denied the motions and consequently found them guilty under the above statutes. We find the denial of the motions to suppress to be error and reverse. I. On June 9, 1978, Luther Cooke, an agent with the Drug Enforcement Administration (DEA), on patrol in an unmarked car along the coast of North and South Carolina, an area under surveillance for suspected drug trafficking, spotted a pickup truck with an attached shell camper, followed by a Pontiac. Observing that the truck was riding low in the rear and appeared overloaded, and that a quilted material covered the rear window of the camper, Cooke proceeded to follow the vehicles south. After approximately twenty miles, Cooke determined that he would make an investigatory stop of the vehicles, and he dispatched a request for aid, to which South Carolina Highway Patrolman Thrasher responded. Some time after Thrasher joined the procession, the Pontiac and the truck turned onto a loop road through a campground. At no time prior to the turn had the occupants of the truck or vehicle signalled to or communicated with each other, and they did not attempt to do so as they drove the loop road through the campground. Thrasher later testified, however, that the truck and Pontiac were speeding as they drove along that road. At the end of the loop, the vehicles turned back onto the main coastal highway and again proceeded south toward Myrtle Beach. Shortly thereafter, Cooke stopped the Pontiac and Thrasher stopped the truck. Cooke approached the Pontiac’s occupants and identified himself. He requested and received an operator’s license from the driver, Sharpe; the license was in the name of Raymond J. Pavlovich. Sharpe and his passenger Davis (the charges against whom were later dropped) were not told why they had been stopped. Several minutes later, Cooke radioed the local police for assistance, and two officers from the Myrtle Beach Police Department eventually arrived, in uniform and armed. Asking the local police to “maintain the situation,” Cooke turned custody of Sharpe and Davis over to them and left to join Thrasher, who was with the truck a few blocks further south. After stopping the truck, Thrasher had approached it with his revolver drawn, had ordered the driver to get out of the truck and to assume a spread-eagle position against its side, and had searched him. At Thrasher’s request, the driver had produced a Florida license identifying him as William Savage and a bill of sale for the truck in the name of Pavlovich. Thrasher gave Savage no reason for the stop but indicated that he would hold him there until Cooke arrived. Savage had then requested the return of his license and permission to leave. Thrasher had refused to return the license and told Savage that he was not free to leave, as he was under custodial arrest, and that he could detain Savage on speeding charges if necessary. When Cooke arrived approximately fifteen minutes after the truck had been stopped, he identified himself as a DEA agent, and Thrasher handed him Savage’s license and the bill of sale. Cooke twice requested that he be allowed to search the camper and was refused both times. Cooke then stepped onto the rear bumper and observed that it did not lower appreciably. He leaned against the rear of the camper, breathed deeply, and announced that he detected the smell of marijuana. Cooke removed the keys from the ignition, unlocked the camper and searched it, finding a number of highly compressed, well-wrapped burlap bales but no marijuana residue. After the search of the camper, Cooke placed Savage under arrest and left him in Thrasher’s custody while he returned to the Pontiac, where he placed Sharpe under arrest. By the time Sharpe was arrested, approximately thirty to forty minutes had elapsed since Cooke had first stopped the Pontiac. Cooke then assembled the various parties and vehicles and led them to the Myrtle Beach police station. That evening the truck was driven to the Federal Building in Charleston, and two or three days later, Cooke supervised the unloading of the truck, which contained forty-three intact bales. Eight randomly selected bales were then searched, and analysis of samples taken from them revealed that the bales contained marijuana. No search warrant was obtained prior to the unloading and analyzing of the bales and their contents. Cooke retained two of the eight bales as evidence and stored them in a vault in his office; the rest were destroyed by fire, under the direction of the Assistant United States Attorney and without permission of the district court. II. We consider first whether the vehicle stops and the detentions of Sharpe and Savage were unlawful seizures under the Fourth and Fourteenth Amendments. The Fourth Amendment, applicable to the states through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), provides that “[t]he right of the people to be secure in their persons . . . and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . . ” U.S.Const. amend. IV. The amendment has been construed generally to allow a law enforcement official to stop a moving vehicle without a warrant and for less than probable cause, if he has an articulable, reasonable suspicion that either the vehicle or any of its occupants is subject to seizure for violation of the law, see Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979), and has been read in particular to allow investigatory field stops of vehicles suspected of drug trafficking, see, e. g., United States v. Jimenez, 602 F.2d 139, 142 (7th Cir. 1979); United States v. Soto, 591 Fi2d 1091, 1099 (5th Cir.), cert. denied, 442 U.S. 930, 99 S.Ct. 2862, 61 L.Ed.2d 298 (1979); United States v. Montgomery, 561 F.2d 875, 879 (D.C.Cir. 1977); United States v. Garcia-Rodriguez, 558 F.2d 956, 964 (9th Cir. 1977), cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 802 (1978). Even though the reasonable suspicion standard requires less evidence of wrongdoing than does a showing of probable cause, the law does not free law enforcement officials from all restrictions concerning vehicle stops. Rather, it imposes upon them two significant requirements: first, the reasonable suspicion of illegality must not be based simply on subjective belief but must be supported by articulable and objective facts, and second, the stop must be brief. See, e. g., United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); see also Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). We can assume without deciding that Cooke had an articulable and reasonable suspicion that Sharpe and Savage were engaged in marijuana trafficking when he and Thrasher stopped the Pontiac and the truck. We conclude, however, that the stops failed to meet the requirement of brevity. We cannot overemphasize the importance of the brevity requirement for investigatory stops predicated upon less than probable cause; indeed, it is the transitory nature of the stop that justifies the elimination of the probable cause requirement. We note that the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), heavily relied upon the short length of a stop on the street and a frisk for weapons in fashioning an exception to the probable cause requirement. Furthermore* when the Court transposed the Terry stop and frisk rationale to the vehicle stop situation, it was careful to emphasize the de minimis nature of such stops in justifying the intrusion under the Fourth Amendment. In Brignoni-Ponce, for instance, the Court noted that the Fourth Amendment required a weighing of the public interest against the interference with individual liberty that a stop causes, and it justified the border patrol investigatory stop in that case on the ground that the intrusion was “modest,” usually “consumfing] no more than one minute,” and involving only “a brief question or two.” 422 U.S. at 880, 95 S.Ct. at 2579-80. The Court further cautioned that “any further detention or search must be based on consent or probable cause.” Id. at 882, 95 S.Ct. at 2580; see also United States v. Cortez, 449 U.S. at 416, 101 S.Ct. at 694 (denominating investigatory stops as brief). The stops and detention in this case cannot be described as brief: Sharpe was detained without probable cause for arrest for thirty to forty minutes before Cooke returned to the Pontiac to arrest him, and Savage was held under custodial arrest without probable cause by Thrasher for at least fifteen minutes before being questioned and finally arrested by Cooke. Indeed, the length of the detentions effectively transformed them into de facto arrests without bases in probable cause, unreasonable seizures under the Fourth Amendment. The teaching of the recent case Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), is enlightening here. In Dunaway, the Court held that police violated the Fourth Amendment when, without probable cause but with a reasonable suspicion of illegal conduct, they seized an individual and transported him to the police station for interrogation. In so holding, the Court noted that Dunaway was not merely questioned briefly but was instead transported to the station for interrogation and would have been restrained if he had tried to leave; in sum, the detention “was in important respects indistinguishable from a traditional arrest,” id. at 212, 99 S.Ct. at 2256, and, not being grounded on probable cause, it was an unconstitutional seizure. Like the detention in Dunaway, the lengthy detentions of Sharpe and Savage by law enforcement officers who had no intention of allowing them to leave custody closely resembled traditional arrests. Because probable cause did not exist prior to the detentions, we must view them as illegal seizures under the Fourth and Fourteenth Amendments. See United States v. Chamberlin, 644 F.2d 1262 (9th Cir. 1980) (twenty minute detention of individual in back of parked car, on the basis of a reasonable suspicion that criminality was afoot but without probable cause, was unlawful); United States v. Perez-Esparza, 609 F.2d 1284 (9th Cir. 1979) (three hour detention at border checkpoint station, including two and one-half hour delay pending the arrival of DEA agents, following valid investigatory field stop of a vehicle, constituted an illegal arrest); see also United States v. Miller, 546 F.2d 251 (8th Cir. 1976) (frisk for weapons following ten to fifteen minute house search pursuant to valid search warrant not valid under Terry, because individual was detained longer than necessary); cf. United States v. Vasquez-Santiago, 602 F.2d 1069 (2d Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980) (relatively brief detention of individual in an airport on the basis of a reasonable suspicion of narcotics violation, was not an unconstitutional intrusion, the detention involving only a couple of minutes of questioning). III. Having determined that Sharpe and Savage were illegally detained, we must next inquire whether the bales of marijuana Cooke uncovered during his search of the truck should have been suppressed as fruits of the illegality. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), provides the standard by which we test the admissibility of the incriminating evidence, the appropriate inquiry being “whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” 371 U.S. at 488, 83 S.Ct. at 417 (quoting Maguire, Evidence of Guilt, 221 (1959)). We conclude that this case falls within the first category. Cooke obviously would not have had the opportunity to smell the raw marijuana, and thus would have had no reason to search the truck, had Savage not been detained for longer than constitutionally permissible under an investigatory stop. Clearly a product of Cooke’s “exploitation of [the] illegality,” evidence of the discovery of the bales should have been suppressed. The government’s argument that the smell of the marijuana supplied probable cause for Cooke to search the truck and thus that the evidence was properly admitted fails to persuade us that the search was constitutional. While we acknowledge that the odor of raw marijuana may provide probable cause to search a vehicle legitimately stopped, see, e. g., United States v. Dien, 609 F.2d 1038 (2d Cir. 1979), aff’d on rehearing, 615 F.2d 10 (1980); United States v. Rivera, 595 F.2d 1095 (5th Cir. 1979), it could not have done so in this case: Cooke’s smelling the marijuana was so intertwined with the circumstances of the unlawful detentions that it could not have purged the illegal taint of those detentions and could therefore not have served as probable cause for a search. The bales thus were illegally seized, and the district court erred when it denied the motion to suppress. IV. The bales of marijuana should have been suppressed for another, equally compelling, reason: even if there had been no illegality to taint the discovery of the bales, Cooke should have obtained a warrant before allowing a search and analysis of the bales to proceed in Charleston two or three days after the stops and detentions; We find authority for our conclusion in the Supreme Court’s recent decision in Robbins v. California,-U.S.-, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981). The Robbins Court reversed a conviction for drug offenses on the ground that a warrantless search of packages of marijuana wrapped in opaque green plastic and stored in the recessed luggage compartment of a station wagon was unconstitutional. Justice Stewart, in a plurality opinion joined by Justices Brennan, White, and Marshall, set forth a bright line rule that any closed, opaque container found in a vehicle during a lawful search may not be opened without a warrant. Relying on the Court’s decisions in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), in which a warrantless search of a footlocker filled with marijuana and seized from the open trunk of a parked automobile was held unconstitutional, and in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), in which the Court held that the warrant requirement applied to the search of a suitcase filled with marijuana and found in the trunk of a stopped vehicle, • the plurality rejected the government’s argument that a closed container in a vehicle may be subject to a warrantless search under the automobile exception. It furthermore rejected a “worthy container” rule, concluding that there is no constitutional distinction to be made among various closed containers such as suitcases, briefcases, portfolios, duffle bags, and boxes: all closed containers manifest an individual’s reasonable expectation of privacy in their contents, unless a container by its very appearance betrays an illegal purpose or its contents are exposed to plain view. See Arkansas v. Sanders, 442 U.S. at 764-65 n.13, 99 S.Ct. at 2593-94 n.13. The plurality stressed, moreover, that the Fourth Amendment does not draw a distinction between personal and impersonal effects; as it succinctly stated, “Once placed within [a closed, opaque container], a diary and a dishpan are equally protected by the Fourth Amendment.” - U.S. at -, 101 S.Ct. at 2846. Joining in the judgment but not the opinion of the plurality, Justice Powell in a concurring opinion rejected the bright line rule, instead premising his conclusion that the search was unlawful on the ground that the defendant had a reasonable expectation of privacy in the carefully wrapped and sealed packages. While acknowledging the benefits of a bright line rule, Justice Powell reasoned that the plurality’s rule in this case placed an unduly heavy burden on law enforcement officers to obtain warrants for the search of trivial containers. Applying Robbins, we think that under either the plurality’s bright line rule or Justice Powell’s reasoning in concurrence, the warrantless search of the bales in the back of the truck was unconstitutional. The well-packaged bales were located in the equivalent of a luggage compartment and were “closed containers” within the meaning of the plurality opinion, and, as their appearance did not manifest their contents, the warrantless search was unconstitutional under the bright line rule. Sharpe and Savage, moreover, had a reasonable expectation of privacy in the bales, as evidenced by the careful packaging and sealing of the bales and the placing of them inside the curtained camper. Cooke therefore should have obtained a warrant prior to searching the bales. Because he did not do so, the marijuana should have been suppressed on this ground, as well as on the ground that the initial seizure of the bales was unlawful. V. Having concluded that the marijuana should have been suppressed either because its discovery was the fruit of an illegal detention, or because the warrantless search of the bales was unlawful, we reverse Sharpe’s and Savage’s convictions. REVERSED. . 21 U.S.C. § 841(a)(1) states that “[e]xcept as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 18 U.S.C. § 2(a) directs that “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal,” and § 2(b) states that “[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” . Because we have determined that the bales of marijuana should have been suppressed, we do not find it necessary to reach the question whether the district court improperly refused to suppress Sharpe’s license and the bill of sale for the truck. . Each bale consisted of a tube of marijuana wrapped first in paper bags, then in a taped plastic bag, and finally in burlap tied with twine. Cooke acknowledged in his testimony that the marijuana was extremely well packaged. . Sharpe and Savage produced ample evidence of the virtual identity in appearance of the marijuana bales and bales of tobacco, cotton goods, and hemp. . Another ground upon which Sharpe and Savage challenge the admission of the marijuana into evidence was the prejudicial effect of the destruction of the marijuana. Because we conclude that the marijuana should have been suppressed, we do not find it necessary to decide this question. The procedure that the government followed in destroying the evidence— without defense counsel’s knowledge and without leave from the district court — nevertheless seriously concerns us, as it did the district court, and compels comment. We note that the claim of prejudice in this instance is colorable. Sharpe and Savage argue that Cooke could not have smelled the tightly packaged marijuana through the closed and well-sealed camper door. They further submit that, had forty-one of the forty-three bales not been destroyed, it would have been possible to reconstruct the conditions of the stop and then to show by scientific proof the difficulty or impossibility of smelling the marijuana under those circumstances. By this means, they could have attacked Cooke’s credibility and the existence of probable cause to search the truck. The destruction, of course, made the simulation impossible. The better procedure would have been for the government to have petitioned the district court for an order allowing the destruction, and for the defendants to have received notice of the impending destruction and to have had access to the seized evidence prior to the destruction. Such a procedure ensures that defendants are not prejudiced by the government’s handling of evidence. See United States v. Heiden, 508 F.2d 898 (9th Cir. 1974) (concurring opinion).

What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.

What is the number of judges who voted in favor of the disposition favored by the majority?

INTERNATIONAL LADIES’ GARMENT WORKERS’ UNION, AFL-CIO, v. NATIONAL LABOR RELATIONS BOARD et al. No. 284. Argued April 17, 1961. Decided June 5, 1961. Charles J. Morris and Morris P. Glushien argued the cause for petitioner. With them on the brief were L.N.D. Wells, Jr. and Ruth Weyand. Dominick L. Manoli argued the cause for the National Labor Relations Board, respondent. With him on the briefs were former Solicitor General Rankin, Solicitor General Cox, Stuart Rothman, Norton J. Come, Frederick U. Reel and Herman M. Levy. Mr. Justice Clark delivered the opinion of the Court. We are asked to decide in this case whether it was an unfair labor practice for both an employer and a union to enter into an agreement under which the employer recognized the union as exclusive bargaining representative of certain of his employees, although in fact only a minority of those employees had authorized the union to represent their interests. The Board found that by extending such recognition, even though done in the good-faith belief that the union had the consent of a majority of employees in the appropriate bargaining unit, the employer interfered with the organizational rights of his employees in violation of §8 (a)(1) of the National Labor Relations Act and that such recognition also constituted unlawful support to a labor organization in violation of § 8 (a)(2). In addition, the Board found that the, union violated §8 (b)(1)(A) by its acceptance of exclusive bargaining authority at a time when in fact it did not have the support of a majority of the employees, and this in spite of its bona fide belief that it did. Accordingly, the Board ordered the unfair labor practices discontinued and directed the holding of a representation election. The Court of Appeals, by a divided vote, granted enforcement, 108 U. S. App. D. C. 68, 280 F. 2d 616. We granted certiorari. 364 U. S. 811. We agree with the Board and the Court of Appeals that such extension and acceptance of recognition constitute unfair labor practices, and that the remedy provided was appropriate. In October 1956 the petitioner union initiated an organizational campaign at Bernhard-Altmann Texas Corporation’s knitwear manufacturing plant in San Antonio, Texas. No other labor organization was similarly engaged at that time. During the course of that campaign, on July 29, 1957, certain of the company’s Topping Department employees went on strike in protest against a wage reduction. That dispute was in no way related to the union campaign, however, and the organizational efforts were continued during the strike. Some of the striking employees had signed authorization cards solicited by the union during its drive, and, while the strike was in progress, the union entered upon a course of negotiations with the employer. As a result of those negotiations, held in New York City where the home offices of both were located, on August 30, 1957, the employer and union signed a “memorandum of understanding.” . In that memorandum the company recognized the union as exclusive bargaining representative of “all production and shipping employees.” The union representative asserted that the union’s comparison of the employee authorization cards in its possession with the number of eligible employees representatives of the company furnished it indicated that the union had in fact secured such cards from a majority of employees in the unit. Neither employer nor union made any effort at that time to check the cards in the union’s possession against the employee roll, or otherwise, to ascertain with any degree of certainty that the union’s assertion, later found by the Board to be erroneous, was founded on fact rather than upon good-faith assumption. The agreement, containing no union security provisions, called for the ending of the strike and for certain improved wages and conditions of employment. It also provided that a “formal agreement containing these terms” would “be promptly drafted . . . and signed by both parties within the next two weeks.” Thereafter, on October 10,1957, a formal collective bargaining agreement, embodying the terms of the August 30 memorandum, was signed by the parties. The bargaining unit description set out in the formal contract, although more specific, conformed to that contained in the prior memorandum. It is not disputed that as of execution of the formal contract the union in fact represented a clear majority of employees in the appropriate unit. In upholding the complaints filed against the employer and union by the General Counsel, the Board decided that the employer’s good-faith belief that the union in fact represented a majority of employees in the unit on the critical date of the memorandum of understanding was not a defense, “particularly where, as here, the Company made no effort to check the authorization cards against its payroll records.” 122 N. L. R. B. 1289, 1292. Noting that the union was “actively seeking recognition at the time such recognition was granted,” and that “the Union was [not] the passive recipient of an unsolicited gift bestowed by the Company,” the Board found that the union’s execution of the August 30 agreement was a “direct deprivation” of the nonconsenting majority employees’ organizational and bargaining rights. At pp. 1292, 1293, note 9. Accordingly, the Board ordered the employer to withhold all recognition from the union and to cease giving effect to agreements entered into with the union; the union was ordered to cease acting as bargaining representative of any of the employees until such time as a Board-conducted election. demonstrated its majority status, and to refrain from seeking to enforce the agreements previously entered. The Court of Appeals found it difficult to “conceive of á clearer restraint on the employees’ right of self-organization than for their employer to enter into a collective-bargaining agreement with a minority of the employees.” 280 F. 2d, at 619. The court distinguished our decision in Labor Board v. Drivers Local Union No. 639, 362 U. S. 274, on the ground that there was involved here neither recognitional nor organizational picketing. The court held that the bona fides of the parties was irrelevant except to the extent that it “was arrived at through an adequate effort to determine the true facts of the situation.” At p. 622. At the outset, we reject as without relevance to our decision the fact that, as of the execution date of the formal agreement on October 10, petitioner represented a majority of the employees. As the Court of Appeals indicated, the recognition of the minority union on August 30, 1957, was “a fait accompli depriving the majority of the employees of their guaranteed right to choose their own representative.” 280 F. 2d, at 621. It is, therefore, of no consequence that petitioner may have acquired by October 10 the necessary majority if, during the interim, it was acting unlawfully. Indeed, such acquisition of majority status itself might indicate that the recognition secured by the August 30 agreement afforded petitioner a deceptive cloak of authority with which to persuasively elicit additional employee support. Nor does this case directly involve a strike. The strike which occurred was in protest against a wage reduction and had nothing to do with petitioner’s quest for recognition. Likewise, no question of picketing is presented. Lastly, the violation which the Board found was the grant by the employer of exclusive representation status to a minority union, as distinguished from an employer’s bargaining with a minority union for its members only. Therefore, the exclusive representation provision is the vice in the agreement, and discussion of “collective bargaining,” as distinguished from “exclusive recognition,” is pointless. Moreover, the insistence that we hold the agreement valid and enforceable as to those employees who consented to it must be rejected. On the facts shown, the agreement must fail in its entirety. It was obtained under the erroneous claim of majority representation. Perhaps the employer would not have entered into it if he had known the facts. Quite apart from other conceivable situations, the unlawful genesis of this agreement precludes its partial validity. In their selection of a bargaining representative, § 9 (a) of the Wagner Act guarantees employees freedom of choice and majority rule. J. I. Case Co. v. Labor Board, 321 U. S. 332, 339. In short, as we said in Brooks v. Labor Board, 348 U. S. 96, 103, the Act placed “a nonconsenting minority under the bargaining responsibility of an agency selected by a majority of the workers.” Here, however, the reverse has been shown to be the case. Bern-hard-Altmann granted exclusive bargaining status to an agency selected by a minority of its employees, thereby impressing that agent upon the nonconsenting majority. There could be no clearer abridgment of § 7 of the Act, assuring employees the right “to bargain collectively through representatives of their own choosing” or “to refrain from” such activity. It follows, without need of further demonstration, that the employer activity found present here violated § 8 (a)(1) of the Act which prohibits employer interference with, and restraint of, employee exercise of § 7 rights. Section 8 (a) (2) of the Act makes it an unfair labor practice for an employer to “contribute . . . support” to a labor organization. The law has long been settled that a grant of exclusive recognition to a minority union constitutes unlawful support in violation of that section, because the union so favored is given “a marked advantage over any other in securing the adherence of employees,” Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261, 267. In the Taft-Hartley Law, Congress added §8 (b)(1) (A) to the Wagner Act, prohibiting, as the Court of Appeals held, “unions from invading the rights of employees under § 7 in a fashion comparable to the activities of employers prohibited under § 8 (a) (1).” 280 F. 2d, at 620. It was the intent of Congress to impose upon unions the same restrictions which the Wagner Act imposed on employers with respect to violations of employee rights. The petitioner, while taking no issue with the fact of its minority status on the critical date, maintains that both Bernhard-Altmann’s and its own good-faith beliefs in petitioner’s majority status are a complete defense. To countenance such an excuse would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of the Act — that its prohibitions will go far to assure freedom of choice and majority rule in employee selection of representatives. We find nothing in the statutory language prescribing scienter as an element of the unfair labor practices here involved. The act made unlawful by § 8 (a) (2) is employer support of a minority union. Here that support is an accomplished fact. More need not be shown, for, even if mistakenly, the employees’ rights have been invaded. It follows that prohibited conduct cannot be excused by a showing of good faith. This conclusion, while giving the employee only the protection assured him by the Act, places no particular hardship on the employer or the union. It merely requires that recognition be withheld until the Board-conducted election results in majority selection of a representative. The Board’s order here, as we might infer from the employer’s failure to resist its enforcement, would apparently result in similarly slight hardship upon it. We do not share petitioner’s apprehension that holding such conduct unlawful will somehow induce a breakdown, or seriously impede the progress of collective bargaining. If an employer takes reasonable steps to verify union claims, themselves advanced only after careful estimate — precisely what Bernhard-Altmann and petitioner failed to do here — he can readily ascertain their validity and obviate a Board election. We fail to see any onerous burden involved in requiring responsible negotiators to be careful, by cross-checking, for example, well-analyzed employer records with union listings or authorization cards. Individual and collective employee rights may not be trampled upon merely because it is inconvenient to avoid doing so. Moreover, no penalty is attached to the violation. Assuming that an employer in good faith accepts or rejects a union claim of majority status, the validity of his decision may be tested in an unfair labor practice proceeding. If he is found to have erred in extending or withholding recognition, he is subject only to a remedial order requiring him to conform his conduct to the norms set out in the Act, as was the case here. No further penalty results. We believe the Board’s remedial order is the proper one in such cases. Labor Board v. District 50, U. M. W., 355 U. S. 453. Affirmed. Except for filing an answer, the employer, Bernhard-Altmann Texas Corporation, did not resist enforcement of the Board’s order and has not sought review in this Court. Section 8 (a) (1) and (2), insofar as pertinent, provide: “It shall be an unfair labor practice for an employer— “(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; “(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. . . .” 61 Stat. 140, 29 U. S. C. § 158 (a) (1), (2). Section 8 (b)(1)(A) provides in pertinent part: “It shall be an unfair labor practice for a labor organization or its agents— “(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7. . . .” 61 Stat. 141, 29 U. S. C. §158 (b)(1). The Board found that as of August 30 the union in fact had authority to represent either 70 employees out of a relevant total of 280, or 158 out of 368, depending upon the criteria used in determining employee eligibility. “Accordingly, the Union could not, under any circumstances, have represented a majority of the employees involved on August 30, 1957.” 122 N. L. R. B. 1289, 1291-1292. The Court of Appeals considered irrelevant the achievement of majority status during the period that the union maintained the unlawful agreement. 280 F. 2d 616, 619, note 3. Member Fanning agreed with a majority of the Board that the employer violated § 8 (a) (1) and (2), but dissented as to the finding of union violation of § 8 (b) (1) (A). 122 N. L. R. B. 1289, 1297. However, the terms and conditions of employment fixed by the agreement were not required to be varied or abandoned. We take it that the Board’s - order restraining the union and employer from dealing will, in any 'event, terminate after the election is held. Relying upon reference to § 9 decertification proceedings, petitioner contends that such a contract with a minority union does not prevent employees from exercising complete freedom. The availability of such a remedy is doubtful in view of the Board’s position that the “contract bar” defense prevents a showing of lack of majority status at the time a contract was made. See In re Columbia River Salmon & Tuna Packers Assn., 91 N. L. R. B. 1424, and cases cited therein. Section 7 provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have 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. See S. Rep. No. 105, 80th Cong., 1st Sess. 50 (Supp. Views), I Leg. Hist. (1947) 456; II Leg. Hist. (1947) 1199, 1204, 1207. Although it is of no significance to our holding, we note that there was made no reasonable effort to determine whether in fact petitioner represented a majority of the employees. See Labor Board v. Perfect Circle Co., 162 F. 2d 566; Labor Board v. Illinois Tool Works, 153 F. 2d 811; McQuay-Norris Mfg. Co. v. Labor Board, 116 F. 2d 748; and cf. Labor Board v. Industrial Cotton Mills, 208 F. 2d 87. Section 8 (a) (5) makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees. . . .” 61 Stat. 141, 29 U. S. C. § 158 (a) (5).

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TRAP ROCK INDUSTRIES, INC., Appellant, v. LOCAL 825, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Appellee. No. 92-5281. United States Court of Appeals, Third Circuit. Argued Nov. 17, 1992. Decided Dec. 30, 1992. Jeffrey L. Braff (argued), Cohen, Shapiro, Polisher, Shiekman and Cohen, Philadelphia, PA, for appellant. David Grossman (argued), Schneider, Cohen, Solomon, Leder & Montalbano, Cranford, NJ, for appellee. Before MANSMANN, HUTCHINSON and GARTH, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge: This appeal presents for our review the question of the effect to be given a clause in a collective bargaining agreement which reserved to the employer’s discretion the right to demote and ultimately to discharge an employee who failed to perform assigned duties properly or who failed to meet the qualifications of his job. The district court ruled against the employer and granted the Union’s motion to compel arbitration. We reverse. I. Trap Rock Industries, Inc. (“Trap Rock”) is engaged in the quarrying industry and was the employer of Freddy Torres, a member of Local 825 of the International Union of Operating Engineers, AFL-CIO (“Union”). The Union is the exclusive bargaining representative for certain of Trap Rock’s employees, including, as stated, Freddy Torres. On June 1, 1990, the Union and Trap Rock entered into a collective bargaining agreement (“CBA”) covering the three year period from June 1,1990 through May 31, 1993. Among its several provisions, the CBA includes two complementary clauses that are pertinent to Trap Rock’s appeal. Article III, paragraph 6, the “Reservation Clause,” provides: The Employer reserves the right, which right shall not be subject to Arbitration, to determine the qualifications of any Employee covered hereunder and if, in the Employer’s opinion, the Employee does not meet the qualifications or fails to perform his duties properly, then the Employer can Discharge or demote the Employee, whichever the Employer desires. The Employer will notify the Emplolyee [sic] and Union of such action. The “Arbitration Clause,” Article VII, paragraph C, provides for binding arbitration in other particular instances where disputes between Trap Rock and the Union have not been resolved through an internal grievance procedure. This provision expressly limits the arbitrator’s jurisdictional reach: [t]he Arbitrator’s powers are limited as follows: He shall have no power to add to, or subtract from, or modify any of the terms of any Agreement____ He shall have no power to substitute his discretion for the Employer’s discretion in cases where the Employer is given the discretion by this Agreement or by any supplementary Agreement, except that where he finds a disciplinary layoff or discharge is in violation of this Agreement, then he may make appropriate modifications of the penalty. Freddy Torres was employed as a truck driver at Trap Rock’s open pit quarry in Pennington, New Jersey. Among his duties, Torres was required to drive a 29-ton, 6-wheel “haul truck” on steep, unpaved dirt roads into the quarry, where the truck was loaded with stone. Torres then drove the laden truck, often weighing in excess of 150,000 pounds, to a “stone crusher,” into which the rock was deposited. Over a period of fourteen months, Torres received several written and verbal warnings from his supervisor regarding his failure to perform his duties properly. Specifically, Torres was warned for excessive absenteeism, (A. 29); for reading a newspaper in his truck at the primary “crusher,” (A. 29; 32; 33); for failing to stop his truck at a designated point before downshifting to first gear and for shifting to reverse while moving forward, (A. 30, 33-34); and for sustaining a gash in a truck tire after driving over a large, sharp-edged rock. (A. 34; see A. 30). On October 26, 1990, Torres was demoted to the job of “laborer.” (A. 30). Torres’ supervisor determined that Torres’ work was “defective,” (A. 35); that he failed to perform his truck driving duties properly and failed to meet the qualifications for being a truck driver, (A. 20); and that “for the safety of Fred Torres and the other Employees and the wear and tear on the trucks he should be demoted to a laborer to keep the man employed.” (A. 34). On October 29, 1990, Torres complained to his supervisor that his new job was unsafe; he also complained about his hourly wage and about his demotion in general. (A. 22-23). On the same day, Torres signed an “Employee Warning Record” drafted by his supervisor which stated, “On Oct. 29, 1990, employee refused to work because of demotion.” (A. 31). According to Torres, and apparently due to his refusal to work, the supervisor told him to “punch out and go home.” (A. 23). Torres claims that when he returned the following day, the supervisor did not allow him to return to work, telling Torres that it was not his, the supervisor’s, place to hire him back. (A. 23). That same day Torres filed a grievance acknowledging that he was demoted because “[tjhey said I failed to meet the requirements to drive a truck,” (A. 17), but alleging that, because other employees had committed similar infractions without being demoted, “Trap Rock is discriminating me [sic] forcing me to quit.” (A. 18). On April 11, 1991, Trap Rock filed a complaint in the District Court for the District of New Jersey seeking a declaratory judgment that the Torres dispute was not subject to arbitration, as well as an order enjoining the Union from submitting the Torres dispute to arbitration. On January 21, 1992, Trap Rock filed a motion for summary judgment and, on the same date, the Union cross-moved to compel arbitration, pursuant to § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) and the Federal Arbitration Act, 9 U.S.C. § 4. On April 22, 1992, the district court issued a memorandum and order denying Trap Rock’s motion for summary judgment and granting the Union’s cross-motion to compel arbitration. This appeal followed. II. The district court commenced its analysis of the two motions by restating the well-settled standards governing summary judgment, and by setting forth what it considered to be the law of this circuit governing the arbitrability of disputes. Apparently due to the mere presence in the CBA of the Article VII, paragraph C “Arbitration Clause,” the district court invoked, without discussion or analysis, the “presumption of arbitrability” required in certain circumstances under AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650, 106 S.Ct. 1415, 1419, 89 L.Ed.2d 648 (1986). The district court then employed an analytical framework for applying that presumption as set forth by this court in E.M. Diagnostic Systems, Inc. v. Local 169, International Brotherhood of Teamsters, 812 F.2d 91, 95 (3d Cir.1987): (1) Does the present dispute come within the scope of the arbitration clause? (2) does any other provision of the contract expressly exclude this kind of dispute from arbitration? and (3) is there any other “forceful evidence” indicating that the parties intended such an exclusion? E.M. Diagnostic, 812 F.2d 91 (3d Cir.1987). Focusing on the second of these inquiries, the district court concluded that “[t]he dispositive issue in this case is whether, as Trap Rock argues, [Article III, paragraph 6] expressly excludes from arbitration the subject matter of Mr. Torres’s grievance.” The district court then held that Article III, paragraph 6 “does not exclude from arbitration the subject matter of the Torres dispute.” The district court reasoned that Torres was demoted because of his supervisor's “personal animosity” towards him and that the expressed reasons for the demotion — safety infractions, poor performance and a lack of qualifications — were “merely pretext.” The court concluded that “this is not a dispute about whether Mr. Torres met the qualifications required for the position” and that, therefore, the dispute did not fall within Article Ill’s exemption from arbitration. In the alternative, the district court, concluding that the first clause of paragraph 6 was severable from the second clause, held that even if the dispute did involve Torres’ qualifications, Article III, paragraph 6 did not exclude such disputes from arbitration in the first instance. Thus, according to the district court, only Trap Rock’s right to determine an employee’s qualifications is non-arbitrable, while the demotion or discharge of an unqualified or poorly performing employee must be submitted to arbitration. Accordingly, the district court held that Torres’ dispute, even if arising from a demotion based on qualifications or a failure of performance, must be arbitrated. III. We have jurisdiction over the district court’s final order compelling arbitration pursuant to 28 U.S.C. § 1291. See Goodall-Sanford, Inc. v. Textile Workers of America, A.F.L. Local 1802, 353 U.S. 550, 77 S.Ct. 920, 1 L.Ed.2d 1031 (1957); Zosky v. Boyer, 856 F.2d 554 (3d Cir.), cert. denied, 488 U.S. 1042, 109 S.Ct. 868, 102 L.Ed.2d 992 (1988). In light of the manner in which the procedure developed in the district court, where a motion for summary judgment was countered with a motion to compel arbitration, the order compelling arbitration is deemed by us to be tantamount to an order granting a cross-motion for summary judgment. When an appeal from a denial of summary judgment is raised, as it is here, in tandem with an appeal of an order granting a cross-motion for summary judgment, as we deem the district court’s arbitration order to be, we have jurisdiction to review the propriety of the denial of summary judgment by the district court. Sacred Heart Medical Center v. Sullivan, 958 F.2d 537, 543 (3d Cir.1992); Nazay v. Miller, 949 F.2d 1323, 1328 (3d Cir.1991); First National Bank v. Lincoln National Life Insurance Co., 824 F.2d 277, 281 (3d Cir.1987). Thus, we simultaneously review both the district court’s order compelling arbitration and the order denying Trap Rock’s motion for summary judgment. Our standard of review is plenary. Because we review the district court’s order compelling arbitration as a grant of summary judgment, we will apply the same summary judgment test as that applied by a district court. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3rd Cir.), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). Thus, pursuant to Fed.R.Civ.P. 56(c), we ask: “(1) is there no genuine issue of material fact and (2) is one party entitled to judgment as a matter of law?” Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3rd Cir.1992) (quoting Country Floors, Inc. v. Gepner, 930 F.2d 1056, 1060 (3rd Cir.1991) (quoting Int’l Union, UMWA v. Racho Trucking Co., 897 F.2d 1248, 1252 (3rd Cir.1990))). Moreover, where we review both a denial of a motion for summary judgment and a grant of a cross-motion for summary judgment, and “where, as here, the facts are uncontroverted, we are free to enter an order directing summary judgment in favor of the [party whose motion had been denied by the district court.]” Sacred Heart, 958 F.2d at 543; (quoting Nazay, 949 F.2d at 1328; First National Bank, 824 F.2d at 281). A. We begin our discussion with the law governing the arbitrability of labor disputes, as first articulated by the Supreme Court in the Steelworkers Trilogy and restated in AT & T, supra. First, although federal policy generally favors arbitration of disputes between a union and an employer, the federal courts have made it clear that “ ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to so submit.’ ” AT & T, 475 U.S. at 648, 106 S.Ct. at 1418 (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 368 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960)). See also United Steelworkers v. Lukens Steel Co., 969 F.2d 1468, 1473 (3d Cir.1992) (quoting AT & T and Warrior & Gulf)) Morristown Daily Record v. Graphic Communications Union, Local 8N, 832 F.2d 31, 33 (3d Cir.1987) (quoting AT & T; Warrior & Gulf)) E.M. Diagnostic, 812 F.2d at 94 (quoting Warrior & Gulf). Second, “[u]nless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” AT & T, 475 U.S. at 649, 106 S.Ct. at 1418. See also John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 912-13, 11 L.Ed.2d 898 (1964); Lukens Steel, 969 F.2d at 1473-74 (quoting AT & T; citing John Wiley); Morristown Daily, 832 F.2d at 33 (citing AT & T)) E.M. Diagnostic, 812 F.2d at 94-95 (citing AT & T). Third, “in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims.” AT & T, 475 U.S. at 649, 106 S.Ct. at 1419. See also Lukens Steel, 969 F.2d at 1474 (quoting AT & T)) Morristown Daily, 832 F.2d at 33 (citing AT & T; United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960)). B. In applying these principles to a particular collective bargaining agreement, the “courts must carefully analyze the contractual language to determine whether a particular dispute is arbitrable." Morristown Daily, 832 F.2d at 34-35 (3d Cir.1987). Here, the pertinent language of Articles III and VII of the CBA clearly re veals that the parties have agreed that where an employee’s qualifications or job performance are at issue, the employer, and not the arbitrator, should have the sole discretion to demote or discharge an employee. When read together, the “Reservation Clause” of Article III and the “Arbitration Clause” of Article VII disclose the parties’ agreement to restrict an arbitrator’s powers to the modification of a penalty where only certain disciplinary layoffs or discharges which are in violation of the CBA are arbitrated. They have done so, while at the same expressly providing that there shall be no arbitration of discharges or demotions arising from deficiencies in qualifications or performance. We thus reject the district court’s interpretation of the agreement which, we conclude, unjustifiably misconstrues the structure of Article III. First, the district court’s reading disregards the parallel use of a salient term, “qualifications,” which appears on both sides of the “equation” — in both the first and second clauses of Article III, paragraph 6. That parallel structure clearly suggests that the provision’s introductory pronouncement of non-arbitrability was intended to be overarching, applying both to the determination, and then to the sanction, involving an employee’s “qualifications.” More important, the district court’s interpretation would deprive the “Reservation Clause” of its logical coherence. First, as a practical matter, Trap Rock’s independent judgment that an employee lacks qualifications simply cannot give rise to a dispute with the Union until some further action, such as the demotion or discharge of an unqualified employee, is taken with respect to that judgment. Moreover, as a functional matter, Trap Rock’s exclusive authority to determine whether its employees are qualified, without resort to arbitration, would be rendered entirely toothless if actions taken to effectuate those determinations must be submitted to arbitration. Indeed, nowhere in the CBA does any limitation on the employer’s customary prerogative of determining employees’ qualifications appear. If this provision is to have any practical significance, it must be construed as vesting in Trap Rock the authority not only to determine whether an employee is qualified, but also the authority to act upon such a determination, free from arbitration, with the same degree of autonomy. We thus conclude that the correct interpretation of Article Ill’s “Reservation Clause,” which is both consistent with its structure and which permits of a practical application, must reflect the parties’ express agreement to reserve to Trap Rock, in its discretion and without resort to arbitration, the right to determine whether an employee is qualified, and to demote and ultimately to discharge an employee who is unqualified or who fails to perform assigned duties properly. So construed, the “Reservation Clause” directly complements Article VII’s “Arbitration Clause,” which represents the parties’ express agreement that only disputes over disciplinary layoffs or discharges which violate the terms of the CBA may be submitted to an arbitrator, and then only for the limited purpose of modifying the “penalty.” We have discussed Article VII because, as stated, it complements and gives additional meaning to the “Reservation Clause” of Article III. In its brief and at oral argument, however, the Union at no time addressed Article VII’s “Arbitration Clause” or its relationship to Article Ill’s "Reservation Clause.” Trap Rock did discuss the “Arbitration Clause” in its brief and at oral argument, but only to the extent that it prohibits the arbitrator from encroaching upon the employer’s vested discretion under the CBA. Neither Trap Rock nor the Union has addressed, as we have here, the relationship of these two clauses, each to the other. Nor did either discuss the limitation on the arbitrator’s powers as found in Article VII. Finally, the district court itself makes reference to the “Arbitration Clause,” but only to note that it “would be a nullity if Trap Rock’s reading of article three, section 6 were correct.” To support this statement, the district court then asked the rhetorical question: “[i]f Trap Rock’s discharge of an employee were not subject to arbitration, how could an arbitrator ever find that the discharge violated the terms of the agreement?” That question is readily answered, however. Articles III and VII together identify two types of discharges: (1) discharges based on improper performance or a lack of qualifications, which are not subject to arbitration, under Article III, and (2) disciplinary discharges, which may be submitted to the arbitrator as to whether the employer’s penalty should be modified, if the employee’s discharge violated the terms of the CBA, under Article VII. Given the terms of the agreement before us, therefore, Trap Rock may not be compelled by a federal court to arbitrate a demotion or discharge based on a lack of qualifications or poor performance. See AT & T, 475 U.S. at 648, 106 S.Ct. at 1418 (quoting Warrior & Gulf, 363 U.S. at 582, 80 S.Ct. at 1352). See also Lukens Steel, 969 F.2d at 1473 (3d Cir.1992) (quoting AT & T and Warrior & Gulf), E.M. Diagnostic, 812 F.2d at 94 (3d Cir.1987) (quoting Warrior & Gulf). IV. After our independent review of the record, we conclude that there is no genuine issue. The undisputed facts clearly demonstrate that Torres was demoted because he performed his duties improperly and because he lacked the requisite qualifications of a haul truck driver. Because we have concluded that the “Reservation Clause” of Article III precludes arbitration over such demotions or discharges, Trap Rock is entitled to summary judgment as a matter of law. See Sacred Heart, 958 F.2d at 543; Nazay, 949 F.2d at 1328; First National, 824 F.2d at 281; note 1, supra. Summary judgment is required where the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Although the “burden to demonstrate the absence of material fact issues remains with the moving party regardless of which party would have the burden of persuasion at trial,” Levendos v. Stern Entertainment, 860 F.2d 1227, 1229 (3rd Cir.1988) (internal quotation marks and citation omitted), the moving party's “burden” under Rule 56(c) “is discharged by ‘showing’ — that is, pointing out to the District Court — that there is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. at 2554. A non-moving party may not “rest upon mere allegations, general denials or ... vague statements____” Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3rd Cir.), cert. denied, — U.S. —, 112 S.Ct. 376, 116 L.Ed.2d 327 (1991). If the non-moving party’s evidence “ ‘is merely colorable, ... or is not significantly probative, ... summary judgment may be granted.’ ” Gray, 957 F.2d at 1078 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986)). The district court reasoned, and the Union here argues, that Torres was demoted because of his supervisor’s personal animosity towards him rather than because of poor performance or a lack of qualifications, and that, therefore, the “Reservation Clause” did not bar arbitration of this dispute. This assertion, however, is not supported by the record. Torres himself concedes that he received numerous verbal and written warnings from his supervisor. (Torres Aff. at A. 22). These warnings, attached as exhibits to an affidavit submitted by Trap Rock, were issued for careless driving, safety infractions and defective work. (Warning Notices, Exh. C to Caropreso Aff. at A. 29-31). Torres concedes that he slashed a tire by driving over a large, sharp rock, (Torres Aff., at A. 22), and that he was reading a newspaper in his truck at the primary crusher. (Grievance, Exh. A to Torres Aff. at A. 17). The record also establishes that Torres was issued warnings for failing to stop his truck at a designated safety point before downshifting into first gear and putting his truck into reverse, and for driving a truck unsatisfactorily. (Warning Notices, Exh. C to Caropreso Aff. at A. 29-31). Supervisor Bray’s affidavit states, among other things, * ***** 3. Freddy Torres (“Torres”) was a truck driver for Trap Rock at the Pennington Quarry. His Responsibilities as a truck driver included driving a 29-ton, 6-wheel (each of which is approximately 6 feet high) haul truck into the quarry, waiting for it to be filled with heavy stone, driving the loaded truck (often weighing over 150,000 pounds) to the stone crusher, and dumping it there. Much of the driving must be done on unpaved dirt roads with relatively steep grades. The very nature of the job places a great premium on safety. [A] driver who does not perform his duties properly exposes not only himself, but all of those around him/her, to serious dangers. 4. On October 26, 1990, after Torres received five written warnings within the prior fourteen months (four of which were within the prior six weeks) for, among other things, disobedience, misconduct, carelessness, safety infractions, and defective work, I demoted Freddy Torres because, in my opinion, he had failed to perform his truck driving duties properly and he failed to meet the qualifications of being a truck driver. I demoted Torres to the position of laborer. (A. 19-20) (emphasis added). Nowhere in the record does the Union contradict by affidavit or sworn testimony the allegations made by Trap Rock under oath that Torres was unqualified and performed poorly. The Union merely asserts in the text of its brief that the conduct which led to Torres’ demotion “had nothing to do with his ability or qualification to drive a truck.” Union Brief at 17. Nor has the union articulated any facts by its affidavits which substantiate its claim that Torres was demoted due to personal animosity. The submitted affidavits contain only Torres’ general allegations that “Mr. Bray harassed me and treated me unfairly,” (Torres Aff. at A. 22); that “[e]ver since they change the supervisor, they have been treating me unfair,” (Grievance, Exh. A to Torres Aff. at A. 17); and that “Trap Rock is discriminating me [sic] forcing me to quit.” (Grievance, Exh. A to Torres Aff. at A. 18). Such general allegations, absent any factual foundation, fall short of raising a genuine issue of material fact. See Quiroga 934 F.2d at 500. Significantly, in concluding that personal animosity motivated Torres’ demotion, the district court relied solely on arguments and allegations raised in the Union’s brief. However, this court has made it clear that arguments, allegations or “facts” contained in briefs, and that are not evidentiary because they are not sworn to, are insufficient to overcome a motion for summary judgment based on sworn affidavits. See Thornton v. United States, 493 F.2d 164, 167 (3d Cir.1974) (“A statement in a brief or in oral argument does not constitute evidence” for purposes of summary judgment). Thus, the allegations raised solely in the Union’s brief do not suffice to raise any genuine issue of material fact regarding the reason for Torres’ demotion. Because the undisputed evidence demonstrates that Torres was demoted for failing to perform his duties properly and for failing to meet the qualifications of his job, and because the CBA’s “Reservation Clause” expressly grants Trap Rock the sole discretion to demote or discharge an employee for those reasons without resorting to arbitration, Trap Rock is entitled to summary judgment as a matter of law. V. We will reverse the district court’s order of April 22, 1992 denying Trap Rock’s motion for summary judgment and direct that the district court enter judgment in favor of Trap Rock and against the Union. Accordingly, we will also reverse the district court’s order of the same date granting the Union’s motion to compel arbitration. . "[W]here the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that ‘an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of arbitration.’ ’’ AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650, 106 S.Ct. 1415, 1419, 89 L.Ed.2d 648 (1986) (citation omitted). . “The Employer reserves the right, which right shall not be subject to Arbitration, to determine the qualifications of any employee covered hereunder ____" . "... and if, in the Employer’s opinion, the Employee does not meet the qualifications or fails to perform his duties properly, then the employer can Discharge or demote the Employee, whichever the Employer desires.” . United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). . The district court's invocation of the "presumption of arbitrability" as set forth in AT & T, supra, was inappropriate here. The AT & T Court gave us specific guidance on the applicability of that presumption, advising that it “is particularly applicable where the [arbitration] clause is a broad one," covering " ‘any differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder,’ ’’ AT & T, supra, 475 U.S. at 650, 106 S.Ct. at 1419. (emphasis added), and that in such cases " ‘only the most forceful evidence of a purpose to exclude a particular grievance from arbitration can prevail.'” AT & T, 475 U.S. at 650, 106 S.Ct. at 1419 (citation omitted). This court has adhered to that guidance, also recognizing that the presumption is to be invoked where an arbitration provision is a "broad one.” E.M. Diagnostic Systems, Inc. v. Local 169, International Brotherhood of Teamsters, 812 F.2d 91, 95 (3d Cir.1987) (emphasis added). See also United Steelworkers v. Lukens Steel Co., 969 F.2d 1468, 1474 (3d Cir.1992) ("[w]hen, as here, the collective bargaining agreement contains a broad grievance and arbitration clause, the presumption of arbitrability applies") (emphasis added). In E.M. Diagnostic, for example, the broad arbitration provision applied to "[a]ny dispute arising out a claimed violation of this Agreement [the CBA],” 812 F.2d at 92 (emphasis added), and provided that the "[arbitrator’s decisions shall be binding and final upon all parties.” Id. at 93. Unlike the provision before us, the E.M. Diagnostic provision did not by its explicit terms expressly limit the range of arbitrable disputes to a single category or function, such as limiting the arbitrator's power to modifying a penalty where only disciplinary layoffs or discharges which violate the terms of the CBA are involved. Compare also Lukens Steel, 969 F.2d at 1470 (broad arbitration clause provides for arbitration of all disputes arising from suspension and discharge, without limitation); Morristown Daily Record v. Graphic Communications Union, Local 8N, 832 F.2d 31, 34 (3d Cir.1987) (provision authorizes arbitration of unresolved grievances over "any dispute" over meaning or violation of CBA, or over discharge, without limitation). Because the arbitration provision of Article VII is narrowly crafted to apply only to certain disciplinary discharges and layoffs, we cannot presume, as we might if it were drafted broadly, that the parties here agreed to submit all disputes to arbitration, particularly where the employer has expressly reserved to itself the rights found in Article III, paragraph 6. Thus, the presumption of arbitrability and the E.M. Diagnostic test, which were central to the district court’s analysis, are inapposite. . Thus, the arbitrator's limited authority is threefold: first, he must determine whether a layoff or discharge was the result of disciplinary action provoked by the employee’s conduct; second, he must determine whether the disciplinary layoff or discharge violated the terms of the CBA; and third, if so, he may do no more than modify the "penalty” assessed. . At oral argument, counsel for the Union referred to the “arbitration clause” only in response to an inquiry into its applicability to demotions. Counsel answered that the clause did not apply to Trap Rock’s decisions to demote. . The CBA furnishes no content as to what is meant by a “disciplinary” discharge, and the parties have called our attention to no provision of the CBA pertaining thereto, a burden which we believe rests upon the Union in this proceeding. We assume that the agreement must be read as implicitly referring to actions taken by an employee such as drunkenness, ingestion of controlled substances, theft, and the like, none of which are central either to qualifications or performance, and any of which would commonly result in a disciplinary penalty. . As discussed in text, above, we read Article III, paragraph 6 as an exclusive right to demote or discharge in the exercise of the employer’s discretion. Moreover, at no time has the Union claimed that Torres’ alleged discharge invoked the terms of Article VII, even if that article were relevant here. Nor has any colorable claim of any violation of the CBA ever been identified by the Union. . Torres also alleges that other employees committed infractions similar to his but were neither demoted or discharged, and that this demonstrates that he was treated in a discriminatory fashion. Torres does not, however, deny that he performed his duties improperly; nor does he point to any part of the record which might demonstrate some degree of similarity between the circumstances, severity and frequency of his infractions and those of other employees. . See abo Fed.R.Civ.P. 56(e): “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 the adverse party's pleading, but the adverse party’s 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 the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."

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".

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?

SAMPSON v. CHANNELL. No. 3454. Circuit Court of Appeals, First Circuit. March 27, 1940. Writ of Certiorari Denied June 3,1940. See 60 S.Ct. 1099, 84 L.Ed. —. Walter R. Donovan, of Boston, Mass. (James T. Connolly, of Boston,' Mass., on the brief), for appellant. Hubert C. Thompson,'of Boston, Mass. (John C. Twomey, of Boston, Mass., on the brief), for appellee. Before WILSON and MAGRUDER Circuit Judges, and PETERS, District Judge. MAGRUDER, Circuit Judge. On this appeal the question presented may be stated simply, but the answer is not free from difficulty. A car driven by defendant’s testator collided in Maine with a car driven by the plaintiff, injuring both the plaintiff and his wife, who was a passenger. The wife sued and recovered, judgment. We affirmed that judgment in Channell v. Sampson, Dec. 29, 1939, 1 Cir., 108 F.2d 315. In this, the husband’s action, 'the jury found specially that the plaintiff’s injury was caused by the negligence of defendant’s testator, but brought in a general verdict for the defendant on the issue of contributory negligence. Judgment was entered for the defendant. The action was brought in the federal district court for Massachusetts, there being the requisite diversity of citizenship. On the issue of contributory negligence the plaintiff requested the court to charge the jury, in accordance with the local Massachusetts rule, that “the burden of proving lack of care on the part of the plaintiff is on the defendant”. This the court declined to do, but upon the contrary charged, in accordance with the Maine law, that the burden was upon the plaintiff to show affirmatively that no want of ordinary care on his part contributed to cause his injuries. The sole question raised is as to the correctness of this charge, and refusal to charge as requested. Inquiry must first be directed to whether a federal court, in diversity of citizenship cases, must follow the applicable state rule as to incidence of burden of proof. If the answer is in the affirmative, the further point to be considered is whether the applicable state rule here is that of Massachusetts, where the action was brought, or Maine, where the accident occurred. It would be an over-simplification to say that the case turns on whether burden of proof is a matter of substance or procedure. These are not clean-cut categories. During the reign of Swift v. Tyson, 1842, 16 Pet. 1, 10 L.Ed. 865, the 'federal courts in diversity of citizenship cases consistently held that the defendant had the burden of proving, the plaintiff’s contributory negligence, even though the suit arose in a state whose local rule was the contrary. Pokora v. Wabash Railway Co., 292 U.S. 98, 100, 54 S.Ct. 580, 78 L.Ed. 1149; Miller v. Union Pacific, 290 U.S. 227, 232, 233, 54 S.Ct. 172, 78 L.Ed. 285; Hemingway v. Illinois Central Railroad Co., 5 Cir., 114 F. 843, 846; Armour & Co. v. Carlas, 2 Cir., 142 F. 721, 722; New Ætna Portland Cement Co. v. Hatt, 6 Cir., 231 F. 611, 615-16; Harmon v. Barber, 6 Cir., 247 F. 1, 6; Bauman v. Black & White Town Taxis Co., 2 Cir., 263 F. 554; Maher v. Chicago, M. & St. P. Railway Co., 7 Cir., 278 F. 431, 434; Cook Paint & Varnish Co. v. Hickling, 8 Cir., 76 F.2d 718, 721. See Central Vermont Railroad Co. v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252; First National Bank v. Liewer, 8 Cir., 187 F. 16, 18. They avoided having to apply the local rule under the Conformity Act, R.S. § 914, 28 U.S.C.A. § 724, by saying that burden of proof was not a mere matter of procedure but concerned substantive rights, as to which the federal courts on a matter of “general law” were free to take their own view. See Herron v. Southern Pacific Co., 283 U.S. 91, 93, 94, 51 S.Ct. 383, 75 L.Ed. 857. The question of classification also arose where suit was brought in one state on an alleged tort committed in another state. But here it was generally held, in the state courts at least, that burden of proof as to contributory negligence was a matter of procedure ; hence the rale of the forum would be applied despite a contrary rule of the locus delicti. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477; Smith v. Brown, Mass., 19 N.E.2d 732; Chicago Terminal R. R. v. Vandenberg, 164 Ind. 470, 73 N.E. 990; Rastede v. Chicago, St. P., M. & O. Railway, 203 Iowa 430, 431, 437, 212 N.W. 751; Jenkins v. Railway, 124 Minn. 368, 373, 145 N.W. 40; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053. See Helton v. Alabama Midland, 97 Ala. 275, 12 So. 276; St. Louis & S. F. R. Co. v. Coy, 113 Ark. 265, 168 S.W. 1106; Prinn v. De Rice, 1930, 129 Me. 479, 149 A. 580; Pennsylvania Co. v. McCann, 54 Ohio St. 10, 42 N.E. 768, 31 L.R.A. 651, 56 Am.St.Rep. 695. Contra: Olson v. Omaha & C. B. S. Railway Co., 131 Neb. 94, 267 N.W. 246; Precourt v. Driscoll, 85 N.H. 280, 157 A. 525, 78 A.L.R. 874. Cf. Lykes Bros. SS. Co. v. Esteves, 5 Cir., 89 F.2d 528; Delaware & Hudson Co. v. Nahas, 3 Cir., 14 F.2d 56. In these two groups of cases the courts were talking about the same thing and labelling it differently, but in each instance. the result was the same; the court was choosing the appropriate classification to enable it to apply its own familiar rule. In another and quite-different setting the question of classification has frequently arisen, namely, in cases involving the constitutionality of statutes shifting from the plaintiff to the defendant the burden of proof on the issue of contributory negligence, as applied retroactively to alleged torts committed before the date of the enactment. Here the courts, federal as well as state, have upheld the statutes as so applied. Sackheim v. Pigueron, 215 N.Y. 62, 109 N.E. 109; Southern Ind. Ry. v. Peyton, 157 Ind. 690, 693, 61 N.E. 722; Wallace v. Western N. C. R., 104 N.C. 442, 10 S.E. 552; Easterling Lumber Co. v. Pierce, 235 U.S. 380, 35 S.Ct. 133, 59 L.Ed. 279. See Meeker v. Lehigh Valley Rd. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 59 L.Ed. 644, Ann.Cas.1916B, 691; Luria v. United States, 231 U.S. 9, 25-27, 34 S.Ct. 10, 58 L.Ed. 101; Mobile, Jackson & Kansas City Rd. Co. v. Turnipseed, 219 U.S. 35, 42, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A.,N.S., 226, Ann.Cas.1912A, 463; Reitler v. Harris, 223 U.S. 437, 441, 442, 32 S.Ct. 248, 56 L.Ed. 497. The courts say that such statutes introduce no change of the substantive, law rule that contributory negligence is a complete bar to liability, but pertain only to the procedure by which the fact as to contributory negligence is to be established. In Easterling Lumber Co. v. Pierce, supra, a state statute, applicable to railroads, provided that from the proof of the happening of an accident there should arise a prima facie presumption of negligence. Referring to this statute, the Supreme Court said, 235 U.S. at page 382, 35 S.Ct. at page 134, 59 L.Ed. 279: “The objection to the * * * statute is that it was wanting in due process because retroactively applied to the case since the statute was enacted after the accident occurred. But the court below held that the statute cut off no substantive defense but simply provided a rule of evidence controlling the burden of proof. That as thus construed it does not violate the Fourteenth Amendment to the Constitution of the United States is also so conclusively settled as to again require nothing but a reference to the decided cases.” It is apparent, then, that burden of proof does not fall within either category of “substance” or “procedure” by virtue of any intrinsic compulsion, but the matter has been made to turn upon the purpose at hand to be served by the classification. Therefore, inasmuch as the older decisions in the federal courts, applying in diversity cases the federal rule as to burden of proof as a matter of “general law”, are founded upon an assumption no longer valid since Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, their classification of burden of proof as a matter of substance should be re-examined in the light of the objective and policy disclosed in the Tompkins case. The opinion in that case sets forth as a moving consideration of policy that it is unfair and unseemly to have the outcome of litigation substantially affected by the fortuitous existence of diversity of citizenship. Hence, the greater likelihood there is that litigation would come out one way in the federal court and another way in the state court if the federal court failed to apply a particular local rule, the stronger the urge /would be to classify the rule as not a mere matter of procedure but one of substantive law falling within the mandate of the Tompkins case. There will be, inescapably, a twilight zone between the two categories where a rational classification could be made either way, and where Congress directly, or the Supreme Court under authority of the Act of June 19, 1934, 48 Stat. 1064, 28 U.S.C.A. §§ 723b, 723c, would have power to prescribe a so-called rule of procedure for the federal courts. Thus, if Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, could be construed as imposing upon the defendant the burden of proof of contributory negligence, it seems that this would be valid and conclusive of the case at bar, despite the contrary intimation in Francis v. Humphrey, D.C., 25 F.Supp. 1, 4, 5. Rule 8(c) speaks of contributory negligence as an “affirmative defense”, a phrase implying that the burden of proof is on the defendant. Yet the only rule laid down is one of pleading; the defendant must affirmatively plead contributory negligence. It is not inconsistent to require the defendant to plead contributory negligence if he wants to raise the issue, and yet to put the burden of proof on the plaintiff if the issue is raised. Since Rule 8(c) contains no prescription as to burden of proof, we must look elsewhere for the answer. It seems to be said in Francis v. Humphrey, D.C., 25 F.Supp. 1, 4, and was suggested by counsel in the case at bar, that the question whether in diversity of citizenship cases burden of proof is to be classified as a matter of procedure or substantive law is to be determined by following the classification made by the courts of the state. No doubt we should look to those courts to tell us what their rule is and how it operates in local litigation. But once that is determined, the rule is the same whether it is labeled substantive law or procedure. Furthermore, as already pointed out, such a. classification by the state court for one purpose does not mean that the classification is valid for another purpose. Surely the question whether a particular subject-matter falls within the power of the Supreme Court to prescribe rules of procedure under the Act of 1934, or is a matter of substantive law governed by the doctrine of the Tompkins case, cannot'be foreclosed by the label given to the subject-matter by the state courts. The inquiry then must be: considering the policy underlying Erie Railroad Co. v. Tompkins, supra, would that policy best be served by classifying burden of proof as to contributory negligence as a matter of procedure or substantive law? The incidence of burden of proof may determine the outcome of the case. This is true where the evidence is conflicting and the jury is not convinced either way. It is more' pointedly true where, as sometimes happens, the injured person dies and no evidence is available on the issue of contributory negligence. If, in such a case, the burden of proof is on the defendant, the plaintiff wins, assuming the other elements of the cause of action are established. Miller v. Union Pacific, 290 U.S. 227, 232, 233, 54 S.Ct. 172, 78 L.Ed. 285; Holland v. B. & M. Railroad, 279 Mass. 342, 181 N.E. 217. If the burden is on the plaintiff, however, the defendant wins. McLane v. Perkins, 92 Me. 39, 42 A. 255, 43 L.R.A. 487. Assuming the state rule to be one way and the federal rule the other, then the accident of citizenship becomes decisive of the litigation. The situation seems to call for the application of the rule in the Tompkins case. There is no important counter-consideration here, for the state rule can be easily ascertained and applied by the federal court without any administrative inconvenience. In thus concluding that for this purpose the incidence of the burden of proof as to contributory negligence is to be classified as a matter of substantive law, we are in harmony with the spirit of the Tompkins case, and at the same time are adhering to the classification maintained in an unbroken line of federal court decisions under Swift’ v. Tyson, supra. Federal courts in other circuits have held, since the Tompkins decision, that the state rule as to burden of proof must now be applied in diversity of citizenship cases. Equitable Life Assurance Society v. MacDonald, 9 Cir., 1938, 96 F.2d 437; Schopp v. Muller Dairies, Inc., D.C.N.Y., 1938, 25 F.Supp. 50. See Montgomery Ward & Co., Inc. v. Snuggins, 8 Cir., 1939, 103 F.2d 458; Central Surety & Ins. Corp. v. Murphy, 10 Cir., 1939, 103 F.2d 117; Coca-Cola Bottling Co. v. Munn, 4 Cir., 1938, 99 F.2d 190, 193; Hagan & Cushing Co. v. Washington Water Power Co., 9 Cir., 1938, 99 F.2d 614; Lee v. Cannon Mills Co., 4 Cir., 1939, 107 F.2d 109. The Supreme Court has recently decided that a federal district court in Texas, entertaining a bill to remove a cloud on title to Texas land, must, under Erie Railroad Co. v. Tompkins, supra, apply the established Texas rule that on an issue of bona fide purchase for value without notice, the burden of proof is upon him who attacks the legal title and asserts a superior equity. Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 203, 84 L.Ed. — - (December 4, 1939). In a brief opinion the court makes the point that the local rule “relates to a substantial right upon which the holder of recorded legal title to Texas land may confidently rely. * * * This was a valuable assurance in favor of its title.” While it is not believed that this holding is necessarily conclusive of the question now before us, the fact that the court cited as authority Central Vermont Railway v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252, a case relating to contributory negligence, strengthens our conclusion that the state rule as to burden of proof on the issue of contributory negligence should be followed in the federal court in diversity of citizenship cases. Thus far, the case has been discussed as though suit had been brought in the federal court sitting in tlie state where the alleged tort occurred. But there is the complicating factor that the accident occurred in Maine and suit was brought in Massachusetts. This makes it necessary to consider three further points: First, if the plaintiff had sued in a Massachusetts state court, would the Massachusetts Supreme Judicial Court have allowed the application of the Maine rule as to burden of proof? The answer is, no. The Court would have said that burden of proof is a matter of procedure only, and would have applied the Massachusetts rule that the burden is on the defendant to establish the plaintiff’s contributory negligence. Such was the holding in Levy v. Steiger, 233 Mass. 600, 124 N.E. 477, and Smith v. Brown, Mass., 19 N.E.2d 732. Second, would such a decision by the Supreme Judicial Court of Massachusetts be subject to reversal by the Supreme Court of the United States? Presumably we are permitted under the Tompkins case thus to attack the decision of a state court collaterally, so to speak, for the Supreme Court would hardly require the federal courts to follow a local decision which, had it been appealed, would have been reversed by the Supreme Court on constitutional grounds. No question is involved of sovereign jurisdiction of the state over person or property, a segment of conflict of laws where the Supreme Court of the United States has long had the last word, under the due process clause. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. In Kryger v. Wilson, 242 U.S. 171, 176, 37 S.Ct. 34, 61 L.Ed. 229, the Supreme Court expressed the view that doctrines of the conflict of laws are part of the body of the common law; and that an allegedly erroneous decision by a state court upon a point of conflict of laws no more raises a federal question than would a state decision departing from generally accepted doctrines of contracts or torts. Later decisions have qualified Kryger v. Wilson, supra, somewhat. Occasionally the full faith and credit clause has been successfully invoked, where a state court by an assumed erroneous application of doctrines of conflict of laws has failed to give effect to a statute of another state. See Royal Arcanum v. Green, 237 U.S. 531, 35 S.Ct. 724, 59 L.Ed. 1089, L.R.A.1916A, 771; John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106. Cf. Pacific Employers Ins. Co. v. Industrial Accident Commission, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940. Two or three other decisions, in narrow circumstances, have cited the due process clause to upset judgments of state courts imposing liabilities that would not have been imposed by what the Supreme Court deemed the “appropriate” foreign law. Hartford Indemnity Co. v. Delta Co., 292 U.S. 143, 54 S.Ct. 634, 78 L.Ed. 1178, 92 A.L.R. 928; Home Insurance Co. v. Dick, 281 U.S. 397, 406-409, 50 S.Ct. 338, 74 L.Ed. 926, 74 A.L.R. 701; Western Union Telegraph Co. v. Brown, 234 U.S. 542, 34 S.Ct. 955, 58 L.Ed. 1457. See Ætna Life Ins. Co. v. Dunken, 266 U.S. 389, 45 S.Ct. 129, 69 L.Ed. 342. These decisions have been referred to by legal writers as indicating that the Supreme Court may ultimately establish itself as the final arbiter of all questions of conflict of laws. See Ross, Has the Conflict of Laws Become a Branch of Constitutional Law, 15 Minn.L. Rev. 161; Dodd, The Power of the Supreme Court to Review State Decisions in the Field of Conflict of Laws, 39 Harv.L. Rev. 533; Note, 52 Harv.L.Rev. 1005, 1006. Whatever the eventual development of this line of cases may be, we know of no decision indicating that the Supreme Court at the present time would reverse a decision of a state court in a case like Levy v. Steiger, supra, applying the lex fori rather than the lex loci delicti in the matter of burden of proof. Numerous decisions to this effect have been rendered by state courts, and it has never seemed to occur to anyone that a federal question was involved. Furthermore, in Levy v. Steiger, supra, the Massachusetts court was applying not its common law (which put the burden of proof on the plaintiff, Duggan v. Bay St. Ry., 230 Mass. 370, 375, 119 N.E. 757, L.R.A.1918E, 680), but a statute providing that “In all actions, civil or criminal, to recover damages for injuries to the person or property or for causing the death of a person, the person injured or killed shall he presumed to have been in the exercise of due care, and contributory negligence on his part shall be an affirmative defence to be set up in the answér and proved by the defendant.” Mass.Laws 1914, c. 553, now Mass.G.L. (Ter.Ed.) 1932, c. 231, § 85. To hold that this statute is unconstitutional, as applied in Levy v. Steiger, supra, to a foreign tort, one would have to find somewhere in the Constitution an -implied prohibition to the effect that no state shall pass any law altering an assumed nationally applicable body of doctrine concerning the conflict of laws, the final interpreter of which is the Supreme Court of the United States. It follows, therefore, that the unimpeachable law of Massachusetts in the case at bar is, that in a suit brought in Massachusetts the burden of proof as to contributory negligence is on the defendant, despite the contrary rule applicable iñ Maine where the accident occurred. Third, this being the Massachusetts law, there remains the inquiry, what law must be applied in the federal court in Massachusetts when jurisdiction is invoked on the ground of diversity of citizenship? Under Erie Railroad v. Tompkins, supra, is it the Massachusetts or the Maine rule? We know of no considered decision by the Supreme Court on this point. In the Tompkins case, suit was brought in the federal court in New York on a tort alleged to have been committed in Pennsylvania. The question was whether the railroad owed a duty of care to an undiscovered pedestrian walking on a much-used path along the right of way near the tracks. The Supreme Court held that the lower court was in error in treating this question as a matter of “general law”, and sent the case back for determination in accordance with the common, law of Pennsylvania, as declared by its highest court. There is no doubt that in this situation the state courts of New York would have applied the same rule of conflict of laws, and would have looked to the lex loci delicti. Fitzpatrick v. International Ry. Co., 252 N.Y. 127, 169 N.E. 112, 68 A.L.R. 801. The decision in the Tompkins case manifestly tended to produce a uniformity in result in that particular situation, whether action on the Pennsylvania tort were brought in a New York state court or New York federal court. In Mutual Benefit Ass’n v. Bowman, 304 U.S. 549, 58 S.Ct. 1056, 1057, 82 L.Ed. 1521, suit was brought in the federal court in Nebraska on a contract of insurance made in New Mexico. The lower court decided a question of interpretation as a matter of “general law”. In a brief per curiam opinion the Supreme Court reversed the judgment on the authority of Erie Railroad v. Tompkins, supra, and remanded the case to determine,“the,right of respondent to recover under the law of New Mexico”. For all that appears, the Nebraska state courts would also have looked to the law of New Mexico to determine the interpretation of the contract. The case does not indicate what the decision would have been had it appeared that the Nebraska state courts would have applied a rule differing from that of the New Mexico courts. New York Life Ins. Co. v. Jackson, 304 U.S. 261, 58 S.Ct. 871, 82 L.Ed. 1329, was a similar case. In Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 208, 58 S.Ct. 860, 82 L.Ed. 1290 the court expressly left open the conflict of laws question. Until the point is finally ruled upon by the Supreme Court, lower courts must piece out as best they can the implications of the Tompkins case. The theory is that the federal court in Massachusetts sits as a court coordinate with the Massachusetts state courts to apply the Massachusetts law in diversity of citizenship cases. Under Swift v. Tyson, supra, the federal courts were free to disregard state court decisions on matters of “general law”, and this included state court decisions on the common law relating to conflict of laws. Boseman v. Connecticut Gen. Life Ins. Co., 301 U.S. 196, 57 S.Ct. 686, 81 L.Ed. 1036, 110 A.L.R. 732; Citizens Bank v. Waugh, 4 Cir., 78 F.2d 325, 100 A.L.R. 939; Dygert v. Vermont Loan & Trust Co., 9 Cir., 94 F. 913. But under the Tompkins case the Massachusetts law must be determined by the state statutes and the common law as interpreted by the state courts, not by the federal court’s notion of “general law”. The powerful argument by Holmes, J., dissenting, in Black & White Taxi Co. v. Brown & Yellow Taxi Co., 276 U.S. 518, 532-535, 48 S.Ct. 404, 72 L.Ed. 681, 57 A. L.R. 426, cited with approval by the majority opinion in the Tompkins case (304 U.S. 64, at page 79, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487), seems to be applicable to that portion of the Massachusetts common law relating to conflict of laws quite as much as to the common law of contracts or torts. Except in the limited range of cases, already alluded to above, where state court decisions on points of conflict of laws are subject to reversal by the United Statfes Supreme Court under the federal constitution, the rules applicable to conflict of laws are not “a transcendental body of law outside of any particular state but obligatory within it”. If the federal court in Massachusetts on points of conflict of laws may disregard the law of Massachusetts as formulated by the Supreme Judicial Court and take its own view as a matter of “general law”, then the ghost of Swift v. Tyson, supra, still walks abroad, somewhat shrunken in size, yet capable of much mischief. In the case at bar, it is difficult to see that any gain in the direction of uniformity would be achieved by creating a discrepancy between the rules of law applicable in the Massachusetts state and federal courts, respectively, in order to bring the law of the Massachusetts federal court in harmony with the law that would be applied in the state courts of Maine. Our conclusion is that the court below was bound to apply the law as to burden of proof as it would have been applied by the state courts in Massachusetts. This result may seem to present a surface incongruity, viz., the deference owing to the substantive law of Massachusetts as pronounced by its courts requires the federal court in that state to apply a Massachusetts rule as to burden of proof which the highest state court insists is procedural only. The explanation is that reasons of policy, set forth in the Tompkins case, make it desirable for the federal court in diversity of citizenship cases to apply the state rule, because the incidence of burden of proof is likely to have a decisive influence on the outcome of litigation; and this is true regardless of whether the state court characterizes the rule as one of procedure or substantive law. Certainly the federal court in Massachusetts cannot treat burden of proof as a matter of procedure in order to disregard the Massachusetts rule, and then treat it as substantive law in order to apply the Maine rule. Under the conclusion we have reached, if suit were brought in Massachusetts, the state and federal courts there would be in harmony as to burden of proof; and if suit were brought in Maine, the state and federal courts there would likewise be in harmony on this important matter. It is true that the rule applied in the Maine courts would not be the same as the rule applied in the Massachusetts courts. But this is a disparity that existed prior to Erie Railroad v. Tompkins, supra, and cannot be corrected by the doctrine of that case. It is a disparity that exists because Massachusetts may constitutionally maintain a rule of conflict of laws to the effect that the incidence of burden of proof is a matter of “procedure” to be governed by the law of the forum. Levy v. Steiger, supra. For error in the instructions given to the jury on the burden of proof, the judgment must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. The judgment of the District Court is vacated, the verdict set aside and the case is remanded to that court for further proceedings not inconsistent with this opinion-; the appellant recovers costs of appeal. WILSON, Circuit Judge, concurs in the result. PETERS, District Judge, dissents. See Cook, “Substance” and “Procedure” in the Conflict of Laws (1933) 42 Tale L.J. 333; McOlintock, Distinguishing Substance and Procedure in the Conflict of Laws (1930) 78 U. of Pa. L. Rev. 933; Tunks, Categorization and Federalism: “Substance” and “Procedure” after Erie Railroad v. Tompkins (1939) 34 Ill.L.Rev. 271. In American Law Institute Restatement of Conflict of Laws, § 595, Comment a, it is first stated that the law of the forum governs matters relating to burden of proof. It is then stated that if by the lex loci delicti tho requirement that plaintiff must prove himself free from fault is “interpreted as a condition of the cause of action itself”, then the forum will apply the foreign rule. But to say it is a condition of the eanse of action seems to be merely another way of saying that the plaintiff has the burden of proof; for if this burden is upon tho plaintiff, his recovery is necessarily conditioned upon his convincing tho jury of his freedom from contributory fault. Tho Olson ease, cited in the text, relies upon this section of the Restatement for its authority. In Precourt v. Driscoll, supra, also cited in tho text, the New Hampshire court is affected by the same curious form of statement, which apparently was derived originally from Central Vermont Railway v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 3433, Ann.Cas.1916B, 252. A similar verbal twist could be used to show that a rule putting the burden on tho defendant is a matter of substance. It can be said that where a defendant has negligently caused harm, the requirement that he must affirmatively establish the plaintiff’s contributory negligence is a “condition” of his defense. But putting it this way really proves nothing. If by the lex loci, contributory negligence is not a complete defense but goes only in mitigation of damages, this is clearly a matter of substance as to which the forum would follow the foreign rule. Fitzpatrick v. International Ry. Co., 252 N.Y. 127, 169 N.E. 112, 68 A.L.R. 801; Caine v. St. Louis & S. F. Ry., 1923, 209 Ala. 181, 95 So. 876, 32 A.L.R. 793. So, if by the lex loci, contributory negligence is no defense where defendant had a “last clear chance”, this again is clearly a matter of substantive law. But where the lex loci and the lex fori agree that the plaintiff’s contributory negligence will bar him from recovery, it is not an irrational distinction to say that the question of who has the burden of establishing the facts on the issue of contributory negligence is one of procedure to be governed by the rule of the forum. That distinction is pointed out in Kingery v. Donnell, 222 Iowa 241, 250, 268 N.W. 617, 622. It may be stated thus: procedural rules are those which concern methods of presenting to a court tho operative facts upon which the legal relations depend; substantive rules, those which concern the legal effect of those facts after they have been established. See Stumberg, Conflict of Laws (1937) 128. It is a distinction taken by perhaps the majority of the state courts in conflict of laws cases. It is based upon an obvious difference of degree. Nevertheless, because of the influence which the incidence of burden of proof often has on the outcome of litigation, tho better view would seem to be that in these conflict of laws cases, the forum should apply the rule

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 "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.

This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?

UNITED STATES of America, Plaintiff-Appellee, v. James R. HOFFA, Thomas Ewing Parks and Larry Campbell, Defendants-Appellants. Nos. 18029-18031. United States Court of Appeals Sixth Circuit. July 23, 1968. Morris A. Shenker, St. Louis, Mo., for appellants, Joseph A. Fanelli, Washington, D. C., for James R. Hoffa, Jacques M. Schiffer, Rockville Center, for Thomas Ewing Parks, Cecil D. Branstetter, Nashville, Tenn., for Larry Campbell, Daniel B. Maher, Washington, D. C., of counsel. Theodore George Gilinsky, Atty., Dept. of Justice, Washington, D. C., for appellee, Fred M. Vinson, Jr., Asst. Atty. Gen., Austin S. Mittler, Daniel E. Schultz, Attys., Dept. of Justice, Washington, D. C., John H. Reddy, U. S. Atty., Chattanooga, Tenn., on the brief. Before O’SULLIVAN and CELEBREZZE; Circuit Judges, and CECIL, Senior Circuit Judge. O’SULLIVAN, Circuit Judge. This matter involves the appeals of defendants-appellants, above named, from denial of the fourth motion for a new trial made by them in the above cause. They had been convicted of endeavoring to influence, intimidate and impede petit jurors in the discharge of their duties, in violation of 18 U.S.C. § 1503, by jury verdict returned in the District Court at Chattanooga, Tennessee, on March 4, 1964. On appeal to this Court, their conviction and the denial of their first motion for new trial were affirmed. United States v. Hoffa, 349 F.2d 20 (6th Cir. 1965), aff’d 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), rehearing denied, February 27, 1967, 386 U.S. 951, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967). A second motion for new trial was denied and such denial was affirmed here. United States v. Hoffa, 376 F.2d 1020 (6th Cir. 1967), cert. denied, 389 U.S. 859, 88 S.Ct. 102, 19 L.Ed.2d 124 (1967). The denial of a third motion for new trial, based upon allegedly newly discovered evidence of misconduct of the jurors who convicted appellants, and the United States Marshals who had charge of them, was affirmed by this Court on September 14, 1967, United States v. Hoffa, 382 F.2d 856. The fourth motion for new trial, now before us, was filed on February 28, 1967, amended April 3, 1967, and was denied by order entered May 13, 1967; this denial followed disallowance of appellants’ motion for a 90-day continuance of the hearing on the motion, made on the day set for such hearing, and the refusal to allow the motion’s discontinuance without prejudice. We affirm. This fourth motion — relying on newly discovered evidence — set out charges of improper electronic surveillance of Hoffa, his witnesses, his associates, and his attorneys, by agents of the United States. The charges were extensive, covering a period before, during and after the 1964 trial and were supported by some 20 affidavits. If true, they disclosed questionable conduct by various government agents, including one Walter Sheridan, whose employment by the Department of Justice had been for the special purpose of investigating the activities of James Hoffa in an earlier case involving Hoffa — known as the Test Fleet case. His employment extended from January, 1961, to August, 1964. The motion recited some 82 specifications of alleged misconduct — • tapping telephone .lines, “bugging” of hotel rooms, and like electronic surveillance. The government’s response was supported by affidavits substantially denying charges of plaintiffs’ motion and its supporting affidavits. The District Judge held that an evidentiary hearing should be had to resolve the factual issues framed by the opposing affidavits relating to 53 paragraphs of the motion. As to the other 19 paragraphs of the motion, he held that the allegations thereof were not relevant to the trial at which appellants were convicted, and they were accordingly stricken. On March 27, 1967, with the agreement of all counsel, the evidentiary hearing was set to go forward on May 8, 1967, 1. The stricken allegations. The stricken allegations relate, a) to alleged electronic surveillance of the Florida hotel rooms of James Hoffa and his attorney in 1961 before the happening of any of the events involved in the prosecutions before us; b) to some alleged tapping of the residence telephone of a William Buffalino, one of Hoffa’s attorneys, by Detroit police officers, but the only claim of involvement of federal officers was an unsupported expression by an affiant Detroit officer that he “was under the belief that these were taps for the federal government”; and c) to the electronic surveillance of two telephone conversations involving one Charles O’Brien, apparently an associate of Hoffa, but as the District Judge correctly found, “Exhibits to the defendants’ motion in this respect reflect that the two monitored conversations of O’Brien related only to matters regarding his own pending trial.” We agree with the District Judge that such allegations were not sufficiently relevant or material to the trial of the defendants-appellants to require taking testimony concerning them. They were properly stricken. 2. Denial of continuance and discontinuance without prejudice. On the day finally set for the evi-dentiary hearing — May 9, 1967 — and without earlier request or notice, defendants’ counsel moved for a 90-day continuance on the ground that, “Within the last several days, certain information has come to the attention of counsel. This information is of such a nature that counsel feel it would be improper for them to proceed with the Motion at this time. This information has been communicated to this defendant, [Hoffa] and counsel are authorized in his behalf to ask this Court that this matter be continued for a period of ninety days. Counsel and this defendant feel that to proceed without being fully informed on the matters that were brought to their attention within the last few days would be most improp-' er.” The other appellants joined in this motion. Invited to do so by the District Judge, counsel did not elaborate upon the motion or disclose the nature of the “certain information” that had come to their attention. Neither did counsel disclose what circumstance forbade their disclosing the “certain information”. Upon the District Judge’s indication that no adequate ground for continuance had been shown, appellants’ counsel moved in the alternative that they be allowed to discontinue their motion for new trial without prejudice. The District Judge observed: “Gentlemen, I believe that the motion to be allowed to dismiss should be overruled. This matter has been pending now for several months and the hearing date set for today was the date which was requested by counsel for the defendants after the Court had suggested an earlier date. I believe the motion should be overruled, the motion to dismiss, [without prejudice] and we should proceed.” Appellants declined to proceed, and the District Judge denied the motion for continuance and for leave to discontinue without prejudice. Thereafter, and on May 19, 1967, the judge entered a final order dismissing and denying the motion for a new trial. We consider that denial of the motions for continuance and for leave to dismiss without prejudice were matters addressed to the discretion of the District Judge, which was not in this regard abused. His final order concluded: “It is accordingly Ordered that the motion for new trial filed upon behalf of each defendant upon February 28, 1967, as amended upon April 3, 1967, be and the same is hereby denied as to each ground thereof, the same having been found to be without merit by.the Court, and the motion is accordingly dismissed.” The relevant factual allegations of appellants’ motion having been put in issue by the government’s affidavits traversing them, the burden was on appellants to go forward with the proofs to sustain their charges; declining to do so, it was proper for the District Judge to deny and dismiss the motion. In their address to us, appellants express concern that such order would bar any further motions to the District Court should it later be discovered that the government had been guilty of misconduct or electronic surveillance other than that described in the fourth motion for new trial. We do not consider the District Court’s disposition of the .matter as a holding, as a matter of law, that conduct such as that described in appellants’ motion would not, if proven, be grounds for a new trial. Given the opportunity to prove the motion’s allegations, appellants declined to do so. It was for that reason the motion was denied, and we affirm for that reason. Judgment affirmed. . On February 20, 1967, the Supreme Court denied appellants’ motion to vacate judgment, which alleged violation of their constitutional rights by the use of electronic devices, 386 U.S. 940, 87 S.Ct. 970, 17 L.Ed.2d 880.

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.

Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?

NATIONAL LABOR RELATIONS BOARD v. REMINGTON RAND, Inc. No. 153. Circuit Court of Appeals, Second Circuit. June 1, 1938. Robert B. Watts, of Washington, D. C., for National Labor Relations Board. George H. Cohen, of Hartford, Conn., for Remington Rand, Inc. Before MANTON, L. HAND, and SWAN, Circuit Judges. PER CURIAM. This case now comes up upon two motions: one by the Labor Board, the other by Remington Rand, Inc. That company with unexampled persistence once more seeks to use as a means of fending off enforcement of the Labor Board’s order, the settlement between itself and the American Federation of Labor, concluded on March 18th, 1937, under the auspices of the Secretary of -Labor. We need not consider, whether the settlement of differences between a union, duly accredited by the Labor Board, and an employer may never supersede an order of the Board. The Third Circuit in National Labor Relations Board v. Delaware & New Jersey Ferry, 90 F.2d 520, by a divided court held that it did; and it is perhaps possible to consider the Labor Board as having no interest in the controversy, independent of the wishes of the union which it recognizes as the proper representative of the men. Be that as it may, we do not see how it can be seriously argued that the settlement of March 18, 1937, was intended to supplant any part of the duties imposed by the Board’s order of March 17, 1937. On April 15, 1937, the company’s attorney wrote to the president of the Association of Machinists that the settlement should not “in any way waive the rights of any of the parties under the National Labor Relations Board’s decision * * * it being recognized that the National Labor Relations Board is not a party to this agreement and that any of the parties has a right as a matter of law to take such further action in that matter as may be advisable.” That left the Remington Rand Joint Protective Board free to stir up the Labor Board to enforce its order, and the Labor Board to respond, quite as though the settlement had not been made; the two did not indeed conflict, for enforcement of one neither cancelled the other, nor made impossible its performance. So far.as they overlapped, the settlement was no more than an expression of the company’s willingness to comply with its duties independently imposed by law; so far as the order prescribed more, it was unaffected; so far as the settlement must be read as comprehending all the relations of the parties it is a nullity. The motion to be relieved from the order of March 10, 1938, is denied. The Labor Board moves to punish the company for failure to comply with that order. More than ten weeks have already passed since it was entered and those substitutions of employees which it directed had not yet been made when the motion came on to be heard. It is true that until May 23d, the company did not know that the Supreme Court would not grant certiorari, but its present position goes further; apparently it believes that the substitutions were not peremptorily required, in the sense that they must be carried out regardless of their effect upon the company’s business. That is a mistake; the order required the substitutions unconditionally, regardless as much of their effect upon the company’s business as of the hardship entailed upon those who must be displaced. The old hands are to be offered their former jobs as soon as they can be identified, and so far as the jobs remain: that is to say, so far as anyone else is performing the same, or substantially the same, services as they were performing, or any other services which they can perform. If this involves disturbance of the company’s business, it is no doubt unfortunate; but, having chosen to challenge the law, it must abide the loss. However, although we are not convinced that it is as yet disposed to conform, we will not impose any penalty for the moment. We recognize that the statute was still new, and that there were grounds for anticipating that the Supreme Court might wish to review our order. We will therefore deny the motion, but without prejudice to a renewal should the order not have been complied with within a reasonable time, which we fix at Friday, July 15th, 1938. Motion for relief from the order of this court of March 10th, 1938, denied. Motion to punish the respondent for contempt denied without prejudice.

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 "labor relations".

What is the specific issue in the case within the general category of "labor relations"?

Nathan Carl SCHWARTZ, Appellant, v. UNITED STATES of America, Alfred S. Julien, Movant-Appellee. No. 16257. United States Court of Appeals Third Circuit. Argued May 2, 1967. Decided July 26, 1967. As Amended on Denial of Rehearing Dec. 11, 1967. See also D.C., 230 F.Supp. 536. Albert Dragon, Philadelphia, Pa., for appellant. Elwood S. Levy, Philadelphia, Pa., for appellee. Before McLAUGHLIN, HASTIE and SEITZ, Circuit Judges. OPINION OF THE COURT GERALD McLAUGHLIN, Circuit Judge. This appeal is from the allowance by the District Court of appellee’s motion to fix counsel fees and costs for his services in successfully prosecuting appellant’s claim against the United States under the Tort Claims Act (28 U.S.C.A. § 2671 et seq.) for personal injuries resulting from the negligence of Veterans Administration physicians. The tort suit was started by appellant in 1957. It came on for trial to the Court on March 2, 1964. The testimony was concluded March 20, 1964. On June 17, 1964 the opinion of trial Judge Freedman, D.C., 230 F.Supp. 536, was filed together with his order finding the defendant negligent, plaintiff free from contributory negligence and assessing the damages for the plaintiff in the sum of $725,000. Mr. Julien represented the then plaintiff throughout the trial and the enormous preparation thereof. He originally agreed to a ten percent contingency fee. In January 1964, he advised appellant that he was doing far more work than had been contemplated in the original arrangement and suggested that he should receive fifteen percent. Appellant objected to this and the parties agreed to twelve and one-half percent as the contingency fee. Appellant is an attorney whose main participation in the trial was as a witness. His office associate, Mr. Hoffman, a lawyer at that time for about a year who had no trial experience, sat at the counsel table, took notes and otherwise was of assistance. Appellant was extremely pleased at the outstanding result. Even during the present dispute appellant, called as a witness by Mr. Julien, admitted that “The action was tried very well by you.” After judgment was entered on the verdict the Government appealed. A cross appeal was filed on behalf of Mr. Schwartz. The latter was based on the theory that the Government was not entitled to an $80,000 credit for disability payments to plaintiff as a veteran. While the Government was in the course of perfecting its appeal, it started settlement negotiations with Mr. Julien. $325,000 was offered and refused. Hubert Crean, Esq., one of the two Government trial attorneys, testifying in this proceeding as to Mr. Julien’s attitude regarding settlement, said “The conversations I recall were at least in the early stages and up until the very last part of the negotiations, you [Julien] were against settlement * * * You said we ought to pay the $725,000.” The Government made a final offer of $525,000 which Mr. Schwartz accepted and concerning which Mr. Julien testified Mr. Schwartz commented “This is wonderful. I am delighted.” The next day Mr. Julien, using a Government form, drafted a settlement stipulation which included his 12%% fee. According to Mr. Julien, Mr. Schwartz said to him “Don’t put in twelve and a half percent. Put in ten percent. We will take care of that two and a half percent some other way.” Mr. Julien refused. He suggested that the trial Court fix the fees. Mr. Julien testified that Mr. Schwartz replied “Unless you leave out the provision with respect to attorneys fees you are off the case. That will complicate things.” After that Mr. Julien sent his client and Mr. Hoffman letters “urging each of them to take no action without me.” The next day, September 25, 1964, Mr. Schwartz himself signed the settlement stipulation agreeing to the $525,000. There was no provision for the protection of Mr. Julien’s fee but the stipulation did cover the Veterans Administration disability payments to Mr. Schwartz. The stipulation outlined the identical settlement which had been obtained for Mr. Schwartz by his attorney, Mr. Julien. In November 1964 Mr. Julien filed his motion in the District Court to have his fee fixed. The reason the motion was not heard by Judge Freedman was because meanwhile he had been elevated to the Third Circuit Court of Appeals. The motion was transferred to Judge Joseph S. Lord who attended to the preliminary steps. Mr. Schwartz requested that testimony be taken and sometime later through his then attorney asked that Judge Lord disqualify himself. Judge Lord had been United States Attorney for the Eastern District of Pennsylvania during some part of the existence of the negligence action. He had nothing to do with the Schwartz litigation and the Government attorney told the Court that “ * * * the Government does not have any interest in this dispute.” Nevertheless Judge Lord, in view of the request, did withdraw. The motion' was then assigned to Judge Kirkpatrick. The testimony which had been taken before Judge Lord, by stipulation was made part of the record before Judge Kirkpatrick. At the hearing before the latter, Mr. Schwartz did not testify in his own behalf and did not call any witnesses. The trial Judge found as a fact that the 12%% contingent fee agreement was made between the parties on January 12, 1965. He held that “The agreement was fairly arrived at without fraud, coercion or duress and 12%% was a reasonable figure under the circumstances.” He concluded that “Julien properly, completely and skillfully performed his duties on behalf of his client.” As to Hoffman, the Court found that there was no agreement by Julien employing him or to share his fees with him. The Court allowed interest to Mr. Julien from September 28, 1964 to July 18, 1966 when this phase of the litigation was concluded in the District Court. Earlier the Court had denied Schwartz and Hoffman motions alleging it had no jurisdiction to pass upon the petition for fees. Appellant asserts that he has been deprived of his right to a trial by jury of what he calls “a fee dispute with his attorney.” He would dispose of 28 U.S.C.A. § 2678 titled “Attorney fees; penalty” as having no application here. He offers nothing of merit in support of that position. The statute is clear. It explicitly governs the issue in this appeal. Title 28 is concerned with “Judiciary and Judicial Procedure”. Part Y thereof is captioned “Procedure”. Part VI deals with “Particular Proceedings”. Chapter 171 thereof is captioned “Tort Claims Procedure”. Under it appears the total law governing tort claims against the United States, inter alia the Schwartz claim. The pertinent section reads: “§ 2678. Attorney fees; penalty “The court rendering a judgment for the plaintiff pursuant to section 1346(b) of this title, or the head of the federal agency or his designee making an award pursuant to section 2672 of this title, or the Attorney General making a disposition pursuant to section 2677 of this title, may, as a part of such judgment, award, or settlement, determine and allow reasonable attorney fees, which, if the recovery is $500 or more, shall not exceed 10 per centum of the amount recovered under section 2672 of this title, or 20 per centum of the amount recovered under section 1346(b) of this title, to be paid out of but not in addition to the amount of judgment, award, or settlement recovered, to the attorneys representing the claimant. “Any attorney who charges, demands, receives, or collects for services rendered in connection with such claim any amount in excess of that allowed under this section, if recovery be had, shall be fined not more than $2,000 or imprisoned not more than one year, or both.” Section 1346(b) above referred to gives the District Court “exclusive jurisdiction of civil actions on claims against the United States” such as that of Mr. Schwartz. It is noted that under Section 2678 the claims are tried to the Court, not by a jury; the claim of Mr. Schwartz, as we have seen, was so tried. The fundamental reason for that procedure and for the supervision of attorneys fees is laid down by Mr. Justice Brandeis in Calhoun v. Massie, 253 U.S. 170, 173, 40 S.Ct. 474, 475, 64 L.Ed. 843 (1920) which dealt with a forerunner to the Tort Claims Act: “For nearly three-quarters of a century Congress has undertaken to control in some measure the conditions under which claims against the government may be prosecuted. Its purpose has been in part to protect just claimants from extortion or improvident bargains and in part to protect the treasury from frauds and imposition.” As Section 2678 plainly establishes, it was “The court rendering a judgment * * * ” in the present instance for Mr. Schwartz. Continuing the section states that the court “ * * * may as a part of such settlement determine and allow reasonable attorney fees * * * to be paid out of but not in addition to the amount of the judgment, award, or settlement recovered, to the attorneys representing the claimant.” By this language, the Tort Claims Act, which created Mr. Schwartz’s right and under which the court sitting without a jury rendered a judgment in his favor, authorizes that court to determine and allow a reasonable counsel fee to the claimant’s attorney to be paid out of the judgment recovered, with the statute itself limiting the maximum amounts which may be allowed. This is exactly the procedure followed by the Court below. Section 2678 meticulously eliminates a jury from passing upon any feature of the Tort Claims Act. The fee to a plaintiff’s attorney is an important element of that kind of action. As appellant concedes in his reply brief one of the main purposes of the Congress from the earliest legislation with respect to these claims has been to properly protect plaintiffs and Government funds from exorbitant lawyers charges. It is for this very reason that Section 2678 not only directly bestows upon the court rendering the judgment in the tort suit the right to “determine and allow reasonable attorney fees” but makes it mandatory that where the recovery is $500 or up to $2500 under Section 2672, the fee allowance shall not exceed ten per centum of said amount or 20 per centum of a recovery under Section 1346(b) which latter is pertinent to the problem before us. Appellant in his brief seems to take as his final position that even if Section 2678 is applicable the court should not take jurisdiction because its authority is permissive and there has been no allegation that appellant is an irresponsible individual who might flee the jurisdiction with his assets, etc. He also urges that Mr. Julien does not come into court with clean hands. And he asserts that the fee issue should not have been passed upon by the United States District Court for the Eastern District of Pennsylvania because Judge Freedman, having been elevated to the Third Circuit Court of Appeals, was not available to hear and dispose of the controversy. The view appellant takes of the functioning of the United States District Court is none other than preposterous. It needs no discussion. We fully agree with the holding of the District Court that the trial and appeals were ably handled by Mr. Julien. There is no contention that the original contract was unfair. We are satisfied of the correctness of the District Court finding that the later agreement was in consideration of additional services, was not the product of coercion and did not lack consideration. We have examined and find to be without merit appellant’s theory that appellee’s motion to fix his fee was out of time because it was not filed within ten days of appellant’s submission of a judgment, without notice to appellee. As the United States Supreme Court held in quite the same sort of circumstance, though not under the Tort Claims Statute, “Since we view the petition for reimbursement as an independent proceeding supplemental to the original proceeding and not a request for a modification of the original decree, the suggestion of the Circuit Court of Appeals — that it came after the end of the term at which the main decree was entered and therefore too late — falls.” Sprague v. Ticonic Bank, 307 U.S. 161, 170, 59 S.Ct. 777, 781, 83 L.Ed. 1184 (1939). In a Tort Claims case, the Circuit Court of Appeals of the District of Columbia applied the principles enumerated by Mr. Justice Frankfurter in Sprague, supra, in granting an attorney’s fee where the request had been filed twenty-eight days following the award of a fee to another attorney after settlement of the tort claim. Doherty v. Bress, 104 U.S.App.D.C. 308, 262 F.2d 20 (1958). Appellant makes no denial of never having given appellee notice of the entry by him of the judgment which gave no protection to appellee whatsoever. Appellant would have us ignore this completely because five days after the judgment had been entered, appellee was told of it by a Government attorney. We hold that this was not the quality of notice called for by the Fourteenth Amendment. Schroeder v. City of New York, 371 U.S. 208, 211, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962). In that opinion Mr. Justice Stewart quoted with approval from Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) as follows: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Because our particular question is one solely of Federal law there is no need or use of examining Pennsylvania decisions and we will not do so. We approve of the District Court’s decision respecting interest. We further rule that Mr. Julien is entitled to additional interest from July 18, 1966 to the date of payment to him by appellant of his fee and the stated interest thereon. The judgment of the District Court will be affirmed. Additional interest will be allowed Mr. Julien on his fee from July 18, 1966 to date of payment thereof with the exception of the two months and ten days extension of time allowed appellee for the filing of his brief. There will be no interest allowed for that particular period on the fee awarded him.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.

This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?